G.R. No.

182839, June 02, 2014

PHILIPPINE NATIONAL BANK, Petitioner, v. JOSE GARCIA AND CHILDREN NORA GARCIA, JOSE GARCIA, JR.,
BOBBY GARCIA AND JIMMY GARCIA AND HEIRS OF ROGELIO GARCIA NAMELY: CELEDONIO GARCIA, DANILO
GARCIA, ELSA GARCIA, FERMIN GARCIA, HEHERSON GARCIA, GREGORIO GARCIA, IMELDA GARCIA AND
JANE GARCIA, Respondent.
DECISION
BRION, J.:
We resolve this petition for review on certiorari1 assailing the decision2 dated September 26, 2007 and the
resolution3 dated May 6, 2008 of the Court of Appeals (CA) in CA-G.R. CV No. 71356.
These challenged CA rulings reversed and set aside the decision of the Regional Trial Court (RTC), Branch 23, Roxas,
Isabela, dismissing Civil Case No. Branch 23-500-96 for lack of cause of action.
The Factual Background
The facts of the case, gathered from the records, are briefly summarized below.
The subject of the present case is a parcel of residential land with all its improvements (subject property) located in Barrio
Olango, Mallig, Isabela. The land is covered by Transfer Certificate of Title (TCT) No. T-44422 under the name of Jose
Garcia Sr. (Jose Sr.) who acquired the subject property during his marriage with Ligaya Garcia. Ligaya died on January
21, 1987.
The marriage of Jose Sr. and Ligaya produced the following children: Nora, Jose Jr., Bobby and Jimmy, all surnamed
Garcia, who are the respondents in the present case.
Sometime in 1989, the spouses Rogelio and Celedonia Garcia (Spouses Garcia) obtained a loan facility from the
petitioner, Philippine National Bank (petitioner bank), initially for P150,000.00. The loan was secured by a Real Estate
Mortgage over their property covered by TCT No. 177585. The spouses Garcia increased their loan to P220,000.00 and
eventually to P600,000.00. As security for the increased loan, they offered their property covered by TCT No. 75324 and
the subject property covered by TCT No. T-44422.
Jose Sr. agreed to accommodate the spouses Garcia by offering the subject property as additional collateral security for
the latters increased loan. For this purpose, Jose Sr. executed Special Powers of Attorney (SPAs) dated April 14, 1992
and October 6, 1993, respectively, expressly authorizing the Spouses Garcia to apply for, borrow, or secure any loan from
the petitioner bank, and to convey and transfer the subject property by way of mortgage. Jose Sr. also executed an
Amendment of Real Estate Mortgage in favor of the petitioner bank. The SPAs and the Amendment of Real Estate
Mortgage are both inscribed on TCT No. T-44422. All of these transactions, however, were without the knowledge and
consent of Jose Sr.s children.
On maturity of the loan on April 20, 1994, the spouses Garcia failed to pay their loan to the petitioner bank despite
repeated demands.
On January 12, 1996, the respondents filed before the RTC a Complaint for Nullity of the Amendment of Real Estate
Mortgage, Damages with Preliminary Injunction against the spouses Garcia and the petitioner bank. They claimed that
the Amendment of Real Estate Mortgage was null and void as to respondents Nora, Jose Jr., Bobby and Jimmy as they
were not parties to the contract.
The respondents alleged that the subject property was a conjugal property of Jose Sr. and his deceased spouse, Ligaya,
as they acquired the subject property during their marriage; that upon Ligayas death, Jose Sr., together with his children
Nora, Jose Jr., Bobby and Jimmy, by law, became owners pro indivisoof the subject property; that the petitioner bank was
at fault for not including Jose Sr. as payee to the check representing the loan despite its knowledge that Jose Sr. was a
signatory to the real estate mortgage; that the real estate mortgage executed by Jose Sr. could not bind his children as
they did not give their consent or approval to the encumbrance; and that the real estate mortgage was also void as to
Jose Sr. since he never benefitted from the loan.
In their answer, the Spouses Garcia alleged that Jose Sr. was indebted to them in the amount of P133,800.00. To settle
this indebtedness, Jose Sr. volunteered to give the subject property as additional security for their (the Garcias) loan to
the petitioner bank.
The petitioner bank, on the other hand, claimed that the mortgage was made in good faith and for value, and maintained
that the respondents complaint stated no cause of action against it. It alleged that the real estate mortgage over the

properties was duly registered and inscribed on their titles and was thus binding on the whole world.
In the course of the proceedings, Nora, Jose Jr., Bobby and Jimmy executed an SPA dated May 31, 1996 authorizing
Jose Sr. to act as their attorney-in-fact during the pretrial of the case.
The Ruling of the RTC
The RTC dismissed the complaint for lack of cause of action. The court held that the subject property was a conjugal
property since it was acquired by Jose Sr. during his marriage with his now deceased wife. As a conjugal property, it is
presumed that upon the death of his spouse, one-half of the property passed on to Jose Sr., while the other half went to
Jose and his children as co-owners and as forced heirs of his deceased spouse. Without the consent of the children, the
trial court ruled that the conjugal property could only be transferred or encumbered to the extent of Jose Sr.s share in the
conjugal partnership, plus his share as an heir in the other half pertaining to the estate of his deceased spouse.
The RTC nevertheless declared that by virtue of the SPA executed by Nora, Jose Jr., Bobby and Jimmy in this suit, they
are already estopped from questioning the mortgage and from alleging lack of consent or knowledge in the transaction. It
held Jose Sr. liable as an accommodation party and upheld the petitioner banks right to collect the debt.
The respondents disagreed with the RTC ruling and elevated the case to the CA via an ordinary appeal.cra1awredjgc
The Ruling of the CA
On September 26, 2007, the CA upheld the trial courts finding that the subject property was conjugal, but reversed and
set aside its ruling in so far as it declared valid and binding the Amendment of Real Estate Mortgage between the
petitioner bank, on one hand, and the spouses Garcia and Jose Sr., on the other hand, with respect to respondents Nora,
Jose Jr., Bobby and Jimmy. Relying on the Courts ruling inNufable v. Nufable,4 the CA ruled that the encumbrance Jose
Sr. made over the entire conjugal property, without his childrens conformity, was null and void because a mere part owner
could not alienate the shares of the other co-owners.
The CA also declared that the conjugal property could only be liable to the extent of Jose Sr.s shares; Jose Sr.s acts
could not affect his childrens pro-indiviso shares in the subject property. It disagreed with the trial courts estoppel theory
and held that their execution of the SPA should not be construed as acquiescence to the mortgage transaction. Lastly, it
ruled that Jose Sr. could not escape liability from the mortgage since he voluntarily bound himself as the Spouses Garcias
accommodation mortgagor.cra1awredjgc
The petition
The petitioner bank disputes the CAs finding that the subject property was conjugal in nature. It argues that, as can be
gleaned from TCT No. T-44422, the subject property was registered in the name of Jose Sr. alone, who was described
in the title as widower and not married. The petitioner bank posits that as a mortgagee in good faith, it had the right
to rely on the mortgagors certificate of title; in the absence of any indication that could arouse suspicion, it had no
obligation to undertake further investigation and verify whether the property was conjugal or was acquired during marriage
or thereafter.
Since the subject property belonged to Jose Sr., insofar as petitioner bank as mortgagee was concerned, Jose Sr. had the
right under Article 428 of the Civil Code to mortgage it without the consent of his children. Accordingly, the mortgage in its
entirety should be declared valid.cra1awredjgc
The Comment
The respondents state that the issues raised by petitioner bank are essentially factual; hence, they are beyond the
competence of this Court in a petition for review. They submit that in a certiorari petition under Rule 45 of the Rules of
Court, only questions of law may be entertained because the Court is not a trier of facts.cra1awredjgc
The Courts Ruling
We deny the petition for lack of merit.
The petition before us raises both questions of fact and of law. Whether petitioner bank is a mortgagee in good faith and
for value and whether the subject property was conjugal, are factual issues that this Court cannot look into as our
examination would entail going into factual matters and records of the case. In Rule 45 petitions, only questions of law
may be put into issue. Questions of fact cannot be entertained. 5
Although there are exceptions to the rule that only questions of law may be raised in a petition forcertiorari, the petitioner
bank failed to show that this case falls under any of the established exceptions. Too, since the CA partially affirmed the

findings of the trial court and absent any indication that these courts committed a serious error in its findings, this Court is
bound by these courts findings.6
Moreover, even if we were to review the factual issues raised by the petitioner bank, we still find no reason to depart from
the CAs ruling.
The Subject Property is Conjugal
a. All property acquired during marriage
is presumed conjugal
Since Jose Sr. and Ligaya were married prior to the effectivity of the Family Code, their property relations were governed
by the conjugal partnership of gains as provided under Article 119 of the Civil Code. Under Article 160 of the Civil Code,
all property of the marriage is presumed to belong to the conjugal partnership, unless it can be proven that it pertains
exclusively to the husband or to the wife.
In his testimony, Jose Sr. admitted that at the time he acquired the land through sale, he was already married. The
material portion of his testimony is as follows:chanroblesvirtuallawlibrary
Q:
Upon the death of your wife did you and your wife ever own a piece of land?
A:
Yes, sir.
Q:
Where is that land situated?
A:
In Centro, District 2, Mallig[,] Isabela.
Q:
Is that land titled in your names?
A:
Yes, sir.
xxxx
Q:
You and your wife acquired that piece of land?
A:
Yes, sir.
xxxx
Q:
May we know from you[,] Mr. Witness, how did you acquire this parcel of land presently embraced and
covered by TCT No. T-44422?
A:
I purchased that piece of land from the Baniqued Family during my incumbency as Municipal Mayor, sir.
Q:
What was your civil status at the time you purchased that piece of land?
A:
I was already married, sir. (Emphasis ours, TSN, July 24, 1997, Jose Garcia Sr.)7
Because of the petitioner banks failure to rebut the allegation that the subject property was acquired during the formers
marriage to Ligaya, the legal presumption of the conjugal nature of the property, in line with Article 160 of the Civil Code,
applies to this property. Proof of the subject propertys acquisition during the subsistence of marriage suffices to render
the statutory presumption operative.8
b. Registration of the subject property in
the name of one spouse does not destroy
the presumption that the property is conjugal
The petitioner bank claims that the CA failed to consider that the subject property was registered in the name of Jose Sr.
alone. Likewise, it raises the argument that Jose Sr.s change of status in the subject propertys title from married to
widower prior to the constitution of the real estate mortgage showed that the property was no longer conjugal.
We do not consider this argument persuasive.
Registration of a property alone in the name of one spouse does not destroy its conjugal nature. What is material is the
time when the property was acquired.9 The registration of the property is not conclusive evidence of the exclusive
ownership of the husband or the wife. Although the property appears to be registered in the name of the husband, it has
the inherent character of conjugal property if it was acquired for valuable consideration during marriage. 10 It retains its
conjugal nature.
In order to rebut the presumptive conjugal nature of the property, the petitioner must present strong, clear and convincing
evidence of exclusive ownership of one of the spouses. 11 The burden of proving that the property belongs exclusively to
the wife or to the husband rests upon the party asserting it.
In the present case, aside from its allegation that the subject property is no longer conjugal and its assertion that it is a
mortgagee in good faith, the petitioner bank offered no evidence, convincing to this Court, that the subject property

exclusively belonged to Jose Sr. As stated earlier, the petitioner bank failed to overcome the legal presumption that the
disputed property was conjugal. Thus, the conclusion of both lower courts that the subject property was conjugal property
holds. Factual findings of the CA affirming those of the trial court are binding on this Court unless there is a clear showing
that such findings are tainted with arbitrariness, capriciousness or palpable error.12
The conjugal partnership was converted
into an implied ordinary co-ownership
upon the death of Ligaya
Upon the death of Ligaya on January 21, 1987, the conjugal partnership was automatically dissolved and terminated
pursuant to Article 175(1) of the Civil Code,13 and the successional rights of her heirs vest, as provided under Article 777
of the Civil Code, which states that [t]he rights to the succession are transmitted from the moment of the death of the
decedent.
Consequently, the conjugal partnership was converted into an implied ordinary co-ownership between the surviving
spouse, on the one hand, and the heirs of the deceased, on the other.14 This resulting ordinary co-ownership among the
heirs is governed by Article 493 of the Civil Code which reads:chanroblesvirtuallawlibrary
Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he
may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal
rights are involved. But the effect of the alienation of the mortgage, with respect to the co-owners shall be limited
to the portion which may be allotted to him in the division upon the termination of the co-ownership. (Emphasis
supplied)ChanRoblesVirtualawlibrary
Under this provision, each co-owner has the full ownership of his part or share in the co-ownership and may, therefore,
alienate, assign or mortgage it except when personal rights are involved. Should a co-owner alienate or mortgage the coowned property itself, the alienation or mortgage shall remain valid but only to the extent of the portion which may be
allotted to him in the division upon the termination of the co-ownership. 15 In Carvajal v. Court of Appeals,16 the Court
said:chanroblesvirtuallawlibrary
While under Article 493 of the New Civil Code, each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto and he may alienate, assign or mortgage it, and even substitute another person in its
enjoyment, the effect of the alienation or the mortgage with respect to the co-owners, shall be limited, by mandate
of the same article, to the portion which may be allotted to him in the division upon the termination of the coownership. He has no right to sell or alienate a concrete, specific, or determinate part of the thing in common to
the exclusion of the other co-owners because his right over the thing is represented by an abstract or Ideal
portion without any physical adjudication.3 An individual co- owner cannot adjudicate to himself or claim title to any
definite portion of the land or thing owned in common until its actual partition by agreement or judicial decree. Prior to that
time all that the co-owner has is an Ideal or abstract quota or proportionate share in the entire thing owned in common by
all the co-owners.4 What a co owner may dispose of is only his undivided aliquot share, which shall be limited to the
portion that may be allotted to him upon partition. [emphasis supplied].
In the present case, Jose Sr. constituted the mortgage over the entire subject property after the death of Ligaya, but
before the liquidation of the conjugal partnership. While under Article 493 of the Civil Code, even if he had the right to
freely mortgage or even sell his undivided interest in the disputed property, he could not dispose of or mortgage the entire
property without his childrens consent. As correctly emphasized by the trial court, Jose Sr.s right in the subject property
is limited only to his share in the conjugal partnership as well as his share as an heir on the other half of the
estate which is his deceased spouses share. Accordingly, the mortgage contract is void insofar as it extends to the
undivided shares of his children (Nora, Jose Jr., Bobby and Jimmy) because they did not give their consent to the
transaction.17
Accordingly, the Amendment of Real Estate Mortgage constituted by Jose Sr. over the entire property without his coowners consent is not necessarily void in its entirety. The right of the petitioner bank as mortgagee is limited though only
to the portion which may be allotted to Jose Sr. in the event of a division and liquidation of the subject
property.cra1awlaw1ibrary
WHEREFORE, in view of the foregoing, we hereby AFFIRM the Decision dated September 26, 2007of the Court of
Appeals in CA-G.R. CV No. 71356. Costs against petitioner Philippine National Bank.
SO ORDERED.

G.R. No. 171904, August 07, 2013

BOBBY TAN, Petitioner, v. GRACE ANDRADE, PROCESO ANDRADE, JR., CHARITY A. SANTIAGO, HENRY
ANDRADE, ANDREW ANDRADE, JASMIN BLAZA, GLORY ANDRADE, MIRIAM ROSE ANDRADE, AND JOSEPH
ANDRADE, Respondents.
G.R. No. 172017
GRACE ANDRADE, CHARITY A. SANTIAGO, HENRY ANDRADE, ANDREW ANDRADE, JASMIN BLAZA, MIRIAM
ROSE ANDRADE, AND JOSEPH ANDRADE, Petitioners, v. BOBBY TAN,Respondent.
DECISION
PERLAS-BERNABE, J.:
Before the Court are consolidated petitions for review on certiorari1 assailing the Decision2 dated July 26, 2005 and
Resolution3 dated March 3, 2006 of the Court of Appeals (CA) in CA-G.R. CV No. 71987 which affirmed with modification
the Judgment4 dated April 6, 2001 of the Regional Trial Court of Cebu City, Branch 19 (RTC) in Civil Case No. CEB
20969.
The Facts
Rosario Vda. De Andrade (Rosario) was the registered owner of four parcels of land known as Lots 17, 18, 19, and
205 situated in Cebu City (subject properties) which she mortgaged to and subsequently foreclosed by one Simon 6 Diu
(Simon).7 When the redemption period was about to expire, Rosario sought the assistance of Bobby Tan (Bobby) who
agreed to redeem the subject properties.8 Thereafter, Rosario sold the same to Bobby and her son, Proceso Andrade, Jr.
(Proceso, Jr.), for P100,000.00 as evidenced by a Deed of Absolute Sale 9 dated April 29, 1983 (subject deed of sale). On
July 26, 1983, Proceso, Jr. executed a Deed of Assignment, 10 ceding unto Bobby his rights and interests over the subject
properties in consideration of P50,000.00. The Deed of Assignment was signed by, among others, Henry Andrade
(Henry), one of Rosarios sons, as instrumental witness. Notwithstanding the aforementioned Deed of Assignment, Bobby
extended an Option to Buy11 the subject properties in favor of Proceso, Jr., giving the latter until 7:00 in the evening of July
31, 1984 to purchase the same for the sum of P310,000.00. When Proceso, Jr. failed to do so, Bobby consolidated his
ownership over the subject properties, and the TCTs12therefor were issued in his name.
On October 7, 1997, Rosarios children, namely, Grace, Proceso, Jr., Henry, Andrew, Glory, Miriam Rose, Joseph (all
surnamed Andrade), Jasmin Blaza, and Charity A. Santiago (Andrades), filed a complaint 13 for reconveyance and
annulment of deeds of conveyance and damages against Bobby before the RTC, docketed as Civil Case No. CEB 20969.
In their complaint, they alleged that the transaction between Rosario and Bobby (subject transaction) was not one of sale
but was actually an equitable mortgage which was entered into to secure Rosarios indebtedness with Bobby. They also
claimed that since the subject properties were inherited by them from their father, Proceso Andrade, Sr. (Proceso, Sr.), the
subject properties were conjugal in nature, and thus, Rosario had no right to dispose of their respective shares therein. In
this light, they argued that they remained as co-owners of the subject properties together with Bobby, despite the issuance
of the TCTs in his name.
In his defense, Bobby contended that the subject properties were solely owned by Rosario per the TCTs issued in her
name14 and that he had validly acquired the same upon Proceso, Jr.s failure to exercise his option to buy back the subject
properties.15 He also interposed the defenses of prescription and laches against the Andrades. 16cralaw virtualaw library
The RTC Ruling
On April 6, 2001, the RTC rendered a Judgment17 dismissing the Andrades complaint.
It ruled that the subject transaction was a bona fide sale and not an equitable mortgage as can be gleaned from its terms
and conditions, noting further that the subject deed of sale was not even questioned by the Andrades at the time of its
execution. As Proceso, Jr. failed to exercise his option to buy back the subject properties, the titles thereto were validly
consolidated in Bobbys favor, resulting to the issuance of TCTs in his name which are deemed to be conclusive proof of
his ownership thereto.18 As regards the nature of the subject properties, the RTC found that they appeared to be the
exclusive properties of Rosario.19Finally, it found that the Andrades claim over the subject properties had already
prescribed and thatlaches had already set in.20cralaw virtualaw library
Dissatisfied, the Andrades elevated the matter on appeal.
The CA Ruling
On July 26, 2005, the CA rendered the assailed Decision21 upholding in part the RTCs ruling.
It found that the subject deed of sale was indeed what it purports to be, i.e., a bona fide contract of sale. In this accord, it

denied the Andrades claim that the subject transaction was an equitable mortgage since their allegation that the purchase
price was unusually low was left unsupported by any evidence. Also, their averment that they have been in continuous
possession of the subject properties was belied by the testimony of Andrew Andrade (Andrew) who stated that Bobby was
already in possession of the same. 22cralaw virtualaw library
Nevertheless, the CA ruled that the subject properties belong to the conjugal partnership of Rosario and her late husband,
Proceso, Sr., and thus, she co-owned the same together with her children, the Andrades. 23 In this respect, the sale was
valid only with respect to Rosarios pro-indiviso share in the subject properties and it cannot prejudice the share of the
Andrades since they did not consent to the sale. 24 In effect, a resulting trust was created between Bobby and the
Andrades25 and, as such, prescription and/or laches has yet to set in so as to bar them from instituting the instant
case.26Accordingly, the CA ordered Bobby to reconvey to the Andrades their share in the subject properties. 27cralaw
virtualaw library
In view of the CAs pronouncement, the parties filed their respective motions for reconsideration. For the Andrades part,
they sought the reconsideration of the CAs finding as to its characterization of the subject transaction as one of sale,
insisting that it is actually an equitable mortgage.28 As for Bobbys part, he maintained that the sale should have covered
the entirety of the subject properties and not only Rosarios pro-indiviso share. 29 Both motions for reconsideration were,
however, denied by the CA in a Resolution30dated March 3, 2006.
Hence, the present consolidated petitions.
Issues Before the Court
The present controversy revolves around the CAs characterization of the subject properties as well as of the subject
transaction between Rosario and Bobby.
In G.R. No. 172017, the Andrades submit that the CA erred in ruling that the subject transaction is in the nature of a sale,
while in G.R. No. 171904, Bobby contends that the CA erred in ruling that the subject properties are conjugal in nature.
The Courts Ruling
A. Characterization of the subject transaction.
Settled is the rule that when the trial court's factual findings have been affirmed by the CA, said findings are generally
conclusive and binding upon the Court, and may no longer be reviewed on Rule 45 petitions. 31 While there exists
exceptions to this rule such as when the CAs and RTCs findings are in conflict with each other 32 the Court observes
that none applies with respect to the ruling that the subject transaction was one of sale and not an equitable mortgage.
Records readily reveal that both the RTC and the CA observed that there is no clear and convincing evidence to show that
the parties agreed upon a mortgage. Hence, absent any glaring error therein or any other compelling reason to hold
otherwise, this finding should now be deemed as conclusive and perforce must stand. As echoed in the case of Ampo v.
CA:33cralaw virtualaw library
x x x Factual findings of the Court of Appeals are conclusive on the parties and not reviewable by this Court and they
carry even more weight when the Court of Appeals affirms the factual findings of the trial court, and in the absence of any
showing that the findings complained of are totally devoid of support in the evidence on record, or that they are so
glaringly erroneous as to constitute serious abuse of discretion, such findings must stand. 34cralaw virtualaw library
Consequently, the Andrades petition in G.R. No. 172017 must therefore be denied.
B. Characterization of the subject properties.
With respect to the nature of the subject properties, the courts a quo were at variance such that the RTC, on the one
hand, ruled that the said properties were exclusive properties of Rosario, 35 while the CA, on the other hand, pronounced
that they are conjugal in nature.36 In this regard, the consequent course of action would be for the Court to conduct a reexamination of the evidence if only to determine which among the two is correct, 37 as an exception to the proscription in
Rule 45 petitions.
Pertinent to the resolution of this second issue is Article 160 of the Civil Code 38 which states that [a]ll property of the
marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband
or to the wife. For this presumption to apply, the party invoking the same must, however, preliminarily prove that the
property was indeed acquired during the marriage. As held in Go v. Yamane:39cralaw virtualaw library
x x x As a condition sine qua non for the operation of [Article 160] in favor of the conjugal partnership, the party who
invokes the presumption must first prove that the property was acquired during the marriage.

In other words, the presumption in favor of conjugality does not operate if there is no showing of when the property
alleged to be conjugal was acquired. Moreover, the presumption may be rebutted only with strong, clear, categorical and
convincing evidence. There must be strict proof of the exclusive ownership of one of the spouses, and the burden of proof
rests upon the party asserting it.40 (Citations omitted)
Corollarily, as decreed in Valdez v. CA,41 the presumption under Article 160 cannot be made to apply where there is no
showing as to when the property alleged to be conjugal was acquired:
x x x The issuance of the title in the name solely of one spouse is not determinative of the conjugal nature of the property,
since there is no showing that it was acquired during the marriage of the Spouses Carlos Valdez, Sr. and Josefina L.
Valdez. The presumption under Article 160 of the New Civil Code, that property acquired during marriage is conjugal, does
not apply where there is no showing as to when the property alleged to be conjugal was acquired. The presumption
cannot prevail when the title is in the name of only one spouse and the rights of innocent third parties are involved.
Moreover, when the property is registered in the name of only one spouse and there is no showing as to when the
property was acquired by same spouse, this is an indication that the property belongs exclusively to the said spouse.
In this case, there is no evidence to indicate when the property was acquired by petitioner Josefina. Thus, we agree with
petitioner Josefinas declaration in the deed of absolute sale she executed in favor of the respondent that she was the
absolute and sole owner of the property. x x x. 42cralaw virtualaw library
In this case, records reveal that the conjugal partnership of Rosario and her husband was terminated upon the latters
death on August 7, 197843 while the transfer certificates of title over the subject properties were issued on September 28,
1979 and solely in the name of Rosario Vda. de Andrade, of legal age, widow, Filipino. 44 Other than their bare allegation,
no evidence was adduced by the Andrades to establish that the subject properties were procured during the coverture of
their parents or that the same were bought with conjugal funds. Moreover, Rosarios declaration that she is the absolute
owner of the disputed parcels of land in the subject deed of sale 45 was not disputed by her son Proceso, Jr., who was a
party to the same. Hence, by virtue of these incidents, the Court upholds the RTCs finding 46 that the subject properties
were exclusive or sole properties of Rosario.
Besides, the Court observes that laches had already set in, thereby precluding the Andrades from pursuing their claim.
Case law defines laches as the failure to assert a right for an unreasonable and unexplained length of time, warranting a
presumption that the party entitled to assert it has either abandoned or declined to assert it. 47cralaw virtualaw library
Records disclose that the Andrades took 14 years before filing their complaint for reconveyance in 1997. The argument
that they did not know about the subject transaction is clearly belied by the facts on record. It is undisputed that Proceso,
Jr. was a co-vendee in the subject deed of sale,48 while Henry was an instrumental witness to the Deed of
Assignment49 and Option to Buy50 both dated July 26, 1983. Likewise, Rosarios sons, Proceso, Jr. and Andrew, did not
question the execution of the subject deed of sale made by their mother to Bobby.51 These incidents can but only lead to
the conclusion that they were well-aware of the subject transaction and yet only pursued their claim 14 years after the sale
was executed.
Due to the above-stated reasons, Bobbys petition in G.R. No. 171904 is hereby granted.
WHEREFORE, the Court hereby (a) GRANTS the petition of Bobby Tan in G.R. No. 171904; and (b)DENIES the petition
of Grace Andrade, Charity A. Santiago, Henry Andrade, Andrew Andrade, Jasmin Blaza, Miriam Rose Andrade, and
Joseph Andrade in G.R. No. 172017. Accordingly, the Decision dated July 26, 2005 and Resolution dated March 3, 2006
of the Court of Appeals in CA-G.R. CV No. 71987 are herebyREVERSED and SET ASIDE, and the April 6, 2001 Decision
of the Regional Trial Court of Cebu City, Branch 19 in Civil Case No. CEB 20969 is REINSTATED.
SO ORDERED.

ANTONIA R. DELA PEA and ALVIN JOHN

B. DELA PEA,
Petitioners,

G.R. No. 187490

Present:
- versus -

CARPIO, J.,
Chairperson,
BRION,
PEREZ,

SERENO, and
REYES, JJ.
GEMMA REMILYN C. AVILA and FAR
EAST BANK & TRUST CO.,
Respondents.
Promulgated:
February 8, 2012
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
PEREZ, J.:

Filed pursuant to Rule 45 of the 1997 Rules of Civil Procedure, this petition for review on certiorari seeks the reversal and
setting aside of the Decision[1] dated 31 March 2009 rendered by the then Second Division of the Court of Appeals in CAG.R. CV No. 90485,[2] the dispositive portion of which states:
WHEREFORE, premises considered, the appeal is GRANTED and the assailed Decision, dated
December 18, 2007, of the Regional Trial Court of Marikina City, Branch 272, is hereby REVERSED and
SET ASIDE. The Deed of Absolute Sale in favor of Gemma Avila dated November 4, 1997 and the
subsequent sale on auction of the subject property to FEBTC (now Bank of the Philippine Islands) on
March 15, 1999 are upheld as valid and binding.
SO ORDERED.[3]
The Facts
The suit concerns a 277 square meter parcel of residential land, together with the improvements thereon, situated in
Marikina City and previously registered in the name of petitioner Antonia R. Dela Pea (Antonia), married to Antegono A.
Dela Pea (Antegono) under Transfer Certificate of Title (TCT) No. N-32315 of the Registry of Deeds of Rizal. [4] On 7 May
1996, Antonia obtained from A.C. Aguila & Sons, Co. (Aguila) a loan in the sum of P250,000.00 which, pursuant to
the Promissory Note the former executed in favor of the latter, was payable on or before 7 July 1996, with interest pegged
at 5% per month.[5] On the very same day, Antonia also executed in favor of Aguila a notarized Deed of Real Estate
Mortgageover the property, for the purpose of securing the payment of said loan obligation. The deed provided, in part,
that (t)his contract is for a period of Three (3) months from the date of this instrument. [6]

On 4 November 1997, Antonia executed a notarized Deed of Absolute Sale over the property in favor of respondent
Gemma Remilyn C. Avila (Gemma), for the stated consideration ofP600,000.00.[7] Utilizing the document, Gemma caused
the cancellation of TCT No. N-32315 as well as the issuance of TCT No. 337834 of the Marikina City Registry of Deeds,
naming her as the owner of the subject realty.[8] On 26 November 1997, Gemma also constituted a real estate mortgage

over said parcel in favor of respondent Far East Bank and Trust Company [now Bank of the Philippine Islands] (FEBTCBPI), to secure a loan facility with a credit limit of P1,200,000.00.[9] As evidenced by the Promissory Notes she executed
from 12 December 1997 to 10 March 1998,[10] Gemma obtained the following loans from Visayas Avenue Branch of the
FEBTC-BPI, in the aggregate sum of P1,200,000.00, to wit:
Promissory Note

Date

Amount

Maturity

BDS#970779

12/02/97

P300,000.00

04/30/98

BDS#970790

12/15/97

P100,000.00

04/14/98

BDS#980800

01/16/98

P100,000.00

04/30/98

BDS#980805

02/06/98

P100,000.00

04/30/98

BDS#980817

02/27/98

P150,000.00

04/30/98

BDS#980821

03/10/98

P450,000.00

04/30/98

On 3 March 1998, in the meantime, Antonia filed with the Register of Deeds of Marikina an Affidavit of Adverse Claim to
the effect, among others, that she was the true and lawful owner of the property which had been titled in the name of
Gemma under TCT No. 32315; and, that the Deed of Absolute Sale Gemma utilized in procuring her title was simulated.
[11]

As a consequence, Antonias Affidavit of Adverse Claim was inscribed on TCT No. 337834 as Entry No. 501099 on 10

March 1998.[12] In view of Gemmas failure to pay the principal as well as the accumulated interest and penalties on the
loans she obtained, on the other hand, FEBTC-BPI caused the extrajudicial foreclosure of the real estate mortgage
constituted over the property. As the highest bidder at the public auction conducted in the premises, [13] FEBTC-BPI later
consolidated its ownership over the realty and caused the same to be titled in its name under TCT No. 415392 of
the Marikina registry.[14]

On 18 May 1998, Antonia and her son, petitioner Alvin John B. Dela Pea (Alvin), filed against Gemma the complaint for
annulment of deed of sale docketed before Branch 272 of the Regional Trial Court (RTC) of Marikina City as Civil Case
No. 98-445-MK. Claiming that the subject realty was conjugal property, the Dela Peas alleged, among other matters, that
the 7 May 1996 Deed of Real Estate Mortgage Antonia executed in favor of Aguila was not consented to by Antegono who
had, by then, already died; that despite its intended 1998 maturity date, the due date of the loan secured by the mortgage
was shortened by Gemma who, taking advantage of her proximate relationship with Aguila, altered the same to
1997; and, that the 4 November 1997 Deed of Absolute Sale in favor of Gemma was executed by Antonia who was misled
into believing that the transfer was necessary for the loan the former promised to procure on her behalf from FEBTCBPI. In addition to the annulment of said Deed of Absolute Sale for being simulated and derogatory of Alvins successional

rights, the Dela Peas sought the reconveyance of the property as well as the grant of their claims for moral and exemplary
damages, attorneys fees and the costs.[15]

Served with summons, Gemma specifically denied the material allegations of the foregoing complaint in her 1 July 1998
answer. Maintaining that the realty was the exclusive property of Antonia who misrepresented that her husband was still
alive, Gemma averred that the former failed to pay the P250,000.00 loan she obtained from Aguila on its stipulated 7 July
1996 maturity; that approached to help prevent the extrajudicial foreclosure of the mortgage constituted on the property,
she agreed to settle the outstanding obligation to Aguila and to extend Antonia a P50,000.00 loan, with interest pegged at
10% per month; that to pay back the foregoing accommodations, Antonia agreed to the use of the property as collateral
for a loan to be obtained by her from FEBTC-BPI, hence, the execution of the impugned Deed of Absolute Sale; and, that
conformably with the foregoing agreement, she obtained loans in the total sum of P1,200,000.00 from FEBTC-BPI and
applied the proceeds thereof to the sums owed by Antonia. Together with the dismissal of the complaint, Gemma also
prayed for the grant of her counterclaims for moral and exemplary damages, attorneys fees, litigation expenses and the
costs.[16]

On 25 September 1999, the Dela Peas filed a supplemental complaint, impleading FEBTC-BPI as additional
defendant. Calling attention to Antonias 3 March 1998 Affidavit of Adverse Claim and the Notice of Lis Pendens they
purportedly caused to be annotated on TCT No. 337834 on 10 December 1999, the Dela Peas alleged that FEBTC-BPI
was in bad faith when it purchased the property at public auction on 15 March 1999. [17] In their 12 November 1999 answer,
FEBTC-BPI, in turn, asserted that the property was already titled in Gemmas name when she executed the 26 November
1997 real estate mortgage thereon, to secure the payment of the loans she obtained in the sum of P1,200,000.00; and,
that not being privy to Antonias transaction with Gemma and unaware of any adverse claim on the property, it was a
mortgagee in good faith, entitled to foreclose the mortgage upon Gemmas failure to pay the loans she obtained. Seeking
the dismissal of the complaint and the grant of its counterclaims for damages against the Dela Peas, FEBTC-BPI
alternatively interposed cross-claims against Gemma for the payment of the subject loans, the accumulated interests and
penalties thereon as well as such sums for which it may be held liable in the premises. [18]

On 14 April 2000, the RTC issued the order terminating the pre-trial stage and declaring Gemma in default for
failure to attend the pre-trial settings and to engage the services of a new lawyer despite due notice and the withdrawal of
her counsel of record.[19] In support of their complaint, Antonia [20] and Alvin[21] both took the witness stand and, by way of

10

corroborative evidence, presented the testimony of one Alessandro Almoden [22] who claimed to have referred Antonia to
Gemma for the purpose of obtaining a loan. By way of defense evidence, on the other hand, FEBTC-BPI adduced the oral
evidence elicited from Eleanor Abellare, its Account Officer who handled Gemmas loans, [23] and Zenaida Torres, the
National Bureau of Investigation (NBI) Document Examiner who, after analyzing Antonias specimen signatures on the 7
May 1996 Deed of Real Estate Mortgage and 4 November 1997Deed of Absolute Sale,[24] issued NBI Questioned
Documents Report No. 482-802 to the effect, among others, that said signatures were written by one and the same
person.[25]

On 18 December 2007, the RTC went on to render a Decision finding that the subject property was conjugal in
nature and that the 4 November 1997 Deed of Absolute Sale Antonia executed in favor of Gemma was void as a
disposition without the liquidation required under Article 130 of the Family Code. Brushing aside FEBTC-BPIs claim of
good faith,[26] the RTC disposed of the case in the following wise:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in favor of the plaintiffs and
against the defendants, as follows:
1). Declaring the Deed of Absolute dated November 04, 1997 in favor of defendant,
[Gemma] as null and void;
2). Ordering defendant [FEBTC-BPI] to execute a deed of reconveyance in favor of the
[Dela Peas] involving the subject property now covered by Transfer Certificate of Title No.
415392 in the name of [FEBTC-BPI];
3). Ordering [Gemma] to pay the [Dela Peas] the following:
a). the amount of P200,000.00 as moral damages; and
b). the amount of P20,000.00 as and for attorneys fees; and
c). costs of the suit
On the cross-claim, [Gemma] is hereby ordered to pay [FEBTC-BPI] the amount of P2,029,317.17 as of
November 10, 1999, with twelve (12%) percent interest per annum until fully paid.
SO ORDERED.[27]

Aggrieved, FEBTC-BPI perfected the appeal which was docketed before the CA as CA-G.R. CV No. 90485. On
31 March 2009 the CAs Second Division rendered the herein assailed decision, reversing the RTCs appealed decision,
upon the following findings and conclusions: (a) the property was paraphernal in nature for failure of the Dela Peas to
prove that the same was acquired during Antonias marriage to Antegono; (b) having misled Gemma into believing that the
property was exclusively hers, Antonia is barred from seeking the annulment of the 4 November 1997 Deed of Absolute
Sale; (c) Antonias claim that her signature was forged is belied by her admission in the pleadings that she was misled by
Gemma into executing said Deed of Absolute Sale and by NBI Questioned Document Report No. 482-802; and, (d)

11

FEBTC-BPI is a mortgagee in good faith and for value since Gemmas 26 November 1997 execution of the real estate
mortgage in its favor predated Antonias 3 March 1998 Affidavit of Adverse Claim and the 10 December 1999 annotation of
a Notice of Lis Pendens on TCT No. 337834.[28]
The Issues
The Dela Peas seek the reversal of the assailed 31 March 2009 CA decision upon the affirmative of following
issues, to wit:
1) Whether or not the CA erred in reversing the RTC holding the house and lot covered by
TCT No. N-32315 conjugal property of the spouses Antegono and Antonia Dela Pea;
2) Whether or not the CA erred in reversing the RTC declaring null and void the Deed of
Absolute Sale executed by Antonia to (Gemma); and
3. Whether or not the CA erred in reversing the RTC holding (FEBTC-BPI) a
mortgagee/purchaser in bad faith.[29]
The Courts Ruling
The petition is bereft of merit.

Pursuant to Article 160 of the Civil Code of the Philippines, all property of the marriage is presumed to belong to
the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife. Although it is not
necessary to prove that the property was acquired with funds of the partnership, [30] proof of acquisition during the marriage
is an essential condition for the operation of the presumption in favor of the conjugal partnership. [31] In the case
of Francisco vs. Court of Appeals,[32] this Court categorically ruled as follows:
Article 160 of the New Civil Code provides that "all property of the marriage is presumed to
belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the
wife." However, the party who invokes this presumption must first prove that the property in controversy
was acquired during the marriage. Proof of acquisition during the coverture is a condition sine qua non for
the operation of the presumption in favor of the conjugal partnership. The party who asserts this
presumption must first prove said time element. Needless to say, the presumption refers only to the
property acquired during the marriage and does not operate when there is no showing as to when
property alleged to be conjugal was acquired. Moreover, this presumption in favor of conjugality is
rebuttable, but only with strong, clear and convincing evidence; there must be a strict proof of exclusive
ownership of one of the spouses.[33]

As the parties invoking the presumption of conjugality under Article 160 of the Civil Code, the Dela Peas did not even
come close to proving that the subject property was acquired during the marriage between Antonia and Antegono. Beyond
Antonias bare and uncorroborated assertion that the property was purchased when she was already married, [34] the record
is bereft of any evidence from which the actual date of acquisition of the realty can be ascertained. When queried about

12

the matter during his cross-examination, even Alvin admitted that his sole basis for saying that the property was owned by
his parents was Antonias unilateral pronouncement to the effect. [35] Considering that the presumption of conjugality does
not operate if there is no showing of when the property alleged to be conjugal was acquired, [36] we find that the CA cannot
be faulted for ruling that the realty in litigation was Antonias exclusive property.

Not having established the time of acquisition of the property, the Dela Peas insist that the registration thereof in the name
of Antonia R. Dela Pea, of legal age, Filipino, married to Antegono A. Dela Pea should have already sufficiently
established its conjugal nature. Confronted with the same issue in the case Ruiz vs. Court of Appeals,[37] this Court ruled,
however, that the phrase married to is merely descriptive of the civil status of the wife and cannot be interpreted to mean
that the husband is also a registered owner. Because it is likewise possible that the property was acquired by the wife
while she was still single and registered only after her marriage, neither would registration thereof in said manner
constitute proof that the same was acquired during the marriage and, for said reason, to be presumed conjugal in
nature. Since there is no showing as to when the property in question was acquired, the fact that the title is in the name of
the wife alone is determinative of its nature as paraphernal, i.e., belonging exclusively to said spouse.[38]

Viewed in light of the paraphernal nature of the property, the CA correctly ruled that the RTC reversibly erred in nullifying
Antonias 4 November 1997 sale thereof in favor of Gemma, for lack of the liquidation required under Article 130 of
the Family Code.[39] That Antonia treated the realty as her own exclusive property may, in fact, be readily gleaned from her
utilization thereof as security for the payment of the P250,000.00 loan she borrowed from Aguila. [40] Despite Gemmas
forfeiture of the right to present evidence on her behalf, her alleged alteration of the 7 May 1996 Deed of Real Estate
Mortgage to shorten the maturity of the loan secured thereby was also properly brushed aside by the CA. The double lie
inherent in Antonias assertion that the same deed was altered by Gemma to shorten the maturity of the loan to 1997
instead of 1998 is instantly evident from paragraph 1 of the document which, consistent with 7 July 1996 maturity date
provided in the Promissory Note she executed,[41] specifically stated that (t)his contract is for a period of Three (3) months
from the date of this instrument.[42]

Antonias evident lack of credibility also impels us to uphold the CAs rejection of her version of the circumstances
surrounding the execution of the 4 November 1997 Deed of AbsoluteSale in favor of Gemma. In disavowing authorship of
the signature appearing on said deed,[43] Antonia contradicted the allegation in the Dela Peas complaint that she was
misled by Gemma into signing the same document. [44] The rule is well-settled that judicial admissions like those made in

13

the pleadings are binding and cannot be contradicted, absent any showing that the same was made thru palpable
mistake.[45] Alongside that appearing on the Deed of Real Estate Mortgage she admitted executing in favor of Aguila,
Antonias signature on theDeed of Absolute Sale was, moreover, found to have been written by one and the same person
in Questioned Document Report No. 482-802 prepared by Zenaida Torres, the NBI Document Examiner to whom said
specimen signatures were submitted for analysis. [46] Parenthetically, this conclusion is borne out by our comparison of the
same signatures.

For all of Antonias denial of her receipt of any consideration for the sale of the property in favor of Gemma, [47] the evidence
on record also lend credence to Gemmas version of the circumstances surrounding the execution of the assailed 4
November 1997 Deed of Absolute Sale. Consistent with Gemmas claim that said deed was executed to facilitate the loans
she obtained from FEBTC-BPI which were agreed to be used as payment of the sums she expended to settle the
outstanding obligation to Aguila and the P50,000.00 she loaned Antonia, [48]the latter admitted during her direct
examination that she did not pay the loan she obtained from Aguila. [49] Presented as witness of the Dela Peas, Alessandro
Almoden also admitted that Gemma had extended a loan in the sum of P50,000.00 in favor of Antonia. Notably,
Alessandro Almodens claim that the title to the property had been delivered to Gemma as a consequence of the
transaction[50] is at odds with Antonias claim that she presented said document to the Registry of Deeds when she verified
the status of the property prior to the filing of the complaint from which the instant suit originated. [51]

With the material contradictions in the Dela Peas evidence, the CA cannot be faulted for upholding the validity of the
impugned 4 November 1997 Deed of Absolute Sale. Having been duly notarized, said deed is a public document which
carries the evidentiary weight conferred upon it with respect to its due execution. [52] Regarded as evidence of the facts
therein expressed in a clear, unequivocal manner,[53] public documents enjoy a presumption of regularity which may only
be rebutted by evidence so clear, strong and convincing as to exclude all controversy as to falsity. [54] The burden of proof
to overcome said presumptions lies with the party contesting the notarial document [55] like the Dela Peas who,
unfortunately, failed to discharge said onus. Absent clear and convincing evidence to contradict the same, we find that the
CA correctly pronounced the Deed of Absolute Sale was valid and binding between Antonia and Gemma.

Since foreclosure of the mortgage is but the necessary consequence of non-payment of the mortgage debt, [56] FEBTC-BPI
was, likewise, acting well within its rights as mortgagee when it foreclosed the real estate mortgage on the property upon
Gemmas failure to pay the loans secured thereby. Executed on 26 November 1997, the mortgage predated Antonias filing

14

of anAffidavit of Adverse Claim with the Register of Deeds of Marikina on 3 March 1998 and the annotation of a Notice of
Lis Pendens on TCT No. 337834 on 10 December 1999. Themortgage directly and immediately subjects the property
upon which it is imposed, whoever the possessor may be, to the fulfilment of the obligation for whose security it was
constituted.[57] When the principal obligation is not paid when due, the mortgagee consequently has the right to foreclose
the mortgage, sell the property, and apply the proceeds of the sale to the satisfaction of the unpaid loan. [58]

Finally, the resolution of this case cannot be affected by the principles that banks like FEBTC-BPI are expected to
exercise more care and prudence than private individuals in that their dealings because their business is impressed with
public interest[59] and their standard practice is to conduct an ocular inspection of the property offered to be mortgaged and
verify the genuineness of the title to determine the real owner or owners thereof, hence, the inapplicability of the general
rule that a mortgagee need not look beyond the title does not apply to them. [60] The validity of the Deed of Absolute
Sale executed by Antonia in favor of Gemma having been upheld, FEBTC-BPIs supposed failure to ascertain the
ownership of the property has been rendered immaterial for the purpose of determining the validity of the mortgage
executed in its favor as well as the subsequent extrajudicial foreclosure thereof.

WHEREFORE, premises considered, the petition is DENIED for lack of merit and the assailed CA Decision dated 31
March 2009 is, accordingly, AFFIRMED in toto.

SO ORDERED.

HOMEOWNERS SAVINGS & LOAN BANK, petitioner, vs. MIGUELA C. DAILO, respondent.
DECISION
TINGA, J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court, assailing the Decision[1] of the
Court of Appeals in CA-G.R. CV No. 59986 rendered on June 3, 2002, which affirmed with modification the October 18,
1997 Decision[2] of the Regional Trial Court, Branch 29, San Pablo City, Laguna in Civil Case No. SP-4748 (97).
The following factual antecedents are undisputed.
Respondent Miguela C. Dailo and Marcelino Dailo, Jr. were married on August 8, 1967. During their marriage, the
spouses purchased a house and lot situated at Barangay San Francisco, San Pablo City from a certain Sandra Dalida.
The subject property was declared for tax assessment purposes under Assessment of Real Property No. 94-051-2802.
The Deed of Absolute Sale, however, was executed only in favor of the late Marcelino Dailo, Jr. as vendee thereof to the
exclusion of his wife.[3]
On December 1, 1993, Marcelino Dailo, Jr. executed a Special Power of Attorney (SPA) in favor of one Lilibeth
Gesmundo, authorizing the latter to obtain a loan from petitioner Homeowners Savings and Loan Bank to be secured by
the spouses Dailos house and lot in San Pablo City. Pursuant to the SPA, Gesmundo obtained a loan in the amount
of P300,000.00 from petitioner. As security therefor, Gesmundo executed on the same day a Real Estate Mortgage
constituted on the subject property in favor of petitioner. The abovementioned transactions, including the execution of the
SPA in favor of Gesmundo, took place without the knowledge and consent of respondent. [4]
Upon maturity, the loan remained outstanding. As a result, petitioner instituted extrajudicial foreclosure proceedings
on the mortgaged property. After the extrajudicial sale thereof, a Certificate of Sale was issued in favor of petitioner as the

15

highest bidder. After the lapse of one year without the property being redeemed, petitioner, through its vice-president,
consolidated the ownership thereof by executing on June 6, 1996 an Affidavit of Consolidation of Ownership and a Deed
of Absolute Sale.[5]
In the meantime, Marcelino Dailo, Jr. died on December 20, 1995. In one of her visits to the subject property,
respondent learned that petitioner had already employed a certain Roldan Brion to clean its premises and that her car, a
Ford sedan, was razed because Brion allowed a boy to play with fire within the premises.
Claiming that she had no knowledge of the mortgage constituted on the subject property, which was conjugal in
nature, respondent instituted with the Regional Trial Court, Branch 29, San Pablo City, Civil Case No. SP-2222 (97)
for Nullity of Real Estate Mortgage and Certificate of Sale, Affidavit of Consolidation of Ownership, Deed of Sale,
Reconveyance with Prayer for Preliminary Injunction and Damages against petitioner. In the latters Answer with
Counterclaim, petitioner prayed for the dismissal of the complaint on the ground that the property in question was the
exclusive property of the late Marcelino Dailo, Jr.
After trial on the merits, the trial court rendered a Decision on October 18, 1997. The dispositive portion thereof reads
as follows:
WHEREFORE, the plaintiff having proved by the preponderance of evidence the allegations of the Complaint, the Court
finds for the plaintiff and hereby orders:
ON THE FIRST CAUSE OF ACTION:
1. The declaration of the following documents as null and void:
(a) The Deed of Real Estate Mortgage dated December 1, 1993 executed before Notary Public Romulo
Urrea and his notarial register entered as Doc. No. 212; Page No. 44, Book No. XXI, Series of 1993.
(b) The Certificate of Sale executed by Notary Public Reynaldo Alcantara on April 20, 1995.
(c) The Affidavit of Consolidation of Ownership executed by the defendant
(c) The Affidavit of Consolidation of Ownership executed by the defendant over the residential lot located at
Brgy. San Francisco, San Pablo City, covered by ARP No. 95-091-1236 entered as Doc. No. 406;
Page No. 83, Book No. III, Series of 1996 of Notary Public Octavio M. Zayas.
(d) The assessment of real property No. 95-051-1236.
2. The defendant is ordered to reconvey the property subject of this complaint to the plaintiff.
ON THE SECOND CAUSE OF ACTION
1. The defendant to pay the plaintiff the sum of P40,000.00 representing the value of the car which was burned.
ON BOTH CAUSES OF ACTION
1. The defendant to pay the plaintiff the sum of P25,000.00 as attorneys fees;
2. The defendant to pay plaintiff P25,000.00 as moral damages;
3. The defendant to pay the plaintiff the sum of P10,000.00 as exemplary damages;
4. To pay the cost of the suit.
The counterclaim is dismissed.
SO ORDERED.[6]
Upon elevation of the case to the Court of Appeals, the appellate court affirmed the trial courts finding that the subject
property was conjugal in nature, in the absence of clear and convincing evidence to rebut the presumption that the subject
property acquired during the marriage of spouses Dailo belongs to their conjugal partnership. [7] The appellate court
declared as void the mortgage on the subject property because it was constituted without the knowledge and consent of
respondent, in accordance with Article 124 of the Family Code. Thus, it upheld the trial courts order to reconvey the
subject property to respondent.[8] With respect to the damage to respondents car, the appellate court found petitioner to be
liable therefor because it is responsible for the consequences of the acts or omissions of the person it hired to accomplish
the assigned task.[9] All told, the appellate court affirmed the trial courts Decision, but deleted the award for damages and
attorneys fees for lack of basis.[10]
Hence, this petition, raising the following issues for this Courts consideration:
1. WHETHER OR NOT THE MORTGAGE CONSTITUTED BY THE LATE MARCELINO DAILO, JR. ON THE SUBJECT
PROPERTY AS CO-OWNER THEREOF IS VALID AS TO HIS UNDIVIDED SHARE.
2. WHETHER OR NOT THE CONJUGAL PARTNERSHIP IS LIABLE FOR THE PAYMENT OF THE LOAN OBTAINED BY
THE LATE MARCELINO DAILO, JR. THE SAME HAVING REDOUNDED TO THE BENEFIT OF THE FAMILY.[11]
First, petitioner takes issue with the legal provision applicable to the factual milieu of this case. It contends that Article
124 of the Family Code should be construed in relation to Article 493 of the Civil Code, which states:
ART. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he
may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal
rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the
portion which may be allotted to him in the division upon the termination of the co-ownership.
Article 124 of the Family Code provides in part:
ART. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. . . .
In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of administration. These powers do not include the powers of

16

disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In the
absence of such authority or consent, the disposition or encumbrance shall be void. . . .
Petitioner argues that although Article 124 of the Family Code requires the consent of the other spouse to the
mortgage of conjugal properties, the framers of the law could not have intended to curtail the right of a spouse from
exercising full ownership over the portion of the conjugal property pertaining to him under the concept of co-ownership.
[12]
Thus, petitioner would have this Court uphold the validity of the mortgage to the extent of the late Marcelino Dailo, Jr.s
share in the conjugal partnership.
In Guiang v. Court of Appeals,[13] it was held that the sale of a conjugal property requires the consent of both the
husband and wife.[14] In applying Article 124 of the Family Code, this Court declared that the absence of the consent of
one renders the entire sale null and void, including the portion of the conjugal property pertaining to the husband who
contracted the sale. The same principle in Guiang squarely applies to the instant case. As shall be discussed next, there is
no legal basis to construe Article 493 of the Civil Code as an exception to Article 124 of the Family Code.
Respondent and the late Marcelino Dailo, Jr. were married on August 8, 1967. In the absence of a marriage
settlement, the system of relative community or conjugal partnership of gains governed the property relations between
respondent and her late husband.[15] With the effectivity of the Family Code on August 3, 1988, Chapter 4 on Conjugal
Partnership of Gains in the Family Code was made applicable to conjugal partnership of gains already established before
its effectivity unless vested rights have already been acquired under the Civil Code or other laws. [16]
The rules on co-ownership do not even apply to the property relations of respondent and the late Marcelino Dailo, Jr.
even in a suppletory manner. The regime of conjugal partnership of gains is a special type of partnership, where the
husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and
those acquired by either or both spouses through their efforts or by chance. [17] Unlike the absolute community of property
wherein the rules on co-ownership apply in a suppletory manner, [18] the conjugal partnership shall be governed by the
rules on contract of partnership in all that is not in conflict with what is expressly determined in the chapter (on conjugal
partnership of gains) or by the spouses in their marriage settlements. [19] Thus, the property relations of respondent and her
late husband shall be governed, foremost, by Chapter 4 on Conjugal Partnership of Gains of the Family Code and,
suppletorily, by the rules on partnership under the Civil Code. In case of conflict, the former prevails because the Civil
Code provisions on partnership apply only when the Family Code is silent on the matter.
The basic and established fact is that during his lifetime, without the knowledge and consent of his wife, Marcelino
Dailo, Jr. constituted a real estate mortgage on the subject property, which formed part of their conjugal partnership. By
express provision of Article 124 of the Family Code, in the absence of (court) authority or written consent of the other
spouse, any disposition or encumbrance of the conjugal property shall be void.
The aforequoted provision does not qualify with respect to the share of the spouse who makes the disposition or
encumbrance in the same manner that the rule on co-ownership under Article 493 of the Civil Code does. Where the law
does not distinguish, courts should not distinguish. [20] Thus, both the trial court and the appellate court are correct in
declaring the nullity of the real estate mortgage on the subject property for lack of respondents consent.
Second, petitioner imposes the liability for the payment of the principal obligation obtained by the late Marcelino
Dailo, Jr. on the conjugal partnership to the extent that it redounded to the benefit of the family.[21]
Under Article 121 of the Family Code, [T]he conjugal partnership shall be liable for: . . . (3) Debts and obligations
contracted by either spouse without the consent of the other to the extent that the family may have been benefited; . . . .
For the subject property to be held liable, the obligation contracted by the late Marcelino Dailo, Jr. must have redounded
to the benefit of the conjugal partnership. There must be the requisite showing then of some advantage which clearly
accrued to the welfare of the spouses. Certainly, to make a conjugal partnership respond for a liability that should
appertain to the husband alone is to defeat and frustrate the avowed objective of the new Civil Code to show the utmost
concern for the solidarity and well-being of the family as a unit. [22]
The burden of proof that the debt was contracted for the benefit of the conjugal partnership of gains lies with the
creditor-party litigant claiming as such. [23] Ei incumbit probatio qui dicit, non qui negat (he who asserts, not he who denies,
must prove).[24] Petitioners sweeping conclusion that the loan obtained by the late Marcelino Dailo, Jr. to finance the
construction of housing units without a doubt redounded to the benefit of his family, without adducing adequate proof,
does not persuade this Court. Other than petitioners bare allegation, there is nothing from the records of the case to
compel a finding that, indeed, the loan obtained by the late Marcelino Dailo, Jr. redounded to the benefit of the family.
Consequently, the conjugal partnership cannot be held liable for the payment of the principal obligation.
In addition, a perusal of the records of the case reveals that during the trial, petitioner vigorously asserted that the
subject property was the exclusive property of the late Marcelino Dailo, Jr. Nowhere in the answer filed with the trial court
was it alleged that the proceeds of the loan redounded to the benefit of the family. Even on appeal, petitioner never
claimed that the family benefited from the proceeds of the loan. When a party adopts a certain theory in the court below,
he will not be permitted to change his theory on appeal, for to permit him to do so would not only be unfair to the other
party but it would also be offensive to the basic rules of fair play, justice and due process. [25] A party may change his legal
theory on appeal only when the factual bases thereof would not require presentation of any further evidence by the
adverse party in order to enable it to properly meet the issue raised in the new theory.[26]
WHEREFORE, the petition is DENIED. Costs against petitioner.

17

SO ORDERED.

DAVID V. PELAYO and LORENZA* B. PELAYO,

G.R. No. 141323
Petitioners,

Present:

- versus -

PUNO, Chairman,**
AUSTRIA-MARTINEZ,***
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.
Promulgated:

MELKI E. PEREZ,
Respondent.

June 8, 2005

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

DECISION

AUSTRIA-MARTINEZ, J.:

This resolves the petition for review on certiorari seeking the reversal of the Decision[1] of the Court of Appeals
(CA) promulgated on April 20, 1999 which reversed the Decision of the Regional Trial Court (RTC) of Panabo, Davao,
Branch 34, in Civil Case No. 91-46; and the CA Resolution dated December 17, 1999 denying petitioners motion for
reconsideration.

The antecedent facts as aptly narrated by the CA are as follows:

David Pelayo (Pelayo),by a Deed of Absolute Sale executed on January 11, 1988, conveyed to
Melki Perez (Perez) two parcels of agricultural land (the lots) situated in Panabo, Davao which are
portions of Lot 4192, Cad. 276 covered by OCT P-16873.
Loreza Pelayo (Loreza), wife of Pelayo, and another one whose signature is illegible witnessed
the execution of the deed.
Loreza, however, signed only on the third page in the space provided for witnesses on account of
which Perez application for registration of the deed with the Office of the Register of Deeds in Tagum,
Davao was denied.

18

Perez thereupon asked Loreza to sign on the first and second pages of the deed but she refused,
hence, he instituted on August 8, 1991 the instant complaint for specific performance against her and her
husband Pelayo (defendants).
The defendants moved to dismiss the complaint on the ground that it stated no cause of action,
citing Section 6 of RA 6656 otherwise known as the Comprehensive Agrarian Reform Law which took
effect on June 10, 1988 and which provides that contracts executed prior thereto shall be valid only when
registered with the Register of Deeds within a period of three (3) months after the effectivity of this Act.
The questioned deed having been executed on January 10, 1988, the defendants claimed that
Perez had at least up to September 10, 1988 within which to register the same, but as they failed to, it is
not valid and, therefore, unenforceable.
The trial court thus dismissed the complaint. On appeal to this Court, the dismissal was set aside
and the case was remanded to the lower court for further proceedings.
In their Answer, the defendants claimed that as the lots were occupied illegally by some persons
against whom they filed an ejectment case, they and Perez who is their friend and known at the time as
an activist/leftist, hence feared by many, just made it appear in the deed that the lots were sold to him in
order to frighten said illegal occupants, with the intentional omission of Lorezas signature so that the deed
could not be registered; and that the deed being simulated and bereft of consideration is void/inexistent.
Perez countered that the lots were given to him by defendant Pelayo in consideration of his
services as his attorney-in-fact to make the necessary representation and negotiation with the illegal
occupants-defendants in the ejectment suit; and that after his relationship with defendant Pelayo became
sour, the latter sent a letter to the Register of Deeds of Tagum requesting him not to entertain any
transaction concerning the lots title to which was entrusted to Perez who misplaced and could [not] locate
it.
Defendant Pelayo claimed in any event, in his Pre-trial brief filed on March 19, 1996, that the
deed was without his wife Lorezas consent, hence, in light of Art. 166 of the Civil Code which provides:
Article 166. Unless the wife has been declared a non compos mentis or a
spendthrift, or is under civil interdiction or is confined in a leprosarium, the husband
cannot alienate or encumber any real property of the conjugal partnership without the
wifes consent . . .
it is null and void.
The trial court, finding, among others, that Perez did not possess, nor pay the taxes on the lots,
that defendant Pelayo was indebted to Perez for services rendered and, therefore, the deed could only be
considered as evidence of debt, and that in any event, there was no marital consent to nor actual
consideration for the deed, held that the deed was null and void and accordingly rendered judgment the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered ordering and directing the
defendants to pay plaintiff Melki Perez the sum of TEN THOUSAND (P10,000.00) Pesos
as principal with 12% interest per annum starting from the date of filing of the complaint
on August 1, 1991 until plaintiff is fully paid.
The defendants shall likewise pay to plaintiff the sum of THREE THOUSAND
(P3,000.00) as attorneys fees.

19

The court further orders that the Deed of Absolute Sale, (Annex A) of the
complaint and (Annex C) of the plaintiffs Motion for Summary Judgment is declared null
and void and without force and it is likewise removed as a cloud over defendants title and
property in suit. . . .[2]

The RTC Decision was appealed by herein respondent Perez to the CA. Petitioners failed to file their appellees
brief. The CA then promulgated its Decision on April 20, 1999 whereby it ruled that by Lorenzas signing as witness to the
execution of the deed, she had knowledge of the transaction and is deemed to have given her consent to the same; that
herein petitioners failed to adduce sufficient proof to overthrow the presumption that there was consideration for the deed,
and that petitioner David Pelayo, being a lawyer, is presumed to have acted with due care and to have signed the deed
with full knowledge of its contents and import. The CA reversed and set aside the RTC Decision, declaring as valid and
enforceable the questioned deed of sale and ordering herein petitioner Lorenza Pelayo to affix her signature on all pages
of said document.

Petitioners moved for reconsideration of the decision but the same was denied per Resolution dated December
17, 1999. The CA found said motion to have been filed out of time and ruled that even putting aside technicality,
petitioners failed to present any ground bearing on the merits of the case to justify a reversal or setting aside of the
decision.

Hence, this petition for review on certiorari on the following grounds:

1. The CA erred in ignoring the specific provision of Section 6, in relation to Section 4 of R.A. No. 6657 otherwise
known as the Comprehensive Agrarian Reform Law of 1988 which took effect on June 15, 1988 and which provides that
contracts executed prior thereto shall be valid only when registered with the Register of Deeds within a period of three (3)
months after the effectivity of this Act.

2. The CA erred in holding that the deed of sale was valid and considering the P10,000.00 adjudged by the trial
court as Perezs remuneration as the consideration for the deed of sale, instead of declaring the same as null and void for

20

being fictitious or simulated and on the basis of Art. 491, Par. 2 of the New Civil Code which prohibits agents from
acquiring by purchase properties from his principal under his charge.

3. The CA made a novel ruling that there was implied marital consent of the wife of petitioner David Pelayo.

4. Petitioners should have been allowed to file their appellees brief to ventilate their side, considering the
existence of peculiar circumstances which prevented petitioners from filing said brief.

On the other hand, respondent points out that the CA, in resolving the first appeal docketed as CA-G.R. SP No.
38700[3] brought by respondent assailing the RTC Order granting herein petitioners motion to dismiss, already ruled that
under R.A. No. 6657, the sale or transfer of private agricultural land is allowed only when the area of the land being
conveyed constitutes or is a part of, the landowner-seller retained area and when the total landholding of the purchasertransferee, including the property sold, does not exceed five (5) hectares; that in this case, the land in dispute is only 1.3
hectares and there is no proof that the transferees (herein respondent) total landholding inclusive of the subject land will
exceed 5 hectares, the landholding ceiling prescribed by R.A. No. 6657; that the failure of respondent to register the
instrument was not due to his fault or negligence but can be attributed to Lorenzas unjustified refusal to sign two pages of
the deed despite several requests of respondent; and that therefore, the CA ruled that the deed of sale subject of this
case is valid under R.A. No. 6657.

Respondent further maintains that the CA correctly held in its assailed Decision that there was consideration for
the contract and that Lorenza is deemed to have given her consent to the deed of sale.

Respondent likewise opines that the CA was right in denying petitioners motion for reconsideration where they
prayed that they be allowed to file their appellees brief as their counsel failed to file the same on account of said counsels
failing health due to cancer of the liver. Respondent emphasized that in petitioners motion for reconsideration, they did not
even cite any errors made by the CA in its Decision.

The issues boil down to the question of whether or not the deed of sale was null and void on the following
grounds: (a) for not complying with the provision in R.A. No. 6657 that such document must be registered with the

21

Register of Deeds within three months after the effectivity of said law; (b) for lack of marital consent; (c) for being
prohibited under Article 1491 (2) of the Civil Code; and (d) for lack of consideration.
We rule against petitioners.

The issue of whether or not the deed of sale is null and void under R.A. No. 6657, for respondents failure to
register said document with the Register of Deeds within three months after the effectivity of R.A. No. 6657, had been
resolved with finality by the CA in its Decision dated November 24, 1994 in CA-G.R. SP No. 38700. [4] Herein petitioners no
longer elevated said CA Decision to this Court and the same became final and executory on January 7, 1995. [5]

In said decision, the CA interpreted Section 4, in relation to Section 70 of R.A. No. 6657, to mean thus:
. . . the proper interpretation of both sections is that under R.A. No. 6657, the sale or transfer of a
private agricultural land is allowed only when said land area constitutes or is a part of the landowner-seller
retained area and only when the total landholdings of the purchaser-transferee, including the property
sold does not exceed five (5) hectares.

Aside from declaring that the failure of respondent to register the deed was not of his own fault or negligence, the CA
ruled that respondents failure to register the deed of sale within three months after effectivity of The Comprehensive
Agrarian Reform Law did not invalidate the deed of sale as the transaction over said property is not proscribed by R.A.
No. 6657.

Thus, under the principle of law of the case, said ruling of the CA is now binding on petitioners. Such principle was
elucidated in Cucueco vs. Court of Appeals,[6] to wit:
Law of the case has been defined as the opinion delivered on a former appeal. It is a term
applied to an established rule that when an appellate court passes on a question and remands the case
to the lower court for further proceedings, the question there settled becomes the law of the case upon
subsequent appeal. It means that whatever is once irrevocably established as the controlling legal rule or
decision between the same parties in the same case continues to be the law of the case, whether correct
on general principles or not, so long as the facts on which such decision was predicated continue to be
the facts of the case before the court.

22

Petitioners not having questioned the Decision of the CA dated November 24, 1994 which then attained finality, the ruling
that the deed of sale subject of this case is not among the transactions deemed as invalid under R.A. No. 6657, is now
immutable.

We agree with the CA ruling that petitioner Lorenza, by affixing her signature to the Deed of Sale on the space
provided for witnesses, is deemed to have given her implied consent to the contract of sale.

Sale is a consensual contract that is perfected by mere consent, which may either be express or implied. [7] A wifes
consent to the husbands disposition of conjugal property does not always have to be explicit or set forth in any particular
document, so long as it is shown by acts of the wife that such consent or approval was indeed given. [8] In the present
case, although it appears on the face of the deed of sale that Lorenza signed only as an instrumental witness,
circumstances leading to the execution of said document point to the fact that Lorenza was fully aware of the sale of their
conjugal property and consented to the sale.

In their Pre-Trial Brief,[9] petitioners admitted that even prior to 1988, they have been having serious problems,
including threats to the life of petitioner David Pelayo, due to conflicts with the illegal occupants of the property in
question, so that respondent, whom many feared for being a leftist/activist, offered his help in driving out said illegal
occupants.

Human experience tells us that a wife would surely be aware of serious problems such as threats to her husbands
life and the reasons for such threats. As they themselves stated, petitioners problems over the subject property had been
going on for quite some time, so it is highly improbable for Lorenza not to be aware of what her husband was doing to
remedy such problems. Petitioners do not deny that Lorenza Pelayo was present during the execution of the deed of sale
as her signature appears thereon. Neither do they claim that Lorenza Pelayo had no knowledge whatsoever about the
contents of the subject document. Thus, it is quite

certain that she knew of the sale of their conjugal property between her husband and respondent.

23

Under the rules of evidence, it is presumed that a person takes ordinary care of his concerns. [10] Petitioners did
not even attempt to overcome the aforementioned presumption as no evidence was ever presented to show that Lorenza
was in any way lacking in her mental faculties and, hence, could not have fully understood the ramifications of signing the
deed of sale. Neither did petitioners present any evidence that Lorenza had been defrauded, forced, intimidated or
threatened either by her own husband or by respondent into affixing her signature on the subject document. If Lorenza
had any objections over the conveyance of the disputed property, she could have totally refrained from having any part in
the execution of the deed of sale. Instead, Lorenza even affixed her signature thereto.

Moreover, under Article 173, in relation to Article 166, both of the New Civil Code, which was still in effect on
January 11, 1988 when the deed in question was executed, the lack of marital consent to the disposition of conjugal
property does not make the contract void ab initio but merely voidable. Said provisions of law provide:
Art. 166. Unless the wife has been declared a non compos mentis or a spendthrift, or is under
civil interdiction or is confined in a leprosarium, the husband cannot alienate or encumber any real
property of the conjugal property without the wifes consent. If she refuses unreasonably to give her
consent, the court may compel her to grant the same.
...
Art. 173. The wife may, during the marriage, and within ten years from the transaction questioned,
ask the courts for the annulment of any contract of the husband entered into without her consent, when
such consent is required, or any act or contract of the husband which tends to defraud her or impair her
interest in the conjugal partnership property. Should the wife fail to exercise this right, she or her heirs,
after the dissolution of the marriage, may demand the value of property fraudulently alienated by the
husband.

Hence, it has been held that the contract is valid until the court annuls the same and only upon an action brought
by the wife whose consent was not obtained.[11] In the present case, despite respondents repeated demands for Lorenza
to affix her signature on all the pages of the deed of sale, showing respondents insistence on enforcing said contract,
Lorenza still did not file a case for annulment of the deed of sale. It was only when respondent filed a complaint for
specific performance on August 8, 1991 when petitioners brought up Lorenzas alleged lack of consent as an affirmative
defense. Thus, if the transaction was indeed entered into without Lorenzas consent, we find it quite puzzling why for more
than three and a half years, Lorenza did absolutely nothing to seek the nullification of the assailed contract.

24

The foregoing circumstances lead the Court to believe that Lorenza knew of the full import of the transaction
between respondent and her

husband; and, by affixing her signature on the deed of sale, she, in effect, signified her consent to the disposition of their
conjugal property.

With regard to petitioners asseveration that the deed of sale is invalid under Article 1491, paragraph 2 of the New
Civil Code, we find such argument unmeritorious. Article 1491 (2) provides:
Art. 1491. The following persons cannot acquire by purchase, even at a public or judicial auction, either in
person or through the mediation of another:
...
(2) Agents, the property whose administration or sale may have been entrusted to them, unless the
consent of the principal has been given;
...

In Distajo vs. Court of Appeals,[12] a landowner, Iluminada Abiertas, designated one of her sons as the
administrator of several parcels of her land. The landowner subsequently executed a Deed of Certification of Sale of
Unregistered Land, conveying some of said land to her son/administrator. Therein, we held that:
Under paragraph (2) of the above article, the prohibition against agents purchasing property in
their hands for sale or management is not absolute. It does not apply if the principal consents to the sale
of the property in the hands of the agent or administrator. In this case, the deeds of sale signed by
Iluminada Abiertas shows that she gave consent to the sale of the properties in favor of her son, Rufo,
who was the administrator of the properties. Thus, the consent of the principal Iluminada Abiertas
removes the transaction out of the prohibition contained in Article 1491(2). [13]

The above-quoted ruling is exactly in point with this case before us. Petitioners, by signing the Deed of Sale in
favor of respondent, are also deemed to have given their consent to the sale of the subject property in favor of
respondent, thereby making the transaction an exception to the general rule that agents are prohibited from purchasing
the property of their principals.

25

Petitioners also argue that the CA erred in ruling that there was consideration for the sale. We find no error in said
appellate courts ruling. The element of consideration for the sale is indeed present. Petitioners, in adopting the trial courts
narration of antecedent facts in their petition, [14] thereby admitted that they authorized respondent to represent them in
negotiations with the squatters occupying the disputed property and, in consideration of respondents services, they
executed the subject deed of sale. Aside from such services rendered by respondent, petitioners also acknowledged in
the deed of sale that they received in full the amount of Ten Thousand Pesos. Evidently, the consideration for the sale is
respondents services plus the aforementioned cash money.

Petitioners contend that the consideration stated in the deed of sale is excessively inadequate, indicating that the
deed of sale was merely simulated. We are not persuaded. Our ruling in Buenaventura vs. Court of Appeals [15] is pertinent,
to wit:
. . . Indeed, there is no requirement that the price be equal to the exact value of the subject matter
of sale. . . . As we stated in Vales vs. Villa:
Courts cannot follow one every step of his life and extricate him from bad
bargains, protect him from unwise investments, relieve him from one-sided contracts, or
annul the effects of foolish acts. Courts cannot constitute themselves guardians of
persons who are not legally incompetent. Courts operate not because one person has
been defeated or overcome by another, but because he has been defeated or
overcome illegally. Men may do foolish things, make ridiculous contracts, use miserable
judgment, and lose money by them indeed, all they have in the world; but not for that
alone can the law intervene and restore. There must be, in addition, a violation of the law,
the commission of what the law knows as an actionable wrong, before the courts are
authorized to lay hold of the situation and remedy it. [16]

Verily, in the present case, petitioners have not presented proof that there has been fraud, mistake or undue influence
exercised upon them by respondent. It is highly unlikely and contrary to human experience that a layman like respondent
would be able to defraud, exert undue influence, or in any way vitiate the consent of a lawyer like petitioner David Pelayo
who is expected to be more knowledgeable in the ways of drafting contracts and other legal transactions.

Furthermore, in their Reply to Respondents Memorandum, [17] petitioners adopted the CAs narration of fact that
petitioners stated in a letter they sent to the Register of Deeds of Tagum that they have entrusted the titles over subject

26

lots to herein respondent. Such act is a clear indication that they intended to convey the subject property to herein
respondent and the deed of sale was not merely simulated or fictitious.

Lastly, petitioners claim that they were not able to fully ventilate their defense before the CA as their lawyer, who
was then suffering from cancer of the liver, failed to file their appellees brief. Thus, in their motion for reconsideration of
the CA Decision, they prayed that they be allowed to submit such appellees brief. The CA, in its Resolution dated
December 17, 1999, stated thus:
By movant-defendant-appellees own information, his counsel received a copy of the decision on
May 5, 1999. He, therefore, had fifteen (15) days from said date or up to May 20, 1999 to file the motion.
The motion, however, was sent through a private courier and, therefore, considered to have been filed on
the date of actual receipt on June 17, 1999 by the addressee Court of Appeals, was filed beyond the
reglementary period.
Technicality aside, movant has not proffered any ground bearing on the merits of the case why
the decision should be set aside.

Petitioners never denied the CA finding that their motion for reconsideration was filed beyond the fifteen-day
reglementary period. On that point alone, the CA is correct in denying due course to said motion. The motion having been
belatedly filed, the CA Decision had then attained finality. Thus, in Abalos vs. Philex Mining Corporation,[18] we held that:

. . . Nothing is more settled in law than that once a judgment attains finality it thereby becomes
immutable and unalterable. It may no longer be modified in any respect, even if the modification is meant
to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the
modification is attempted to be made by the court rendering it or by the highest court of the land.

Moreover, it is pointed out by the CA that said motion did not present any defense or argument on the merits of
the case that could have convinced the CA to reverse or modify its Decision.

We have consistently held that a petitioners right to due process is not violated where he was able to move for
reconsideration of the order or decision in question. [19] In this case, petitioners had the opportunity to fully expound on their
defenses through a motion for reconsideration. Petitioners did file such motion but they wasted such opportunity by failing

27

to present therein whatever errors they believed the CA had committed in its Decision. Definitely, therefore, the denial of
petitioners motion for reconsideration, praying that they be allowed to file appellees brief, did not infringe petitioners right
to due process as any issue that petitioners wanted to raise could and should have been contained in said motion for
reconsideration.

IN VIEW OF THE FOREGOING, the petition is DENIED and the Decision of the Court of Appeals dated April 20,
1999 and its Resolution dated December 17, 1999 are herebyAFFIRMED.

ERLINDA A. AGAPAY, petitioner,

CRUZ, respondents.

vs. CARLINA

(CORNELIA)

V.

PALANG

and

HERMINIA

P.

DELA

DECISION
ROMERO, J.:
Before us is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No. 24199 entitled Erlinda
Agapay v. Carlina (Cornelia) Palang and Herminia P. Dela Cruz dated June 22, 1994 involving the ownership of two
parcels of land acquired during the cohabitation of petitioner and private respondents legitimate spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when he took private respondent Carlina (or Cornelia)
Vallesterol as a wife at the Pozorrubio Roman Catholic Church in Pangasinan. A few months after the wedding, in October
1949, he left to work in Hawaii. Miguel and Carlinas only child, Herminia Palang, was born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964 and during the entire duration of his
year-long sojourn he stayed in Zambales with his brother, not in Pangasinan with his wife and child. The trial court found
evidence that as early as 1957, Miguel had attempted to divorce Carlina in Hawaii. [1] When he returned for good in 1972,
he refused to live with private respondents, but stayed alone in a house in Pozorrubio, Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted his second marriage with nineteen-year-old Erlinda
Agapay, herein petitioner.[2] Two months earlier, on May 17, 1973, Miguel and Erlinda, as evidenced by the Deed of Sale,
jointly purchased a parcel of agricultural land located at San Felipe, Binalonan, Pangasinan with an area of 10,080 square
meters. Consequently, Transfer Certificate of Title No. 101736 covering said rice land was issued in their names.
A house and lot in Binalonan, Pangasinan was likewise purchased on September 23, 1975, allegedly by Erlinda as
the sole vendee. TCT No. 143120 covering said property was later issued in her name.
On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation as a form of compromise agreement
to settle and end a case filed by the latter. [3] The parties therein agreed to donate their conjugal property consisting of six
parcels of land to their only child, Herminia Palang. [4]
Miguel and Erlindas cohabitation produced a son, Kristopher A. Palang, born on December 6, 1977. In 1979, Miguel
and Erlinda were convicted of Concubinage upon Carlinas complaint. [5]Two years later, on February 15, 1981, Miguel died.

28

On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz, herein private respondents,
instituted the case at bar, an action for recovery of ownership and possession with damages against petitioner before the
Regional Trial Court in Urdaneta, Pangasinan (Civil Case No. U-4265). Private respondents sought to get back the
riceland and the house and lot both located at Binalonan, Pangasinan allegedly purchased by Miguel during his
cohabitation with petitioner.
Petitioner, as defendant below, contended that while the riceland covered by TCT No. 101736 is registered in their
names (Miguel and Erlinda), she had already given her half of the property to their son Kristopher Palang. She added that
the house and lot covered by TCT No. 143120 is her sole property, having bought the same with her own money. Erlinda
added that Carlina is precluded from claiming aforesaid properties since the latter had already donated their conjugal
estate to Herminia.
After trial on the merits, the lower court rendered its decision on June 30, 1989 dismissing the complaint after
declaring that there was little evidence to prove that the subject properties pertained to the conjugal property of Carlina
and Miguel Palang. The lower court went on to provide for the intestate shares of the parties, particularly of Kristopher
Palang, Miguels illegitimate son.The dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered1) Dismissing the complaint, with costs against plaintiffs;
2) Confirming the ownership of defendant Erlinda Agapay of the residential lot located at Poblacion, Binalonan,
Pangasinan, as evidenced by TCT No. 143120, Lot 290-B including the old house standing therein;
3) Confirming the ownership of one-half (1/2) portion of that piece of agricultural land situated at Balisa, San Felipe,
Binalonan, Pangasinan, consisting of 10,080 square meters and as evidenced by TCT No. 101736, Lot 1123-A to Erlinda
Agapay;
4) Adjudicating to Kristopher Palang as his inheritance from his deceased father, Miguel Palang, the one-half (1/2) of the
agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan, under TCT No. 101736 in the name of Miguel
Palang, provided that the former (Kristopher) executes, within 15 days after this decision becomes final and executory, a
quit-claim forever renouncing any claims to annul/reduce the donation to Herminia Palang de la Cruz of all conjugal
properties of her parents, Miguel Palang and Carlina Vallesterol Palang, dated October 30, 1975, otherwise, the estate of
deceased Miguel Palang will have to be settled in another separate action;
5) No pronouncement as to damages and attorneys fees.
SO ORDERED.[6]
On appeal, respondent court reversed the trial courts decision. The Court of Appeals rendered its decision on July
22, 1994 with the following dispositive portion:
WHEREFORE, PREMISES CONSIDERED, the appealed decision is hereby REVERSED and another one entered:
1. Declaring plaintiffs-appellants the owners of the properties in question;
2. Ordering defendant-appellee to vacate and deliver the properties in question to herein plaintiffs-appellants;
3. Ordering the Register of Deeds of Pangasinan to cancel Transfer Certificate of Title Nos. 143120 and 101736 and to
issue in lieu thereof another certificate of title in the name of plaintiffs-appellants.

29

No pronouncement as to costs.[7]
Hence, this petition.
Petitioner claims that the Court of Appeals erred in not sustaining the validity of two deeds of absolute sale covering
the riceland and the house and lot, the first in favor of Miguel Palang and Erlinda Agapay and the second, in favor of
Erlinda Agapay alone. Second, petitioner contends that respondent appellate court erred in not declaring Kristopher A.
Palang as Miguel Palangs illegitimate son and thus entitled to inherit from Miguels estate. Third, respondent court erred,
according to petitioner, in not finding that there is sufficient pleading and evidence that Kristoffer A. Palang or Christopher
A. Palang should be considered as party-defendant in Civil Case No. U-4625 before the trial court and in CA-G.R. No.
24199.[8]
After studying the merits of the instant case, as well as the pertinent provisions of law and jurisprudence, the Court
denies the petition and affirms the questioned decision of the Court of Appeals.
The first and principal issue is the ownership of the two pieces of property subject of this action. Petitioner assails the
validity of the deeds of conveyance over the same parcels of land. There is no dispute that the transfers of ownership
from the original owners of the riceland and the house and lot, Corazon Ilomin and the spouses Cespedes, respectively,
were valid.
The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda. The provision of law applicable
here is Article 148 of the Family Code providing for cases of cohabitation when a man and a woman who
are not capacitated to marry each other live exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage. While Miguel and Erlinda contracted marriage on July 15, 1973, said union was
patently void because the earlier marriage of Miguel and Carlina was still susbsisting and unaffected by the latters de
factoseparation.
Under Article 148, only the properties acquired by both of the parties through their actual joint contribution of
money, property or industry shall be owned by them in common in proportion to their respective contributions. It must
be stressed that actual contribution is required by this provision, in contrast to Article 147 which states that efforts in the
care and maintenance of the family and household, are regarded as contributions to the acquisition of common property
by one who has no salary or income or work or industry. If the actual contribution of the party is not proved, there will be
no co-ownership and no presumption of equal shares.[9]
In the case at bar, Erlinda tried to establish by her testimony that she is engaged in the business of buy and sell and
had a sari-sari store[10] but failed to persuade us that she actually contributed money to buy the subject riceland. Worth
noting is the fact that on the date of conveyance, May 17, 1973, petitioner was only around twenty years of age and
Miguel Palang was already sixty-four and a pensioner of the U.S. Government. Considering her youthfulness, it is
unrealistic to conclude that in 1973 she contributed P3,750.00 as her share in the purchase price of subject property,
[11]
there being no proof of the same.
Petitioner now claims that the riceland was bought two months before Miguel and Erlinda actually cohabited. In the
nature of an afterthought, said added assertion was intended to exclude their case from the operation of Article 148 of the
Family Code. Proof of the precise date when they commenced their adulterous cohabitation not having been adduced, we
cannot state definitively that the riceland was purchased even before they started living together. In any case, even
assuming that the subject property was bought before cohabitation, the rules of co-ownership would still apply and proof
of actual contribution would still be essential.
Since petitioner failed to prove that she contributed money to the purchase price of the riceland in Binalonan,
Pangasinan, we find no basis to justify her co-ownership with Miguel over the same. Consequently, the riceland should, as
correctly held by the Court of Appeals, revert to the conjugal partnership property of the deceased Miguel and private
respondent Carlina Palang.

30

Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate their conjugal property in favor of
their daughter Herminia in 1975. The trial court erred in holding that the decision adopting their compromise agreement in
effect partakes the nature of judicial confirmation of the separation of property between spouses and the termination of the
conjugal partnership.[12] Separation of property between spouses during the marriage shall not take place except by
judicial order or without judicial conferment when there is an express stipulation in the marriage settlements. [13] The
judgment which resulted from the parties compromise was not specifically and expressly for separation of property and
should not be so inferred.
With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00 on September 23, 1975 when
she was only 22 years old. The testimony of the notary public who prepared the deed of conveyance for the property
reveals the falsehood of this claim. Atty. Constantino Sagun testified that Miguel Palang provided the money for the
purchase price and directed that Erlindas name alone be placed as the vendee. [14]
The transaction was properly a donation made by Miguel to Erlinda, but one which was clearly void and inexistent by
express provision of law because it was made between persons guilty of adultery or concubinage at the time of the
donation, under Article 739 of the Civil Code. Moreover, Article 87 of the Family Code expressly provides that the
prohibition against donations between spouses now applies to donations between persons living together as husband and
wife without a valid marriage,[15] for otherwise, the condition of those who incurred guilt would turn out to be better than
those in legal union.[16]
The second issue concerning Kristopher Palangs status and claim as an illegitimate son and heir to Miguels estate is
here resolved in favor of respondent courts correct assessment that the trial court erred in making pronouncements
regarding Kristophers heirship and filiation inasmuch as questions as to who are the heirs of the decedent, proof of
filiation of illegitimate children and the determination of the estate of the latter and claims thereto should be ventilated in
the proper probate court or in a special proceeding instituted for the purpose and cannot be adjudicated in the instant
ordinary civil action which is for recovery of ownership and possession. [17]
As regards the third issue, petitioner contends that Kristopher Palang should be considered as party-defendant in the
case at bar following the trial courts decision which expressly found that Kristopher had not been impleaded as party
defendant but theorized that he had submitted to the courts jurisdiction through his mother/guardian ad litem.[18] The trial
court erred gravely. Kristopher, not having been impleaded, was, therefore, not a party to the case at bar. His mother,
Erlinda, cannot be called his guardian ad litem for he was not involved in the case at bar. Petitioner adds that there is no
need for Kristopher to file another action to prove that he is the illegitimate son of Miguel, in order to avoid multiplicity of
suits.[19] Petitioners grave error has been discussed in the preceeding paragraph where the need for probate proceedings
to resolve the settlement of Miguels estate and Kristophers successional rights has been pointed out.
WHEREFORE, the instant petition is hereby DENIED. The questioned decision of the Court of Appeals is
AFFIRMED. Costs against petitioner.
SO ORDERED.

G.R. No. 202370

September 23, 2013

JUAN SEVILLA SALAS, JR., Petitioner,

vs.
EDEN VILLENA AGUILA, Respondent.
DECISION

31

CARPIO, J.:
The Case
This petition for review on certiorari1 assails the 16 March 2012 Decision2 and the 28 June 2012 Resolution3 of the Court
of Appeals (CA) in CA-G.R. CV No. 95322. The CA affirmed the 26 September 2008 Order 4 of the Regional Trial Court of
Nasugbu, Batangas, Branch 14 (RTC), in Civil Case No. 787.
The Facts
On 7 September 1985, petitioner Juan Sevilla Salas, Jr. (Salas) and respondent Eden Villena Aguila (Aguila) were
married. On 7 June 1986, Aguila gave birth to their daughter, Joan Jiselle. Five months later, Salas left their conjugal
dwelling. Since then, he no longer communicated with Aguila or their daughter.
On 7 October 2003, Aguila filed a Petition for Declaration of Nullity of Marriage (petition) citing psychological incapacity
under Article 36 of the Family Code. The petition states that they "have no conjugal properties whatsoever." 5 In the Return
of Summons dated 13 October 2003, the sheriff narrated that Salas instructed his mother Luisa Salas to receive the copy
of summons and the petition.6
On 7 May 2007, the RTC rendered a Decision7 declaring the nullity of the marriage of Salas and Aguila (RTC Decision).
The RTC Decision further provides for the "dissolution of their conjugal partnership of gains, if any." 8
On 10 September 2007, Aguila filed a Manifestation and Motion 9 stating that she discovered: (a) two 200-square-meter
parcels of land with improvements located in San Bartolome, Quezon City, covered by Transfer Certificate of Title (TCT)
No. N-259299-A and TCT No. N-255497; and (b) a 108-square-meter parcel of land with improvement located in Tondo,
Manila, covered by TCT No. 243373 (collectively, "Discovered Properties"). The registered owner of the Discovered
Properties is "Juan S.Salas, married to Rubina C. Salas." The manifestation was set for hearing on 21 September 2007.
However, Salas notice of hearing was returned unserved with the remark, "RTS Refused To Receive."
On 19 September 2007, Salas filed a Manifestation with Entry of Appearance 10 requesting for an Entry of Judgment of the
RTC Decision since no motion for reconsideration or appeal was filed and no conjugal property was involved.
On 21 September 2007, the hearing for Aguilas manifestation ensued, with Aguila, her counsel and the state prosecutor
present. During the hearing, Aguila testified that on 17 April 2007 someone informed her of the existence of the
Discovered Properties. Thereafter, she verified the information and secured copies of TCTs of the Discovered Properties.
When asked to clarify, Aguila testified that Rubina C. Salas (Rubina) is Salas common-law wife. 11
On 8 February 2008, Salas filed an Opposition to the Manifestation 12 alleging that there is no conjugal property to be
partitioned based on Aguilas petition. According to Salas, Aguilas statement was a judicial admission and was not made
through palpable mistake. Salas claimed that Aguila waived her right to the Discovered Properties. Salas likewise
enumerated properties he allegedly waived in favor of Aguila, to wit:(1) parcels of land with improvements located in
Sugar Landing Subdivision, Alangilan, Batangas City; No. 176 Brias Street, Nasugbu, Batangas; P. Samaniego Street,
Silangan, Nasugbu, Batangas; and Batangas City, financed by Filinvest; (2) cash amounting toP200,000.00; and (3) motor
vehicles, specifically Honda City and Toyota Tamaraw FX(collectively, "Waived Properties"). Thus, Salas contended that
the conjugal properties were deemed partitioned.
The Ruling of the Regional Trial Court
In its 26 September 2008 Order, the RTC ruled in favor of Aguila. The dispositive portion of the Order reads:

32

WHEREFORE, foregoing premises being considered, the petitioner and the respondent are hereby directed to partition
between themselves by proper instruments of conveyance, the following properties, without prejudice to the legitime of
their legitimate child, Joan Jisselle Aguila Salas:
(1) A parcel of land registered in the name of Juan S. Salas married to Rubina C. Salas located in San Bartolome,
Quezon City and covered by TCT No. N-259299-A marked as Exhibit "A" and its improvements;
(2) A parcel of land registered in the name of Juan S.Salas married to Rubina C. Salas located in San Bartolome,
Quezon City and covered by TCT No. N-255497 marked as Exhibit "B" and its improvements;
(3) A parcel of land registered in the name of Juan S.Salas married to Rubina Cortez Salas located in Tondo and
covered by TCT No. 243373-Ind. marked as Exhibit "D" and its improvements.
Thereafter, the Court shall confirm the partition so agreed upon bythe parties, and such partition, together with the Order
of the Court confirming the same, shall be recorded in the Registry of Deeds of the place in which the property is situated.
SO ORDERED.13
The RTC held that pursuant to the Rules,14 even upon entry of judgment granting the annulment of marriage, the court can
proceed with the liquidation, partition and distribution of the conjugal partnership of gains if it has not been judicially
adjudicated upon, as in this case. The RTC found that the Discovered Properties are among the conjugal properties to be
partitioned and distributed between Salas and Aguila. However, the RTC held that Salas failed to prove the existence of
the Waived Properties.
On 11 November 2008, Rubina filed a Complaint-in-Intervention, claiming that: (1) she is Rubina Cortez, a widow and
unmarried to Salas; (2) the Discovered Properties are her paraphernal properties; (3) Salas did not contribute money to
purchase the Discovered Properties as he had no permanent job in Japan; (4) the RTC did not acquire jurisdiction over
her as she was not a party in the case; and (5) she authorized her brother to purchase the Discovered Properties but
because he was not well-versed with legal documentation, he registered the properties in the name of "Juan S. Salas,
married to Rubina C. Salas."
In its 16 December 2009 Order, the RTC denied the Motion for Reconsideration filed by Salas. The RTC found that Salas
failed to prove his allegation that Aguila transferred the Waived Properties to third persons. The RTC emphasized that it
cannot go beyond the TCTs, which state that Salas is the registered owner of the Discovered Properties. The RTC further
held that Salas and Rubina were at fault for failing to correct the TCTs, if they were not married as they claimed.
Hence, Salas filed an appeal with the CA.
The Ruling of the Court of Appeals
On 16 March 2012, the CA affirmed the order of the RTC.15 The CA ruled that Aguilas statement in her petition is not a
judicial admission. The CA pointed out that the petition was filed on 7 October 2003, but Aguila found the Discovered
Properties only on 17 April 2007 or before the promulgation of the RTC decision. Thus, the CA concluded that Aguila was
palpably mistaken in her petition and it would be unfair to punish her over a matter that she had no knowledge of at the
time she made the admission. The CA also ruled that Salas was not deprived of the opportunity to refute Aguilas
allegations in her manifestation, even though he was not present in its hearing. The CA likewise held that Rubina cannot
collaterally attack a certificate of title.
In a Resolution dated 28 June 2012,16 the CA denied the Motion for Reconsideration17 filed by Salas. Hence, this petition.
The Issues

33

Salas seeks a reversal and raises the following issues for resolution:
1. The Court of Appeals erred in affirming the trial courts decision ordering the partition of the parcels of land
covered by TCT Nos. N-259299-A and N-255497 in Quezon City and as well as the property in Manila covered by
TCT No. 243373 between petitioner and respondent.
2. The Court of Appeals erred in affirming the trial courts decision in not allowing Rubina C. Cortez to intervene in
this case18
The Ruling of the Court
The petition lacks merit.
Since the original manifestation was an action for partition, this Court cannot order a division of the property, unless it first
makes a determination as to the existence of a co-ownership. 19 Thus, the settlement of the issue of ownership is the first
stage in this action.20
Basic is the rule that the party making an allegation in a civil case has the burden of proving it by a preponderance of
evidence.21 Salas alleged that contrary to Aguilas petition stating that they had no conjugal property, they actually
acquired the Waived Properties during their marriage. However, the RTC found, and the CA affirmed, that Salas failed to
prove the existence and acquisition of the Waived Properties during their marriage:
A perusal of the record shows that the documents submitted by [Salas] as the properties allegedly registered in the name
of [Aguila] are merely photocopies and not certified true copies, hence, this Court cannot admit the same as part of the
records of this case. These are the following:
(1) TCT No. T-65876 a parcel of land located at Poblacion, Nasugbu, Batangas, registered in the name of Eden
A. Salas, married to Juan Salas Jr. which is cancelled by TCT No. T-105443 in the name of Joan Jiselle A. Salas,
single;
(2) TCT No. T-68066 a parcel of land situated in the Barrio of Landing, Nasugbu, Batangas, registered in the
name of Eden A. Salas, married to Juan S. Salas Jr.
Moreover, [Aguila] submitted original copy of Certification issued by Ms. Erlinda A. Dasal, Municipal Assessor of Nasugbu,
Batangas, certifying that [Aguila] has no real property (land and improvement) listed in the Assessment Roll for taxation
purposes, as of September 17, 2008.
Such evidence, in the absence of proof to the contrary, has the presumption of regularity. x x x.
Suffice it to say that such real properties are existing and registered in the name of [Aguila], certified true copies thereof
should have been the ones submitted to this Court. Moreover, there is also a presumption that properties registered in the
Registry of Deeds are also declared in the Assessment Roll for taxation purposes. 22
On the other hand, Aguila proved that the Discovered Properties were acquired by Salas during their
marriage.1wphi1Both the RTC and the CA agreed that the Discovered Properties registered in Salas name were
acquired during his marriage with Aguila. The TCTs of the Discovered Properties were entered on 2 July 1999 and 29
September 2003, or during the validity of Salas and Aguilas marriage. In Villanueva v. Court of Appeals, 23 we held that the
question of whether the properties were acquired during the marriage is a factual issue. Factual findings of the RTC,
particularly if affirmed by the CA, are binding on us, except under compelling circumstances not present in this case. 24

34

On Salas allegation that he was not accorded due process for failing to attend the hearing of Aguilas manifestation, we
find the allegation untenable. The essence of due process is opportunity to be heard. We hold that Salas was given such
opportunity when he filed his opposition to the manifestation, submitted evidence and filed his appeal.
On both Salas and Rubinas contention that Rubina owns the Discovered Properties, we likewise find the contention
unmeritorious. The TCTs state that "Juan S. Salas, married to Rubina C. Salas" is the registered owner of the Discovered
Properties. A Torrens title is generally a conclusive evidence of the ownership of the land referred to, because there is a
strong presumption that it is valid and regularly issued. 25 The phrase "married to" is merely descriptive of the civil status of
the registered owner.26 Furthermore, Salas did not initially dispute the ownership of the Discovered Properties in his
opposition to the manifestation. It was only when Rubina intervened that Salas supported Rubinas statement that she
owns the Discovered Properties.
Considering that Rubina failed to prove her title or her legal interest in the Discovered Properties, she has no right to
intervene in this case. The Rules of Court provide that only "a person who has a legal interest in the matter in litigation, or
in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action."27
In Dio v. Dio,28 we held that Article 147 of the Family Code applies to the union of parties who are legally capacitated
and not barred by any impediment to contract marriage, but whose marriage is nonetheless declared void under Article 36
of the Family Code, as in this case. Article147 of the Family Code provides:
ART. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of them through their work or industry shall be governed by the
rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the formers efforts consisted in the care and maintenance of the family and of the
household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation
and owned in common, without the consent of the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or
their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of
the cohabitation. (Emphasis supplied)
Under this property regime, property acquired during the marriage is prima facie presumed to have been obtained through
the couples joint efforts and governed by the rules on co-ownership. 29 In the present case, Salas did not rebut this
presumption. In a similar case where the ground for nullity of marriage was also psychological incapacity, we held that the
properties acquired during the union of the parties, as found by both the RTC and the CA, would be governed by coownership.30 Accordingly, the partition of the Discovered Properties as ordered by the RTC and the CA should be
sustained, but on the basis of co-ownership and not on the regime of conjugal partnership of gains.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 16 March 2012 and the Resolution dated 28 June
2012 of the Court of Appeals in CA-G.R. CV No. 95322.

35

G.R. No. 176492

October 20, 2014

MARIETTA N. BARRIDO, Petitioner,

vs.
LEONARDO V. NONATO, Respondent.
DECISION
PERALTA, J.:
For the Court's resolution is a Petition for Review filed by petitioner Marietta N. Barrido questioning the Decision 1of the
Court of Appeals (CA), dated November 16, 2006, and its Resolution 2 dated January 24, 2007 in CA-G.R. SP No. 00235.
The CA affirmed the Decision3 of the Regional Trial Court (RTC) ofBacolod City, Branch 53, dated July 21, 2004, in Civil
Case No. 03-12123, which ordered the partition of the subject property.
The facts, as culled from the records, are as follows: In the course of the marriage of respondent Leonardo V. Nonato and
petitioner Marietta N. Barrido,they were able to acquire a property situated in Eroreco, Bacolod City, consisting ofa house
and lot, covered by Transfer Certificate of Title (TCT) No. T-140361. On March 15, 1996, their marriage was declared void
on the ground of psychological incapacity. Since there was no more reason to maintain their co-ownership over the
property, Nonato asked Barrido for partition, but the latter refused. Thus, on January 29, 2003, Nonato filed a Complaint
for partition before the Municipal Trial Court in Cities (MTCC) of Bacolod City, Branch 3.
Barrido claimed, by way of affirmative defense, that the subject property had already been sold to their children, Joseph
Raymund and Joseph Leo. She likewise moved for the dismissal of the complaint because the MTCC lacked jurisdiction,
the partition case being an action incapable of pecuniary estimation.
The Bacolod MTCC rendered a Decision dated September 17, 2003, applying Article 129 of the Family Code. It ruled in
this wise:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered, ordering the conjugal property of the former
Spouses Leonardo and Marietta Nonato, a house and lot covered by TCT No. T-140361 located at Eroreco, Bacolod City,
which was their conjugal dwelling, adjudicated to the defendant Marietta Nonato, the spouse with whom the majority of the
common children choose to remain.
Furthermore, defendants counterclaim is hereby granted, ordering plaintiff to pay defendant P10,000.00 as moral
damages for the mental anguish and unnecessary inconvenience brought about by this suit; and an additionalP10,000.00
as exemplary damages to deter others from following suit; and attorneys fees of P2,000.00 and litigation expenses
of P575.00.
SO ORDERED.4
Nonato appealed the MTCC Decision before the RTC. On July 21, 2004, the Bacolod RTC reversed the ruling of the
MTCC. It found that even though the MTCC aptly applied Article 129 of the Family Code, it nevertheless made a
reversible error in adjudicating the subject property to Barrido. Its dispositive portion reads:
WHEREFORE, premises considered, the decision dated September 17, 2003 is hereby REVERSED and SET ASIDE and
a new judgment is hereby rendered ordering the parties:

36

(1) to equitably partition the house and lot covered by TCT No. T-140361;
(2) to reimburse Joseph Raymund and Joseph Leo Nonato of the amount advanced by them in payment of the
debts and obligation of TCT No. T-140361 with Philippine National Bank;
(3) to deliver the presumptive legitimes of Joseph Raymund and Joseph Leo Nonato pursuant to Article 51 of the
Family Code.
SO ORDERED.5
Upon appeal, the CA affirmed the RTC Decision on November 16, 2006. It held that since the propertys assessed value
was only P8,080.00, it clearly fell within the MTCCs jurisdiction. Also, although the RTC erred in relying on Article 129 of
the FamilyCode, instead of Article 147, the dispositive portion of its decision still correctly ordered the equitable partition of
the property. Barrido filed a Motion for Reconsideration, which was, however, denied for lack of merit.
Hence, Barrido brought the case to the Court via a Petition for Review. She assigned the following errors in the CA
Decision:
I.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE MTCC HAD JURISDICTION TO TRY THE
PRESENT CASE.
II.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE LOT COVERED BY TCT NO. T-140361 IS
CONJUGAL AFTER BEING SOLD TO THE CHILDREN, JOSEPH LEO NONATO AND JOSEPH RAYMUND NONATO.
III.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT ARTICLE 129 OF THE FAMILY CODE HAS NO
APPLICATION IN THE PRESENT CASE, ON THE ASSUMPTION
THAT THE TRIAL COURT HAD JURISDICTION OVER THE CASE.6
The petition lacks merit.
Contrary to Barridos contention, the MTCC has jurisdiction to take cognizance of real actions or those affecting title to real
property, or for the recovery of possession, or for the partition or condemnation of, or foreclosure of a mortgage on real
property.7 Section 33 of Batas Pambansa Bilang 1298 provides:
Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in civil
cases. Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts shall exercise:
xxxx
(3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest
therein where the assessed value of the propertyor interest therein does not exceed Twenty thousand pesos
(P20,000.00)or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos

37

(P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided,
That value of such property shall be determined by the assessed value of the adjacent lots. (as amended by R.A. No.
7691)9
Here, the subject propertys assessed value was merely P8,080.00, an amount which certainly does not exceed the
required limit of P20,000.00 for civil actions outside Metro Manila tofall within the jurisdiction of the MTCC. Therefore, the
lower court correctly took cognizance of the instant case.
The records reveal that Nonatoand Barridos marriage had been declared void for psychological incapacity under Article
3610 of the Family Code. During their marriage, however, the conjugal partnership regime governed their property
relations. Although Article 12911 provides for the
procedure in case of dissolution of the conjugal partnership regime, Article 147 specifically covers the effects of void
marriages on the spouses property relations. Article 147 reads:
Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband
and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in
equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on
co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed tohave been
obtained by their joint efforts, work or industry, and shall beowned by them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the
household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation
and owned in common, without the consent of the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or
their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party.1wphi1 In all cases, the forfeiture shall take place upon
termination of the cohabitation.
This particular kind of co-ownership applies when a man and a woman, suffering no illegal impedimentto marry each
other, exclusively live together as husband and wife under a void marriage or without the benefit of marriage. 12 It is clear,
therefore, that for Article 147 to operate, the man and the woman: (1) must be capacitated to marry each other; (2) live
exclusively with each other as husband and wife; and (3) their union is without the benefit of marriage or their marriage is
void. Here, all these elements are present.13 The term "capacitated" inthe first paragraph of the provision pertains to the
legal capacity of a party to contract marriage.14 Any impediment to marry has not been shown to have existed on the part
of either Nonato or Barrido. They lived exclusively with each other as husband and wife. However, their marriage was
found to be void under Article 36 of the Family Code on the ground of psychological incapacity.15
Under this property regime, property acquired by both spouses through their work and industry shall be governed by the
rules on equal coownership. Any property acquired during the union is prima faciepresumed to have been obtained
through their joint efforts. A party who did not participate in the acquisition of the property shall be considered as having
contributed to the same jointly if said party's efforts consisted in the care and maintenance of the family
household.16 Efforts in the care and maintenance of the family and household are regarded as contributions to the
acquisition of common property by one who has no salary or income or work or industry.17

38

In the analogous case of Valdez,18 it was likewise averred that the trial court failed to apply the correct law that should
govern the disposition of a family dwelling in a situation where a marriage is declared void ab initiobecause of
psychological incapacity on the part of either or both parties in the contract of marriage.The Court held that the court a
quodid not commit a reversible error in utilizing Article 147 of the Family Code and in ruling that the former spouses own
the family home and all their common property in equal shares, as well as in concluding that, in the liquidation and
partition of the property that they owned in common, the provisions on coownership under the Civil Code should aptly
prevail.19 The rules which are set up to govern the liquidation of either the absolute community or the conjugal partnership
of gains, the property regimes recognized for valid and voidable marriages, are irrelevant to the liquidation of the coownership that exists between common-law spousesor spouses of void marriages. 20
Here, the former spouses both agree that they acquired the subject property during the subsistence of their marriage.
Thus, it shall be presumed to have been obtained by their joint efforts, work or industry, and shall be jointly owned by them
in equal shares. Barrido, however, claims that the ownership over the property in question is already vested on their
children, by virtue of a Deed of Sale. But aside from the title to the property still being registered in the names of the
former spouses, said document of safe does not bear a notarization of a notary public. It must be noted that without the
notarial seal, a document remains to be private and cannot be converted into a public document, 21 making it inadmissible
in evidence unless properly authenticated.22 Unfortunately, Barrido failed to prove its due execution and authenticity. In
fact, she merely annexed said Deed of Sale to her position paper. Therefore, the subject property remains to be owned in
common by Nonato and Barrido, which should be divided in accordance with the rules on co-ownership.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals, dated November 16,
2006, as well as its Resolution dated January 24, 2007 in CA-G.R. SP No. 00235, are hereby AFFIRMED.
SO ORDERED.

MAXIMO ALVAREZ,
Petitioner,

G.R. No. 143439

Present:

- versus -

SUSAN RAMIREZ,
Respondent.

PANGANIBAN, J., Chairman,

SANDOVAL-GUTIERREZ,
CORONA,
CARPIO MORALES, and
GARCIA, JJ.

Promulgated:

October 14, 2005

x---------------------------------------------------------------------------------------------x
D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

39

Before us is a petition for review on certiorari[1] assailing the Decision[2] of the Court of Appeals dated May 31, 2000 in CAG.R. SP No. 56154, entitled SUSAN RAMIREZ, petitioner, versus, HON. BENJAMIN M. AQUINO, JR., as JUDGE RTC,
MALABON, MM, BR. 72, and MAXIMO ALVAREZ, respondents.
Susan Ramirez, herein respondent, is the complaining witness in Criminal Case No. 19933-MN for arson [3] pending before
the Regional Trial Court, Branch 72, Malabon City. The accused is Maximo Alvarez, herein petitioner. He is the husband of
Esperanza G. Alvarez, sister of respondent.
On June 21, 1999, the private prosecutor called Esperanza Alvarez to the witness stand as the first witness against
petitioner, her husband. Petitioner and his counsel raised no objection.
Esperanza testified as follows:
ATTY. ALCANTARA:
We are calling Mrs. Esperanza Alvarez, the wife of the accused, Your Honor.
COURT:
Swear in the witness.
xxx
ATTY. MESIAH: (sic)
Your Honor, we are offering the testimony of this witness for the purpose of proving that the
accused Maximo Alvarez committed all the elements of the crime being charged particularly that accused
Maximo Alvarez pour on May 29, 1998 gasoline in the house located at Blk. 5, Lot 9, Phase 1-C, Dagatdagatan, Navotas, Metro Manila, the house owned by his sister-in-law Susan Ramirez; that accused
Maximo Alvarez after pouring the gasoline on the door of the house of Susan Ramirez ignited and set it
on fire; that the accused at the time he successfully set the house on fire (sic) of Susan Ramirez knew
that it was occupied by Susan Ramirez, the members of the family as well as Esperanza Alvarez, the
estranged wife of the accused; that as a consequence of the accused in successfully setting the fire to
the house of Susan Ramirez, the door of said house was burned and together with several articles of the
house, including shoes, chairs and others.
COURT:
You may proceed.
xxx
DIRECT EXAMINATION
ATTY. ALCANTARA:

40

xxx
Q: When you were able to find the source, incidentally what was the source of that scent?
A: When I stand by the window, sir, I saw a man pouring the gasoline in the house of my sister (and
witness pointing to the person of the accused inside the court room).
Q: For the record, Mrs. Witness, can you state the name of that person, if you know?
A: He is my husband, sir, Maximo Alvarez.
Q: If that Maximo Alvarez you were able to see, can you identify him?
A: Yes, sir.
Q: If you can see him inside the Court room, can you please point him?
A: Witness pointing to a person and when asked to stand and asked his name, he gave his name as
Maximo Alvarez.[4]

In the course of Esperanzas direct testimony against petitioner, the latter showed uncontrolled emotions,
prompting the trial judge to suspend the proceedings.
On June 30, 1999, petitioner, through counsel, filed a motion [5] to disqualify Esperanza from testifying against him
pursuant to Rule 130 of the Revised Rules of Court on marital disqualification.
Respondent filed an opposition[6] to the motion. Pending resolution of the motion, the trial court directed the prosecution to
proceed with the presentation of the other witnesses.
On September 2, 1999, the trial court issued the questioned Order disqualifying Esperanza Alvarez from further testifying
and deleting her testimony from the records. [7] The prosecution filed a motion for reconsideration but was denied in the
other assailed Order dated October 19, 1999.[8]
This prompted respondent Susan Ramirez, the complaining witness in Criminal Case No. 19933-MN, to file with
the Court of Appeals a petition for certiorari[9] with application for preliminary injunction and temporary restraining order.[10]
On May 31, 2000, the Appellate Court rendered a Decision nullifying and setting aside the assailed Orders issued by the
trial court.

Hence, this petition for review on certiorari.

41

The issue for our resolution is whether Esperanza Alvarez can testify against her husband in Criminal Case No.
19933-MN.

Section 22, Rule 130 of the Revised Rules of Court provides:

Sec. 22. Disqualification by reason of marriage. During their marriage, neither the husband nor
the wife may testify for or against the other without the consent of the affected spouse, except in a civil
case by one against the other, or in a criminal case for a crime committed by one against the other or the
latters direct descendants or ascendants.

The reasons given for the rule are:

1.

There is identity of interests between husband and wife;

2.

If one were to testify for or against the other, there is consequent danger of perjury;

3.

The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional
failure of justice, and to prevent domestic disunion and unhappiness; and

4.

Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile
testimony of the other.[11]

But like all other general rules, the marital disqualification rule has its own exceptions, both in civil actions
between the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the
exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For
instance, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor
peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case,
identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in
such a situation, the security and confidences of private life, which the law aims at protecting, will be nothing but ideals,
which through their absence, merely leave a void in the unhappy home. [12]

42

In Ordoo vs. Daquigan,[13] this Court held:

We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargil
vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said:
The rule that the injury must amount to a physical wrong upon the person is too
narrow; and the rule that any offense remotely or indirectly affecting domestic harmony
comes within the exception is too broad. The better rule is that, when an offense directly
attacks, or directly and vitally impairs, the conjugal relation, it comes within the
exception to the statute that one shall not be a witness against the other except in a
criminal prosecution for a crime committee (by) one against the other.
Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal relation between him and his
wife Esperanza. His act, as embodied in the Information for arson filed against him, eradicates all the major aspects of
marital life such as trust, confidence, respect and love by which virtues the conjugal relationship survives and flourishes.
As correctly observed by the Court of Appeals:
The act of private respondent in setting fire to the house of his sister-in-law Susan Ramirez,
knowing fully well that his wife was there, and in fact with the alleged intent of injuring the latter, is an act
totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks
to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal
relation. It underscored the fact that the marital and domestic relations between her and the accusedhusband have become so strained that there is no more harmony, peace or tranquility to be preserved.
The Supreme Court has held that in such a case, identity is non-existent. In such a situation, the security
and confidences of private life which the law aims to protect are nothing but ideals which through their
absence, merely leave a void in the unhappy home. (People v. Castaeda, 271 SCRA 504). Thus, there is
no longer any reason to apply the Marital Disqualification Rule.

It should be stressed that as shown by the records, prior to the commission of the offense, the relationship
between petitioner and his wife was already strained. In fact, they were separated de facto almost six months before the
incident. Indeed, the evidence and facts presented reveal that the preservation of the marriage between petitioner and
Esperanza is no longer an interest the State aims to protect.
At this point, it bears emphasis that the State, being interested in laying the truth before the courts so that the
guilty may be punished and the innocent exonerated, must have the right to offer the direct testimony of Esperanza, even
against the objection of the accused, because (as stated by this Court in Francisco[14]), it was the latter himself who gave
rise to its necessity.

43

WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial court, RTC, Branch 72, Malabon City, is
ordered to allow Esperanza Alvarez to testify against petitioner, her husband, in Criminal Case No. 19933-MN. Costs
against petitioner.

G.R. NO. 154132 August 31, 2006

HIYAS SAVINGS and LOAN BANK, INC. Petitioner,
vs.
HON. EDMUNDO T. ACUA, in his capacity as Pairing Judge of Regional Trial Court, Branch 122, Caloocan City,
and ALBERTO MORENO, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court seeking to nullify the Orders 1 of the
Regional Trial Court (RTC) of Caloocan City, Branch 122, dated November 8, 2001 2 and May 7, 2002 3denying herein
petitioners Motion to Dismiss and Motion for Partial Reconsideration, respectively.
The antecedent facts are as follows:
On November 24, 2000, Alberto Moreno (private respondent) filed with the RTC of Caloocan City a complaint against
Hiyas Savings and Loan Bank, Inc. (petitioner), his wife Remedios, the spouses Felipe and Maria Owe and the Register of
Deeds of Caloocan City for cancellation of mortgage contending that he did not secure any loan from petitioner, nor did he
sign or execute any contract of mortgage in its favor; that his wife, acting in conspiracy with Hiyas and the spouses Owe,
who were the ones that benefited from the loan, made it appear that he signed the contract of mortgage; that he could not
have executed the said contract because he was then working abroad. 4
On May 17, 2001, petitioner filed a Motion to Dismiss on the ground that private respondent failed to comply with Article
151 of the Family Code wherein it is provided that no suit between members of the same family shall prosper unless it
should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that
the same have failed. Petitioner contends that since the complaint does not contain any fact or averment that earnest
efforts toward a compromise had been made prior to its institution, then the complaint should be dismissed for lack of
cause of action. 5
Private respondent filed his Comment on the Motion to Dismiss with Motion to Strike Out and to Declare Defendants in
Default. He argues that in cases where one of the parties is not a member of the same family as contemplated under
Article 150 of the Family Code, failure to allege in the complaint that earnest efforts toward a compromise had been made
by the plaintiff before filing the complaint is not a ground for a motion to dismiss. Alberto asserts that since three of the
party-defendants are not members of his family the ground relied upon by Hiyas in its Motion to Dismiss is inapplicable
and unavailable. Alberto also prayed that defendants be declared in default for their failure to file their answer on time. 6
Petitioner filed its Reply to the Comment with Opposition to the Motion to Strike and to Declare Defendants in
Default. 7 Private respondent, in turn, filed his Rejoinder. 8
On November 8, 2001, the RTC issued the first of its assailed Orders denying the Motion to Dismiss, thus:

44

The court agrees with plaintiff that earnest efforts towards a compromise is not required before the filing of the instant
case considering that the above-entitled case involves parties who are strangers to the family. As aptly pointed out in the
cases cited by plaintiff, Magbaleta v. G[o]nong, L-44903, April 25, 1977 and Mendez v. [B]iangon, L-32159, October 28,
1977, if one of the parties is a stranger, failure to allege in the complaint that earnest efforts towards a compromise had
been made by plaintiff before filing the complaint, is not a ground for motion to dismiss.
Insofar as plaintiffs prayer for declaration of default against defendants, the same is meritorious only with respect to
defendants Remedios Moreno and the Register of Deeds of Kaloocan City. A declaration of default against defendant
bank is not proper considering that the filing of the Motion to Dismiss by said defendant operates to stop the running of the
period within which to file the required Answer. 9
Petitioner filed a Motion for Partial Reconsideration. 10 Private respondent filed his Comment,
its Reply. 12 Thereafter, private respondent filed his Rejoinder. 13

11

after which petitioner filed

On May 7, 2002, the RTC issued the second assailed Order denying petitioners Motion for Partial Reconsideration. The
trial court ruled:
Reiterating the resolution of the court, dated November 8, 2001, considering that the above-entitled case involves parties
who are strangers to the family, failure to allege in the complaint that earnest efforts towards a compromise were made by
plaintiff, is not a ground for a Motion to Dismiss.
Additionally, the court agrees with plaintiff that inasmuch as it is defendant Remedios Moreno who stands to be benefited
by Art. 151 of the Family Code, being a member of the same family as that of plaintiff, only she may invoke said Art.
151. 14
xxx
Hence, the instant Petition for Certiorari on the following grounds:
I. Public respondent committed grave abuse of discretion amounting to lack or in excess of jurisdiction when he ruled that
lack of earnest efforts toward a compromise is not a ground for a motion to dismiss in suits between husband and wife
when other parties who are strangers to the family are involved in the suit. Corollarily, public respondent committed grave
abuse of discretion amounting to lack or in excess of jurisdiction when he applied the decision in the case of Magbaleta v.
Gonong instead of the ruling in the case of De Guzman v. Genato.
II. Public respondent committed grave abuse of discretion amounting to lack or in excess of jurisdiction when he ruled that
a party who is a stranger to the family of the litigants could not invoke lack of earnest efforts toward a compromise as a
ground for the dismissal of the complaint. 15
At the outset, the Court notes that the instant Petition for Certiorari should have been filed with the Court of Appeals (CA)
and not with this Court pursuant to the doctrine of hierarchy of courts. Reiterating the established policy for the strict
observance of this doctrine, this Court held in Heirs of Bertuldo Hinog v. Melicor 16 that:
Although the Supreme Court, Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue writs
of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give the
petitioner unrestricted freedom of choice of court forum. As we stated in People v. Cuaresma:
This Court's original jurisdiction to issue writs of certiorari is not exclusive. It is shared by this Court with Regional Trial
Courts and with the Court of Appeals. This concurrence of jurisdiction is not, however, to be taken as according to parties
seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be
directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and also serves
as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that

45

judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior")
courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct
invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special
and important reasons therefor, clearly and specifically set out in the petition. This is [an] established policy. It is a policy
necessary to prevent inordinate demands upon the Courts time and attention which are better devoted to those matters
within its exclusive jurisdiction, and to prevent further over-crowding of the Courts docket.
The rationale for this rule is two-fold: (a) it would be an imposition upon the precious time of this Court; and (b) it would
cause an inevitable and resultant delay, intended or otherwise, in the adjudication of cases, which in some instances had
to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to
resolve the issues because this Court is not a trier of facts.
Thus, this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate
courts, and exceptional and compelling circumstances, such as cases of national interest and of serious implications,
justify the availment of the extraordinary remedy of writ of certiorari, calling for the exercise of its primary jurisdiction.
Exceptional and compelling circumstances were held present in the following cases: (a)Chavez vs. Romulo on citizens
right to bear arms; (b) Government of the United States of America vs. Purgananon bail in extradition proceedings;
(c) Commission on Elections vs. Quijano-Padilla on government contract involving modernization and computerization of
voters registration list; (d) Buklod ng Kawaning EIIB vs. Zamora on status and existence of a public office; and (e) Fortich
vs. Corona on the so-called "Win-Win Resolution" of the Office of the President which modified the approval of the
conversion to agro-industrial area. 17
In the present case, petitioner failed to advance a satisfactory explanation as to its failure to comply with the principle of
judicial hierarchy. There is no reason why the instant petition could not have been brought before the CA. On this basis,
the instant petition should be dismissed.
And even if this Court passes upon the substantial issues raised by petitioner, the instant petition likewise fails for lack of
merit.
Restating its arguments in its Motion for Partial Reconsideration, petitioner argues that what is applicable to the present
case is the Courts decision in De Guzman v. Genato 18 and not in Magbaleta v. Gonong, 19 the former being a case
involving a husband and wife while the latter is between brothers.
The Court is not persuaded.
Article 151 of the Family Code provides as follows:
No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition
that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such
efforts were in fact made, the case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise under the Civil Code.
Article 222 of the Civil Code from which Article 151 of the Family Code was taken, essentially contains the same
provisions, to wit:
No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts
toward a compromise have been made, but that the same have failed, subject to the limitations in Article 2035. 20
The Code Commission that drafted Article 222 of the Civil Code from which Article 151 of the Family Code was taken
explains:

46

[I]t is difficult to imagine a sadder and more tragic spectacle than a litigation between members of the same family. It is
necessary that every effort should be made toward a compromise before a litigation is allowed to breed hate and passion
in the family. It is known that a lawsuit between close relatives generates deeper bitterness than between strangers. 21
In Magbaleta, the case involved brothers and a stranger to the family, the alleged owner of the subject property. The
Court, taking into consideration the explanation made by the Code Commision in its report, ruled that:
[T]hese considerations do not, however, weigh enough to make it imperative that such efforts to compromise should be a
jurisdictional pre-requisite for the maintenance of an action whenever a stranger to the family is a party thereto, whether
as a necessary or indispensable one. It is not always that one who is alien to the family would be willing to suffer the
inconvenience of, much less relish, the delay and the complications that wranglings between or among relatives more
often than not entail. Besides, it is neither practical nor fair that the determination of the rights of a stranger to the family
who just happened to have innocently acquired some kind of interest in any right or property disputed among its members
should be made to depend on the way the latter would settle their differences among themselves. 22 x x x.
Hence, once a stranger becomes a party to a suit involving members of the same family, the law no longer makes it a
condition precedent that earnest efforts be made towards a compromise before the action can prosper.
In the subsequent case of De Guzman, the case involved spouses and the alleged paramour of the wife. The Court ruled
that due to the efforts exerted by the husband, through the Philippine Constabulary, to confront the wife, there was
substantial compliance with the law, thereby implying that even in the presence of a party who is not a family member, the
requirements that earnest efforts towards a compromise have been exerted must be complied with, pursuant to Article 222
of the Civil Code, now Article 151 of the Family Code.
While De Guzman was decided after Magbaleta, the principle enunciated in the Magbaleta is the one that now prevails
because it is reiterated in the subsequent cases of Gonzales v. Lopez, 23 Esquivias v. Court of Appeals,24 Spouses
Hontiveros v. Regional Trial Court, Branch 25, Iloilo City, 25 and the most recent case of Martinez v. Martinez. 26 Thus,
Article 151 of the Family Code applies to cover when the suit is exclusively between or among family members.
The Court finds no cogent reason why the ruling in Magbaleta as well as in all of the aforementioned cases should not
equally apply to suits involving husband and wife.
Petitioner makes much of the fact that the present case involves a husband and his wife while Magbaleta is a case
between brothers. However, the Court finds no specific, unique, or special circumstance that would make the ruling
in Magbaleta as well as in the abovementioned cases inapplicable to suits involving a husband and his wife, as in the
present case. In the first place, Article 151 of the Family Code and Article 222 of the Civil Code are clear that the
provisions therein apply to suits involving "members of the same family" as contemplated under Article 150 of the Family
Code, to wit:
ART. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or half blood.
and Article 217 of the Civil Code, to wit:

47

ART. 217. Family relations shall include those:

(1) Between husband and wife;
(2) Between parent and child;
(3) Among other ascendants and their descendants;
(4) Among brothers and sisters.
Petitioner also contends that the trial court committed grave abuse of discretion when it ruled that petitioner, not being a
member of the same family as respondent, may not invoke the provisions of Article 151 of the Family Code.
Suffice it to say that since the Court has ruled that the requirement under Article 151 of the Family Code is applicable only
in cases which are exclusively between or among members of the same family, it necessarily follows that the same may
be invoked only by a party who is a member of that same family.
WHEREFORE, the instant Petition for Certiorari is DISMISSED for lack of merit.
Costs against petitioner.

PERLA G. PATRICIO, G.R. No. 170829

Petitioner,
Present:
Panganiban, C.J. (Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.
MARCELINO G. DARIO III and
THE HONORABLE COURT OF Promulgated:
APPEALS, Second Division,
Respondents. November 20, 2006
x ---------------------------------------------------------------------------------------- x
DECISION
YNARES-SANTIAGO, J.:

48

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul and set aside the Resolution of the
Court of Appeals dated December 9, 2005 [1] in CA-G.R. CV No. 80680, which dismissed the complaint for partition filed by
petitioner for being contrary to law and evidence.

On July 5, 1987, Marcelino V. Dario died intestate. He was survived by his wife, petitioner Perla G. Patricio and their two
sons, Marcelino Marc Dario and private respondent Marcelino G. Dario III. Among the properties he left was a parcel of
land with a residential house and a pre-school building built thereon situated at 91 Oxford corner Ermin Garcia Streets in
Cubao, Quezon City, as evidenced by Transfer Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon City
Registry of Deeds, covering an area of seven hundred fifty five (755) square meters, more or less. [2]

On August 10, 1987, petitioner, Marcelino Marc and private respondent, extrajudicially settled the estate of Marcelino V.
Dario. Accordingly, TCT No. RT-30731 (175992) was cancelled and TCT No. R-213963 was issued in the names of
petitioner, private respondent and Marcelino Marc.

Thereafter, petitioner and Marcelino Marc formally advised private respondent of their intention to partition the subject
property and terminate the co-ownership. Private respondent refused to partition the property hence petitioner and
Marcelino Marc instituted an action for partition before the Regional Trial Court of Quezon City which was docketed as
Civil Case No. Q-01-44038 and raffled to Branch 78.

On October 3, 2002,[3] the trial court ordered the partition of the subject property in the following manner: Perla G.
Patricio, 4/6; Marcelino Marc G. Dario, 1/6; and Marcelino G. Dario III, 1/6. The trial court also ordered the sale of the
property by public auction wherein all parties concerned may put up their bids. In case of failure, the subject property
should be distributed accordingly in the aforestated manner.[4]

Private respondent filed a motion for reconsideration which was denied by the trial court on August 11, 2003,
[5]

hence he appealed before the Court of Appeals, which denied the same on October 19, 2005. However, upon a motion

for reconsideration filed by private respondent on December 9, 2005, the appellate court partially reconsidered the
October 19, 2005 Decision. In the now assailed Resolution, the Court of Appeals dismissed the complaint for partition filed
by petitioner and Marcelino Marc for lack of merit. It held that the family home should continue despite the death of one or
both spouses as long as there is a minor beneficiary thereof. The heirs could not partition the property unless the court

49

found compelling reasons to rule otherwise. The appellate court also held that the minor son of private respondent, who is
a grandson of spouses Marcelino V. Dario and Perla G. Patricio, was a minor beneficiary of the family home. [6]

Hence, the instant petition on the following issues:

I.
THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN REVERSING ITS EARLIER DECISION
OF OCTOBER 19, 2005 WHICH AFFIRMED IN TOTO THE DECISION OF THE TRIAL COURT DATED
03 OCTOBER 2002 GRANTING THE PARTITION AND SALE BY PUBLIC AUCTION OF THE SUBJECT
PROPERTY.
II.
COROLLARILY, THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN APPLYING ARTICLE
159 IN RELATION TO ARTICLE 154 OF THE FAMILY CODE ON FAMILY HOME INSTEAD OF ARTICLE
494 IN RELATION TO ARTICLES 495 AND 498 OF THE NEW CIVIL CODE ON CO-OWNERSHIP.[7]

The sole issue is whether partition of the family home is proper where one of the co-owners refuse to accede to
such partition on the ground that a minor beneficiary still resides in the said home.

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

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

The family home is a sacred symbol of family love and is the repository of cherished memories that last during
ones lifetime.[9] It is the dwelling house where husband and wife, or by an unmarried head of a family, reside, including the
land on which it is situated.[10] It is constituted jointly by the husband and the wife or by an unmarried head of a family.

50

[11]

The family home is deemed constituted from the time it is occupied as a family residence. From the time of its

constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is
exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by
law.[12]

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

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

To be a beneficiary of the family home, three requisites must concur: (1) they must be among the relationships
enumerated in Art. 154 of the Family Code; (2) they live in the family home; and (3) they are dependent for legal support
upon the head of the family.

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

Article 159 of the Family Code applies in situations where death occurs to persons who constituted the family home. Dr.
Arturo M. Tolentino comments on the effect of death of one or both spouses or the unmarried head of a family on the
continuing existence of the family home:

51

Upon the death of the spouses or the unmarried family head who constituted the family home, or of the
spouse who consented to the constitution of his or her separate property as family home, the property will
remain as family home for ten years or for as long as there is a minor beneficiary living in it. If there is no
more beneficiary left at the time of death, we believe the family home will be dissolved or cease,
because there is no more reason for its existence. If there are beneficiaries who survive living in
the family home, it will continue for ten years, unless at the expiration of the ten years, there is
still a minor beneficiary, in which case the family home continues until that beneficiary becomes
of age.
After these periods lapse, the property may be partitioned by the heirs. May the heirs who are
beneficiaries of the family home keep it intact by not partitioning the property after the period provided by
this article? We believe that although the heirs will continue in ownership by not partitioning the
property, it will cease to be a family home.[14] (Emphasis supplied)
Prof. Ernesto L. Pineda further explains the import of Art. 159 in this manner:
The family home shall continue to exist despite the death of one or both spouses or of the unmarried
head of the family. Thereafter, the length of its continued existence is dependent upon whether there is
still a minor-beneficiary residing therein. For as long as there is one beneficiary even if the head
of the family or both spouses are already dead, the family home will continue to exist (Arts. 153,
159). If there is no minor-beneficiary, it will subsist until 10 years and within this period, the heirs
cannot partition the same except when there are compelling reasons which will justify the
partition. This rule applies regardless of whoever owns the property or who constituted the family home.
[15]
(Emphasis supplied)

The rule in Article 159 of the Family Code may thus be expressed in this wise: If there are beneficiaries who survive and
are living in the family home, it will continue for 10 years, unless at the expiration of 10 years, there is still a minor
beneficiary, in which case the family home continues until that beneficiary becomes of age.

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

52

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

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

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

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

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

53

Professor Pineda is of the view that grandchildren cannot demand support directly from their grandparents if they have
parents (ascendants of nearest degree) who are capable of supporting them. This is so because we have to follow the
order of support under Art. 199.[18] We agree with this view.

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

There is no showing that private respondent is without means to support his son; neither is there any evidence to
prove that petitioner, as the paternal grandmother, was willing to voluntarily provide for her grandsons legal support. On
the contrary, herein petitioner filed for the partition of the property which shows an intention to dissolve the family home,
since there is no more reason for its existence after the 10-year period ended in 1997.
With this finding, there is no legal impediment to partition the subject property.

The law does not encourage co-ownerships among individuals as oftentimes it results in inequitable situations such as in
the instant case. Co-owners should be afforded every available opportunity to divide their co-owned property to prevent
these situations from arising.
As we ruled in Santos v. Santos,[19] no co-owner ought to be compelled to stay in a co-ownership indefinitely, and may
insist on partition on the common property at any time. An action to demand partition is imprescriptible or cannot be
barred by laches. Each co-owner may demand at any time the partition of the common property.[20]

Since the parties were unable to agree on a partition, the court a quo should have ordered a partition by
commissioners pursuant to Section 3, Rule 69 of the Rules of Court. Not more than three competent and disinterested
persons should be appointed as commissioners to make the partition, commanding them to set off to the plaintiff and to
each party in interest such part and proportion of the property as the court shall direct.

When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without great
prejudice to the interest of the parties, the court may order it assigned to one of the parties willing to take the same,

54

provided he pays to the other parties such sum or sums of money as the commissioners deem equitable, unless one of
the parties interested ask that the property be sold instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale, and the commissioners shall sell the same accordingly.[21]

The partition of the subject property should be made in accordance with the rule embodied in Art. 996 of the Civil Code.
[22]

Under the law of intestate succession, if the widow and legitimate children survive, the widow has the same share as

that of each of the children. However, since only one-half of the conjugal property which is owned by the decedent is to be
allocated to the legal and compulsory heirs (the other half to be given exclusively to the surviving spouse as her conjugal
share of the property), the widow will have the same share as each of her two surviving children. Hence, the respective
shares of the subject property, based on the law on intestate succession are: (1) Perla Generosa Dario, 4/6; (2) Marcelino
Marc G. Dario II, 1/6 and (3) Marcelino G. Dario III, 1/6.
In Vda. de Daffon v. Court of Appeals,[23] we held that an action for partition is at once an action for declaration of coownership and for segregation and conveyance of a determinate portion of the properties involved. If the court after trial
should find the existence of co-ownership among the parties, the court may and should order the partition of the
properties in the same action.[24]

WHEREFORE, the petition is GRANTED. The Resolution of the Court of Appeals in CA-G.R. CV No. 80680 dated
December 9, 2005, is REVERSED and SET ASIDE. The case isREMANDED to the Regional Trial Court of Quezon City,
Branch 78, who is directed to conduct a PARTITION BY COMMISSIONERS and effect the actual physical partition of the
subject property, as well as the improvements that lie therein, in the following manner: Perla G. Dario, 4/6; Marcelino Marc
G. Dario, 1/6 and Marcelino G. Dario III, 1/6. The trial court is DIRECTED to appoint not more than three (3) competent
and disinterested persons, who should determine the technical metes and bounds of the property and the proper share
appertaining to each heir, including the improvements, in accordance with Rule 69 of the Rules of Court. When it is made
to the commissioners that the real estate, or a portion thereof, cannot be divided without great prejudice to the interest of
the parties, the court a quo may order it assigned to one of the parties willing to take the same, provided he pays to the
other parties such sum or sums of money as the commissioners deem equitable, unless one of the parties interested ask
that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the
real estate at public sale, and the commissioners shall sell the same accordingly, and thereafter distribute the proceeds of
the sale appertaining to the just share of each heir. No pronouncement as to costs.

55

G.R. No. 177703

January 28, 2008

VILMA G. ARRIOLA and ANTHONY RONALD G. ARRIOLA, petitioners,

vs.
JOHN NABOR C. ARRIOLA, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the November 30,
2006 Decision1 and April 30, 2007 Resolution2 of the Court of Appeals in CA-G.R. SP No. 93570.
The relevant facts are culled from the records.
John Nabor C. Arriola (respondent) filed Special Civil Action No. 03-0010 with the Regional Trial Court, Branch 254, Las
Pias City (RTC) against Vilma G. Arriola and Anthony Ronald G. Arriola (petitioners) for judicial partition of the properties
of decedent Fidel Arriola (the decedent Fidel). Respondent is the son of decedent Fidel with his first wife Victoria C.
Calabia, while petitioner Anthony is the son of decedent Fidel with his second wife, petitioner Vilma.
On February 16, 2004, the RTC rendered a Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered:
1. Ordering the partition of the parcel of land covered by Transfer Certificate of Title No. 383714 (84191) left by
the decedent Fidel S. Arriola by and among his heirs John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald
G. Arriola in equal shares of one-third (1/3) each without prejudice to the rights of creditors or mortgagees
thereon, if any;
2. Attorney's fees in the amount of TEN THOUSAND (P10,000.00) PESOS is hereby awarded to be reimbursed
by the defendants to the plaintiff;
3. Costs against the defendants.
SO ORDERED.3
The decision became final on March 15, 2004.4
As the parties failed to agree on how to partition among them the land covered by TCT No. 383714 (subject land),
respondent sought its sale through public auction, and petitioners acceded to it. 5 Accordingly, the RTC ordered the public
auction of the subject land.6 The public auction sale was scheduled on May 31, 2003 but it had to be reset when
petitioners refused to include in the auction the house (subject house) standing on the subject land. 7This prompted
respondent to file with the RTC an Urgent Manifestation and Motion for Contempt of Court, 8praying that petitioners be
declared in contempt.
The RTC denied the motion in an Order9 dated August 30, 2005, for the reason that petitioners were justified in refusing to
have the subject house included in the auction, thus:
The defendants [petitioners] are correct in holding that the house or improvement erected on the property should
not be included in the auction sale.

56

A cursory reading of the aforementioned Decision and of the evidence adduced during the ex-parte hearing
clearly show that nothing was mentioned about the house existing on the land subject matter of the case. In fact,
even plaintiff's [respondent's] initiatory Complaint likewise did not mention anything about the house. Undoubtedly
therefore, the Court did not include the house in its adjudication of the subject land because it was plaintiff himself
who failed to allege the same. It is a well-settled rule that the court can not give a relief to that which is not alleged
and prayed for in the complaint.
To hold, as plaintiff argued, that the house is considered accessory to the land on which it is built is in effect to add
to plaintiff's [a] right which has never been considered or passed upon during the trial on the merits.
In the absence of any other declaration, obvious or otherwise, only the land should be partitioned in accordance
to[sic] the aforementioned Decision as the house can not be said to have been necessarily adjudicated therein.
Thus, plaintiff can not be declared as a co-owner of the same house without evidence thereof and due hearing
thereon.
The Decision of the Court having attained its finality, as correctly pointed out, judgment must stand even at the
risk that it might be erroneous.
WHEREFORE, the Urgent Manifestation and Motion for Contempt of Court filed by plaintiff is hereby DENIED for
lack of merit.
SO ORDERED.10
The RTC, in its Order dated January 3, 2006, denied respondent's Motion for Reconsideration. 11
Respondent filed with the CA a Petition for Certiorari12 where he sought to have the RTC Orders set aside, and prayed
that he be allowed to proceed with the auction of the subject land including the subject house.
In its November 30, 2006 Decision, the CA granted the Petition for Certiorari, to wit:
WHEREFORE, the petition is GRANTED. The assailed orders dated August 30, 2005 and January 3, 2006 issued
by the RTC, in Civil Case No. SCA 03-0010, are REVERSED and SET ASIDE, and the sheriff is ordered to
proceed with the public auction sale of the subject lot covered by TCT No. 383714, including the house
constructed thereon.
SO ORDERED.13 (Emphasis supplied.)
Petitioners filed a motion for reconsideration but the CA denied the same in its Resolution 14 of April 30, 2007.
Hence, the present petition on the sole ground that the CA erred in holding that the RTC committed grave abuse of
discretion in denying the motion for contempt of court.
The assailed CA Decision and Resolution must be modified for reasons other than those advanced by petitioners.
The contempt proceeding initiated by respondent was one for indirect contempt. Section 4, Rule 71 of the Rules of Court
prescribes the procedure for the institution of proceedings for indirect contempt, viz:
Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the
court against which the contempt was committed by an order or any other formal charge requiring the respondent
to show cause why he should not be punished for contempt.

57

In all other cases, charges for indirect contempt shall be commenced by a verified petition with
supporting particulars and certified true copies of documents or papers involved therein, and upon full
compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If
the contempt charges arose out of or are related to a principal action pending in the court, the petition for
contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court
in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and
decision. (Emphases supplied.)
Under the aforecited second paragraph of the Rules, the requirements for initiating an indirect contempt proceeding are a)
that it be initiated by way of a verified petition and b) that it should fully comply with the requirements for filing initiatory
pleadings for civil actions. In Regalado v. Go,15 we held:
As explained by Justice Florenz Regalado, the filing of a verified petition that has complied with the
requirements for the filing of initiatory pleading, is mandatory x x x:
This new provision clarifies with a regularity norm the proper procedure for commencing contempt
proceedings. While such proceeding has been classified as special civil action under the former Rules,
the heterogenous practice tolerated by the courts, has been for any party to file a motion without paying
any docket or lawful fees therefore and without complying with the requirements for initiatory pleadings,
which is now required in the second paragraph of this amended section.
xxxx
Henceforth, except for indirect contempt proceedings initiated motu propio by order of or a formal charge
by the offended court, all charges shall be commenced by a verified petition with full compliance with the
requirements therefore and shall be disposed in accordance with the second paragraph of this section.
xxxx
Even if the contempt proceedings stemmed from the main case over which the court already
acquired jurisdiction, the rules direct that the petition for contempt be treated independently of
the principal action. Consequently, the necessary prerequisites for the filing of initiatory
pleadings, such as the filing of a verified petition, attachment of a certification on non-forum
shopping, and the payment of the necessary docket fees, must be faithfully observed.
xxxx
The provisions of the Rules are worded in very clear and categorical language. In case where the indirect
contempt charge is not initiated by the courts, the filing of a verified petition which fulfills the requirements on
initiatory pleadings is a prerequisite. Beyond question now is the mandatory requirement of a verified petition in
initiating an indirect contempt proceeding. Truly, prior to the amendment of the 1997 Rules of Civil Procedure,
mere motion without complying with the requirements for initiatory pleadings was tolerated by the courts. At the
onset of the 1997 Revised Rules of Civil Procedure, however, such practice can no longer be
countenanced.16 (Emphasis ours.)
The RTC erred in taking jurisdiction over the indirect contempt proceeding initiated by respondent. The latter did not
comply with any of the mandatory requirements of Section 4, Rule 71. He filed a mere Urgent Manifestation and Motion
for Contempt of Court, and not a verified petition. He likewise did not conform with the requirements for the filing of
initiatory pleadings such as the submission of a certification against forum shopping and the payment of docket fees.
Thus, his unverified motion should have been dismissed outright by the RTC.

58

It is noted though that, while at first the RTC overlooked the infirmities in respondent's unverified motion for contempt, in
the end, it dismissed the motion, albeit on substantive grounds. The trouble is that, in the CA decision assailed herein, the
appellate court committed the same oversight by delving into the merits of respondent's unverified motion and granting the
relief sought therein. Thus, strictly speaking, the proper disposition of the present petition ought to be the reversal of the
CA decision and the dismissal of respondent's unverified motion for contempt filed in the RTC for being in contravention of
Section 4, Rule 71.
However, such simplistic disposition will not put an end to the dispute between the parties. A seed of litigation has already
been sown that will likely sprout into another case between them at a later time. We refer to the question of whether the
subject house should be included in the public auction of the subject land. Until this question is finally resolved, there will
be no end to litigation between the parties. We must therefore deal with it squarely, here and now.
The RTC and the CA differed in their views on whether the public auction should include the subject house. The RTC
excluded the subject house because respondent never alleged its existence in his complaint for partition or established
his co-ownership thereof.17 On the other hand, citing Articles 440,18 44519 and 44620 of the Civil Code, the CA held that as
the deceased owned the subject land, he also owned the subject house which is a mere accessory to the land. Both
properties form part of the estate of the deceased and are held in co-ownership by his heirs, the parties herein. Hence,
the CA concludes that any decision in the action for partition of said estate should cover not just the subject land but also
the subject house.21 The CA further pointed out that petitioners themselves implicitly recognized the inclusion of the
subject house in the partition of the subject land when they proposed in their letter of August 5, 2004, the following
swapping-arrangement:
Sir:
Thank you very much for accommodating us even if we are only poor and simple people. We are very much
pleased with the decision of Presiding Judge Manuel B. Fernandez, Jr., RTC Br. 254, Las Pias, on the sharing of
one-third (1/3) each of a land covered by Transfer Certificate of Title No. 383714 (84191) in Las Pias City.
However, to preserve the sanctity of our house which is our residence for more than twenty (20) years, we wish to
request that the 1/3 share of John Nabor C. Arriola be paid by the defendants depending on the choice of the
plaintiff between item (1) or item (2), detailed as follows:
(1) Swap with a 500-square meters [sic] lot located at Baras Rizal x x x.
(2) Cash of P205,700.00 x x x.
x x x x.22
We agree that the subject house is covered by the judgment of partition for reasons postulated by the CA. We qualify,
however, that this ruling does not necessarily countenance the immediate and actual partition of the subject house by way
of public auction in view of the suspensive proscription imposed under Article 159 of The Family Code which will be
discussed forthwith.
It is true that the existence of the subject house was not specifically alleged in the complaint for partition. Such omission
notwithstanding, the subject house is deemed part of the judgment of partition for two compelling reasons.
First, as correctly held by the CA, under the provisions of the Civil Code, the subject house is deemed part of the subject
land. The Court quotes with approval the ruling of the CA, to wit:
The RTC, in the assailed Order dated August 30, 2005 ratiocinated that since the house constructed on the
subject lot was not alleged in the complaint and its ownership was not passed upon during the trial on the merits,

59

the court cannot include the house in its adjudication of the subject lot. The court further stated that it cannot give
a relief to[sic] which is not alleged and prayed for in the complaint.
We are not persuaded.
To follow the foregoing reasoning of the RTC will in effect render meaningless the pertinent rule on accession. In
general, the right to accession is automatic (ipso jure), requiring no prior act on the part of the owner or
the principal. So that even if the improvements including the house were not alleged in the complaint for
partition, they are deemed included in the lot on which they stand, following the principle of accession.
Consequently, the lot subject of judicial partition in this case includes the house which is permanently
attached thereto, otherwise, it would be absurd to divide the principal, i.e., the lot, without dividing the
house which is permanently attached thereto.23(Emphasis supplied)
Second, respondent has repeatedly claimed that the subject house was built by the deceased. 24 Petitioners never
controverted such claim. There is then no dispute that the subject house is part of the estate of the deceased; as such, it
is owned in common by the latter's heirs, the parties herein, 25 any one of whom, under Article 49426 of the Civil Code, may,
at any time, demand the partition of the subject house. 27 Therefore, respondent's recourse to the partition of the subject
house cannot be hindered, least of all by the mere technical omission of said common property from the complaint for
partition.
That said notwithstanding, we must emphasize that, while we treat the subject house as part of the co-ownership
of the parties, we stop short of authorizing its actual partition by public auction at this time. It bears emphasis that
an action for partition involves two phases: first, the declaration of the existence of a state of co-ownership; and second,
the actual termination of that state of co-ownership through the segregation of the common property. 28 What is settled thus
far is only the fact that the subject house is under the co-ownership of the parties, and therefore susceptible of partition
among them.
Whether the subject house should be sold at public auction as ordered by the RTC is an entirely different matter,
depending on the exact nature of the subject house.
Respondent claims that the subject house was built by decedent Fidel on his exclusive property.29 Petitioners add that
said house has been their residence for 20 years. 30 Taken together, these averments on record establish that the subject
house is a family home within the contemplation of the provisions of The Family Code, particularly:
Article 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family,
is the dwelling house where they and their family reside, and the land on which it is situated.
Article 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family
residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the
family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter
provided and to the extent of the value allowed by law. (Emphasis supplied.)
One significant innovation introduced by The Family Code is the automatic constitution of the family home from the time of
its occupation as a family residence, without need anymore for the judicial or extrajudicial processes provided under the
defunct Articles 224 to 251 of the Civil Code and Rule 106 of the Rules of Court. Furthermore, Articles 152 and 153
specifically extend the scope of the family home not just to the dwelling structure in which the family resides but also to
the lot on which it stands. Thus, applying these concepts, the subject house as well as the specific portion of the subject
land on which it stands are deemed constituted as a family home by the deceased and petitioner Vilma from the moment
they began occupying the same as a family residence 20 years back. 31
It being settled that the subject house (and the subject lot on which it stands) is the family home of the deceased and his
heirs, the same is shielded from immediate partition under Article 159 of The Family Code, viz:

60

Article 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of
the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition
the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever
owns the property or constituted the family home. (Emphasis supplied.)
The purpose of Article 159 is to avert the disintegration of the family unit following the death of its head. To this end, it
preserves the family home as the physical symbol of family love, security and unity by imposing the following restrictions
on its partition: first, that the heirs cannot extra-judicially partition it for a period of 10 years from the death of one or both
spouses or of the unmarried head of the family, or for a longer period, if there is still a minor beneficiary residing therein;
and second, that the heirs cannot judicially partition it during the aforesaid periods unless the court finds compelling
reasons therefor. No compelling reason has been alleged by the parties; nor has the RTC found any compelling reason to
order the partition of the family home, either by physical segregation or assignment to any of the heirs or through auction
sale as suggested by the parties.
More importantly, Article 159 imposes the proscription against the immediate partition of the family home regardless of its
ownership. This signifies that even if the family home has passed by succession to the co-ownership of the heirs, or has
been willed to any one of them, this fact alone cannot transform the family home into an ordinary property, much less
dispel the protection cast upon it by the law. The rights of the individual co-owner or owner of the family home cannot
subjugate the rights granted under Article 159 to the beneficiaries of the family home.
Set against the foregoing rules, the family home -- consisting of the subject house and lot on which it stands -- cannot be
partitioned at this time, even if it has passed to the co-ownership of his heirs, the parties herein. Decedent Fidel died on
March 10, 2003.32 Thus, for 10 years from said date or until March 10, 2013, or for a longer period, if there is still a minor
beneficiary residing therein, the family home he constituted cannot be partitioned, much less when no compelling reason
exists for the court to otherwise set aside the restriction and order the partition of the property.
The Court ruled in Honrado v. Court of Appeals33 that a claim for exception from execution or forced sale under Article 153
should be set up and proved to the Sheriff before the sale of the property at public auction. Herein petitioners timely
objected to the inclusion of the subject house although for a different reason.
To recapitulate, the evidence of record sustain the CA ruling that the subject house is part of the judgment of co-ownership
and partition. The same evidence also establishes that the subject house and the portion of the subject land on which it is
standing have been constituted as the family home of decedent Fidel and his heirs. Consequently, its actual and
immediate partition cannot be sanctioned until the lapse of a period of 10 years from the death of Fidel Arriola, or until
March 10, 2013.
It bears emphasis, however, that in the meantime, there is no obstacle to the immediate public auction of the portion of the
subject land covered by TCT No. 383714, which falls outside the specific area of the family home.
WHEREFORE, the petition is PARTLY GRANTED and the November 30, 2006 Decision and April 30, 2007 Resolution of
the Court of Appeals are MODIFIED in that the house standing on the land covered by Transfer Certificate of Title No.
383714 is DECLARED part of the co-ownership of the parties John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald
G. Arriola but EXEMPTED from partition by public auction within the period provided for in Article 159 of the Family Code.

G.R. No. 185064

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

61

Petitioner,

Present:
CARPIO, J.,
Chairperson,
PEREZ,

- versus -

SERENO,
REYES, and
BERNABE, JJ.

SPOUSES CLAUDIO D. ACERO, JR. and MA. RUFINA

Promulgated:

D. ACERO,
SHERIFF FELIXBERTO L. SAMONTE and REGISTRAR
ALFREDO SANTOS,
Respondents.

January 16, 2012

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

DECISION

REYES, J.:

Nature of the Petition

62

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) Decision 1 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.

63

On October 21, 1992, the RTC rendered a Decision3 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 Sale 4 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. T221755 (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

64

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

65

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
Resolution12 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.

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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

67

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. T221755 (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.

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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)

69

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)

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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.

71

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

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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. 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)

73

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.

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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.

EQUITABLE PCI BANK, INC.,

Petitioner,

G.R. No. 165950

75

Present:
- versus -

CARPIO MORALES, J.,

Chairperson,
BRION,
BERSAMIN,
ABAD,* and
VILLARAMA, JR., JJ.

OJ-MARK TRADING, INC. andSPOUSES Promulgated:

OSCAR AND EVANGELINE MARTINEZ,
Respondents.
August 11, 2010
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari filed by petitioner under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, praying for the reversal of the Decision [1] dated October 29, 2004 of the Court of Appeals (CA) in CA-G.R. SP
No. 77703, which denied its petition for certiorari assailing the trial courts orders granting respondents application for a
writ of preliminary injunction.
The factual antecedents:
Respondent-spouses Oscar and Evangeline Martinez obtained loans from petitioner Equitable PCI Bank, Inc. in the
aggregate amount of Four Million Forty-Eight Thousand Eight Hundred Pesos (P4,048,800.00). As security for the said
amount, a Real Estate Mortgage (REM) was executed over a condominium unit in San Miguel Court, Valle Verde
5, Pasig City, Metro Manila where the spouses are residing. Respondent Oscar Martinez signed the REM both as principal
debtor and as President of the registered owner and third-party mortgagor, respondent OJ-Mark Trading, Inc. The REM
was annotated on Condominium Certificate of Title No. PT-21363 of the Registry of Deeds of Pasig City.[2]
Respondent-spouses defaulted in the payment of their outstanding loan obligation, which as of October 31, 2002 stood
at P4,918,160.03.[3] In a letter dated May 15, 2002, they offered to settle their indebtedness with the assignment to the
Bank of a commercial lot of corresponding value and also requested for recomputation at a lower interest rate and
condonation of penalties.[4] While petitioners officers held a meeting with respondent Oscar Martinez, the latter however
failed to submit the required documents such as certificates of title and tax declarations so that the bank can evaluate his
proposal to pay the mortgage debt via dacion en pago.[5] Consequently, petitioner initiated the extrajudicial foreclosure of
the real estate mortgage by filing an ex parte petition before the Office of the Executive Judge, Regional Trial Court (RTC)
of Pasig City.[6]
On January 23, 2003, respondents filed Civil Case No. 69294 for Temporary Restraining Order (TRO), Injunction and
Annulment of Extrajudicial Foreclosure Sale in the RTC of Pasig City. On January 27, 2003, the trial court granted a TRO
effective for twenty (20) days.
In their Complaint With Application for Temporary Restraining Order,[7] respondents sought to enjoin the
impending foreclosure sale alleging that the same was hasty, premature, unreasonable and unwarranted, and also

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claiming defects in the execution of the REM. Respondents imputed bad faith on the part of petitioner who did not officially
inform them of the denial or disapproval of their proposal to settle the loan obligation by dacion via assignment of a
commercial property. Respondents maintained that aside from the REM being illegally notarized, incomplete and
unenforceable, the obligation subject thereof had been extinguished by the dacion proposal considering that the value of
the property offered was more than sufficient to pay for the mortgage debt. It was further averred that the subject property
is being used and occupied by respondent-spouses as a family home.
In his Order dated February 17, 2003, Judge Mariano M. Singzon, Jr. granted the application for a writ of preliminary
injunction.[8] Petitioner filed a motion for reconsideration which was denied under the Order dated April 21, 2003.[9]
Petitioner questioned the issuance of preliminary injunction before the CA arguing that the respondents are not entitled to
injunctive relief after having admitted that they were unable to settle their loan obligations. By Decision dated October 29,
2004, the appellate court sustained the assailed orders, holding that:
...respondent spouses have sufficiently shown that they have a right over the condominium unit
which is subject of the mortgage. This proprietary right over the condominium is what they are trying to
protect when they applied for preliminary injunction. As respondent spouses have alleged in their
complaint, the issuance of notice of foreclosure sale is at most premature as there are still several factual
issues that need to be resolved before a foreclosure can be effected. Such already constitute the
ostensible right which respondent spouses possess in order for the foreclosure sale to be temporarily
enjoined.[10]
Hence, this petition raising the following grounds:
I
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR IN HOLDING
THAT THE TRIAL COURT DID NOT COMMIT GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OF JURISDICTION IN ISSUING THE ASSAILED WRIT OF PRELIMINARY INJUNCTION
II
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR IN HOLDING
THAT INDIVIDUAL RESPONDENTS SPS. MARTINEZ HAVE PROPRIETARY RIGHT OVER THE
MORTGAGED CONDOMINIUM UNIT
III
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR IN HOLDING
THAT SUCH PURPORTED PROPRIETARY RIGHT OF RESPONDENTS SPS.MARTINEZ DESERVES
THE PROTECTIVE MANTLE OF A WRIT OF PRELIMINARY INJUNCTION DESPITE THEIR CLEAR
AND UNEQUIVOCAL ADMISSION OF THE OUTSTANDING LOANS AND THEIR DELINQUENCY
IV
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THERE ARE STILL SEVERAL
FACTUAL ISSUES TO BE RESOLVED IN A FULL-BLOWN TRIAL BEFORE PETITIONER EPCIB
COULD EXERCISE ITS STATUTORY AND EQUITABLE RIGHT TO FORECLOSE[11]
The sole issue to be resolved is whether or not the respondents have shown a clear legal right to enjoin the foreclosure
and public auction of the third-party mortgagors property while the case for annulment of REM on said property is being
tried.
Petitioner argued that the appellate courts conclusion that respondents possess proprietary right over the mortgaged
property subject of foreclosure is utterly baseless, for the following reasons: first, while the condominium unit is
supposedly a family home, it is admittedly owned by respondent corporation and not by the conjugal partnership or
absolute community of respondent-spouses; and second, even assuming that OJ-Mark Trading, Inc. is a family

77

corporation, respondents stance contravenes the established rule that properties registered in the name of the corporation
are owned by it as an entity separate and distinct from its members or stockholders. [12]
As to the alleged proposal of respondent Oscar Martinez to assign commercial lots by dacion en pago to settle their loan
obligations, petitioner pointed out that the properties offered fordacion are not owned, and much less to be owned by him,
but purportedly owned by another corporation (developer), the president of which supposedly owes him a sum of
money.Respondent Oscar Martinez likewise admitted during the hearings before the trial court his unpaid loan with
petitioner. Moreover, with the filing of a petition for extrajudicial foreclosure of the real estate mortgage by petitioner, it
serves more than a formal rejection of respondents dacion en pago offer.[13]
On their part, the respondents contended that the petition raises factual issues not proper in an appeal by certiorari
under Rule 45. They asserted that the trial court correctly found sufficient legal basis to grant the writ of preliminary
injunction after conducting a summary hearing in which both parties actively participated and submitted oral and
documentary evidence. Such evidence adduced by respondents, as well as the Affidavit dated January 24, 2003 of Atty.
Oscar Martinez (adopted in the February 7, 2003 hearing) fully supported their application and hence the trial court did not
act precipitately or arbitrarily in granting injunctive relief. [14]
Respondents argued that they appear to be entitled to the relief demanded by their Complaint because petitioner was in
bad faith when it proceeded to foreclose while there was still a pending written proposal to pay. They stand to lose a prime
property, and thus made a serious and sincere offer by way of dacion en pago. To show good faith and as required by
petitioner to continue the negotiations for dacion, respondent Atty. Oscar Martinez even paid P100,000.00 in October
2002, which petitioner accepted. But petitioner maliciously, fraudulently and hastily proceeded to foreclose the renovated
mortgaged property, apparently motivated by its discovery after re-appraisal that the floor area of the townhouse and
number of its rooms had doubled (from 180.750 sq. m. with three [3] bedrooms, it is now 350 sq. m. with six [6]
bedrooms). Respondents contended that as creditor, it was petitioners duty not to sit on respondents dacion offer and
should have informed them in writing that said offer is rejected. By hanging on the dacion talks, petitioner thus prevented
the respondents repayment of the loan, in malicious haste to acquire the condominium unit as asset. [15]
Respondents further claimed that the extrajudicial foreclosure will cause grave injustice and irreparable injury to
respondent-spouses and their four (4) young children because their family home, in which they were residing since 1997,
at least insofar as the unencumbered area in excess of 180.750 sq. m., is exempt from forced sale or execution under
Article 155 of theFamily Code. Petitioner, on the other hand, will not suffer any loss if the foreclosure will not proceed. [16]
With respect to the commercial lots offered in dacion, respondents fault the petitioner in deliberately ignoring the fact that
the Blue Mountains Subdivision located at Antipolo City was already approved by the Land Registration Authority;
although the subdivided lots have already been applied, the individual titles had not yet been issued. It was therefore
impossible for respondents to deliver these titles to petitioner by October 21, 2002 considering the normal time it takes to
secure land titles. Respondents deplored the sudden filing of the petition for extrajudicial foreclosure, which was unfair as

78

the negotiations had already reached the stage when petitioner scheduled an ocular inspection for the appraisal of the
lots. However, for unknown reasons, petitioner did not push through with the inspection. [17]
We grant the petition.
Section 3, Rule 58 of the Rules of Court provides that:
SEC. 3. Grounds for issuance of preliminary injunction.A preliminary injunction may be granted
when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists
in restraining the commission or continuance of the act or acts complained of, or in requiring the
performance of an act or acts, either for a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts complained of during
the litigation would probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant
respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.
As such, a writ of preliminary injunction may be issued only upon clear showing of an actual existing right to be protected
during the pendency of the principal action. The twin requirements of a valid injunction are the existence of a right and its
actual or threatened violations. Thus, to be entitled to an injunctive writ, the right to be protected and the violation against
that right must be shown.[18] A writ of preliminary injunction may be issued only upon clear showing of an actual existing
right to be protected during the pendency of the principal action. [19]
The issuance of a preliminary injunction rests entirely within the discretion of the court taking cognizance of the
case and is generally not interfered with except in cases of manifest abuse. [20] For the issuance of the writ of preliminary
injunction to be proper, it must be shown that the invasion of the right sought to be protected is material and substantial,
that the right of complainant is clear and unmistakable and that there is an urgent and paramount necessity for the writ to
prevent serious damage. In the absence of a clear legal right, the issuance of a writ of injunction constitutes grave abuse
of discretion.[21]
The possibility of irreparable damage without proof of actual existing right is no ground for an injunction. [22] Hence,
it is not sufficient for the respondents to simply harp on the serious damage they stand to suffer if the foreclosure sale is
not stayed. They must establish such clear and unmistakable right to the injunction. In Duvaz Corporation v. Export and
Industry Bank,[23] we emphasized that it is necessary for the petitioner to establish in the main case its rights on an
alleged dacion en pago agreement before those rights can be deemed actual and existing, which would justify the
injunctive writ. Thus:
In Almeida v. Court of Appeals, the Court stressed how important it is for the applicant for an
injunctive writ to establish his right thereto by competent evidence:
Thus, the petitioner, as plaintiff, was burdened to adduce testimonial and/or
documentary evidence to establish her right to the injunctive writs. It must be stressed that
injunction is not designed to protect contingent or future rights, and, as such, the possibility
of irreparable damage without proof of actual existing right is no ground for an
injunction. A clear and positive right especially calling for judicial protection must be
established. Injunction is not a remedy to protect or enforce contingent, abstract, or future
rights; it will not issue to protect a right not in esse and which may never arise, or to restrain
an action which did not give rise to a cause of action. There must be an existence of an
actual right. Hence, where the plaintiffs right or title is doubtful or disputed, injunction
is not proper.

79

An injunctive remedy may only be resorted to when there is a pressing necessity to

avoid injurious consequences which cannot be remedied under any standard
compensation. The possibility of irreparable damage without proof of an actual existing right
would not justify injunctive relief in his favor.
xxxxxxxxx
x x x. In the absence of a clear legal right, the issuance of the injunctive writ
constitutes grave abuse of discretion. As the Court had the occasion to state in Olalia v.
Hizon, 196 SCRA 665 (1991):
It has been consistently held that there is no power the exercise of which is more
delicate, which requires greater caution, deliberation and sound discretion, or more
dangerous in a doubtful case, than the issuance of an injunction. It is the strong arm of
equity that should never be extended unless to cases of great injury, where courts of law
cannot afford an adequate or commensurate remedy in damages.
Every court should remember that an injunction is a limitation upon the freedom of
action of the defendant and should not be granted lightly or precipitately. It should be
granted only when the court is fully satisfied that the law permits it and the
emergency demands it.
We are in full accord with the CA when it struck down, for having been issued with grave abuse of
discretion, the RTCs Order of September 25, 2002, granting petitioners prayer for a writ of preliminary
injunction during the pendency of the main case, Civil Case No. 02-1029. The reason therefor is that the
right sought to be protected by the petitioner in this case through the writ of preliminary injunction is
merely contingent and not in esse. It bears stressing that the existing written contract between
petitioner and respondent was admittedly one of loan restructuring; there is no mention
whatsoever or even a slightest reference in that written contract to a supposed agreement
of dacion en pago. In fine, it is still necessary for petitioner to establish in the main case its rights
on the alleged dacion en pago before those rights become in esse or actual and existing. Only
then can the injunctive writ be properly issued. It cannot be the other way around. Otherwise, it will be
like putting the cart before the horse.[24] [EMPHASIS SUPPLIED.]
In the case at bar, respondents failed to show that they have a right to be protected and that the acts against which the writ is to
be directed are violative of the said right. On the face of their clear admission that they were unable to settle their obligations
which were secured by the mortgage, petitioner has a clear right to foreclose the mortgage. [25] Foreclosure is but a necessary
consequence of non-payment of a mortgage indebtedness.[26] In a real estate mortgage when the principal obligation is not paid
when due, the mortgagee has the right to foreclose the mortgage and to have the property seized and sold with the view of
applying the proceeds to the payment of the obligation.[27]
This Court has denied the application for a Writ of Preliminary Injunction that would enjoin an extrajudicial
foreclosure of a mortgage, and declared that foreclosure is proper when the debtors are in default of the payment of their
obligation. Where the parties stipulated in their credit agreements, mortgage contracts and promissory notes that the
mortgagee is authorized to foreclose the mortgaged properties in case of default by the mortgagors, the mortgagee has a
clear right to foreclosure in case of default, making the issuance of a Writ of Preliminary Injunction improper. [28] In these
cases, unsubstantiated allegations of denial of due process and prematurity of a loan are not sufficient to defeat the
mortgagees unmistakable right to an extrajudicial foreclosure. [29]
We cannot agree with respondents position that petitioners act of initiating extrajudicial foreclosure proceeding
while they negotiated for a dacion en pago was illegal and done in bad faith. As respondent-spouses themselves
admitted, they failed to comply with the documentary requirements imposed by the petitioner for proper evaluation of their
proposal. In any event, petitioner had found the subdivision lots offered for dacion as unacceptable, not only because the

80

lots were not owned by respondents as in fact, the lots were not yet titled but also for the reason that respondent Oscar
Martinezs claimed right therein was doubtful or inchoate, and hence not in esse.
Requests by debtors-mortgagors for extensions to pay and proposals for restructuring of the loans, without
acceptance by the creditor-mortgagee, remain as that. Without more, those proposals neither novated the parties
mortgage contract nor suspended its execution. [30] In the same vein, negotiations for settlement of the mortgage debt
by dacion en pago do not extinguish the same nor forestall the creditor-mortgagees exercise of its right to foreclose as
provided in the mortgage contract.
As we held in Tecnogas Philippines Manufacturing Corporation v. Philippine National Bank [31] -Dacion en pago is a special mode of payment whereby the debtor offers another thing to the
creditor who accepts it as equivalent of payment of an outstanding obligation. The undertaking is really
one of sale, that is, the creditor is really buying the thing or property of the debtor, payment for which is to
be charged against the debtors debt. As such, the essential elements of a contract of sale, namely,
consent, object certain, and cause or consideration must be present. It is only when the thing offered as
an equivalent is accepted by the creditor that novation takes place, thereby, totally extinguishing the debt.
On the first issue, the Court of Appeals did not err in ruling that Tecnogas has no clear legal
right to an injunctive relief because its proposal to pay by way of dacion en pago did not
extinguish its obligation. Undeniably, Tecnogas proposal to pay by way of dacion en pago was not
accepted by PNB. Thus, the unaccepted proposal neither novates the parties mortgage contract
nor suspends its execution as there was no meeting of the minds between the parties on whether
the loan will be extinguished by way of dacion en pago. Necessarily, upon Tecnogas default in its
obligations, the foreclosure of the REM becomes a matter of right on the part of PNB, for such is the
purpose of requiring security for the loans. [EMPHASIS SUPPLIED.]
Respondent-spouses alleged proprietary right in the mortgaged condominium unit appears to be based merely on
respondents averment that respondent OJ-Mark Trading, Inc. is a family corporation. However, there is neither allegation
nor evidence to show prima facie that such purported right, whether as majority stockholder or creditor, was superior to
that of petitioner as creditor-mortgagee. The rule requires that in order for a preliminary injunction to issue, the application
should clearly allege facts and circumstances showing the existence of the requisites. It must be emphasized that an
application for injunctive relief is construed strictly against the pleader.[32]
We note that the claim of exemption under Art. 153 of the Family Code, thereby raising issue on the mortgaged
condominium unit being a family home and not corporate property, is entirely inconsistent with the clear contractual
agreement of the REM.[33] Assuming arguendo that the mortgaged condominium unit constitutes respondents family
home, the same will not exempt it from foreclosure as Article 155 (3) of the same Code allows the execution or forced sale
of a family home for debts secured by mortgages on the premisesbefore or after such constitution. Respondents thus
failed to show an ostensible right that needs protection of the injunctive writ. Clearly, the appellate court seriously erred in
sustaining the trial courts orders granting respondents application for preliminary injunction.
Anent the grave and irreparable injury which respondents alleged they will suffer if no preliminary injunction is issued, this
Court has previously declared that all is not lost for defaulting mortgagors whose properties were foreclosed by creditorsmortgagees, viz:
In any case, petitioners will not be deprived outrightly of their property. Pursuant to Section 47 of
the General Banking Law of 2000, mortgagors who have judicially or extrajudicially sold their real property
for the full or partial payment of their obligation have the right to redeem the property within one year after

81

the sale. They can redeem their real estate by paying the amount due, with interest rate specified, under
the mortgage deed; as well as all the costs and expenses incurred by the bank.
Moreover, in extrajudicial foreclosures, petitioners have the right to receive any surplus in the
selling price. This right was recognized in Sulit v. CA, in which the Court held that if the mortgagee is
retaining more of the proceeds of the sale than he is entitled to, this fact alone will not affect the validity of
the sale but simply gives the mortgagor a cause of action to recover such surplus. [34]
WHEREFORE, the petition is GRANTED. The Decision dated October 29, 2004 of the Court of Appeals in CAG.R. SP No. 77703 is hereby REVERSED and SET ASIDE.Respondents application for a writ of preliminary injunction
is DENIED.

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). 4The 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;

82

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

83

As to the issue of support, the CA held that the grant is legally in order considering that not only did Antonio express his
willingness to give support, it is also a consequence of his acknowledging the paternity of the minor children. 12 Lastly, the
CA ruled that there is no reason to deprive respondent Antonio of his visitorial right especially in view of the
constitutionally inherent and natural right of parents over their children. 13
Not satisfied with the CAs Decision, petitioner Grande interposed a partial motion for reconsideration, particularly
assailing the order of the CA insofar as it decreed the change of the minors surname to "Antonio." When her motion was
denied, petitioner came to this Court via the present petition. In it, she posits that Article 176 of the Family Codeas
amended by Republic Act No. (RA) 9255, couched as it is in permissive languagemay not be invoked by a father to
compel the use by his illegitimate children of his surname without the consent of their mother.
We find the present petition impressed with merit.
The sole issue at hand is the right of a father to compel the use of his surname by his illegitimate children upon his
recognition of their filiation. Central to the core issue is the application of Art. 176 of the Family Code, originally phrased as
follows:
Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled
to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall
remain in force.
This provision was later amended on March 19, 2004 by RA 9255 14 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.

84

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:

85

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.

86

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 bodies 24 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 CAG.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.

87

JENIE SAN JUAN DELA

CRUZ and minor
CHRISTIANDELA CRUZ AQUINO,
represented by
JENIE SANJUAN DELA CRUZ,
Petitioners,

G.R. No. 177728

Present:

versus

QUISUMBING, J., Chairperson,

CARPIO MORALES,
CHICO-NAZARIO,
LEONARDO-DE CASTRO, and
PERALTA,* JJ.

RONALD PAUL S. GRACIA, in his

capacity as City Civil Registrar of
Promulgated:
Antipolo City,
July 31, 2009
Respondent.
x------------------------------------------------x

DECISION
CARPIO MORALES, J.:
For several months in 2005, then 21-year old petitioner Jenie San Juan Dela Cruz (Jenie) and then 19-year old
Christian Dominique Sto. Tomas Aquino (Dominique) lived together as husband and wife without the benefit of marriage.
They resided in the house of Dominiques parents Domingo B. Aquino and Raquel Sto. Tomas Aquino at Pulang-lupa,
Dulumbayan, Teresa, Rizal.

On September 4, 2005, Dominique died. [1] After almost two months, or on November 2, 2005, Jenie, who
continued to live with Dominiques parents, gave birth to her herein co-petitioner minor child Christian Dela Cruz Aquino at
the Antipolo Doctors Hospital, Antipolo City.

Jenie applied for registration of the childs birth, using Dominiques surname Aquino, with the Office of the City Civil
Registrar, Antipolo City, in support of which she submitted the childs Certificate of Live Birth,[2] Affidavit to Use the
Surname of the Father[3] (AUSF) which she had executed and signed, and Affidavit of Acknowledgment executed by
Dominiques father Domingo Butch Aquino. [4] Both affidavits attested, inter alia, that during the lifetime of Dominique, he
had continuously acknowledged his yet unborn child, and that his paternity had never been questioned. Jenie attached to
the AUSF a document entitled AUTOBIOGRAPHY which Dominique, during his lifetime, wrote in his own handwriting, the
pertinent portions of which read:
AQUINO, CHRISTIAN DOMINIQUE S.T.

88

AUTOBIOGRAPHY
IM CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF AGE TURNING 20 THIS
COMING OCTOBER 31, 2005.[5] I RESIDE AT PULANG-LUPA STREET BRGY. DULUMBAYAN,
TERESA, RIZAL. I AM THE YOUNGEST IN OUR FAMILY. I HAVE ONE BROTHER NAMED JOSEPH
BUTCH STO. TOMAS AQUINO. MY FATHERS NAME IS DOMINGO BUTCH AQUINO AND MY
MOTHERS NAME IS RAQUEL STO. TOMAS AQUINO. x x x.
xxxx
AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE MET EACH OTHER IN OUR
HOMETOWN, TEREZA RIZAL. AT FIRST WE BECAME GOOD FRIENDS, THEN WE FELL IN LOVE
WITH EACH OTHER, THEN WE BECAME GOOD COUPLES. AND AS OF NOW SHE IS
PREGNANT AND FOR THAT WE LIVE TOGETHER IN OUR HOUSE NOW. THATS ALL.[6] (Emphasis
and underscoring supplied)

By letter dated November 11, 2005,[7] the City Civil Registrar of Antipolo City, Ronald Paul S. Gracia
(respondent), denied Jenies application for registration of the childs name in this wise:
7.

Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing Rules and Regulations of
Republic Act No. 9255 [An Act Allowing Illegitimate Children to Use the Surname of their Father,
Amending for the Purpose, Article 176 of Executive Order No. 209, otherwise Known as the Family
Code of the Philippines]) provides that:
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 handwritten instrument, the child shall
use the surname of the father, provided the registration is supported by the following
documents:
a. AUSF[8]
b. Consent of the child, if 18 years old and over at the time of the filing of the document.
c. Any two of the following documents showing clearly the paternity between the
father and the child:

1. Employment records
2. SSS/GSIS records
3. Insurance
4. Certification of membership in any organization
5. Statement of Assets and Liability
6. Income Tax Return (ITR)
In summary, the child cannot use the surname of his father because he was born out of wedlock and the
father unfortunately died prior to his birth and has no more capacity to acknowledge his paternity to the
child (either through the back of Municipal Form No. 102 Affidavit of Acknowledgment/Admission of
Paternity or the Authority to Use the Surname of the Father). (Underscoring supplied)

Jenie and the child promptly filed a complaint [9] for injunction/registration of name against respondent before
the Regional Trial Court of Antipolo City, docketed as SCA Case No. 06-539, which was raffled to Branch 73 thereof. The
complaint alleged that, inter alia, the denial of registration of the childs name is a violation of his right to use the surname

89

of his deceased father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No. 9255,[10] which
provides:
Article 176. Illegitimate children shall use the surname and shall be under the parental authority of
their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children
may use the surname of their father if their filiation has been 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. 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 and underscoring
supplied)

They maintained that the Autobiography executed by Dominique constitutes an admission of paternity in a private
handwritten instrument within the contemplation of the above-quoted provision of law.

For failure to file a responsive pleading or answer despite service of summons, respondent was declared in
default.

Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her common-law relationship
with Dominique and affirmed her declarations in her AUSF that during his lifetime, he had acknowledged his yet unborn
child.[11] She offered Dominiques handwritten Autobiography (Exhibit A) as her documentary evidence-in-chief.
[12]

Dominiques lone brother, Joseph Butch S.T. Aquino, also testified, corroborating Jenies declarations. [13]
By Decision[14] of April 25, 2007, the trial court dismissed the complaint for lack of cause of action as the

Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms) of Administrative Order (A.O.) No. 1,
Series of 2004 (the Rules and Regulations Governing the Implementation of R.A. 9255) which defines private
handwritten document through which a father may acknowledge an illegitimate child as follows:
2.2 Private handwritten instrument an instrument executed in the handwriting of the father
and duly signed by him where he expressly recognizes paternity to the child. (Underscoring supplied)

The trial court held that even if Dominique was the author of the handwritten Autobiography, the same does not contain
any express recognition of paternity.
Hence, this direct resort to the Court via Petition for Review on Certiorari raising this purely legal issue of:
WHETHER OR NOT THE UNSIGNED HANDWRITTEN STATEMENT OF THE DECEASED
FATHER OF MINOR CHRISTIAN DELA CRUZ CAN BE CONSIDERED AS A RECOGNITION OF
PATERNITY IN A PRIVATE HANDWRITTEN INSTRUMENT WITHIN THE CONTEMPLATION OF
ARTICLE 176 OF THE FAMILY CODE, AS AMENDED BY R.A. 9255, WHICH ENTITLES THE SAID
MINOR TO USE HIS FATHERS SURNAME.[15] (Underscoring supplied)

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Petitioners contend that Article 176 of the Family Code, as amended, does not expressly require that the private
handwritten instrument containing the putative fathers admission of paternity must be signed by him. They add that the
deceaseds handwritten Autobiography, though unsigned by him, is sufficient, for the requirement in the above-quoted
paragraph 2.2 of the Administrative Order that the admission/recognition must be duly signed by the father is void as it
unduly expanded the earlier-quoted provision of Article 176 of the Family Code. [16]

Petitioners

further

contend

that

the

trial

court

erred

in

not

finding

that Dominiques handwritten

Autobiography contains a clear and unmistakable recognition of the childs paternity.[17]

In its Comment, the Office of the Solicitor General (OSG) submits that respondents position, as affirmed by the
trial court, is in consonance with the law and thus prays for the dismissal of the petition. It further submits that Dominiques
Autobiography merely acknowledged Jenies pregnancy but not [his] paternity of the child she was carrying in her womb. [18]

Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child to use the surname of
his/her father if the latter had expressly recognized him/her as his offspring through the record of birth appearing in the
civil register, or through an admission made in a public or private handwritten instrument. The recognition made in any of
these documents is, in itself, a consummated act of acknowledgment of the childs paternity; hence, no separate action for
judicial approval is necessary.[19]

Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the private handwritten
instrument acknowledging the childs paternity must be signed by the putative father. This provision must, however, be
read in conjunction with related provisions of the Family Code which require that recognition by the father must bear his
signature, thus:
Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the
same evidence as legitimate children.
xxxx
Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.

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x x x x (Emphasis and underscoring supplied)

That a father who acknowledges paternity of a child through a written instrument must affix his signature thereon
is clearly implied in Article 176 of the Family Code. Paragraph 2.2, Rule 2 of A.O. No. 1, Series of 2004, merely articulated
such requirement; it did not unduly expand the import of Article 176 as claimed by petitioners.

In the present case, however, special circumstances exist to hold that Dominiques Autobiography, though
unsigned by him, substantially satisfies the requirement of the law.

First, Dominique died about two months prior to the childs birth. Second, the relevant matters in the
Autobiography, unquestionably handwritten by Dominique, correspond to the facts culled from the testimonial evidence
Jenie proffered.[20] Third, Jenies testimony is corroborated by the Affidavit of Acknowledgment of Dominiques father
Domingo Aquino and testimony of his brother Joseph Butch Aquino whose hereditary rights could be affected by the
registration of the questioned recognition of the child. These circumstances indicating Dominiques paternity of the child
give life to his statements in his Autobiography that JENIE DELA CRUZ is MY WIFE as WE FELL IN LOVE WITH EACH
OTHER and NOW SHE IS PREGNANT AND FOR THAT WE LIVE TOGETHER.

In Herrera v. Alba,[21] the Court summarized the laws, rules, and jurisprudence on establishing filiation, discoursing
in relevant part:
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the
same evidence as legitimate children.
xxxx
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or

92

(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:
SEC. 39. Act or declaration about pedigree. The act or declaration of a person deceased, or
unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be
received in evidence where it occurred before the controversy, and the relationship between the two
persons is shown by evidence other than such act or declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts
occurred, and the names of the relatives. It embraces also facts of family history intimately connected with
pedigree.
SEC. 40. Family reputation or tradition regarding pedigree. The reputation or tradition existing in a
family previous to the controversy, in respect to the pedigree of any one of its members, may be received
in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or
affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the
like, may be received as evidence of pedigree.
This Court's rulings further specify what incriminating acts are acceptable as evidence to
establish filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still
has to be resolved by such conventional evidence as the relevant incriminating verbal and written
acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent
shall be made in the record of birth, a will, a statement before a court of record, or in any authentic
writing. To be effective, the claim of filiation must be made by the putative father himself and the
writing must be the writing of the putative father. A notarial agreement to support a child whose
filiation is admitted by the putative father was considered acceptable evidence. Letters to the mother
vowing to be a good father to the child and pictures of the putative father cuddling the child on various
occasions, together with the certificate of live birth, proved filiation. However, a student permanent record,
a written consent to a father's operation, or a marriage contract where the putative father gave consent,
cannot be taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures
are sufficient to establish filiation. (Emphasis and underscoring supplied.)

In the case at bar, there is no dispute that the earlier quoted statements in Dominiques Autobiography have been made
and written by him. Taken together with the other relevant facts extant herein that Dominique, during his lifetime, and
Jenie were living together as common-law spouses for several months in 2005 at his parents house in Pulang-lupa,
Dulumbayan, Teresa, Rizal; she was pregnant when Dominique died on September 4, 2005; and about two months after
his death, Jenie gave birth to the child they sufficiently establish that the child of Jenie is Dominiques.
In view of the pronouncements herein made, the Court sees it fit to adopt the following rules respecting the
requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an
admission of filiation of a legitimate or illegitimate child is made:

1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should
be strict compliance with the requirement that the same must be signed by the acknowledging parent; and

93

2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices
that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely
corroborative of such other evidence.

Our laws instruct that the welfare of the child shall be the paramount consideration in resolving questions affecting
him.[22] Article 3(1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is
similarly emphatic:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a
primary consideration.[23] (Underscoring supplied)
It is thus (t)he policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of
children, especially of illegitimate children x x x.[24] Too, (t)he State as parens patriae affords special protection to children
from abuse, exploitation and other conditions prejudicial to their development.[25]

In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to petitioner minor childs
best interests to allow him to bear the surname of the now deceased Dominique and enter it in his birth certificate.

WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is DIRECTED to
immediately enter the surname of the late Christian Dominique Sto. Tomas Aquino as the surname of petitioner minor
Christian dela Cruz in his Certificate of Live Birth, and record the same in the Register of Births.

SO ORDERED.

GERARDO B. CONCEPCION, petitioner, vs. COURT OF APPEALS and MA. THERESA ALMONTE, respondents.
DECISION
CORONA, J.:

94

The child, by reason of his mental and physical immaturity, needs special safeguard and care, including appropriate
legal protection before as well as after birth. [1] In case of assault on his rights by those who take advantage of his
innocence and vulnerability, the law will rise in his defense with the single-minded purpose of upholding only his best
interests.
This is the story of petitioner Gerardo B. Concepcion and private respondent Ma. Theresa Almonte, and a child
named Jose Gerardo. Gerardo and Ma. Theresa were married on December 29, 1989. [2] After their marriage, they lived
with Ma. Theresas parents in Fairview, Quezon City. [3] Almost a year later, on December 8, 1990, Ma. Theresa gave birth
to Jose Gerardo.[4]
Gerardo and Ma. Theresas relationship turned out to be short-lived, however. On December 19, 1991, Gerardo filed
a petition to have his marriage to Ma. Theresa annulled on the ground of bigamy. [5] He alleged that nine years before he
married Ma. Theresa on December 10, 1980, she had married one Mario Gopiao, which marriage was never annulled.
[6]
Gerardo also found out that Mario was still alive and was residing in Loyola Heights, Quezon City.[7]
Ma. Theresa did not deny marrying Mario when she was twenty years old. She, however, averred that the marriage
was a sham and that she never lived with Mario at all. [8]
The trial court ruled that Ma. Theresas marriage to Mario was valid and subsisting when she married Gerardo and
annulled her marriage to the latter for being bigamous. It declared Jose Gerardo to be an illegitimate child as a result. The
custody of the child was awarded to Ma. Theresa while Gerardo was granted visitation rights. [9]
Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage annulled. She held him responsible for
the bastardization of Gerardo. She moved for the reconsideration of the above decision INSOFAR ONLY as that portion of
the decision which grant(ed) to the petitioner so-called visitation rights between the hours of 8 in the morning to 12:00
p.m. of any Sunday.[10] She argued that there was nothing in the law granting visitation rights in favor of the putative father
of an illegitimate child.[11] She further maintained that Jose Gerardos surname should be changed from Concepcion to
Almonte, her maiden name, following the rule that an illegitimate child shall use the mothers surname.
Gerardo opposed the motion. He insisted on his visitation rights and the retention of Concepcion as Jose Gerardos
surname.
Applying the best interest of the child principle, the trial court denied Ma. Theresas motion and made the following
observations:
It is a pity that the parties herein seem to be using their son to get at or to hurt the other, something they should never do
if they want to assure the normal development and well-being of the boy.
The Court allowed visitorial rights to the father knowing that the minor needs a father, especially as he is a boy, who must
have a father figure to recognize something that the mother alone cannot give. Moreover, the Court believes that the
emotional and psychological well-being of the boy would be better served if he were allowed to maintain relationships with
his father.
There being no law which compels the Court to act one way or the other on this matter, the Court invokes the provision of
Art. 8, PD 603 as amended, otherwise known as the Child and Youth Welfare Code, to wit:
In all questions regarding the care, custody, education and property of the child, his welfare shall be the paramount
consideration.
WHEREFORE, the respondents Motion for Reconsideration has to be, as it is hereby DENIED. [12]

95

Ma. Theresa elevated the case to the Court of Appeals, assigning as error the ruling of the trial court granting
visitation rights to Gerardo. She likewise opposed the continued use of Gerardos surname (Concepcion) despite the fact
that Jose Gerardo had already been declared illegitimate and should therefore use her surname (Almonte). The appellate
court denied the petition and affirmed in toto the decision of the trial court.[13]
On the issue raised by Ma. Theresa that there was nothing in the law that granted a putative father visitation rights
over his illegitimate child, the appellate court affirmed the best interest of the child policy invoked by the court a quo. It
ruled that [a]t bottom, it (was) the childs welfare and not the convenience of the parents which (was) the primary
consideration in granting visitation rights a few hours once a week. [14]
The appellate court likewise held that an illegitimate child cannot use the mothers surname motu proprio. The child,
represented by the mother, should file a separate proceeding for a change of name under Rule 103 of the Rules of Court
to effect the correction in the civil registry.[15]
Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision of the appellate court. She also filed
a motion to set the case for oral arguments so that she could better ventilate the issues involved in the controversy.
After hearing the oral arguments of the respective counsels of the parties, the appellate court resolved the motion for
reconsideration. It reversed its earlier ruling and held that Jose Gerardo was not the son of Ma. Theresa by Gerardo but
by Mario during her first marriage:
It is, therefore, undeniable established by the evidence in this case that the appellant [Ma. Theresa] was married to Mario
Gopiao, and that she had never entered into a lawful marriage with the appellee [Gerardo] since the so-called marriage
with the latter was void ab initio. It was [Gerardo] himself who had established these facts. In other words, [Ma. Theresa]
was legitimately married to Mario Gopiao when the child Jose Gerardo was born on December 8, 1990. Therefore, the
child Jose Gerardo under the law is the legitimate child of the legal and subsisting marriage between [Ma. Theresa] and
Mario Gopiao; he cannot be deemed to be the illegitimate child of the void and non-existent marriage between [Ma.
Theresa] and [Gerardo], but is said by the law to be the child of the legitimate and existing marriage between [Ma.
Theresa] and Mario Gopiao (Art. 164, Family Code). Consequently, [she] is right in firmly saying that [Gerardo] can claim
neither custody nor visitorial rights over the child Jose Gerardo. Further, [Gerardo] cannot impose his name upon the
child. Not only is it without legal basis (even supposing the child to be his illegitimate child [Art. 146, The Family Code]); it
would tend to destroy the existing marriage between [Ma. Theresa] and Gopiao, would prevent any possible
rapproachment between the married couple, and would mean a judicial seal upon an illegitimate relationship. [16]
The appellate court brushed aside the common admission of Gerardo and Ma. Theresa that Jose Gerardo was their
son. It gave little weight to Jose Gerardos birth certificate showing that he was born a little less than a year after Gerardo
and Ma. Theresa were married:
We are not unaware of the movants argument that various evidence exist that appellee and the appellant have judicially
admitted that the minor is their natural child. But, in the same vein, We cannot overlook the fact that Article 167 of the
Family Code mandates:
The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been
sentenced as an adulteress. (underscoring ours)
Thus, implicit from the above provision is the fact that a minor cannot be deprived of his/her legitimate status on the bare
declaration of the mother and/or even much less, the supposed father. In fine, the law and only the law determines who
are the legitimate or illegitimate children for ones legitimacy or illegitimacy cannot ever be compromised. Not
even the birth certificate of the minor can change his status for the information contained therein are merely supplied by
the mother and/or the supposed father. It should be what the law says and not what a parent says it is. [17] (Emphasis
supplied)

96

[18]

Shocked and stunned, Gerardo moved for a reconsideration of the above decision but the same was denied.
Hence, this appeal.

The status and filiation of a child cannot be compromised. [19] Article 164 of the Family Code is clear. A child who is
conceived or born during the marriage of his parents is legitimate. [20]
As a guaranty in favor of the child[21] and to protect his status of legitimacy, Article 167 of the Family Code provides:
Article 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may
have been sentenced as an adulteress.
The law requires that every reasonable presumption be made in favor of legitimacy. [22] We explained the rationale of
this rule in the recent case of Cabatania v. Court of Appeals[23]:
The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the broad principles of
natural justice and the supposed virtue of the mother. It is grounded on the policy to protect the innocent offspring from the
odium of illegitimacy.
Gerardo invokes Article 166 (1)(b)[24] of the Family Code. He cannot. He has no standing in law to dispute the status
of Jose Gerardo. Only Ma. Theresas husband Mario or, in a proper case, [25]his heirs, who can contest the legitimacy of the
child Jose Gerardo born to his wife. [26] Impugning the legitimacy of a child is a strictly personal right of the husband or, in
exceptional cases, his heirs.[27] Since the marriage of Gerardo and Ma. Theresa was void from the very beginning, he
never became her husband and thus never acquired any right to impugn the legitimacy of her child.
The presumption of legitimacy proceeds from the sexual union in marriage, particularly during the period of
conception.[28] To overthrow this presumption on the basis of Article 166 (1)(b) of the Family Code, it must be shown
beyond reasonable doubt that there was no access that could have enabled the husband to father the child. [29] Sexual
intercourse is to be presumed where personal access is not disproved, unless such presumption is rebutted by evidence
to the contrary.[30]
The presumption is quasi-conclusive and may be refuted only by the evidence of physical impossibility of coitus
between husband and wife within the first 120 days of the 300 days which immediately preceded the birth of the child. [31]
To rebut the presumption, the separation between the spouses must be such as to make marital intimacy impossible.
This may take place, for instance, when they reside in different countries or provinces and they were never together
during the period of conception.[33] Or, the husband was in prison during the period of conception, unless it appears that
sexual union took place through the violation of prison regulations. [34]
[32]

Here, during the period that Gerardo and Ma. Theresa were living together in Fairview, Quezon City, Mario was living
in Loyola Heights which is also in Quezon City. Fairview and Loyola Heights are only a scant four kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at all was presented to
disprove personal access between them. Considering these circumstances, the separation between Ma. Theresa and her
lawful husband, Mario, was certainly not such as to make it physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should be presented by him
who asserts the contrary. There is no such evidence here. Thus, the presumption of legitimacy in favor of Jose Gerardo,
as the issue of the marriage between Ma. Theresa and Mario, stands.

97

Gerardo relies on Ma. Theresas statement in her answer [35] to the petition for annulment of marriage[36] that she never
lived with Mario. He claims this was an admission that there was never any sexual relation between her and Mario, an
admission that was binding on her.
Gerardos argument is without merit.
First, the import of Ma. Theresas statement is that Jose Gerardo is not her legitimate son with Mario but her
illegitimate son with Gerardo. This declaration an avowal by the mother that her child is illegitimate is the very
declaration that is proscribed by Article 167 of the Family Code.
The language of the law is unmistakable. An assertion by the mother against the legitimacy of her child cannot affect
the legitimacy of a child born or conceived within a valid marriage.
Second, even assuming the truth of her statement, it does not mean that there was never an instance where Ma.
Theresa could have been together with Mario or that there occurred absolutely no intercourse between them. All she said
was that she never lived with Mario. She never claimed that nothing ever happened between them.
Telling is the fact that both of them were living in Quezon City during the time material to Jose Gerardos conception
and birth. Far from foreclosing the possibility of marital intimacy, their proximity to each other only serves to reinforce such
possibility. Thus, the impossibility of physical access was never established beyond reasonable doubt.
Third, to give credence to Ma. Theresas statement is to allow her to arrogate unto herself a right exclusively lodged in
the husband, or in a proper case, his heirs. [37] A mother has no right to disavow a child because maternity is never
uncertain.[38] Hence, Ma. Theresa is not permitted by law to question Jose Gerardos legitimacy.
Finally, for reasons of public decency and morality, a married woman cannot say that she had no intercourse with her
husband and that her offspring is illegitimate. [39] The proscription is in consonance with the presumption in favor of family
solidarity. It also promotes the intention of the law to lean toward the legitimacy of children. [40]
Gerardos insistence that the filiation of Jose Gerardo was never an issue both in the trial court and in the appellate
court does not hold water. The fact that both Ma. Theresa and Gerardo admitted and agreed that Jose Gerardo was born
to them was immaterial. That was, in effect, an agreement that the child was illegitimate. If the Court were to validate that
stipulation, then it would be tantamount to allowing the mother to make a declaration against the legitimacy of her child
and consenting to the denial of filiation of the child by persons other than her husband. These are the very acts from which
the law seeks to shield the child.
Public policy demands that there be no compromise on the status and filiation of a child. [41] Otherwise, the child will
be at the mercy of those who may be so minded to exploit his defenselessness.
The reliance of Gerardo on Jose Gerardos birth certificate is misplaced. It has no evidentiary value in this case
because it was not offered in evidence before the trial court. The rule is that the court shall not consider any evidence
which has not been formally offered.[42]
Moreover, the law itself establishes the status of a child from the moment of his birth. [43] Although a record of birth or
birth certificate may be used as primary evidence of the filiation of a child, [44]as the status of a child is determined by the
law itself, proof of filiation is necessary only when the legitimacy of the child is being questioned, or when the status of a
child born after 300 days following the termination of marriage is sought to be established. [45]
Here, the status of Jose Gerardo as a legitimate child was not under attack as it could not be contested collaterally
and, even then, only by the husband or, in extraordinary cases, his heirs. Hence, the presentation of proof of legitimacy in
this case was improper and uncalled for.

98

In addition, a record of birth is merely prima facie evidence of the facts contained therein. [46] As prima facie evidence,
the statements in the record of birth may be rebutted by more preponderant evidence. It is not conclusive evidence with
respect to the truthfulness of the statements made therein by the interested parties. [47] Between the certificate of birth
which is prima facie evidence of Jose Gerardos illegitimacy and the quasi-conclusive presumption of law (rebuttable only
by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail. Not only does it bear more weight, it is also
more conducive to the best interests of the child and in consonance with the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose Gerardos illegitimacy while
claiming that they both had the childs interests at heart. The law, reason and common sense dictate that a legitimate
status is more favorable to the child. In the eyes of the law, the legitimate child enjoys a preferred and superior status. He
is entitled to bear the surnames of both his father and mother, full support and full inheritance. [48] On the other hand, an
illegitimate child is bound to use the surname and be under the parental authority only of his mother. He can claim support
only from a more limited group and his legitime is only half of that of his legitimate counterpart. [49] Moreover (without
unwittingly exacerbating the discrimination against him), in the eyes of society, a bastard is usually regarded as bearing a
stigma or mark of dishonor. Needless to state, the legitimacy presumptively vested by law upon Jose Gerardo favors his
interest.
It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble between the very persons who were
passionately declaring their concern for him. The paradox was that he was made to suffer supposedly for his own sake.
This madness should end.
This case has been pending for a very long time already. What is specially tragic is that an innocent child is involved.
Jose Gerardo was barely a year old when these proceedings began. He is now almost fifteen and all this time he has
been a victim of incessant bickering. The law now comes to his aid to write finis to the controversy which has unfairly
hounded him since his infancy.
Having only his best interests in mind, we uphold the presumption of his legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear the surnames of his father Mario and mother Ma.
Theresa, in conformity with the provisions of the Civil Code on surnames. [50] A persons surname or family name identifies
the family to which he belongs and is passed on from parent to child. [51] Hence, Gerardo cannot impose his surname on
Jose Gerardo who is, in the eyes of the law, not related to him in any way.
The matter of changing Jose Gerardos name and effecting the corrections of the entries in the civil register regarding
his paternity and filiation should be threshed out in a separate proceeding.
In case of annulment or declaration of absolute nullity of marriage, Article 49 of the Family Code grants visitation
rights to a parent who is deprived of custody of his children. Such visitation rights flow from the natural right of both parent
and child to each others company. There being no such parent-child relationship between them, Gerardo has no legally
demandable right to visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of PD 603, otherwise known as the Child and Youth
Welfare Code, is clear and unequivocal:
Article 8. Childs Welfare Paramount. In all questions regarding the care, custody, education and property of the child, his
welfare shall be the paramount consideration.
Article 3 (1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is
similarly emphatic:
Article 3

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

G.R. No. 182367

December 15, 2010

CHERRYL B. DOLINA, Petitioner,

vs.
GLENN D. VALLECERA, Respondent.
DECISION
ABAD, J.:
This case is about a mothers claim for temporary support of an unacknowledged child, which she sought in an action for
the issuance of a temporary protection order that she brought against the supposed father.
The Facts and the Case
In February 2008 petitioner Cherryl B. Dolina filed a petition with prayer for the issuance of a temporary protection order
against respondent Glenn D. Vallecera before the Regional Trial Court (RTC) of Tacloban City in P.O. 2008-02-07 1 for
alleged woman and child abuse under Republic Act (R.A.) 9262. 2 In filling out the blanks in the pro-forma complaint,
Dolina added a handwritten prayer for financial support3 from Vallecera for their supposed child. She based her prayer on
the latters Certificate of Live Birth which listed Vallecera as the childs father. The petition also asked the RTC to order
Philippine Airlines, Valleceras employer, to withhold from his pay such amount of support as the RTC may deem
appropriate.
Vallecera opposed the petition. He claimed that Dolinas petition was essentially one for financial support rather than for
protection against woman and child abuses; that he was not the childs father; that the signature appearing on the childs
Certificate of Live Birth is not his; that the petition is a harassment suit intended to force him to acknowledge the child as
his and give it financial support; and that Vallecera has never lived nor has been living with Dolina, rendering unnecessary
the issuance of a protection order against him.
On March 13, 20084 the RTC dismissed the petition after hearing since no prior judgment exists establishing the filiation of
Dolinas son and granting him the right to support as basis for an order to compel the giving of such support. Dolina filed a
motion for reconsideration but the RTC denied it in its April 4, 2008 Order,5 with an admonition that she first file a petition
for compulsory recognition of her child as a prerequisite for support. Unsatisfied, Dolina filed the present petition for
review directly with this Court.

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The Issue Presented

The sole issue presented in this case is whether or not the RTC correctly dismissed Dolinas action for temporary
protection and denied her application for temporary support for her child.
The Courts Ruling
Dolina evidently filed the wrong action to obtain support for her child. The object of R.A. 9262 under which she filed the
case is the protection and safety of women and children who are victims of abuse or violence. 6 Although the issuance of a
protection order against the respondent in the case can include the grant of legal support for the wife and the child, this
assumes that both are entitled to a protection order and to legal support.
Dolina of course alleged that Vallecera had been abusing her and her child.1avvphil But it became apparent to the RTC
upon hearing that this was not the case since, contrary to her claim, neither she nor her child ever lived with Vallecera. As
it turned out, the true object of her action was to get financial support from Vallecera for her child, her claim being that he
is the father. He of course vigorously denied this.
To be entitled to legal support, petitioner must, in proper action, first establish the filiation of the child, if the same is not
admitted or acknowledged. Since Dolinas demand for support for her son is based on her claim that he is Valleceras
illegitimate child, the latter is not entitled to such support if he had not acknowledged him, until Dolina shall have proved
his relation to him.7 The childs remedy is to file through her mother a judicial action against Vallecera for compulsory
recognition.8 If filiation is beyond question, support follows as matter of obligation. 9 In short, illegitimate children are
entitled to support and successional rights but their filiation must be duly proved. 10
Dolinas remedy is to file for the benefit of her child an action against Vallecera for compulsory recognition in order to
establish filiation and then demand support. Alternatively, she may directly file an action for support, where the issue of
compulsory recognition may be integrated and resolved. 11
It must be observed, however, that the RTC should not have dismissed the entire case based solely on the lack of any
judicial declaration of filiation between Vallecera and Dolinas child since the main issue remains to be the alleged
violence committed by Vallecera against Dolina and her child and whether they are entitled to protection. But of course,
this matter is already water under the bridge since Dolina failed to raise this error on review. This omission lends credence
to the conclusion of the RTC that the real purpose of the petition is to obtain support from Vallecera.
While the Court is mindful of the best interests of the child in cases involving paternity and filiation, it is just as aware of
the disturbance that unfounded paternity suits cause to the privacy and peace of the putative fathers legitimate
family.12 Vallecera disowns Dolinas child and denies having a hand in the preparation and signing of its certificate of birth.
This issue has to be resolved in an appropriate case.
ACCORDINGLY, the Court DENIES the petition and AFFIRMS the Regional Trial Court of Tacloban Citys Order dated
March 13, 2008 that dismissed petitioner Cherryl B. Dolinas action in P.O. 2008-02-07, and Order dated April 4, 2008,
denying her motion for reconsideration dated March 28, 2008.

G.R. No. 159785

April 27, 2007

TEOFISTO I. VERCELES, Petitioner,

vs.
MARIA CLARISSA POSADA, in her own behalf, and as mother of minor VERNA AIZA POSADA, CONSTANTINO
POSADA and FRANCISCA POSADA, Respondents.

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DECISION
QUISUMBING, J.:
This petition for review seeks the reversal of the Decision 1 dated May 30, 2003 and the Resolution2 dated August 27, 2003
of the Court of Appeals in CA-G.R. CV No. 50557. The appellate court had affirmed with modification the Judgment 3 dated
January 4, 1995 of the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 42, in Civil Case No. 1401. The RTC
held petitioner liable to pay monthly support to Verna Aiza Posada since her birth on September 23, 1987 as well as moral
and exemplary damages, attorneys fees and costs of suit.
The facts in this case as found by the lower courts are as follows:
Respondent Maria Clarissa Posada (Clarissa), a young lass from the barrio of Pandan, Catanduanes, sometime in 1986
met a close family friend, petitioner Teofisto I. Verceles, mayor of Pandan. He then called on the Posadas and at the end
of the visit, offered Clarissa a job.
Clarissa accepted petitioners offer and worked as a casual employee in the mayors office starting on September 1, 1986.
From November 10 to 15 in 1986, with companions Aster de Quiros, Pat del Valle, Jaime and Jocelyn Vargas, she
accompanied petitioner to Legaspi City to attend a seminar on town planning. They stayed at the Mayon Hotel.
On November 11, 1986, at around 11:00 a.m., petitioner fetched Clarissa from "My Brothers Place" where the seminar
was being held. Clarissa avers that he told her that they would have lunch at Mayon Hotel with their companions who had
gone ahead. When they reached the place her companions were nowhere. After petitioner ordered food, he started
making amorous advances on her. She panicked, ran and closeted herself inside a comfort room where she stayed until
someone knocked. She said she hurriedly exited and left the hotel. Afraid of the mayor, she kept the incident to herself.
She went on as casual employee. One of her tasks was following-upbarangay road and maintenance projects.
On December 22, 1986, on orders of petitioner, she went to Virac, Catanduanes, to follow up funds for barangayprojects.
At around 11:00 a.m. the same day, she went to Catanduanes Hotel on instructions of petitioner who asked to be briefed
on the progress of her mission. They met at the lobby and he led her upstairs because he said he wanted the briefing
done at the restaurant at the upper floor.
Instead, however, petitioner opened a hotel room door, led her in, and suddenly embraced her, as he told her that he was
unhappy with his wife and would "divorce" her anytime. He also claimed he could appoint her as a municipal development
coordinator. She succumbed to his advances. But again she kept the incident to herself.
Sometime in January 1987, when she missed her menstruation, she said she wrote petitioner that she feared she was
pregnant. In another letter in February 1987, she told him she was pregnant. In a handwritten letter dated February 4,
1987, he replied:
My darling Chris,
Should you become pregnant even unexpectedly, I should have no regret, because I love you and you love me.
Let us rejoice a common responsibility you and I shall take care of it and let him/her see the light of this beautiful world.
We know what to do to protect our honor and integrity.
Just relax and be happy, if true.
With all my love,

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Ninoy
2/4/874
Clarissa explained petitioner used an alias "Ninoy" and addressed her as "Chris," probably because of their twenty-five
(25)-year age gap. In court, she identified petitioners penmanship which she claims she was familiar with as an employee
in his office.
Clarissa presented three other handwritten letters5 sent to her by petitioner, two of which were in his letterhead as mayor
of Pandan. She also presented the pictures6 petitioner gave her of his youth and as a public servant, all bearing his
handwritten notations at the back.
Clarissa avers that on March 3, 1987, petitioner, aware of her pregnancy, handed her a letter and P2,000 pocket money to
go to Manila and to tell her parents that she would enroll in a CPA review course or look for a job. In June 1987, petitioner
went to see her in Manila and gave her another P2,000 for her delivery. When her parents learned of her pregnancy,
sometime in July, her father fetched her and brought her back to Pandan. On September 23, 1987, 7 she gave birth to a
baby girl, Verna Aiza Posada.
Clarissas mother, Francisca, corroborated Clarissas story. She said they learned of their daughters pregnancy through
her husbands cousin. She added that she felt betrayed by petitioner and shamed by her daughters pregnancy.
The Posadas filed a Complaint for Damages coupled with Support Pendente Lite before the RTC, Virac, Catanduanes
against petitioner on October 23, 1987.8
On January 4, 1995, the trial court issued a judgment in their favor, the dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the [respondents] and against the
[petitioner] and ordering the latter:
1. to pay a monthly support of P2,000.00 to Verna Aiza Posada since her birth on September 23, 1987 as he was
proved to be the natural father of the above-named minor as shown by the exhibits and testimonies of the
[respondents];
2. to pay the amount of P30,000.00 as moral damages;
3. to pay the amount of P30,000.00 as exemplary damages;
4. to pay the sum of P10,000.00 as attorneys fees; and
5. to pay the costs of the suit.
SO ORDERED.9
Verceles appealed to the Court of Appeals which affirmed the judgment with modification, specifying the party to whom the
damages was awarded. The dispositive portion of the Court of Appeals decision reads:
WHEREFORE, the appealed judgment is AFFIRMED with modification by ordering [petitioner] Teofisto I. Verceles:
1. To pay a monthly support of P2,000.00 to Verna Aiza Posada from her birth on September 23, 1987.

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2. To pay [respondent] Maria Clarissa Posada the sum of P15,000.00 as moral damages and [P]15,000.00 as
exemplary damages.
3. To pay [respondents] spouses Constantino and Francisca Posada the sum of P15,000.00 as moral damages
and P15,000.00 as exemplary damages.
4. To pay each of the said three [respondents] P10,000.00 as attorneys fees; and
5. To pay the costs of suit.
SO ORDERED.10
Hence, this petition.
Petitioner now presents the following issues for resolution:
I.
WAS THERE ANY EVIDENCE ON RECORD TO PROVE THAT APPELLANT VERCELES WAS THE FATHER OF THE
CHILD?
II.
WOULD THIS ACTION FOR DAMAGES PROSPER?
III.
WOULD THE RTC COURT HAVE ACQUIRED JURISDICTION OVER THIS ISSUE OF APPELLANTS PATERNITY OF
THE CHILD, WHICH IS MADE COLLATERAL TO THIS ACTION FOR DAMAGES? 11
In sum, the pertinent issues in this case are: (1) whether or not paternity and filiation can be resolved in an action for
damages with support pendente lite; (2) whether or not the filiation of Verna Aiza Posada as the illegitimate child of
petitioner was proven; and (3) whether or not respondents are entitled to damages.
In his Memorandum, petitioner asserts that the fact of paternity and filiation of Verna Aiza Posada has not been duly
established or proved in the proceedings; that the award for damages and attorneys fees has no basis; and that the issue
of filiation should be resolved in a direct and not a collateral action.
Petitioner argues he never signed the birth certificate of Verna Aiza Posada as father and that it was respondent Clarissa
who placed his name on the birth certificate as father without his consent. He further contends the alleged love letters he
sent to Clarissa are not admissions of paternity but mere expressions of concern and advice. 12 As to the award for
damages, petitioner argues Clarissa could not have suffered moral damages because she was in pari delicto, being a
willing participant in the "consensual carnal act" between them. 13 In support of his argument that the issue on filiation
should have been resolved in a separate action, petitioner cited the case of Rosales v. Castillo Rosales14 where we held
that the legitimacy of a child which is controversial can only be resolved in a direct action. 15
On the other hand, respondents in their Memorandum maintain that the Court of Appeals committed no error in its
decision. They reiterate that Clarissas clear narration of the circumstances on "how she was deflowered" by petitioner, the
love letters and pictures given by petitioner to Clarissa, the corroborating testimony of Clarissas mother, the fact that
petitioner proffered no countervailing evidence, are preponderant evidence of paternity. They cited the case of De Jesus v.

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Syquia16 where we held that a conceived child can be acknowledged because this is an act favorable to the child. 17 They
also argue that damages should be awarded because petitioner inveigled Clarissa to succumb to his sexual advances. 18
Could paternity and filiation be resolved in an action for damages? On this score, we find petitioners stance
unmeritorious. The caption is not determinative of the nature of a pleading. In a string of cases we made the following
rulings. It is not the caption but the facts alleged which give meaning to a pleading. Courts are called upon to pierce the
form and go into the substance thereof.19 In determining the nature of an action, it is not the caption, but the averments in
the petition and the character of the relief sought, that are controlling. 20
A perusal of the Complaint before the RTC shows that although its caption states "Damages coupled with
SupportPendente Lite," Clarissas averments therein, her meeting with petitioner, his offer of a job, his amorous advances,
her seduction, their trysts, her pregnancy, birth of her child, his letters, her demand for support for her child, all clearly
establish a case for recognition of paternity. We have held that the due recognition of an illegitimate child in a record of
birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of
acknowledgement of the child, and no further court action is required. In fact, any authentic writing is treated not just a
ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial
approval.21
The letters of petitioner marked as Exhibits "A" to "D" are declarations that lead nowhere but to the conclusion that he
sired Verna Aiza. Although petitioner used an alias in these letters, the similarity of the penmanship in these letters vis the
annotation at the back of petitioners fading photograph as a youth is unmistakable. Even an inexperienced eye will come
to the conclusion that they were all written by one and the same person, petitioner, as found by the courts a quo.
We also note that in his Memorandum, petitioner admitted his affair with Clarissa, the exchange of love letters between
them, and his giving her money during her pregnancy. 22
Articles 172 and 175 of the Family Code are the rules for establishing filiation. They are as follows:
Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the
parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as
legitimate children.
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 letters, one of which is quoted above, are private handwritten instruments of petitioner which establish Verna Aizas
filiation under Article 172 (2) of the Family Code. In addition, the array of evidence presented by respondents, the dates,
letters, pictures and testimonies, to us, are convincing, and irrefutable evidence that Verna Aiza is, indeed, petitioners
illegitimate child.

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Petitioner not only failed to rebut the evidence presented, he himself presented no evidence of his own. His bare denials
are telling. Well-settled is the rule that denials, if unsubstantiated by clear and convincing evidence, are negative and selfserving which merit no weight in law and cannot be given greater evidentiary value over the testimony of credible
witnesses who testify on affirmative matters.23
We, however, cannot rule that respondents are entitled to damages. Article 2219 24of the Civil Code which states moral
damages may be recovered in cases of seduction is inapplicable in this case because Clarissa was already an adult at
the time she had an affair with petitioner.
Neither can her parents be entitled to damages. Besides, there is nothing in law or jurisprudence that entitles the parents
of a consenting adult who begets a love child to damages. Respondents Constantino and Francisca Posada have not
cited any law or jurisprudence to justify awarding damages to them.
We, however, affirm the grant of attorneys fees in consonance with Article 2208 (2) 25 and (11)26 of the New Civil Code.
WHEREFORE, the assailed Decision dated May 30, 2003 and the Resolution dated August 27, 2003 of the Court of
Appeals in CA-G.R. CV No. 50557 are AFFIRMED, with the MODIFICATION that the award of moral damages and
exemplary damages be DELETED.
SO ORDERED.

G.R. Nos. 168992-93

May 21, 2009

IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM,

MONINA P. LIM, Petitioner.
x - - - - - - - - - - - - - - - - - - - - - - -x
IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM,
MONINA P. LIM, Petitioner.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the Decision 1dated 15
September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258
and 1259, which dismissed without prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude
P. Lim.
The Facts
The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she married Primo Lim
(Lim). They were childless. Minor children, whose parents were unknown, were entrusted to them by a certain Lucia

106

Ayuban (Ayuban). Being so eager to have a child of their own, petitioner and Lim registered the children to make it appear
that they were the childrens parents. The children2 were named Michelle P. Lim (Michelle) and Michael Jude P. Lim
(Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March
1977.3 Michael was 11 days old when Ayuban brought him to petitioners clinic. His date of birth is 1 August 1983. 4
The spouses reared and cared for the children as if they were their own. They sent the children to exclusive schools. They
used the surname "Lim" in all their school records and documents. Unfortunately, on 28 November 1998, Lim died. On 27
December 2000, petitioner married Angel Olario (Olario), an American citizen.
Thereafter, petitioner decided to adopt the children by availing of the amnesty 5 given under Republic Act No. 85526 (RA
8552) to those individuals who simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions for
the adoption of Michelle and Michael before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259,
respectively. At the time of the filing of the petitions for adoption, Michelle was 25 years old and already married, while
Michael was 18 years and seven months old.
Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of Consent. 7 Michael also
gave his consent to his adoption as shown in his Affidavit of Consent. 8 Petitioners husband Olario likewise executed an
Affidavit of Consent9 for the adoption of Michelle and Michael.
In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was considered as an
abandoned child and the whereabouts of her natural parents were unknown. 10 The DSWD issued a similar Certification for
Michael.11
The Ruling of the Trial Court
On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled that since
petitioner had remarried, petitioner should have filed the petition jointly with her new husband. The trial court ruled that
joint adoption by the husband and the wife is mandatory citing Section 7(c), Article III of RA 8552 and Article 185 of the
Family Code.
Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated 16 June 2005.
In denying the motion, the trial court ruled that petitioner did not fall under any of the exceptions under Section 7(c), Article
III of RA 8552. Petitioners argument that mere consent of her husband would suffice was untenable because, under the
law, there are additional requirements, such as residency and certification of his qualification, which the husband, who
was not even made a party in this case, must comply.
As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint exercise of
parental authority, the trial court ruled that joint adoption is not only for the purpose of exercising parental authority
because an emancipated child acquires certain rights from his parents and assumes certain obligations and
responsibilities.
Hence, the present petition.
Issue
Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has remarried, can singly
adopt.
The Courts Ruling

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Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the court and the State to
protect the paramount interest and welfare of the child to be adopted. Petitioner argues that the legal maxim "dura lex sed
lex" is not applicable to adoption cases. She argues that joint parental authority is not necessary in this case since, at the
time the petitions were filed, Michelle was 25 years old and already married, while Michael was already 18 years of age.
Parental authority is not anymore necessary since they have been emancipated having attained the age of majority.
We deny the petition.
Joint Adoption by Husband and Wife
It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the
petitions by herself, without being joined by her husband Olario. We have no other recourse but to affirm the trial courts
decision denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads:
SEC. 7. Who May Adopt. - The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character,
has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring
for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for
his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between
the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is
the spouse of the adoptees parent;
(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her
country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines
for at least three (3) continuous years prior to the filing of the application for adoption and maintains such
residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular
office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and
that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided,
further, That the requirements on residency and certification of the aliens qualification to adopt in his/her country
may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or
affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within
the fourth (4th) degree of consanguinity or affinity of the Filipino spouses; or
(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her
financial accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other
spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.

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In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental
authority shall be exercised by the spouses. (Emphasis supplied)
The use of the word "shall" in the above-quoted provision means that joint adoption by the husband and the wife is
mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As
the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly.
The rule also insures harmony between the spouses. 12
The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were
filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner herself, without joining her husband,
Olario, the trial court was correct in denying the petitions for adoption on this ground.
Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted
are not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children
of petitioner. And third, petitioner and Olario are not legally separated from each other.
The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are
certain requirements that Olario must comply being an American citizen. He must meet the qualifications set forth in
Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the
Philippines; (2) he must have been living in the Philippines for at least three continuous years prior to the filing of the
application for adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal
capacity to adopt in his own country; and (5) the adoptee is allowed to enter the adopters country as the latters adopted
child. None of these qualifications were shown and proved during the trial.
These requirements on residency and certification of the aliens qualification to adopt cannot likewise be waived pursuant
to Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or
of Olario. Neither are the adoptees the legitimate children of petitioner.
Effects of Adoption
Petitioner contends that joint parental authority is not anymore necessary since the children have been emancipated
having reached the age of majority. This is untenable.
Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development
of their moral, mental and physical character and well-being. 13 The father and the mother shall jointly exercise parental
authority over the persons of their common children.14 Even the remarriage of the surviving parent shall not affect the
parental authority over the children, unless the court appoints another person to be the guardian of the person or property
of the children.15
It is true that when the child reaches the age of emancipation that is, when he attains the age of majority or 18 years of
age16 emancipation terminates parental authority over the person and property of the child, who shall then be qualified
and responsible for all acts of civil life.17 However, parental authority is merely just one of the effects of legal adoption.
Article V of RA 8552 enumerates the effects of adoption, thus:
ARTICLE V
EFFECTS OF ADOPTION
SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the adopter, all legal ties
between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s).
SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them

109

without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the
means of the family.
SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of
succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a
will, the law on testamentary succession shall govern.
Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except
when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3)
give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child, including but
not limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of the adopter and
adoptee to be legal and compulsory heirs of each other.18 Therefore, even if emancipation terminates parental authority,
the adoptee is still considered a legitimate child of the adopter with all the rights 19 of a legitimate child such as: (1) to bear
the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime
and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the
benefits to which biological parents are entitled20 such as support21 and successional rights.22
We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and welfare of the child to
be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy
or orphaned children and give them the protection of society and family, as well as to allow childless couples or persons to
experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their
natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law.23 But, as we have ruled inRepublic v. Vergara:24
We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children.
Accordingly, the law should be construed liberally, in a manner that will sustain rather than defeat said purpose. The law
must also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide
homes, love, care and education for less fortunate children. Regrettably, the Court is not in a position to affirm the trial
courts decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating
the proscription against judicial legislation. Until such time however, that the law on the matter is amended, we cannot
sustain the respondent-spouses petition for adoption. (Emphasis supplied)1avvphi1.zw+
Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her
husband. We cannot make our own legislation to suit petitioner.
Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible
because Olario has filed a case for dissolution of his marriage to petitioner in the Los Angeles Superior Court.
We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no moment. It is not
equivalent to a decree of dissolution of marriage. Until and unless there is a judicial decree for the dissolution of the
marriage between petitioner and Olario, the marriage still subsists. That being the case, joint adoption by the husband and
the wife is required. We reiterate our ruling above that since, at the time the petitions for adoption were filed, petitioner
was married to Olario, joint adoption is mandatory.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional Trial Court,
General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner.

IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA

110

HONORATO B. CATINDIG, petitioner.

DECISION
SANDOVAL-GUTIERREZ, J.:
May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her
middle name? This is the issue raised in the instant case.
The facts are undisputed.
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition [1] to adopt his minor illegitimate
child Stephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26, 1994;
[2]
that her mother is Gemma Astorga Garcia; that Stephanie has been using her mothers middle name and surname;
and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanies middle name Astorga be
changed to Garcia, her mothers surname, and that her surname Garcia be changed to Catindig, his surname.
On March 23, 2001,[3] the trial court rendered the assailed Decision granting the adoption, thus:
After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to the
petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification provided for by
law as an adoptive parent, and that as such he is qualified to maintain, care for and educate the child to be adopted; that
the grant of this petition would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The
Court further holds that the petitioners care and custody of the child since her birth up to the present constitute more than
enough compliance with the requirement of Article 35 of Presidential Decree No. 603.
WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga
Garcia is hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for civil
purposes, shall henceforth be the petitioners legitimate child and legal heir. Pursuant to Article 189 of the Family Code of
the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG.
Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the
Rules of Court.
Let copy of this Decision be furnished the National Statistics Office for record purposes.
SO ORDERED.[4]
On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration [5] praying that Stephanie should be
allowed to use the surname of her natural mother (GARCIA) as her middle name.
On May 28, 2001,[6] the trial court denied petitioners motion for reconsideration holding that there is no law or
jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name.
Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as
her middle name when she is subsequently adopted by her natural father.
Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption
because: (1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting
parent; (2) it is customary for every Filipino to have as middle name the surname of the mother; (3) the middle name or
initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her

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right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle name Garcia (her mothers
surname) avoids the stigma of her illegitimacy; and; (6) her continued use of Garcia as her middle name is not opposed
by either the Catindig or Garcia families.
The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be
permitted to use, as her middle name, the surname of her natural mother for the following reasons:
First, it is necessary to preserve and maintain Stephanies filiation with her natural mother because under Article 189
of the Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless
hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained.
Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle
name. What the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This
custom has been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed that the
initial or surname of the mother should immediately precede the surname of the father so that the second name, if any,
will be before the surname of the mother.[7]
We find merit in the petition.
Use Of Surname Is Fixed By Law
For all practical and legal purposes, a man's name is the designation by which he is known and called in the
community in which he lives and is best known. It is defined as the word or combination of words by which a person is
distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world
at large addressing him, or in speaking of or dealing with him. [8] It is both of personal as well as public interest that every
person must have a name.
The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The
given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals.
The surname or family name is that which identifies the family to which he belongs and is continued from parent to child.
The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed
by law.[9]
Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname [10] of an
individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married
woman or a previously married woman, or a widow, thus:
Art. 364. Legitimate and legitimated children shall principally use the surname of the father.
Art. 365. An adopted child shall bear the surname of the adopter.
xxx
Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the
father.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's surname, or

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(2) Her maiden first name and her husband's surname or

(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs.
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name
and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose
to continue employing her former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before
the legal separation.
Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article
370.
Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or
surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between ascendants and descendants, the word Junior can be used
only by a son. Grandsons and other direct male descendants shall either:
(1) Add a middle name or the mother's surname,
(2) Add the Roman numerals II, III, and so on.
xxx
Law Is Silent As To The Use Of
Middle Name
As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 176 [11] of the
Family Code, as amended by Republic Act No. 9255, otherwise known asAn Act Allowing Illegitimate Children To Use The
Surname Of Their Father, is silent as to what middle name a child may use.
The middle name or the mothers surname is only considered in Article 375(1), quoted above, in case there is identity
of names and surnames between ascendants and descendants, in which case, the middle name or the mothers surname
shall be added.
Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code
merely provides that an adopted child shall bear the surname of the adopter. Also, Article 189 of the Family Code,
enumerating the legal effects of adoption, is likewise silent on the matter, thus:
"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the
reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to
use the surname of the adopters;
xxx

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However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that
drafted the Family Code recognized the Filipino custom of adding the surname of the childs mother as his middle
name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the
suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus
Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child
because the fathers surname indicates the family to which he belongs, for which reason he would insist on the
use of the fathers surname by the child but that, if he wants to, the child may also use the surname of the mother.
Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written?
Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the
surname of the father and permissive in the case of the surname of the mother.
Prof. Baviera remarked that Justice Caguioas point is covered by the present Article 364, which reads:
Legitimate and legitimated children shall principally use the surname of the father.
Justice Puno pointed out that many names change through no choice of the person himself precisely because of this
misunderstanding. He then cited the following example: Alfonso Ponce Enriles correct surname is Ponce since the
mothers surname is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez Davids family name is Gutierrez
and his mothers surname is David but they all call him Justice David.
Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on
the child to use the surname of the father but he may use the surname of the mother by way of an initial or a
middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the
proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the
appropriate chapter.
xxx
Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father
should always be last because there are so many traditions like the American tradition where they like to use their second
given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name.
xxx
Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say
that initial or surname of the mother should immediately precede the surname of the father so that the second
name, if any, will be before the surname of the mother. Prof. Balane added that this is really the Filipino way. The
Committee approved the suggestion.[12] (Emphasis supplied)
In the case of an adopted child, the law provides that the adopted shall bear the surname of the adopters. [13] Again, it
is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the
adoptee to bear the surname of the adopter, upon issuance of the decree of adoption. [14]
The Underlying Intent of
Adoption Is In Favor of the
Adopted Child

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Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the
rights accorded to a legitimate child.[15] It is a juridical act, a proceeding in rem which creates between two persons a
relationship similar to that which results from legitimate paternity and filiation. [16] The modern trend is to consider adoption
not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a
legitimate status.[17] This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of
the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with
social and moral responsibility, and that its underlying intent is geared to favor the adopted child.[18] Republic Act
No. 8552, otherwise known as the Domestic Adoption Act of 1998,[19] secures these rights and privileges for the adopted.
[20]

One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and
purposes pursuant to Article 189[21] of the Family Code and Section 17[22]Article V of RA 8552.[23]
Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights
provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of
her father and her mother, as discussed above. This is consistent with the intention of the members of the Civil Code
and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother
should immediately precede the surname of the father.
Additionally, as aptly stated by both parties, Stephanies continued use of her mothers surname (Garcia) as her
middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section 18 [24],
Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent.
Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future.
Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at
390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her
mother and father. She calls them Mama and Papa. Indeed, they are one normal happy family. Hence, to allow Stephanie
to use her mothers surname as her middle name will not only sustain her continued loving relationship with her mother but
will also eliminate the stigma of her illegitimacy.
Liberal Construction of
Adoption Statutes In Favor Of
Adoption
It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the
beneficent purposes of adoption.[25] The interests and welfare of the adopted child are of primary and paramount
consideration,[26] hence, every reasonable intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law.[27]
Lastly, Art. 10 of the New Civil Code provides that:
In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and
justice to prevail.
This provision, according to the Code Commission, is necessary so that it may tip the scales in favor of right and
justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which
may apparently be authorized by some way of interpreting the law.[28]
Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as
middle name her mothers surname, we find no reason why she should not be allowed to do so.

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WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie
should be allowed to use her mothers surname GARCIA as her middle name.
Let the corresponding entry of her correct and complete name be entered in the decree of adoption.
SO ORDERED.

DIWATA RAMOS LANDINGIN G.R. No. 164948

Petitioner,
Present
PANGANIBAN, C.J., Chairperson,
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ, CALLEJO, SR., and
CHICO-NAZARIO, JJ.
Promulgated:
REPUBLIC OF THE PHILIPPINES,
Respondent. June 27, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
CALLEJO, SR., J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision [1] of the Court of
Appeals in CA-G.R. CV No. 77826 which reversed the Decision [2]of the Regional Trial Court (RTC) of Tarlac City, Branch
63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner herein.

The Antecedents
On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino
parentage and a resident of Guam, USA, filed a petition [3] for the adoption of minors Elaine Dizon Ramos who was born on
August 31, 1986;[4] Elma Dizon Ramos, who was born on September 7, 1987;[5] and Eugene Dizon Ramos who was born
on August 5, 1989.[6] The minors are the natural children of Manuel Ramos, petitioners brother, and Amelia Ramos.

Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990, [7] the children were left to
their paternal grandmother, Maria Taruc Ramos; their biological mother, Amelia, went to Italy, re-married there and now
has two children by her second marriage and no longer communicated with her children by Manuel Ramos nor with her inlaws from the time she left up to the institution of the adoption; the minors are being financially supported by the petitioner
and her children, and relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the
children; the minors have given their written consent [8] to the adoption; she is qualified to adopt as shown by the fact that
she is a 57-year-old widow, has children of her own who are already married, gainfully employed and have their
respective families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and works as a

116

restaurant server. She came back to the Philippines to spend time with the minors; her children gave their written
consent[9] to the adoption of the minors. Petitioners brother, Mariano Ramos, who earns substantial income, signified his
willingness and commitment to support the minors while in petitioners custody.

Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows:
WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and
hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos, Elma
Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor childrens name
follow the family name of petitioner.
Petitioner prays for such other reliefs, just and equitable under the premises. [10]
On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to conduct a case
study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to submit a report thereon not later
than April 4, 2002, the date set for the initial hearing of the petition. [11] The Office of the Solicitor General (OSG) entered its
appearance[12] but deputized the City Prosecutor of Tarlac to appear in its behalf. [13] Since her petition was unopposed,
petitioner was allowed to present her evidence ex parte.[14]
The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to testify on
the written consent executed by her and her siblings. [15] The petitioner marked in evidence the Affidavit of Consent
purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a
notary public in Guam, USA, as proof of said consent.[16]
On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac, submitted a
Child Study Report, with the following recommendation:
In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible
for adoption because of the following reasons:
1.

Minors surviving parent, the mother has voluntarily consented to their adoption by the
paternal aunt, Diwata Landingin this is in view of her inability to provide the parental care,
guidance and support they need. An Affidavit of Consent was executed by the mother which
is hereto attached.

2.

The three minors subject for adoption have also expressed their willingness to be adopted
and joins the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto
attached. The minors developed close attachment to the petitioners and they regarded her as
second parent.

3.

The minors are present under the care of a temporary guardian who has also family to look
after. As young adolescents they really need parental love, care, guidance and support to
ensure their protection and well being.

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In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos,
Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial
custody is hereby further recommended to be dispensed with considering that they are close
relatives and that close attachments was already developed between the petitioner and the 3
minors.[17]

Pagbilao narrated what transpired during her interview, as follows:

The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks
vacation. This is to enable her appear for the personal interview concerning the adoption of her children.
The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after
the death of their paternal grandmother and guardian. The paternal relatives including the petitioner who
attended the wake of their mother were very much concerned about the well-being of the three
minors. While preparing for their adoption, they have asked a cousin who has a family to stay with minors
and act as their temporary guardian.
The mother of minors was consulted about the adoption plan and after weighing the benefits of
adoption to her children, she voluntarily consented. She realized that her children need parental love,
guidance and support which she could not provide as she already has a second family & residing
in Italy. Knowing also that the petitioners & her children have been supporting her children up to the
present and truly care for them, she believes her children will be in good hands. She also finds petitioners
in a better position to provide a secured and bright future to her children. [18]

However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent of Amelia
Ramos to the adoption; petitioner, likewise, failed to present any documentary evidence to prove that Amelia assents to
the adoption.

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On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision granting said
petition. The dispositive portion reads:
WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon
Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance from their
natural parents and that they be declared for all legal intents and purposes the children of Diwata Ramos
Landingin. Trial custody is dispensed with considering that parent-children relationship has long been
established between the children and the adoptive parents. Let the surnames of the children be changed
from Dizon-Ramos to Ramos-Landingin.
Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect
the corresponding changes/amendment in the birth certificates of the above-mentioned minors.
SO ORDERED.[19]

The OSG appealed[20] the decision to the Court of Appeals on December 2, 2002. In its brief[21] for the oppositorappellant, the OSG raised the following arguments:
I
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF
CONSENT OF THE PROPOSED ADOPTEES BIOLOGICAL MOTHER.
II
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF
THE WRITTEN CONSENT OF THE PETITIONERS CHILDREN AS REQUIRED BY LAW.
III
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONERS
FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED ADOPTEES.

On April 29, 2004, the CA rendered a decision [22] reversing the ruling of the RTC. It held that petitioner failed to
adduce in evidence the voluntary consent of Amelia Ramos, the childrens natural mother. Moreover, the affidavit of
consent of the petitioners children could not also be admitted in evidence as the same was executed in Guam, USA and
was not authenticated or acknowledged before a Philippine consular office, and although petitioner has a job, she was not
stable enough to support the children. The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the
Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and SET
ASIDE.
SO ORDERED.[23]

Petitioner filed a Motion for Reconsideration [24] on May 21, 2004, which the CA denied in its Resolution
dated August 12, 2004.[25]

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Petitioner, thus, filed the instant petition for review on certiorari[26] on September 7, 2004, assigning the following
errors:
1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME FACTS
AND CIRCUMSTANCES WHICH ARE OF WEIGHT AND IMPORTANCE AND WHICH IF CONSIDERED
WOULD HAVE AFFECTED THE RESULT OF THE CASE.
2.
THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE
PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE CHILDREN. [27]

The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is entitled to adopt
the minors without the written consent of their biological mother, Amelia Ramos; (b) whether or not the affidavit of consent
purportedly executed by the petitioner-adopters children sufficiently complies with the law; and (c) whether or not
petitioner is financially capable of supporting the adoptees.

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The Courts Ruling

The petition is denied for lack of merit.
It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,[28] that
adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration
and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give
them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to
experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their
natural parental instincts. Every reasonable intendment should thus be sustained to promote and fulfill these noble and
compassionate objectives of the law.[29]

However, in Cang v. Court of Appeals,[30] the Court also ruled that the liberality with which this Court treats matters
leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the
adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the
adopted child, should be understood in its proper context and perspective. The Courts position should not be
misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. Thus, the
discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with
due regard to the natural rights of the parents over the child. [31]
Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides:
Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and informed of
his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the
adoption is hereby required:
(a)

The adoptee, if ten (10) years of age or over;

(b)

The biological parent(s) of the child, if known, or the legal guardian, or the proper
government instrumentality which has legal custody of the child;

(c)

The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s)
and adoptee, if any;

(d)

The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living with
said adopter and the latters souse, if any;

(e)

The spouse, if any, of the person adopting or to be adopted.

The general requirement of consent and notice to the natural parents is intended to protect the natural parental
relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of
the child in the manner of the proposed adoption.[32]

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Clearly, the written consent of the biological parents is indispensable for the validity of a decree of
adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental
rights and duties may be terminated and re-established in adoptive parents. In this case, petitioner failed to submit the
written consent of Amelia Ramos to the adoption.
We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived in
the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the Philippines and Pagbilao was able
to interview her, it is incredible that the latter would not require Amelia Ramos to execute a Written Consent to the
adoption of her minor children. Neither did the petitioner bother to present Amelia Ramos as witness in support of the
petition.

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Petitioner, nonetheless, argues that the written consent of the biological mother is no longer necessary because
when Amelias husband died in 1990, she left for Italy and never came back. The children were then left to the guidance
and care of their paternal grandmother. It is the paternal relatives, including petitioner, who provided for the childrens
financial needs. Hence, Amelia, the biological mother, had effectively abandoned the children. Petitioner further contends
that it was by twist of fate that after 12 years, when the petition for adoption was pending with the RTC that Amelia and her
child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD social worker, was able to meet
her, and during the meeting, Amelia intimated to the social worker that she conformed to the adoption of her three children
by the petitioner.

Petitioners contention must be rejected. When she filed her petition with the trial court, Rep. Act No. 8552 was
already in effect. Section 9 thereof provides that if the written consent of the biological parents cannot be obtained, the
written consent of the legal guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother of the
minors had indeed abandoned them, she should, thus have adduced the written consent of their legal guardian.

Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct which
evinces a settled purpose to forego all parental duties. [33] The term means neglect and refusal to perform the filial and
legal obligations of love and support. If a parent withholds presence, love, care, the opportunity to display filial affection,
and neglects to lend support and maintenance, the parent, in effect, abandons the child. [34]

Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.
[35]

To dispense with the requirement of consent, the abandonment must be shown to have existed at the time of adoption.

[36]

In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim that Amelia
Ramos had abandoned her children. Petitioners testimony on that matter follows:
Q Where is the mother of these three children now?
A She left for Italy on November 20, 1990, sir.
Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated with the
family?
A None, sir.
Q How about with her children?
A None, sir.
Q Do you know what place in Italy did she reside?
A I do not know, sir.
Q Did you receive any news about Amelia Ramos?
A What I know, sir, was that she was already married with another man.

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Q From whom did you learn that?

A From others who came from Italy, sir.
Q Did you come to know whether she has children by her second marriage?
A Yes, sir, she got two kids.[37]

Elaine, the eldest of the minors, testified, thus:

Q Where is your mother now?
A In Italy, sir.
Q When did your mother left for Italy?
A After my father died, sir.
Q How old were you when your mother left for Italy in 1990?
A Two years old, sir.
Q At the time when your mother left for Italy, did your mother communicate with you?
A No, sir.[38]
However, the Home Study Report of the DSWD Social Worker also stated the following:
IV.

Background of the Case:

xxxx

Since the mother left for Italy, minors siblings had been under the care and custody of their maternal
grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves
as their guardian. The petitioner, together with her children and other relatives abroad have been
supporting the minor children financially, even during the time that they were still living with their
natural parents. Their mother also sends financial support but very minimal.[39]
xxxx
V.

Background Information about the Minors Being Sought for Adoption:

xxxx

As the eldest she tries her best to be a role model to her younger siblings. She helps them in their
lessons, works and has fun with them. She also encourages openness on their problems and concerns
and provides petty counseling. In serious problems she already consult (sic) her mother and
petitioner-aunt.[40]
xxxx
In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy
and comfortable life. After the death of her husband, her in-laws which include the petitioner had
continued providing support for them. However being ashamed of just depending on the support of her
husbands relatives, she decided to work abroad. Her parents are also in need of financial help as they are

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undergoing maintenance medication. Her parents mortgaged their farm land which she used in going
to Italy and worked as domestic helper.
When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her
mother-in-law who returned home for good, however she died on November 2000.
While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in partners since
1995 and have a son John Mario who is now 2 years old. The three of them are considered Italian
residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is
amenable to it. He is providing his legitimate family regular support.
Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents
who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other
paternal relatives are continuously providing support for most of the needs & education of minors up to
present.[41]

Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently sever their mother-child
relationship. She was merely impelled to leave the country by financial constraints. Yet, even while abroad, she did not
surrender or relinquish entirely her motherly obligations of rearing the children to her now deceased mother-in-law, for, as
claimed by Elaine herself, she consulted her mother, Amelia, for serious personal problems. Likewise, Amelia continues to
send financial support to the children, though in minimal amounts as compared to what her affluent in-laws provide.

Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing all legal
ties between the biological mother, Amelia, and the adoptees, and that the same shall then be vested on the adopter. [42] It
would thus be against the spirit of the law if financial consideration were to be the paramount consideration in deciding
whether to deprive a person of parental authority over his/her children. More proof has to be adduced that Amelia has
emotionally abandoned the children, and that the latter will not miss her guidance and counsel if they are given to an
adopting parent.[43] Again, it is the best interest of the child that takes precedence in adoption.

Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified. The offer of evidence is necessary because it is
the duty of the Court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the
parties.Unless and until admitted by the court in evidence for the purpose or purposes for which such document is offered,
the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings
thereof as exhibits do not confer any evidentiary weight on documents unless formally offered. [44]

Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of Consent purportedly executed by her
children; the authenticity of which she, likewise, failed to prove. The joint written consent of petitioners children [45] was
notarized on January 16, 2002 in Guam, USA; for it to be treated by the Rules of Court in the same way as a document
notarized in this country it needs to comply with Section 2 of Act No. 2103, [46] which states:

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Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be

considered authentic if the acknowledgment and authentication are made in accordance with the following
requirements:
(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of
legation, charg d affaires, consul, vice-consul, or consular agent of the Republic of the
Philippines, acting within the country or place to which he is accredited, or (2) a notary
public or officer duly authorized by law of the country to take acknowledgments of
instruments or documents in the place where the act is done.
(b) The person taking the acknowledgment shall certify that the person acknowledging
the instrument or document is known to him, and that he is the same person who
executed it, and acknowledged that the same is his free act and deed. The certificate
shall be under his official seal, if he is by law required to keep a seal, and if not, his
certificate shall so state. In case the acknowledgment is made before a notary public or
an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the
notary public or the officer taking the acknowledgment shall be authenticated by an
ambassador, minister, secretary of legation, charg de affaires, consul, vice-consul, or
consular agent of the Republic of the Philippines, acting within the country or place to
which he is accredited. The officer making the authentication shall certify under his official
seal that the person who took the acknowledgment was at the time duly authorized to act
as notary public or that he was duly exercising the functions of the office by virtue of
which he assumed to act, and that as such he had authority under the law to take
acknowledgment of instruments or documents in the place where the acknowledgment
was taken, and that his signature and seal, if any, are genuine.

As the alleged written consent of petitioners legitimate children did not comply with the afore-cited law, the same
can at best be treated by the Rules as a private document whose authenticity must be proved either by anyone who saw
the document executed or written; or by evidence of the genuineness of the signature or handwriting of the makers. [47]

Since, in the instant case, no further proof was introduced by petitioner to authenticate the written consent of her
legitimate children, the same is inadmissible in evidence.

In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the children and is only
relying on the financial backing, support and commitment of her children and her siblings. [48] Petitioner contradicts this by
claiming that she is financially capable as she has worked in Guam for 14 years, has savings, a house, and currently
earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children and siblings have likewise committed
themselves to provide financial backing should the need arise. The OSG, again in its comment, banks on the statement in
the Home Study Report that petitioner has limited income. Accordingly, it appears that she will rely on the financial
backing of her children and siblings in order to support the minor adoptees. The law, however, states that it is the adopter
who should be in a position to provide support in keeping with the means of the family.

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Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of
prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to
support the would-be adopted child or children, in keeping with the means of the family.

According to the Adoption Home Study Report [49] forwarded by the Department of Public Health & Social Services of the
Government of Guam to the DSWD, petitioner is no longer supporting her legitimate children, as the latter are already
adults, have individual lives and families. At the time of the filing of the petition, petitioner was 57 years old, employed on
a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioners main intention in
adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the
same is still being amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption
proceedings.

Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the financial aspect of
rearing the three children in the US. She only has a part-time job, and she is rather of age. While petitioner claims that she
has the financial support and backing of her children and siblings, the OSG is correct in stating that the ability to support
the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the
latter. Moreover, the records do not prove nor support petitioners allegation that her siblings and her children are
financially able and that they are willing to support the minors herein. The Court, therefore, again sustains the ruling of the
CA on this issue.

While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew, there are legal
infirmities that militate against reversing the ruling of the CA. In any case, petitioner is not prevented from filing a new
petition for adoption of the herein minors.

WHEREFORE, premises considered, the petition is hereby DENIED.

ISABELITA S. LAHOM, petitioner, vs. JOSE MELVIN SIBULO (previously referred to as DR. MELVIN S.
LAHOM), respondent.
DECISION
VITUG, J.:
The bliss of marriage and family would be to most less than complete without children. The realization could have
likely prodded the spouses Dr. Diosdado Lahom and Isabelita Lahom to take into their care Isabelitas nephew Jose Melvin
Sibulo and to bring him up as their own. At the tender age of two, Jose Melvin enjoyed the warmth, love and support of
the couple who treated the child like their own. Indeed, for years, Dr. and Mrs. Lahom fancied on legally adopting Jose
Melvin. Finally, in 1971, the couple decided to file a petition for adoption. On 05 May 1972, an order granting the petition

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was issued that made all the more intense than before the feeling of affection of the spouses for Melvin. In keeping with
the court order, the Civil Registrar of Naga City changed the name Jose Melvin Sibulo to Jose Melvin Lahom.
A sad turn of events came many years later. Eventually, in December of 1999, Mrs. Lahom commenced a petition to
rescind the decree of adoption before the Regional Trial Court (RTC), Branch 22, of Naga City. In her petition, she averred
7. That x x x despite the proddings and pleadings of said spouses, respondent refused to change his surname from Sibulo
to Lahom, to the frustrations of petitioner particularly her husband until the latter died, and even before his death he had
made known his desire to revoke respondents adoption, but was prevented by petitioners supplication, however with his
further request upon petitioner to give to charity whatever properties or interest may pertain to respondent in the future.
xxxxxxxxx
10. That respondent continued using his surname Sibulo to the utter disregard of the feelings of herein petitioner, and his
records with the Professional Regulation Commission showed his name as Jose Melvin M. Sibulo originally issued in
1978 until the present, and in all his dealings and activities in connection with his practice of his profession, he is Jose
Melvin M. Sibulo.
xxxxxxxxx
13. That herein petitioner being a widow, and living alone in this city with only her household helps to attend to her, has
yearned for the care and show of concern from a son, but respondent remained indifferent and would only come to Naga
to see her once a year.
14. That for the last three or four years, the medical check-up of petitioner in Manila became more frequent in view of a
leg ailment, and those were the times when petitioner would need most the care and support from a love one, but
respondent all the more remained callous and utterly indifferent towards petitioner which is not expected of a son.
15. That herein respondent has recently been jealous of petitioners nephews and nieces whenever they would find time to
visit her, respondent alleging that they were only motivated by their desire for some material benefits from petitioner.
16. That in view of respondents insensible attitude resulting in a strained and uncomfortable relationship between him and
petitioner, the latter has suffered wounded feelings, knowing that after all respondents only motive to his adoption is his
expectancy of his alleged rights over the properties of herein petitioner and her late husband, clearly shown by his recent
filing of Civil Case No. 99-4463 for partition against petitioner, thereby totally eroding her love and affection towards
respondent, rendering the decree of adoption, considering respondent to be the child of petitioner, for all legal purposes,
has been negated for which reason there is no more basis for its existence, hence this petition for revocation. [1]
Prior to the institution of the case, specifically on 22 March 1998, Republic Act (R.A.) No. 8552, also known as the
Domestic Adoption Act, went into effect. The new statute deleted from the law the right of adopters to rescind a decree of
adoption.
Section 19 of Article VI of R.A. No. 8552 now reads:
SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, with the assistance of the Department if a
minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on
any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s)
despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d)
abandonment and failure to comply with parental obligations.

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Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the
adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code.(emphasis supplied)
Jose Melvin moved for the dismissal of the petition, contending principally (a) that the trial court had no jurisdiction
over the case and (b) that the petitioner had no cause of action in view of the aforequoted provisions of R.A. No.
8552. Petitioner asseverated, by way of opposition, that the proscription in R.A. No. 8552 should not retroactively
apply, i.e., to cases where the ground for rescission of the adoption vested under the regime of then Article 348 [2] of the
Civil Code and Article 192[3] of the Family Code.
In an order, dated 28 April 2000, the trial court held thusly:
On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A. No. 8369 confers jurisdiction to this
Court, having been designated Family Court in A.M. No. 99-11-07 SC.
On the matter of no cause of action, the test on the sufficiency of the facts alleged in the complaint, is whether or not,
admitting the facts alleged, the Court could render a valid judgment in accordance with the prayer of said complaint (De
Jesus, et al. vs. Belarmino, et al., 95 Phil. 365).
Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter to rescind an adoption earlier granted
under the Family Code. Conformably, on the face of the petition, indeed there is lack of cause of action.
Petitioner however, insists that her right to rescind long acquired under the provisions of the Family Code should be
respected. Assuming for the sake of argument, that petitioner is entitled to rescind the adoption of respondent granted on
May 5, 1972, said right should have been exercised within the period allowed by the Rules. From the averments in the
petition, it appears clear that the legal grounds for the petition have been discovered and known to petitioner for more
than five (5) years, prior to the filing of the instant petition on December 1, 1999, hence, the action if any, had already
prescribed. (Sec. 5, Rule 100 Revised Rules of Court)
WHEREFORE, in view of the foregoing consideration, the petition is ordered dismissed. [4]
Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court, petitioner raises the following
questions; viz:
1. May the subject adoption, decreed on 05 May 1972, still be revoked or rescinded by an adopter after the
effectivity of R.A. No. 8552?
2. In the affirmative, has the adopters action prescribed?
A brief background on the law and its origins could provide some insights on the subject. In ancient times, the
Romans undertook adoption to assure male heirs in the family. [5] The continuity of the adopters family was the primary
purpose of adoption and all matters relating to it basically focused on the rights of the adopter. There was hardly any
mention about the rights of the adopted. [6]Countries, like Greece, France, Spain and England, in an effort to preserve
inheritance within the family, neither allowed nor recognized adoption. [7] It was only much later when adoption was given
an impetus in law and still later when the welfare of the child became a paramount concern. [8] Spain itself which previously
disfavored adoption ultimately relented and accepted the Roman law concept of adoption which, subsequently, was to find
its way to the archipelago. The Americans came and introduced their own ideas on adoption which, unlike most countries
in Europe, made the interests of the child an overriding consideration. [9] In the early part of the century just passed, the
rights of children invited universal attention; the Geneva Declaration of Rights of the Child of 1924 and the Universal
Declaration of Human Rights of 1948, [10] followed by the United Nations Declarations of the Rights of the Child, [11] were
written instruments that would also protect and safeguard the rights of adopted children. The Civil Code of the
Philippines[12] of 1950 on adoption, later modified by the Child and Youth Welfare Code [13] and then by the Family Code of
the Philippines,[14]gave immediate statutory acknowledgment to the rights of the adopted. In 1989, the United Nations

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initiated the Convention of the Rights of the Child. The Philippines, a State Party to the Convention, accepted the principle
that adoption was impressed with social and moral responsibility, and that its underlying intent was geared to favor the
adopted child. R.A. No. 8552 secured these rights and privileges for the adopted. Most importantly, it affirmed the
legitimate status of the adopted child, not only in his new family but also in the society as well. The new law withdrew the
right of an adopter to rescind the adoption decree and gave to the adopted child the sole right to sever the legal ties
created by adoption.
Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her right to annul the adoption
decree, nor deprive the trial court of its jurisdiction to hear the case, both being vested under the Civil Code and the
Family Code, the laws then in force.
The concept of vested right is a consequence of the constitutional guaranty of due process [15] that expresses
a present fixed interest which in right reason and natural justice is protected against arbitrary state action; [16] it includes
not only legal or equitable title to the enforcement of a demand but also exemptions from new obligations created after the
right has become vested.[17]Rights are considered vested when the right to enjoyment is a present interest, [18] absolute,
unconditional, and perfect[19] or fixed and irrefutable.
In Republic vs. Court of Appeals,[20] a petition to adopt Jason Condat was filed by Zenaida C. Bobiles on 02 February
1988 when the Child and Youth Welfare Code (Presidential Decree No. 603) allowed an adoption to be sought
by either spouse or both of them. After the trial court had rendered its decision and while the case was still pending on
appeal, the Family Code of the Philippines (Executive Order No. 209), mandating joint adoption by the husband and
wife, took effect. Petitioner Republic argued that the case should be dismissed for having been filed by Mrs. Bobiles alone
and without being joined by the husband. The Court concluded that the jurisdiction of the court is determined by the
statute in force at the time of the commencement of the action. The petition to adopt Jason, having been filed
with the court at the time when P.D. No. 603 was still in effect, the right of Mrs. Bobiles to file the petition, without
being joined by her husband, according to the Court had become vested. In Republic vs. Miller,[21] spouses Claude and
Jumrus Miller, both aliens, sought to adopt Michael Madayag. On 29 July 1988, the couple filed a petition to formalize
Michaels adoption having theretofore been taken into their care. At the time the action was commenced, P.D. No. 603
allowed aliens to adopt. After the decree of adoption and while on appeal before the Court of Appeals, the Family Code
was enacted into law on 08 August 1988 disqualifying aliens from adopting Filipino children. The Republic then prayed for
the withdrawal of the adoption decree. In discarding the argument posed by the Republic, the Supreme Court ruled
that the controversy should be resolved in the light of the law governing at the time the petition was filed.
It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an action to revoke the decree of
adoption granted in 1975. By then, the new law,[22] had already abrogated and repealed the right of an adopter under the
Civil Code and the Family Code to rescind a decree of adoption. Consistently with its earlier pronouncements, the Court
should now hold that the action for rescission of the adoption decree, having been initiated by petitioner after R.A. No.
8552 had come into force, no longer could be pursued.
Interestingly, even before the passage of the statute, an action to set aside the adoption is subject to the fiveyear bar
rule under Rule 100[23] of the Rules of Court and that the adopter would lose the right to revoke the adoption decree after
the lapse of that period. The exercise of the right within a prescriptive period is a condition that could not fulfill the
requirements of a vested right entitled to protection. It must also be acknowledged that a person has no vested right in
statutory privileges.[24] While adoption has often been referred to in the context of a right, the privilege to adopt is itself not
naturally innate or fundamental but rather a right merely created by statute. [25] It is a privilege that is governed by the
states determination on what it may deem to be for the best interest and welfare of the child. [26] Matters relating to
adoption, including the withdrawal of the right of an adopter to nullify the adoption decree, are subject to regulation by the
State.[27]Concomitantly, a right of action given by statute may be taken away at anytime before it has been exercised. [28]
While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind the adoption
decree even in cases where the adoption might clearly turn out to be undesirable, it remains, nevertheless, the bounden
duty of the Court to apply the law. Dura lex sed lex would be the hackneyed truism that those caught in the law have to

130

live with. It is still noteworthy, however, that an adopter, while barred from severing the legal ties of adoption, can always
for valid reasons cause the forfeiture of certain benefits otherwise accruing to an undeserving child. For instance, upon
the grounds recognized by law, an adopter may deny to an adopted child his legitime and, by a will and testament, may
freely exclude him from having a share in the disposable portion of his estate.
WHEREFORE, the assailed judgment of the court a quo is AFFIRMED. No costs.
SO ORDERED.

EDWARD V. LACSON, G.R. No. 150644

Petitioner,
Present:
PUNO, J., Chairperson,
- versus - SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
GARCIA, JJ.
MAOWEE DABAN LACSON
and MAONAA DABAN Promulgated:
LACSON, represented by their
mother and guardian ad-litem,
LEA DABAN LACSON, August 28, 2006
Respondents.
x-----------------------------------------------------------------------------------------x

DECISION

GARCIA, J.:

Petitioner Edward V. Lacson, father of the respondent sisters Maowee Daban Lacson and Maonaa Daban Lacson and
husband of their mother and guardian ad-litem, Lea Daban Lacson, has come to this Court via this petition for review
under Rule 45 of the Rules of Court to seek the reversal and setting aside of the Decision[1] dated July 13, 2001 of the
Court of Appeals (CA) in CA-G.R. CV No. 60203, as reiterated in its Resolution [2] of October 18, 2001 denying his motion
for reconsideration.

From the petition and its annexes, the respondents reply thereto, and other pleadings, the Court gathers the following
facts:

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

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

In that complaint dated January 30, 1995, as amended,[3] docketed as Civil Case No. 22185, Maowee and Maonaa, thru
their mother, averred that their father Edward, despite being gainfully employed and owning several pieces of valuable
lands, has not provided them support since 1976. They also alleged that, owing to years of Edwards failure and neglect,
their mother had, from time to time, borrowed money from her brother Noel Daban. As she would later testify, Lea had
received from Noel, by way of a loan, as much as P400,000.00 toP600,000.00.

In his Answer, Edward alleged giving to Maowee and Maonaa sufficient sum to meet their needs. He explained, however,
that his lack of regular income and the unproductivity of the land he inherited, not his neglect, accounted for his failure at
times to give regular support. He also blamed financial constraint for his inability to provide the P12,000.00 monthly
allowance prayed for in the complaint.

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As applied for and after due hearing, the trial court granted the sisters Maowee and Maonaa support pendente
lite at P12,000.00 per month, subject to the schedule of payment and other conditions set forth in the courts
corresponding order of May 13, 1996.[4]

Following trial, the RTC rendered on June 26, 1997 judgment finding for the plaintiff sisters, as represented by their
mother. In that judgment, the trial court, following an elaborate formula set forth therein, ordered their defendant
father Edward to pay them a specific sum which represented 216 months, or 18 years, of support in arrears. The fallo of
the trial courts decision[5] reads:

133

WHEREFORE, judgment is hereby rendered:

1)

Ordering defendant to compensate plaintiffs support in arrears in the amount of

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

2) Ordering defendant to pay TWENTY THOUSAND (P20,000.00) PESOS as attorneys fees; and
3)

Pay costs.

SO ORDERED.

Therefrom, Edward appealed to the CA whereat his recourse was docketed as CA-G.R. CV. No. 60203.

Eventually, the CA, in the herein assailed Decision dated July 13, 2001,[6] dismissed Edwards appeal, disposing as
follows;
WHEREFORE, premises considered, the present appeal is hereby DISMISSED and the appealed Decision in
Civil Case No. 22185 is hereby AFFIRMED.
Double costs against the defendant appellant [Edward Lacson].
SO ORDERED. (Words in bracket added.)

In time, Edward moved for reconsideration, but his motion was denied by the appellate court in its equally assailed
Resolution of October 18, 2001.[7]

Hence, Edwards present recourse on his submission that the CA erred -

I.

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

II.

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

DABAN.

III.

XXX IN AFFIRMING THE AWARD OF SUPPORT EVEN IF PETITIONER IS NOT FINANCIALLY

CAPABLE OF PROVIDING THE SAME TO RESPONDENTS.

IV.

XXX WHEN IT ORDERED PETITIONER TO PROVIDE SUPPORT TO XXX RESPONDENTS EVEN

IF PETITIONERS OBLIGATION TO PROVIDE SUPPORT HAD ALREADY BEEN COMPLETELY
SATISFIED BY THE PROCEEDS OF THE SALE OF HIS EXCLUSIVE PROPERTY WHICH WERE ALL
APPROPRIATED BY THE RESPONDENTS.

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The petition lacks merit.

Petitioner admits being obliged, as father, to provide support to both respondents, Maowee and Maonaa. It is his threshold
submission, however, that he should not be made to pay support in arrears, i.e., from 1976 to 1994, no previous
extrajudicial, let alone judicial, demand having been made by the respondents. He invokes the following provision of the
Family Code to complete his point:
Article 203 The obligation to give support shall be demandable from the time the person who has a right
to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or
extrajudicial demand.

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

Petitioners above posture has little to commend itself. For one, it conveniently glossed over the fact that he veritably
abandoned the respondent sisters even before the elder of the two could celebrate her second birthday. To be sure,
petitioner could not plausibly expect any of the sisters during their tender years to go through the motion of demanding
support from him, what with the fact that even their mother (his wife) found it difficult during the period material to get in
touch with him. For another, the requisite demand for support appears to have been made sometime in 1975. It may be
that Lea made no extrajudicial demand in the sense of a formal written demand in terms and in the imperious tenor
commonly used by legal advocates in a demand letter. Nonetheless, what would pass as a demand was, however,
definitely made. Asking one to comply with his obligation to support owing to the urgency of the situation is no less a
demand because it came by way of a request or a plea. As it were, the trial court found that a demand to sustain an award
of support in arrears had been made in this case and said so in its decision, thus:
From 1976, [respondents] mother now and then went to their [paternal] grandmothers house by their
father and asked for support; this notwithstanding their fathers commitment for this purpose which the
latter embodied in a note dated December 10, 1975. For twenty-one years that they needed support,
[petitioner] complied with his obligation for only two (2) years.
xxx xxx xxx
Last December 10, 1975, [petitioner] committed self for the support of his children, the [respondents]
herein but failing, plaintiffs mother asked extrajudicially for her childrens support since 1976, when she
went to her mothers house. .[8] (Words in bracket and underscoring added.)

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The appellate court made a parallel finding on the demand angle, formulating the same in the following wise:
We could not confer judicial approval upon [petitioners] posture of trying to evade his responsibility to give
support to his daughters simply because their mother did not make a formal demand therefor from him.
[Petitioners] insistence on requiring a formal demand from his wife is truly pointless, in the face of his
acknowledgment of and commitment to comply with such obligation through a note in his own
handwriting. Said note [stating that he will sustain his two daughters Maowee and Maonaa] also stated as
requested by their mother thus practically confirming the fact of such demand having been made by
[respondents] mother. The trial court thus correctly ruled that [petitioners] obligation to pay support in
arrears should commence from 1976.[9] (Words in bracket added).

The Court finds no adequate reason to disturb the factual determination of the CA confirmatory of that of the trial court
respecting the demand Lea made on the petitioner to secure support for the respondents. As a matter of long and sound
appellate practice, factual findings of the CA are accorded respect, if not finality, save for the most compelling and cogent
reasons.[10] Not one of the well-recognized exceptions to this rule on conclusiveness of factual findings appear to obtain in
this case. Accordingly, the Court cannot grant the petitioners plea for a review of the CAs findings bearing on the actuality
that, as basis for an award of support in arrears, an extrajudicial demand for support had been made on the petitioner as
evidenced by the December 10, 1975 note adverted to. Lest it be overlooked, the jurisdiction of the Court in a petition for
review, as here, is generally limited to correction of errors of law. Complementing that postulate is the rule that the Court is
not bound to analyze and weigh all over again the evidence already considered in the proceedings below, [11] except when,
as earlier indicated, compelling reasons demand a review of the factual conclusions drawn from such evidence.

Petitioners second specification of error touches on the CAs affirmatory holding that respondents uncle, Noel Daban,
advanced the money for their support. Again, petitioners lament on the matter is a veritable call for review of factual
determinations of the two courts below. It need not, accordingly, detain us long. Suffice it to state in that regard that, of
their close relatives, the respondents appeared to have stayed longest with their uncle, Noel Daban. Noteworthy also is
the fact that petitioner, from 1976 to 1994, only gave Maowee and Maonaa token amounts for schooling when support
comprises everything indispensable for sustenance, dwelling, clothing, medical attendance and education, [12] or, in short,
whatever is necessary to keep a person alive. Logically, the sisters would, thru their mother, turn to their uncle (Noel
Daban) for their sustenance and education when petitioner failed to give the same, a failing which stretched from their
pre-schooling days to their college years. Since such failure has been established, it is not amiss to deduce, as did the
trial court and the CA, that Noel Daban who, owing to consideration of kinship, had reasons to help, indeed lent his sister
Lea money to support her children.

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Pursuant to Article 207 of the Family Code, Noel Daban can rightfully exact reimbursement from the petitioner. The
provision reads:
When the person obliged to support another unjustly refuses or fails to give support when urgently
needed by the latter, any third person may furnish support to the needy individual, with right of
reimbursement from the person obliged to give support.

Mention may also be made that, contextually, the resulting juridical relationship between the petitioner and Noel Daban is
a quasi-contract,[13] an equitable principle enjoining one from unjustly enriching himself at the expense of another.
As for the amount of support in arrears, there is also no reason to disturb the absolute figures arrived at by the two courts
below, appearing as they do to be reasonable and proper. Arbitrariness respecting the determination of the final numbers
cannot plausibly be laid on the doorsteps of the CA, and the trial court before it, considering that they fixed such amount
based on the varying needs of the respondents during the years included in the computation and to the financial
resources of the petitioner, as proved by the evidence adduced below. As a matter of law, the amount of support which
those related by marriage and family relationship is generally obliged to give each other shall be in proportion to the
resources or means of the giver and to the needs of the recipient. [14]

Petitioner closes his petition by urging the Court, as it did the CA earlier, to consider a transaction that transpired after the
trial court had rendered judgment. We refer to the sale by Lea of half of what petitioner claims to be his exclusive or
capital property. As the petitioner would have this Court believe, Lea and the respondent sisters appropriated the P5
Million proceeds of the sale for themselves. Pressing on, he alleged that the amount thus received from the sale is more
than enough to fully satisfy thus release him from complying with- the underlying judgment for support, assuming ex gratia
argumenti his obligation to pay support in arrears.

Petitioners above submission is flawed by the premises holding it together. For firstly, it assumes as a fact that what was
sold for P5 Million was indeed his exclusive property. But, as the CA aptly observed, there is no showing whether the
property subject of the transaction mentioned by [the petitioner] is a conjugal property or [his] exclusive property, as in fact
[respondents] mother asserts that she and [petitioner] had separately sold their respective shares on said property.[15]

137

Secondly, the respondent sisters were not party to the sale aforementioned. Petitioners suggestion, therefore, that part of
the proceeds of the sale went to them and may be set off for what petitioner owes them by way of support in arrears is
unacceptable, being at best gratuitous and self-serving.

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

WHEREFORE, the instant petition is DENIED and the appealed CA decision and resolution are AFFIRMED.

SPOUSES PRUDENCIO and G.R. No. 163209

FILOMENA LIM,
Petitioners,
Present:
CARPIO, J., Chairperson,
QUISUMBING,*
CHICO-NAZARIO,
- versus - PERALTA, and
ABAD,** JJ.
MA. CHERYL S. LIM,
for herself and on behalf of
her minor children LESTER
EDWARD S. LIM, CANDICE
GRACE S. LIM, and MARIANO Promulgated:
S. LIM, III,
Respondents. October 30, 2009
x --------------------------------------------------------------------------------------- x
DECISION
CARPIO, J.:
The Case

For review[1] is the Decision[2] of the Court of Appeals, dated 28 April 2003, ordering petitioners Prudencio and Filomena
Lim (petitioners) to provide legal support to respondentsCheryl, Lester Edward, Candice Grace and Mariano III, all
surnamed Lim (respondents).
The Facts

138

In 1979, respondent Cheryl S. Lim (Cheryl) married Edward Lim (Edward), son of petitioners. Cheryl bore Edward
three children, respondents Lester Edward, Candice Grace and Mariano III. Cheryl, Edward and their children resided at
the house of petitioners in Forbes Park, Makati City, together with Edwards ailing grandmother, Chua Giak and her
husband Mariano Lim (Mariano). Edwards family business, which provided him with a monthly salary of P6,000,
shouldered the family expenses. Cheryl had no steady source of income.

On 14 October 1990, Cheryl abandoned the Forbes Park residence, bringing the children with her (then all
minors), after a violent confrontation with Edward whom she caught with the in-house midwife of Chua Giak in what the
trial court described a very compromising situation.[3]

Cheryl, for herself and her children, sued petitioners, Edward, Chua Giak and Mariano (defendants) in the Regional Trial
Court of Makati City, Branch 140 (trial court) for support. The trial court ordered Edward to provide monthly support
of P6,000 pendente lite.[4]
The Ruling of the Trial Court

On 31 January 1996, the trial court rendered judgment ordering Edward and petitioners to jointly provide P40,000
monthly support to respondents, with Edward shoulderingP6,000 and petitioners the balance of P34,000 subject to Chua
Giaks subsidiary liability.[5]

The defendants sought reconsideration, questioning their liability. The trial court, while denying reconsideration,
clarified that petitioners and Chua Giak were held jointly liable with Edward because of the latters inability x x x to give
sufficient support x x x.[6]

Petitioners appealed to the Court of Appeals assailing, among others, their liability to support respondents. Petitioners
argued that while Edwards income is insufficient, the law itself sanctions its effects by providing that legal support should
be in keeping with the financial capacity of the family under Article 194 of the Civil Code, as amended by Executive Order
No. 209 (The Family Code of the Philippines).[7]

The Ruling of the Court of Appeals

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In its Decision dated 28 April 2003, the Court of Appeals affirmed the trial court. On the issue material to this appeal, that
is, whether there is basis to hold petitioners, as Edwards parents, liable with him to support respondents, the Court of
Appeals held:
The law on support under Article 195 of the Family Code is clear on this matter. Parents and their
legitimate children are obliged to mutually support one another and this obligation extends down to the
legitimate grandchildren and great grandchildren.
In connection with this provision, Article 200 paragraph (3) of the Family Code clearly provides that should
the person obliged to give support does not have sufficient means to satisfy all claims, the other persons
enumerated in Article 199 in its order shall provide the necessary support. This is because the closer the
relationship of the relatives, the stronger the tie that binds them. Thus, the obligation to support is
imposed first upon the shoulders of the closer relatives and only in their default is the obligation moved to
the next nearer relatives and so on.[8]

Petitioners sought reconsideration but the Court of Appeals denied their motion in the Resolution dated 12 April 2004.

Hence, this petition.

The Issue

The issue is whether petitioners are concurrently liable with Edward to provide support to respondents.
The Ruling of the Court

We rule in the affirmative. However, we modify the appealed judgment by limiting petitioners liability to the amount of
monthly support needed by respondents Lester Edward, Candice Grace and Mariano III only.
Petitioners Liable to Provide Support
but only to their Grandchildren

By statutory[9] and jurisprudential mandate,[10] the liability of ascendants to provide legal support to their descendants is
beyond cavil. Petitioners themselves admit as much they limit their petition to the narrow question of when their liability is
triggered, not if they are liable. Relying on provisions [11] found in Title IX of the Civil Code, as amended, on Parental
Authority, petitioners theorize that their liability is activated only upon default of parental authority, conceivably either by its
termination[12] or suspension[13] during the childrens minority. Because at the time respondents sued for support, Cheryl

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and Edward exercised parental authority over their children, [14] petitioners submit that the obligation to support the
latters offspring ends with them.

Neither the text of the law nor the teaching of jurisprudence supports this severe constriction of the scope of familial
obligation to give support. In the first place, the governing text are the relevant provisions in Title VIII of the Civil Code, as
amended, on Support, not the provisions in Title IX on Parental Authority. While both areas share a common ground in
that parental authority encompasses the obligation to provide legal support, [15] they differ in other concerns including
the duration of the obligation and its concurrence among relatives of differing degrees. [16] Thus, although the obligation to
provide support arising from parental authority ends upon the emancipation of the child, [17] the same obligation arising
from spousal and general familial ties ideally lasts during the obligee's lifetime. . Also, while parental authority under Title IX
(and the correlative parental rights) pertains to parents, passing to ascendants only upon its termination or suspension,
the obligation to provide legal support passes on to ascendants not only upon default of the parents but also for the latters
inability to provide sufficient support. As we observed in another case raising the ancillary issue of an ascendants
obligation to give support in light of the fathers sufficient means:
Professor Pineda is of the view that grandchildren cannot demand support directly from their
grandparents if they have parents (ascendants of nearest degree) who are capable of supporting
them. This is so because we have to follow the order of support under Art. 199. We agree with this view.
xxxx
There is no showing that private respondent is without means to support his son; neither is there any
evidence to prove that petitioner, as the paternal grandmother, was willing to voluntarily provide for her
grandson's legal support. x x x[18] (Emphasis supplied; internal citations omitted)

Here, there is no question that Cheryl is unable to discharge her obligation to provide sufficient legal support to her
children, then all school-bound. It is also undisputed that the amount of support Edward is able to give to
respondents, P6,000 a month, is insufficient to meet respondents basic needs. This inability of Edward and Cheryl to
sufficiently provide for their children shifts a portion of their obligation to the ascendants in the nearest degree, both in the
paternal (petitioners) and maternal[19] lines, following the ordering in Article 199. To hold otherwise, and thus subscribe to
petitioners theory, is to sanction the anomalous scenario of tolerating extreme material deprivation of children because of
parental inability to give adequate support even if ascendants one degree removed are more than able to fill the void.

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However, petitioners partial concurrent obligation extends only to their descendants as this word is commonly understood
to refer to relatives, by blood of lower degree. As petitionersgrandchildren by blood, only respondents Lester Edward,
Candice Grace and Mariano III belong to this category. Indeed, Cheryls right to receive support from the Lim family
extends only to her husband Edward, arising from their marital bond. [20] Unfortunately, Cheryls share from the amount of
monthly support the trial court awarded cannot be determined from the records. Thus, we are constrained to remand the
case to the trial court for this limited purpose.[21]
Petitioners Precluded from Availing
of the Alternative Option Under
Article 204 of the Civil Code, as Amended

As an alternative proposition, petitioners wish to avail of the option in Article 204 of the Civil Code, as amended, and pray
that they be allowed to fulfill their obligation by maintaining respondents at petitioners Makati residence. The option is
unavailable to petitioners.

The application of Article 204 which provides that

The person obliged to give support shall have the option to fulfill the obligation either by paying the
allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to
receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle
thereto. (Emphasis supplied)

is subject to its exception clause. Here, the persons entitled to receive support are petitioners grandchildren and daughterin-law. Granting petitioners the option in Article 204 will secure to the grandchildren a well-provided future; however, it will
also force Cheryl to return to the house which, for her, is the scene of her husbands infidelity. While not rising to the level
of a legal obstacle, as indeed, Cheryls charge against Edward for concubinage did not prosper for insufficient evidence,
her steadfast insistence on its occurrence amounts to a moralimpediment bringing the case within the ambit of the
exception clause of Article 204, precluding its application.

WHEREFORE, we DENY the petition. We AFFIRM the Decision of the Court of Appeals, dated 28 April 2003, and its
Resolution dated 12 April 2004 with the MODIFICATIONthat petitioners Prudencio and Filomena Lim are liable to provide

142

support only to respondents Lester Edward, Candice Grace and Mariano III, all surnamed Lim. We REMAND the case to
the Regional Trial Court of Makati City, Branch 140, for further proceedings consistent with this ruling.

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
xx
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

143

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, 4 this 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
Order5, 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.

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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 Report 6 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

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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

146

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.

MARIE
ANTONETTE
ABIGAIL
C.
SALIENTES, ORLANDO B. SALIENTES, and
ROSARIO C. SALIENTES,
Petitioners,
- versus -

G.R. No. 162734

Present:
QUISUMBING, J., Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

147

LORAN S.D. ABANILLA,

HONORABLE
JUDGE
PEDRO
SABUNDAYO,
JR.,
REGIONAL TRIAL COURT, BRANCH Promulgated:
203,MUNTINLUPA CITY,
Respondents.
August 29, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
The instant petition assails the Decision[1] dated November 10, 2003 of the Court of Appeals in CA-G.R. SP No.
75680, which dismissed the petition for certiorari against the orders of the Regional Trial Court in Special Proceedings No.
03-004. Likewise assailed is the Court of Appeals Resolution[2] dated March 19, 2004 denying reconsideration.

The facts of the case are as follows:

Private respondent Loran S.D. Abanilla and petitioner Marie Antonette Abigail C. Salientes are the parents of the
minor Lorenzo Emmanuel S. Abanilla. They lived with MarieAntonettes parents, petitioners Orlando B. Salientes and
Rosario C. Salientes. Due to in-laws problems, private respondent suggested to his wife that they transfer to their own
house, but Marie Antonette refused. So, he alone left the house of the Salientes. Thereafter, he was prevented from
seeing his son.

Later, Loran S.D. Abanilla in his personal capacity and as the representative of his son, filed a Petition for Habeas
Corpus and

Custody,[3] docketed

as

Special

Proceedings

No.

03-004

before

the Regional Trial Court of Muntinlupa City. On January 23, 2003, the trial court issued the following order:
Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the Respondents
Marie Antonette Abigail C. Salientes, Orlando B. Salientes and Rosario C. Salientes are hereby directed
to produce and bring before this Court the body of minor Lorenzo Emmanuel Salientes Abanilla on
January 31, 2003 at 1:00 oclock in the afternoon and to show cause why the said child should not be
discharged from restraint.
Let this Writ be served by the Sheriff or any authorized representative of this Court, who is
directed to immediately make a return.
SO ORDERED.[4]
Petitioners moved for reconsideration which the court denied.

Consequently, petitioners filed a petition for certiorari with the Court of Appeals, but the same was dismissed
on November 10, 2003. The appellate court affirmed the February 24, 2003 Order of the trial court holding that its January
23, 2003 Order did not award the custody of the 2-year-old child to any one but was simply the standard order issued for
the production of restrained persons. The appellate court held that the trial court was still about to conduct a full inquiry, in

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a summary proceeding, on the cause of the minors detention and the matter of his custody. The Court of Appeals ruled
thus:
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.[5]
Petitioners moved for reconsideration, which was denied on March 19, 2004.

Hence, petitioners interposed this appeal by certiorari anchored on the following grounds:
1.
The Court of Appeals erred in not pronouncing the respondent judge gravely abused his
discretion, amounting to lack or in excess of jurisdiction in issuing an order for the petitionermother to first show cause why her own three-year old child in her custody should not be
discharged from a so-called restraint despite no evidence at all of restraint and no evidence of
compelling reasons of maternal unfitness to deprive the petitioner-mother of her minor son of
tender years. The assailed orders, resolutions and decisions of the lower court and the Court of
Appeals are clearly void;
2.
The Court of Appeals erred in not pronouncing that the respondent judge gravely abused his
discretion in issuing a writ of habeas corpus which clearly is not warranted considering that there
is no unlawful restraint by the mother and considering further that the law presumes the fitness of
the mother, thereby negating any notion of such mother illegally restraining or confining her very
own son of tender years. The petition is not even sufficient in substance to warrant the writ. The
assailed orders are clearly void.
3.
Contrary to the Court of Appeals decision, the Sombong vs. CA case supports rather than
negates the position of the petitioners.
4.
Contrary to the Court of Appeals decision, summary proceeding does violence to the tenderyears-rule
5.
The Court of Appeals failed to consider that the private respondent failed to present prima
facie proof of any compelling reason of the unfitness of the petitioner-mother;
6.
The Court of Appeals failed to see that the New Rules on Custody SUFFICES AS REMEDY.
[6]

Plainly put, the issue is: Did the Court of Appeals err when it dismissed the petition for certiorari against the trial
courts orders dated January 23, 2003 and February 24, 2003?
Petitioners contend that the order is contrary to Article 213 [7] of the Family Code, which provides that no child
under seven years of age shall be separated from the mother unless the court finds compelling reasons to order
otherwise. They maintain that herein respondent Loran had the burden of showing any compelling reason but failed to
present even a prima facie proof thereof.

Petitioners posit that even assuming that there were compelling reasons, the proper remedy for private
respondent was simply an action for custody, but not habeas corpus.Petitioners assert that habeas corpus is unavailable
against the mother who, under the law, has the right of custody of the minor. They insist there was no illegal or involuntary
restraint of the minor by his own mother. There was no need for the mother to show cause and explain the custody of her
very own child.

149

Private respondent counters that petitioners argument based on Article 213 of the Family Code applies only to the
second part of his petition regarding the custody of his son. It does not address the first part, which pertains to his right as
the father to see his son. He asserts that the writ of habeas corpus is available against any person who restrains the
minors right to see his father and vice versa. He avers that the instant petition is merely filed for delay, for had petitioners
really intended to bring the child before the court in accordance with the new rules on custody of minors, they would have
done so on the dates specified in the January 23, 2003 and the February 24, 2003 orders of the trial court.

Private respondent maintains that, under the law, he and petitioner Marie Antonette have shared custody and
parental authority over their son. He alleges that at times when petitioner Marie Antonette is out of the country as required
of her job as an international flight stewardess, he, the father, should have custody of their son and not the maternal
grandparents.

As correctly pointed out by the Court of Appeals, the assailed January 23, 2003 Order of the trial court did not
grant custody of the minor to any of the parties but merely directed petitioners to produce the minor in court and explain
why they are restraining his liberty. The assailed order was an interlocutory order precedent to the trial courts full inquiry
into the issue of custody, which was still pending before it.

Under Rule 41, Section 1[8] of the Rules of Court, an interlocutory order is not appealable but the aggrieved party
may file an appropriate special action under Rule 65. The aggrieved party must show that the court gravely abused its
discretion in issuing the interlocutory order. In the present case, it is incumbent upon petitioners to show that the trial court
gravely abused its discretion in issuing the order.

Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto.
[9]

Under Article 211[10] of the Family Code, respondent Loran and petitioner Marie Antonette have joint parental authority

over their son and consequently joint custody. Further, although the couple is separated de facto, the issue of custody has
yet to be adjudicated by the court. In the absence of a judicial grant of custody to one parent, both parents are still entitled
to the custody of their child. In the present case, private respondents cause of action is the deprivation of his right to see
his child as alleged in his petition.[11] Hence, the remedy of habeas corpus is available to him.

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In a petition for habeas corpus, the childs welfare is the supreme consideration. The Child and Youth Welfare
Code[12] unequivocally provides that in all questions regarding the care and custody, among others, of the child, his
welfare shall be the paramount consideration.[13]

Again, it bears stressing that the order did not grant custody of the minor to any of the parties but merely directed
petitioners to produce the minor in court and explain why private respondent is prevented from seeing his child. This is in
line with the directive in Section 9[14] of A.M. 03-04-04-SC[15] that within fifteen days after the filing of the answer or the
expiration of the period to file answer, the court shall issue an order requiring the respondent (herein petitioners) to
present the minor before the court. This was exactly what the court did.

Moreover, Article 213 of the Family Code deals with the judicial adjudication of custody and serves as a guideline
for the proper award of custody by the court. Petitioners can raise it as a counter argument for private respondents
petition for custody. But it is not a basis for preventing the father to see his own child. Nothing in the said provision
disallows a father from seeing or visiting his child under seven years of age.

In sum, the trial court did not err in issuing the orders dated January 23, 2003 and February 24, 2003. Hence, the
Court of Appeals properly dismissed the petition for certiorariagainst the said orders of the trial court.
WHEREFORE, the petition is DENIED. The Decision dated November 10, 2003 and the Resolution dated March
19, 2004 of the Court of Appeals in CA-G.R. SP No. 75680 areAFFIRMED. Costs against petitioners.

NOEL B. BAGTAS,
Petitioner,

G.R. No. 166682

Present:

- versus -

HON. RUTH C. SANTOS,Presiding Judge

of Regional Trial Court, Branch 72, Antipolo
City, andANTONIO and ROSITA GALLARDO,
Respondents.

CARPIO, J., Chairperson,

LEONARDO-DE CASTRO,*
BRION,
DEL CASTILLO, and
ABAD, JJ.

Promulgated:
November 27, 2009
x--------------------------------------------------x
DECISION

151

CARPIO, J.:

The Case

This is a petition[1] for review on certiorari under Rule 45 of the Rules of Court. The petition challenges the 11
June 2004 Decision[2] and 5 January 2005 Resolution[3] of the Court of Appeals in CA-G.R. SP No. 77751. The Court
of Appeals affirmed the 9 December 2002 [4] and 21 April 2003 Orders of the Regional Trial Court (RTC), Judicial
Region 4, Branch 72, Antipolo City, in Special Proceeding Case No. 02-1128.

The Facts

Antonio and Rosita S. Gallardo (Spouses Gallardo) are the parents of Maricel S. Gallardo (Maricel). Two weeks after
graduating from high school in April 2000, Maricel ran away to live with her boyfriend. Maricel became pregnant and gave
birth to Maryl Joy S. Gallardo (Maryl Joy). Maricels boyfriend left her.
In February 2002, Maricel returned to her parents. On the same day, Maricel ran away again and lived with Noel B.
Bagtas (Bagtas) and Lydia B. Sioson (Sioson) at Ma. Corazon, Unirock, Barangay Sta. Cruz, Antipolo City. Maricel went to
Negros Occidental and left Maryl Joy in the custody of Bagtas and Sioson. In a letter[5] dated 5 February 2001, Maricel
relinquished her rights over Maryl Joy to Bagtas and his wife. She stated:
Ako po si Maricel S. Gallardo 18 taong gulang ay kusang ipinagkaloob ang aking anak sa pagkadalaga
sa mag-asawang Noel B. Bagtas at Neneth A. Bagtas sa kadahilanan pong itinakwil ako ng sarili kong
mga magulang at hindi ko po kayang buhayin at dahil po sa tinakbuhan ako ng aking boyfriend kaya wala
na pong ibang paraan para ako makabangon o makapagsimula ng panibagong buhay kaya para
mabigyan ng magandang buhay ang aking anak inisip ko po na ito na ang pinaka madaling paraan para
po sa pagbabago ng aking buhay.
Kaya mula sa araw na ito ay wala na akong karapatan sa aking anak. Sila ang tatayo bilang magulang ng
aking anak.

In April 2002, the Spouses Gallardo tried to obtain the custody of Maryl Joy from Bagtas and Sioson. Bagtas and
Sioson refused. Unable to settle the matter, the Spouses Gallardo filed with the RTC a petition [6] for habeas
corpus.
In its Order[7] dated 10 July 2002, the RTC issued a writ of habeas[8] corpus directing the deputy sheriff to produce
Maryl Joy before it and to summon Bagtas and Sioson to explain why they were withholding the custody of Maryl
Joy.

152

The Spouses Gallardo, Bagtas and Sioson entered into a compromise agreement. In its Order[9] dated 13
September 2002, the RTC stated:
In todays hearing, both parties appeared with their respective counsels and have agreed on the
following:
1.
that the child should be placed in custody of the petitioners on Friday, Saturday and
Sunday;
2. that the child should be returned to the respondents by the petitioners on Sunday at 8:00
oclock in the evening subject to visitorial rights of the petitioners anytime of the day; and
3.
that the child can be brought by the respondents to Valenzuela but should be returned to
the petitioners on Friday morning.
The above agreement shall take effect today and parties are ordered to comply strictly with the said
agreement under pain of contempt in case of violation thereof.

On 29 September 2002, Bagtas and Sioson learned that Rosita S. Gallardo brought Maryl Joy to Samar. In their
motion[10] dated 30 September 2002, Bagtas and Sioson prayed that the Spouses Gallardo be directed to produce
Maryl Joy before the RTC, that they be directed to explain why they violated the RTCs 13 September 2002 Order,
and that they be cited in contempt. In their motion[11] to dismiss dated 11 October 2002, Bagtas and Sioson prayed
that the Spouses Gallardos action be dismissed pursuant to Section 3, Rule 17, of the Rules of Court. Section 3
states that If, for no justifiable cause, the plaintiff fails x x x to comply with x x x any order of the court, the
complaint may be dismissed upon motion of the defendant or upon the courts own motion. Bagtas and Sioson
claimed that the Spouses Gallardo failed to comply with the RTCs 13 September 2002 Order.

In its Order[12] dated 15 October 2002, the RTC cited the Spouses Gallardo in contempt, fined them P500, and
ordered them to produce Maryl Joy before the trial court.

The RTCs Ruling

In its Order[13] dated 9 December 2002, the RTC dismissed the action for having become moot. The RTC stated:
In this petition, the prayer of the petitioners is to produce the person of Meryl [sic] Joy S. Gallardo before
this court to be turned over to herein petitioners who are the maternal [grandparents] of said minor.
Since the person subject of the petition has already produced [sic] to this court and has been turned over to the
petitioners, the issue on the petition for habeas corpus is now moot and academic without prejudice to the filing of
the proper action to determine as to the rightful custody over the minor child.

153

In view thereof, x x x the Motion to Dismiss is hereby granted but without prejudice on the petitioners to file proper action
for custody of the minor. (Emphasis supplied)

In their motion[14] for reconsideration dated 27 December 2002, Bagtas and Sioson alleged that the ground for the
dismissal of the action was erroneous. The action should have been dismissed pursuant to Section 3, Rule 17, of the
Rules of Court. They prayed that Maryl Joy be returned to them to preserve the status quo ante. Bagtas and Sioson
stated:

5. Thus, the Honorable Court very clearly issued a conflicting Order because It has cited the
[Spouses Gallardo] in contempt of court for violating the previous September 13, 2002 Order that the
child should be returned to the respondents in the evening of September 29, 2002 (Sunday), and yet
the Honorable Court has dismissed the petition for being moot and academic. This is in effect giving
premium to the act of the petitioners of not turning over the child to respondents on September 29,
2002. Likewise, this is tantamount to rewarding them for not producing the child in court in violation of
the aforesaid September 13, 2002 Order;
6. Moreover, the Honorable Court has issued an unreasonable Order by stating that the dismissal
of the instant case is without prejudice to the filing of the proper action for custody of the minor by the
petitioners. Why would the petitioners still file the proper action for custody if they now have the
custody of the minor?
P R AY E R
WHEREFORE, premises considered, it is most respectfully prayed that the December 9, 2002
Order of the Honorable Court be partially reconsidered so that the dismissal of the case will not be based
on the ground of being moot and academic but based on failure to comply with the September 13, 2002
pursuant [sic] to Section 3, Rule 17 of the 1997 Rules of Civil Procedure and that petitioners be
consequently directed to return the person subject of the petition to the respondents to preserve the status
quo ante.

In its Order[15] dated 21 April 2003, the RTC denied the motion for reconsideration. The RTC held that the sole purpose of
the petition for habeas corpus was the production of Maryl Joy and that the Spouses Gallardo exercised substitute
parental authority over Maryl Joy. The RTC stated that:
The allegations in the Petition show that the sole purpose for the filing of the Petition is to
cause the production before the Court of the person of minor Meryl [sic] Joy S. Gallardo, not a
determination of the legality or illegality of respondents custody of the child, petitioners being
aware of the fact that the child was left by their (petitioners) daughter to [sic] the custody of the
respondents, as stated in par. no. 10 of the Petition.
The instant Petition is therefore, essentially not a petition for Habeas Corpus as contemplated in Rule 102, Revised Rules
of Court which is resorted to in all cases of illegal confinement by which any person is deprived of his liberty (Cruz vs. CA,
322 SCRA 518), but is resorted to also where the rightful custody of any person is withheld from the person entitled
thereto as contemplated in Rule 102, Revised Rules of Court. In order that the special remedy of Habeas Corpus maybe
[sic] invoked, it is necessary that there should be an actual and effective restraint or deprivation of liberty. A nominal or
moral restraint is not sufficient (Gonzales vs. Viola, et al., 61 Phil 824).

154

Since therefore, the purpose of the instant Petition has already been served, as the child has been produced and
delivered to the petitioners, the instant Petition logically has become moot and academic.Petitioners are, under
the law (Art. 214, Family Code), authorized to exercise substitute parental authority over the child in case of
death, absence or unsuitability of the parents, the entitlement to the legal custody of the child being necessarily
included therein to make possible and/or enable the petitioners to discharge their duties as substitute parents.
There is no inconsistency between the Order dated December 9, 2002 sought to be reconsidered, and the Order dated
October 15, 2002, as the latter was issued pursuant to an incident, an interlocutory matter, that is, the failure of the
petitioners to comply with the agreement reached between the parties in open court on September 13, 2002. The said
Order dated October 15, 2002 is not a resolution of the case in the main, as it did not terminate the case. The Order dated
December 9, 2002, on the other hand, terminated the case, and considering that the dismissal of the case was
unqualified, the same amounted to an adjudication on the merits pursuant to Sec. 3, Rule 17 of the Revised Rules of
Court Procedure, therefore, the agreement earlier entered by and between the herein parties is deemed
terminated. (Emphasis supplied)

Bagtas filed with the Court of Appeals a petition [16] for certiorari under Rule 65 of the Rules of Court. Bagtas
alleged that (1) the RTC erred when it ruled that the sole purpose of the 1 August 2002 petition was the production of
Maryl Joy before the trial court, (2) the RTC erred when it ruled that the petition was essentially not a petition for Habeas
Corpus as contemplated in Rule 102, (3) the RTC erred when it ruled that there must be actual and effective deprivation of
liberty, (4) the RTC erred when it ruled that the action had become moot, (5) the RTC erred when it ruled that the Spouses
Gallardo had substitute parental authority over Maryl Joy, and (6) the RTC erred when it ruled that there was no
inconsistency between the 15 October and 9 December 2002 Orders.
The Court of Appeals Ruling
In its Decision dated 11 June 2004, the Court of Appeals dismissed the petition and affirmed the 9 December 2002 and 23
April 2003 Orders of the RTC. The Court of Appeals held that:
In the second part of [Section 1, Rule 102, of the Rules of Court], x x x habeas corpus may be resorted to
in cases where the rightful custody of any person is withheld from the person entitled thereto.Accordingly,
the writ of habeas corpus is the proper remedy to enable herein private respondents to regain the custody
of their minor grand daughter Maryl Joy who was admittedly left by her natural mother in the care of
petitioner and Lydia Sioson.
Significantly, in custody cases involving minors, the question of illegal or involuntary restraint is not the underlying
rationale for the availability of the writ of habeas corpus as a remedy; rather, the writ is prosecuted for the purpose of
determining the right of custody of a child. By dismissing the petition a quo, the trial court in effect upheld private
respondents right of custody over the minor involved as against that of petitioner.
While it cannot be gainsaid that private respondents obtained initial custody of the minor in violation of a
valid court order, we nonetheless sustain the judgment a quo dismissing the petition and validating such
rightful custody over Maryl Joy. This is because private respondents are the grandparents of Maryl Joy,
hence, lawfully authorized to exercise substitute parental authority over her in the absence of her
parents.What is more, in awarding custody to private respondents, the best welfare of the child was taken
into consideration inasmuch as, per report of the Court Social Worker, the implementation of the parties
agreement would cause more psychological damage and traumatic experience to Maryl Joy. To our mind,
therefore, the violation of a court order pales in significance when considered alongside the best interest
of the minor whose welfare requires that she be in the custody of her grandparents rather than
petitioners. x x x

155

Under the factual and legal milieux of the case, there is no question that as grandparents of the minor,
Maryl Joy, private respondents have a far superior right of custody over her than petitioner. [17]

The Issues
In his petition dated 1 February 2005, Bagtas raised as issues that:
THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION IN NOT FINDING THAT
TRIAL COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION IN FINDING THAT THE ALLEGATION IN THE PETITION FOR HABEAS CORPUS
SHOW THAT THE SOLE PURPOSE FOR THE FILING THEREOF IS TO CAUSE THE PRODUCTION
BEFORE THE COURT OF THE PERSON IN WHOSE FAVOR IT WAS FILED.
THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION IN NOT FINDING THAT THE TRIAL
COURT GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION IN RULING THAT WITH THE
DELIVERY OF THE CHILD FOR WHOM THE PETITION WAS FILED, THE PETITION FOR HABEAS CORPUS HAS
BECOME MOOT AND ACADEMIC.

The Courts Ruling

The Court of Appeals erred when it affirmed the RTCs 9 December 2002 and 21 April 2003 Orders. In its Orders, the RTC
ruled that, since the sole purpose of the petition for habeas corpus was the production of Maryl Joy before the trial court,
the action became moot when Maryl Joy was produced. The Court disagrees.
Section 1, Rule 102, of the Rules of Court states that the writ of habeas corpus shall extend to all cases where the rightful
custody of any person is withheld from the persons entitled thereto. In cases involving minors, the purpose of a petition for
habeas corpus is not limited to the production of the child before the court. The main purpose of the petition for habeas
corpus is to determine who has the rightful custody over the child. In Tijing v. Court of Appeals,[18] the Court held that:
The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled
thereto. Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if
the latter be in the custody of a third person of his own free will. It may even be said that in custody cases
involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale
for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the
right of custody over a child. (Emphasis supplied)

The RTC erred when it hastily dismissed the action for having become moot after Maryl Joy was produced before the trial
court. It should have conducted a trial to determine who had the rightful custody over Maryl Joy. In dismissing the action,

156

the RTC, in effect, granted the petition for habeas corpus and awarded the custody of Maryl Joy to the Spouses Gallardo
without sufficient basis. In Laxamana v. Laxamana,[19] the Court held that:
Mindful of the nature of the case at bar, the court a quo should have conducted a
trial notwithstanding the agreement of the parties to submit the case for resolution on the basis, inter alia,
of the psychiatric report of Dr. Teresito. Thus, petitioner is not estopped from questioning the
absence of a trial considering that said psychiatric report, which was the courts primary basis in
awarding custody to respondent, is insufficient to justify the decision. The fundamental policy of the
State to promote and protect the welfare of children shall not be disregarded by mere technicality in
resolving disputes which involve the family and the youth. (Emphasis supplied)

Article 214 of the Civil Code states that in case of absence or unsuitability of the parents, substitute parental authority
shall be exercised by the surviving grandparent. Article 216 states that in default of parents or a judicially appointed
guardian, the surviving grandparent shall exercise substitute parental authority over the child. Accordingly, in its 21 April
2003 Order, the RTC held that:
Petitioners are, under the law (Art. 214, Family Code), authorized to exercise substitute parental authority
over the child in case of death, absence or unsuitability of the parents, the entitlement to the legal custody
of the child being necessarily included therein to make possible and/or enable the petitioners to discharge
their duties as substitute parents.[20]

In its 11 June 2004 Decision, the Court of Appeals held that:

While it cannot be gainsaid that private respondents obtained initial custody of the minor in violation of a
valid court order, we nonetheless sustain the judgment a quo dismissing the petition and validating such
rightful custody over Maryl Joy. This is because private respondents are the grandparents of Maryl Joy,
hence, lawfully authorized to exercise substitute parental authority over her in the absence of her parents.
[21]

In determining who has the rightful custody over a child, the childs welfare is the most important consideration. The court
is not bound by any legal right of a person over the child. InSombong v. Court of Appeals,[22] the Court held that:
The controversy does not involve the question of personal freedom, because an infant is presumed to be
in the custody of someone until he attains majority age. In passing on the writ in a child custody case, the
court deals with a matter of an equitable nature. Not bound by any mere legal right of parent or
guardian, the court gives his or her claim to the custody of the child due weight as a claim
founded on human nature and considered generally equitable and just. Therefore, these cases are
decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as
in the case of adults, but on the courts view of the best interests of those whose welfare requires that they
be in custody of one person or another. Hence, the court is not bound to deliver a child into the
custody of any claimant or of any person, but should, in the consideration of the facts, leave it in
such custody as its welfare at the time appears to require. In short, the childs welfare is the
supreme consideration.
Considering that the childs welfare is an all-important factor in custody cases, the Child and Youth Welfare Code
unequivocally provides that in all questions regarding the care and custody, among others, of the child, his welfare

157

shall be the paramount consideration. In the same vein, the Family Code authorizes the courts to, if the welfare of
the child so demands, deprive the parents concerned of parental authority over the child or adopt such measures
as may be proper under the circumstances. (Emphasis supplied)
In Sombong,[23] the Court laid down three requisites in petitions for habeas corpus involving minors: (1) the petitioner has a
right of custody over the minor, (2) the respondent is withholding the rightful custody over the minor, and (3) the best
interest of the minor demands that he or she be in the custody of the petitioner. In the present case, these requisites are
not clearly established because the RTC hastily dismissed the action and awarded the custody of Maryl Joy to the
Spouses Gallardo without conducting any trial.
The proceedings before the RTC leave so much to be desired. While a remand of the case would mean further delay,
Maryl Joys best interest demands that proper proceedings be conducted to determine the fitness of the Spouses Gallardo
to take care of her.
WHEREFORE, the Court REMANDS the case to the Regional Trial Court, Judicial Region 4, Branch 72, Antipolo City, for
the purpose of receiving evidence to determine the fitness of the Spouses Antonio and Rosita S. Gallardo to have custody
of Maryl Joy Gallardo.

SO ORDERED.

BONIFACIA P. VANCIL, petitioner, vs. HELEN G. BELMES, respondent.

DECISION
SANDOVAL-GUTIERREZ, J.:
Petition for review on certiorari of the Decision of the Court of Appeals in CA-G.R. CV No. 45650, In the Matter of
Guardianship of Minors Valerie Vancil and Vincent Vancil Bonifacia P. Vancil, Petitioner-Appellee, vs. Helen G. Belmes,
Oppositor-Appellant, promulgated on July 29, 1997, and its Resolution dated December 18, 1997 denying the motion for
reconsideration of the said Decision.
The facts of the case as summarized by the Court of Appeals in its Decision are:
Petitioner, Bonifacia Vancil, is the mother of Reeder C. Vancil, a Navy serviceman of the United States of America who
died in the said country on December 22, 1986. During his lifetime, Reeder had two (2) children named Valerie and
Vincent by his common-law wife, Helen G. Belmes.
Sometime in May of 1987, Bonifacia Vancil commenced before the Regional Trial Court of Cebu City a guardianship
proceedings over the persons and properties of minors Valerie and Vincent docketed as Special Proceedings No. 1618CEB. At the time, Valerie was only 6 years old while Vincent was a 2-year old child. It is claimed in the petition that the
minors are residents of Cebu City, Philippines and have an estate consisting of proceeds from their fathers death pension
benefits with a probable value of P100,000.00.
Finding sufficiency in form and in substance, the case was set for hearing after a 3-consecutive-weekly publications with
the Sunstar Daily.
On July 15, 1987, petitioner, Bonifacia Vancil was appointed legal and judicial guardian over the persons and estate of
Valerie Vancil and Vincent Vancil Jr.

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On August 13, 1987, the natural mother of the minors, Helen Belmes, submitted an opposition to the subject guardianship
proceedings asseverating that she had already filed a similar petition for guardianship under Special Proceedings No.
2819 before the Regional Trial Court of Pagadian City.
Thereafter, on June 27, 1988, Helen Belmes followed her opposition with a motion for the Removal of Guardian and
Appointment of a New One, asserting that she is the natural mother in actual custody of and exercising parental authority
over the subject minors at Maralag, Dumingag, Zamboanga del Sur where they are permanently residing; that the petition
was filed under an improper venue; and that at the time the petition was filed Bonifacia Vancil was a resident of 140
Hurliman Court, Canon City, Colorado, U.S.A. being a naturalized American citizen.
On October 12, 1988, after due proceedings, the trial court rejected and denied Belmes motion to remove and/or to
disqualify Bonifacia as guardian of Valerie and Vincent Jr. and instead ordered petitioner Bonifacia Vancil to enter the
office and perform her duties as such guardian upon the posting of a bond of P50,000.00. The subsequent attempt for a
reconsideration was likewise dismissed in an Order dated November 24, 1988. [1]
On appeal, the Court of Appeals rendered its assailed Decision reversing the RTC order of October 12, 1988 and
dismissing Special Proceedings No. 1618-CEB.
The Court of Appeals held:
Stress should likewise be made that our Civil Code considers parents, the father, or in the absence, the mother, as natural
guardian of her minor children. The law on parental authority under the Civil Code or P.D. 603 and now the New Family
Code, (Article 225 of the Family Code) ascribe to the same legal pronouncements. Section 7 of Rule 93 of the Revised
Rules of Court confirms the designation of the parents as ipso facto guardian of their minor children without need of a
court appointment and only for good reason may another person be named. Ironically, for the petitioner, there is nothing
on record of any reason at all why Helen Belmes, the biological mother, should be deprived of her legal rights as natural
guardian of her minor children. To give away such privilege from Helen would be an abdication and grave violation of the
very basic fundamental tenets in civil law and the constitution on family solidarity.[2]
On March 10, 1998, Bonifacia Vancil filed with this Court the present petition, raising the following legal points:
1. The Court of Appeals gravely erred in ruling that the preferential right of a parent to be appointed guardian over the
persons and estate of the minors is absolute, contrary to existing jurisprudence.
2. The Court of Appeals gravely erred in ruling that Oppositor Helen G. Belmes, the biological mother, should be
appointed the guardian of the minors despite the undisputed proof that under her custody, her daughter minor Valerie
Vancil was raped seven times by Oppositors live-in partner.
3. The respondent (sic) Court of Appeals gravely erred when it disqualified petitioner Bonifacia P. Vancil to be
appointed as judicial guardian over the persons and estate of subject minors despite the fact that she has all the
qualifications and none of the disqualifications as judicial guardian, merely on the basis of her U.S. citizenship which
is clearly not a statutory requirement to become guardian.
At the outset, let it be stressed that in her Manifestation/Motion, dated September 15, 1998, respondent Helen
Belmes stated that her daughter Valerie turned eighteen on September 2, 1998 as shown by her Birth Certificate.
[3]
Respondent thus prayed that this case be dismissed with respect to Valerie, she being no longer a proper subject of
guardianship proceedings. The said Manifestation/Motion was noted by this Court in its Resolution dated November 11,
1998.
Considering that Valerie is already of major age, this petition has become moot with respect to her. Thus, only the
first and third legal points raised by petitioner should be resolved.

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The basic issue for our resolution is who between the mother and grandmother of minor Vincent should be his
guardian.
We agree with the ruling of the Court of Appeals that respondent, being the natural mother of the minor, has the
preferential right over that of petitioner to be his guardian. This ruling finds support in Article 211 of the Family Code which
provides:
Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In
case of disagreement, the fathers decision shall prevail, unless there is a judicial order to the contrary. xxx.
Indeed, being the natural mother of minor Vincent, respondent has the corresponding natural and legal right to his
custody. In Sagala-Eslao vs. Court of Appeals,[4] this Court held:
Of considerable importance is the rule long accepted by the courts that the right of parents to the custody of their minor
children is one of the natural rights incident to parenthood, a right supported by law and sound public policy. The right is
an inherent one, which is not created by the state or decisions of the courts, but derives from the nature of the parental
relationship.
Petitioner contends that she is more qualified as guardian of Vincent.
Petitioners claim to be the guardian of said minor can only be realized by way of substitute parental
authority pursuant to Article 214 of the Family Code, thus:
Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the
surviving grandparent. xxx.
In Santos, Sr. vs. Court of Appeals,[5] this Court ruled:
The law vests on the father and mother joint parental authority over the persons of their common children. In case of
absence or death of either parent, the parent present shall continue exercising parental authority. Only in case of the
parents death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent.
Petitioner, as the surviving grandparent, can exercise substitute parental authority only in case of death, absence or
unsuitability of respondent. Considering that respondent is very much alive and has exercised continuously parental
authority over Vincent, petitioner has to prove, in asserting her right to be the minors guardian, respondents
unsuitability. Petitioner, however, has not proffered convincing evidence showing that respondent is not suited to be the
guardian of Vincent. Petitioner merely insists that respondent is morally unfit as guardian of Valerie considering that her
(respondents) live-in partner raped Valerie several times. But Valerie, being now of major age, is no longer a subject of
this guardianship proceeding.
Even assuming that respondent is unfit as guardian of minor Vincent, still petitioner cannot qualify as a substitute
guardian. It bears stressing that she is an American citizen and a resident of Colorado. Obviously, she will not be able to
perform the responsibilities and obligations required of a guardian. In fact, in her petition, she admitted the difficulty of
discharging the duties of a guardian by an expatriate, like her. To be sure, she will merely delegate those duties to
someone else who may not also qualify as a guardian.
Moreover, we observe that respondents allegation that petitioner has not set foot in the Philippines since 1987 has
not been controverted by her. Besides, petitioners old age and her conviction of libel by the Regional Trial Court, Branch
6, Cebu City in Criminal Case No. CBU-16884 [6] filed by one Danilo R. Deen, will give her a second thought of staying
here. Indeed, her coming back to this country just to fulfill the duties of a guardian to Vincent for only two years is not
certain.

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Significantly, this Court has held that courts should not appoint persons as guardians who are not within the
jurisdiction of our courts for they will find it difficult to protect the wards. In Guerrero vs. Teran,[7] this Court held:
Doa Maria Muoz y Gomez was, as above indicated, removed upon the theory that her appointment was void because she
did not reside in the Philippine Islands. There is nothing in the law which requires the courts to appoint residents only as
administrators or guardians. However, notwithstanding the fact that there are no statutory requirements upon this
question, the courts, charged with the responsibilities of protecting the estates of deceased persons, wards of the estate,
etc., will find much difficulty in complying with this duty by appointing administrators and guardians who are not personally
subject to their jurisdiction. Notwithstanding that there is no statutory requirement, the courts should not consent to the
appointment of persons as administrators and guardians who are not personally subject to the jurisdiction of our courts
here.
WHEREFORE, the appealed Decision is hereby AFFIRMED, with modification in the sense that Valerie, who has
attained the age of majority, will no longer be under the guardianship of respondent Helen Belmes.
Costs against petitioner.
SO ORDERED.

ST. JOSEPHS COLLEGE, SR. JOSEPHINI AMBATALI,

SFIC, and ROSALINDA TABUGO,
Petitioners,

- versus -

JAYSON MIRANDA, represented by his father,

RODOLFO S. MIRANDA,
Respondent.

G.R. No. 182353

Present:
CARPIO, J.,
Chairperson,
NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.
Promulgated:
June 29, 2010

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

DECISION
NACHURA, J.:

This petition for review on certiorari seeks to set aside the Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No.
68367, which affirmed in toto the decision[2] of the Regional Trial Court (RTC), Branch 221, Quezon City, in Civil Case No.
Q-95-22889.

161

The facts, as found by the CA, follow:

On November 17, 1994, at around 1:30 in the afternoon inside St. Joseph Colleges [SJCs] premises, the
class to which [respondent Jayson Val Miranda] belonged was conducting a science experiment about
fusion of sulphur powder and iron fillings under the tutelage of [petitioner] Rosalinda Tabugo, she being
the subject teacher and employee of [petitioner] SJC. The adviser of [Jaysons] class is x x x Estefania
Abdan.
Tabugo left her class while it was doing the experiment without having adequately secured it from any
untoward incident or occurrence. In the middle of the experiment, [Jayson], who was the assistant leader
of one of the class groups, checked the result of the experiment by looking into the test tube with
magnifying glass. The test tube was being held by one of his group mates who moved it close and
towards the eye of [Jayson]. At that instance, the compound in the test tube spurted out and several
particles of which hit [Jaysons] eye and the different parts of the bodies of some of his group mates. As a
result thereof, [Jaysons] eyes were chemically burned, particularly his left eye, for which he had to
undergo surgery and had to spend for his medication. Upon filing of this case [in] the lower court,
[Jaysons] wound had not completely healed and still had to undergo another surgery.
Upon learning of the incident and because of the need for finances, [Jaysons] mother, who was working
abroad, had to rush back home for which she spent P36,070.00 for her fares and had to forego her salary
from November 23, 1994 to December 26, 1994, in the amount of at least P40,000.00.
Then, too, [Jayson] and his parents suffered sleepless nights, mental anguish and wounded feelings as a
result of his injury due to [petitioners] fault and failure to exercise the degree of care and diligence
incumbent upon each one of them. Thus, they should be held liable for moral damages. Also, [Jayson]
sent a demand letter to [petitioners] for the payment of his medical expenses as well as other expenses
incidental thereto, which the latter failed to heed. Hence, [Jayson] was constrained to file the complaint for
damages. [Petitioners], therefore, should likewise compensate [Jayson] for litigation expenses, including
attorneys fees.
On the other hand, [petitioners SJC, Sr. Josephini Ambatali, SFIC, and Tabugo] alleged that [Jayson] was
a grade six pupil of SJC in the school year 1994-1995. On November 17, 1994, at about 1:30 in the
afternoon, the class to which [Jayson] belong[s] was conducting a science experiment under the guidance
and supervision of Tabugo, the class science teacher, about fusion of sulphur powder and iron fillings by
combining these elements in a test tube and heating the same. Before the science experiment was
conducted, [Jayson] and his classmates were given strict instructions to follow the written procedure for
the experiment and not to look into the test tube until the heated compound had cooled off. [Jayson],
however, a person of sufficient age and discretion and completely capable of understanding the English
language and the instructions of his teacher, without waiting for the heated compound to cool off, as
required in the written procedure for the experiment and as repeatedly explained by the teacher, violated
such instructions and took a magnifying glass and looked at the compound, which at that moment spurted
out of the test tube, a small particle hitting one of [Jaysons] eyes.
Jayson was rushed by the school employees to the school clinic and thereafter transferred to St.
Lukes Medical Center for treatment. At the hospital, when Tabago visited [Jayson], the latter cried and
apologized to his teacher for violating her instructions not to look into the test tube until the compound had
cooled off.

162

After the treatment, [Jayson] was pronounced ready for discharge and an eye test showed that his vision
had not been impaired or affected. In order to avoid additional hospital charges due to the delay in
[Jaysons] discharge, Rodolfo S. Miranda, [Jaysons] father, requested SJC to advance the amount
of P26,176.35 representing [Jaysons] hospital bill until his wife could arrive from abroad and pay back the
money. SJC acceded to the request.
On December 6, 1994, however, the parents of [Jayson], through counsel, wrote SJC a letter demanding
that it should shoulder all the medical expenses of [Jayson] that had been incurred and will be incurred
further arising from the accident caused by the science experiment. In a letter dated December 14, 1994,
the counsel for SJC, represented by Sr. Josephini Ambatali, SFIC, explained that the school cannot
accede to the demand because the accident occurred by reason of [Jaysons] failure to comply with the
written procedure for the experiment and his teachers repeated warnings and instruction that no student
must face, much less look into, the opening of the test tube until the heated compound has cooled. [3]

Since SJC did not accede to the demand, Rodolfo, Jaysons father, on Jaysons behalf, sued petitioners for
damages.
After trial, the RTC rendered judgment, to wit:
WHEREFORE, premises considered, judgment is hereby rendered in favor of [Jayson] and against
[petitioners]. This Court orders and holds the [petitioners] joint[ly] and solidarily liable to pay [Jayson] the
following amount:
1. To pay [Jayson] the amount of P77,338.25 as actual damages; However, [Jayson] is
ordered to reimburse [petitioner] St. Joseph College the amount of P26,176.36
representing the advances given to pay [Jaysons] initial hospital expenses or in the
alternative to deduct said amount of P26,176.36 from the P77,338.25 actual damages
herein awarded by way of legal compensation;
2. To pay [Jayson] the sum of P50,000.00 as mitigated moral damages;
3. To pay [Jayson] the sum of P30,000.00 as reasonable attorneys fees;
4. To pay the costs of suit.
SO ORDERED.[4]

Aggrieved, petitioners appealed to the CA. However, as previously adverted to, the CA affirmed in toto the ruling of the
RTC, thus:
WHEREFORE, in view of the foregoing, the assailed decision of the RTC of Quezon City, Branch 221
dated September 6, 2000 is hereby AFFIRMED IN TOTO. Costs against [petitioners].[5]

Undaunted, petitioners appealed` by certiorari to this Court, adamant that the CA grievously erred, thus:

163

I. THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT FINDING THAT THE PROXIMATE CAUSE
OF JAYSONS INJURY WAS HIS OWN ACT OF LOOKING AT THE HEATED TEST TUBE BEFORE THE
COMPOUND HAD COOLED IN COMPLETE DISREGARD OF INSTRUCTIONS GIVEN PRIOR TO THE
EXPERIMENT.
II. THE COURT OF APPEALS FAILED TO APPRECIATE THAT, IN LIGHT OF THE RULING IN THE
CASE OF ST. MARYS COLLEGE V. WILLIAM CARPITANOS, x x x JAYSONS CONTRIBUTORY
NEGLIGENCE OF PEEKING INTO THE TEST TUBE WAS IN FACT THE PROXIMATE CAUSE OF HIS
INJURY FOR WHICH THE PETITIONERS SHOULD NOT BE HELD LIABLE.
III. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE AWARD OF ACTUAL
DAMAGES DESPITE THE ABSENCE OF PROOF TO SUPPORT THE SAME.
IV. THE LOWER COURT GRIEVOUSLY ERRED IN AWARDING MORAL DAMAGES TO [JAYSON].
V. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE AWARD OF ATTORNEYS
FEES TO [JAYSON].
VI. THE LOWER COURT GRIEVOUSLY ERRED IN DENYING THE PETITIONERS COUNTERCLAIM.[6]
We find no reason to depart from the uniform rulings of the lower courts that petitioners were negligent since they all failed
to exercise the required reasonable care, prudence, caution and foresight to prevent or avoid injuries to the students.

Jurisprudence dictates that factual findings of the trial court, especially when affirmed by the appellate court, are
accorded the highest degree of respect and are considered conclusive between the parties. [7] A review of such findings by
this Court is not warranted except for highly meritorious circumstances when: (1) the findings of a trial court are grounded
entirely on speculation, surmises or conjectures; (2) a lower courts inference from its factual findings is manifestly
mistaken, absurd or impossible; (3) there is grave abuse of discretion in the appreciation of facts; (4) the findings of the
appellate court go beyond the issues of the case, or fail to notice certain relevant facts which, if properly considered, will
justify a different conclusion; (5) there is a misappreciation of facts; (6) the findings of fact are conclusions without mention
of the specific evidence on which they are based, are premised on the absence of evidence, or are contradicted by
evidence on record.[8] None of the foregoing exceptions which would warrant a reversal of the assailed decision obtains in
this instance.
Yet, petitioners maintain that the proximate cause of Jaysons injury was his own negligence in disregarding the
instructions given by Tabugo prior to the experiment and peeking into the test tube. Petitioners invoke our ruling in St.
Marys Academy v. Carpitanos[9] which absolved St. Marys Academy from liability for the untimely death of its student
during a school sanctioned activity, declaring that the negligence of petitioner St. Marys Academy was only a remote
cause of the accident.

164

We are not convinced.

Contrary to petitioners assertions, the lower courts conclusions are borne out by the records of this case. Both courts
correctly concluded that the immediate and proximate cause of the accident which caused injury to Jayson was the
sudden and unexpected explosion of the chemicals, independent of any intervening cause. The assailed Decision of the
CA quotes with favor the RTC decision, thus:
In this case, [petitioners] failed to show that the negligence of [Jayson] was the proximate cause of the
latters injury. We find that the immediate cause of the accident was not the negligence of [Jayson] when
he curiously looked into the test tube when the chemicals suddenly exploded which caused his injury, but
the sudden and unexpected explosion of the chemicals independent of any intervening cause.
[Petitioners] could have prevented the mishap if they exercised a higher degree of care, caution and
foresight. The court a quo correctly ruled that:
All of the [petitioners] are equally at fault and are liable for negligence because all of them
are responsible for exercising the required reasonable care, prudence, caution and
foresight to prevent or avoid injuries to the students. The individual [petitioners] are
persons charged with the teaching and vigilance over their students as well as the
supervision and ensuring of their well-being. Based on the facts presented before this
Court, these [petitioners] were remiss in their responsibilities and lacking in the degree of
vigilance expected of them. [Petitioner] subject teacher Rosalinda Tabugo was inside the
classroom when the class undertook the science experiment although [Jayson] insisted
that said [petitioner] left the classroom. No evidence, however, was presented to
establish that [petitioner] Tabugo was inside the classroom for the whole duration of the
experiment. It was unnatural in the ordinary course of events that [Jayson] was brought to
the school clinic for immediate treatment not by [petitioner] subject teacher Rosalinda
Tabugo but by somebody else. The Court is inclined to believe that [petitioner] subject
teacher Tabugo was not inside the classroom at the time the accident happened. The
Court is also perplexed why none of the other students (who were eyewitnesses to the
incident) testified in Court to corroborate the story of the [petitioners]. The Court,
however, understands that these other students cannot testify for [Jayson] because
[Jayson] is no longer enrolled in said school and testifying for [Jayson] would incur the ire
of school authorities. Estefania Abdan is equally at fault as the subject adviser or teacher
in charge because she exercised control and supervision over [petitioner] Tabugo and the
students themselves. It was her obligation to insure that nothing would go wrong and that
the science experiment would be conducted safely and without any harm or injury to the
students. [Petitioner] Sr. Josephini Ambatali is likewise culpable under the doctrine of
command responsibility because the other individual [petitioners] were under her direct
control and supervision. The negligent acts of the other individual [petitioners] were done
within the scope of their assigned tasks.
xxxx
The defense of due diligence of a good father of a family raised by [petitioner] St. Joseph
College will not exculpate it from liability because it has been shown that it was guilty of
inexcusable laxity in the supervision of its teachers (despite an apparent rigid screening

165

process for hiring) and in the maintenance of what should have been a safe and secured
environment for conducting dangerous experiments. [Petitioner] school is still liable for
the wrongful acts of the teachers and employees because it had full information on the
nature of dangerous science experiments but did not take affirmative steps to avert
damage and injury to students. The fact that there has never been any accident in the
past during the conduct of science experiments is not a justification to be complacent in
just preserving the status quo and do away with creative foresight to install safety
measures to protect the students. Schools should not simply install safety reminders and
distribute safety instructional manuals. More importantly, schools should provide
protective gears and devices to shield students from expected risks and anticipated
dangers.
Ordinarily, the liability of teachers does not extend to the school or university itself,
although an educational institution may be held liable under the principle of
RESPONDENT SUPERIOR. It has also been held that the liability of the employer for the
[tortuous] acts or negligence of its employees is primary and solidary, direct and
immediate and not conditioned upon the insolvency of or prior recourse against the
negligent employee.[10]

Under the foregoing circumstances, we are hard pressed to disturb the findings of the RTC, which the CA affirmed.

Nonetheless, petitioners make much of the fact that Tabugo specifically instructed her students, including Jayson, at the
start of the experiment, not to look into the heated test tube before the compound had cooled off. Petitioners would
allocate all liability and place all blame for the accident on a twelve (12)-year-old student, herein respondent Jayson.

We disagree.

As found by both lower courts, the proximate cause of Jaysons injury was the concurrent failure of petitioners to prevent
the foreseeable mishap that occurred during the conduct of the science experiment. Petitioners were negligent by failing
to exercise the higher degree of care, caution and foresight incumbent upon the school, its administrators and teachers.

Article 218 of the Family Code, in relation to Article 2180 of the Civil Code, bestows special parental authority on the
following persons with the corresponding obligation, thus:
Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in
child care shall have special parental authority and responsibility over the minor child while under their
supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities whether inside or outside the premises
of the school, entity or institution.

166

Art. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions,
but also for those of persons for whom one is responsible.
xxxx
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their
pupils and students or apprentices, so long as they remain in their custody.

Petitioners negligence and failure to exercise the requisite degree of care and caution is demonstrated by the
following:

1. Petitioner school did not take affirmative steps to avert damage and injury to its students although it had full
information on the nature of dangerous science experiments conducted by the students during class;

2. Petitioner school did not install safety measures to protect the students who conduct experiments in class;

3. Petitioner school did not provide protective gears and devices, specifically goggles, to shield students from
expected risks and dangers; and

4. Petitioner Tabugo was not inside the classroom the whole time her class conducted the experiment, specifically,
when the accident involving Jayson occurred. In any event, the size of the classfifty (50) students conducting the
experiment is difficult to monitor.

Moreover, petitioners cannot simply deflect their negligence and liability by insisting that petitioner Tabugo gave specific
instructions to her science class not to look directly into the heated compound. Neither does our ruling in St.
Marys preclude their liability in this case.

Unfortunately for petitioners, St. Marys is not in point. In that case, respondents thereat admitted the documentary exhibits
establishing that the cause of the accident was a mechanical defect and not the recklessness of the minor, James Daniel
II, in driving the jeep. We held, thus:
Significantly, respondents did not present any evidence to show that the proximate cause of the accident
was the negligence of the school authorities, or the reckless driving of James Daniel II. x x x.

167

Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep
of respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva,
who had possession and control of the jeep. He was driving the vehicle and he allowed James Daniel II, a
minor, to drive the jeep at the time of the accident.
Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical
detachment of the steering wheel guide of the jeep, must be pinned on the minors parents primarily. The
negligence of petitioner St. Marys Academy was only a remote cause of the accident. Between the
remote cause and the injury, there intervened the negligence of the minors parents or the detachment of
the steering wheel guide of the jeep.[11]

In marked contrast, both the lower courts similarly concluded that the mishap which happened during the science
experiment was foreseeable by the school, its officials and teachers. This neglect in preventing a foreseeable injury and
damage equates to neglect in exercising the utmost degree of diligence required of schools, its administrators and
teachers, and, ultimately, was the proximate cause of the damage and injury to Jayson. As we have held in St. Marys, for
petitioner [St. Marys Academy] to be liable, there must be a finding that the act or omission considered as negligent was
the proximate cause of the injury caused because the negligence must have a causal connection to the accident. [12]

As regards the contributory negligence of Jayson, we see no need to disturb the lower courts identical rulings thereon:
As earlier discussed, the proximate cause of [Jaysons] injury was the explosion of the heated compound
independent of any efficient intervening cause. The negligence on the part of [petitioner] Tabugo in not
making sure that the science experiment was correctly conducted was the proximate cause or reason
why the heated compound exploded and injured not only [Jayson] but his classmates as well. However,
[Jayson] is partly responsible for his own injury, hence, he should not be entitled to recover damages in
full but must likewise bear the consequences of his own negligence. [Petitioners], therefore, should be
held liable only for the damages actually caused by their negligence. [13]

Lastly, given our foregoing ruling, we likewise affirm the lower courts award of actual and moral damages, and
grant of attorneys fees. The denial of petitioners counterclaim is also in order.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 68367 is AFFIRMED.
Costs against petitioners.

SO ORDERED.

G.R. No. 187512

June 13, 2012

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REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
YOLANDA CADACIO GRANADA, Respondent.
DECISION
SERENO, J.:
This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January 2009 1 and 3 April 20092issued by the
Court of Appeals (CA), which affirmed the grant by the Regional Trial Court (RTC) of the Petition for Declaration of
Presumptive Death of the absent spouse of respondent.
In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus Granada (Cyrus) at Sumida Electric Philippines,
an electronics company in Paranaque where both were then working. The two eventually got married at the Manila City
Hall on 3 March 1993. Their marriage resulted in the birth of their son, Cyborg Dean Cadacio Granada.
Sometime in May 1994, when Sumida Electric Philippines closed down, Cyrus went to Taiwan to seek employment.
Yolanda claimed that from that time, she had not received any communication from her husband, notwithstanding efforts
to locate him. Her brother testified that he had asked the relatives of Cyrus regarding the latters whereabouts, to no avail.
After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared presumptively dead. The Petition was
raffled to Presiding Judge Avelino Demetria of RTC Branch 85, Lipa City, and was docketed as Sp. Proc. No. 2002-0530.
On 7 February 2005, the RTC rendered a Decision declaring Cyrus as presumptively dead.
On 10 March 2005, petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), filed a
Motion for Reconsideration of this Decision. Petitioner argued that Yolanda had failed to exert earnest efforts to locate
Cyrus and thus failed to prove her well-founded belief that he was already dead. However, in an Order dated 29 June
2007, the RTC denied the motion.
Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably under Rule 41, Section 2(a) of the Rules of
Court. Yolanda filed a Motion to Dismiss on the ground that the CA had no jurisdiction over the appeal. She argued that
her Petition for Declaration of Presumptive Death, based on Article 41 of the Family Code, was a summary judicial
proceeding, in which the judgment is immediately final and executory and, thus, not appealable.
In its 23 January 2009 Resolution, the appellate court granted Yolandas Motion to Dismiss on the ground of lack of
jurisdiction. Citing Republic v. Bermudez-Lorino,3 the CA ruled that a petition for declaration of presumptive death under
Rule 41 of the Family Code is a summary proceeding. Thus, judgment thereon is immediately final and executory upon
notice to the parties.
Petitioner moved for reconsideration, but its motion was likewise denied by the CA in a Resolution dated 3 April 2009. 4
Hence, the present Rule 45 Petition.
Issues
1. Whether the CA seriously erred in dismissing the Petition on the ground that the Decision of the RTC in a
summary proceeding for the declaration of presumptive death is immediately final and executory upon notice to
the parties and, hence, is not subject to ordinary appeal

169

2. Whether the CA seriously erred in affirming the RTCs grant of the Petition for Declaration of Presumptive
Death under Article 41 of the Family Code based on the evidence that respondent presented
Our Ruling
1. On whether the CA seriously erred in dismissing the Petition on the ground that the Decision of the RTC in a summary
proceeding for the declaration of presumptive death is immediately final and executory upon notice to the parties and,
hence, is not subject to ordinary appeal
In the assailed Resolution dated 23 January 2009, the CA dismissed the Petition assailing the RTCs grant of the Petition
for Declaration of Presumptive Death of the absent spouse under Article 41 of the Family Code. Citing Republic v.
Bermudez-Lorino,5 the appellate court noted that a petition for declaration of presumptive death for the purpose of
remarriage is a summary judicial proceeding under the Family Code. Hence, the RTC Decision therein is immediately final
and executory upon notice to the parties, by express provision of Article 247 of the same Code. The decision is therefore
not subject to ordinary appeal, and the attempt to question it through a Notice of Appeal is unavailing.
We affirm the CA ruling.
Article 41 of the Family Code provides:
Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the
spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there
is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only
two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute
a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse. (Underscoring supplied.)
Clearly, a petition for declaration of presumptive death of an absent spouse for the purpose of contracting a subsequent
marriage under Article 41 of the Family Code is a summary proceeding "as provided for" under the Family Code.
Further, Title XI of the Family Code is entitled "Summary Judicial Proceedings in the Family Law." Subsumed thereunder
are Articles 238 and 247, which provide:
Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this
Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to
technical rules.
xxx

xxx

xxx

Art. 247. The judgment of the court shall be immediately final and executory.
Further, Article 253 of the Family Code reads:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles
41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable.
Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that since a petition for declaration of
presumptive death is a summary proceeding, the judgment of the court therein shall be immediately final and executory.

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In Republic v. Bermudez-Lorino,6 the Republic likewise appealed the CAs affirmation of the RTCs grant of respondents
Petition for Declaration of Presumptive Death of her absent spouse. The Court therein held that it was an error for the
Republic to file a Notice of Appeal when the latter elevated the matter to the CA, to wit:
In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect an
appeal, precisely because judgments rendered thereunder, by express provision of Section 247, Family Code, supra, are
"immediately final and executory."
xxx

xxx

xxx

But, if only to set the records straight and for the future guidance of the bench and the bar, let it be stated that the RTCs
decision dated November 7, 2001, was immediately final and executory upon notice to the parties. It was erroneous for
the OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court of Appeals acquired no
jurisdiction over the case, and should have dismissed the appeal outright on that ground.
Justice (later Chief Justice) Artemio Panganiban, who concurred in the result reached by the Court in Republic v.
Bermudez-Lorino, additionally opined that what the OSG should have filed was a petition for certiorari under Rule 65, not
a petition for review under Rule 45.
In the present case, the Republic argues that Bermudez-Lorino has been superseded by the subsequent Decision of the
Court in Republic v. Jomoc,7 issued a few months later.
In Jomoc, the RTC granted respondents Petition for Declaration of Presumptive Death of her absent husband for the
purpose of remarriage. Petitioner Republic appealed the RTC Decision by filing a Notice of Appeal. The trial court
disapproved the Notice of Appeal on the ground that, under the Rules of Court, 8 a record on appeal is required to be filed
when appealing special proceedings cases. The CA affirmed the RTC ruling. In reversing the CA, this Court clarified that
while an action for declaration of death or absence under Rule 72, Section 1(m), expressly falls under the category of
special proceedings, a petition for declaration of presumptive death under Article 41 of the Family Code is a summary
proceeding, as provided for by Article 238 of the same Code. Since its purpose was to enable her to contract a
subsequent valid marriage, petitioners action was a summary proceeding based on Article 41 of the Family Code, rather
than a special proceeding under Rule 72 of the Rules of Court. Considering that this action was not a special proceeding,
petitioner was not required to file a record on appeal when it appealed the RTC Decision to the CA.
We do not agree with the Republics argument that Republic v. Jomoc superseded our ruling in Republic v. BermudezLorino. As observed by the CA, the Supreme Court in Jomoc did not expound on the characteristics of a summary
proceeding under the Family Code. In contrast, the Court in Bermudez-Lorino expressly stated that its ruling on the
impropriety of an ordinary appeal as a vehicle for questioning the trial courts Decision in a summary proceeding for
declaration of presumptive death under Article 41 of the Family Code was intended "to set the records straight and for the
future guidance of the bench and the bar."
At any rate, four years after Jomoc, this Court settled the rule regarding appeal of judgments rendered in summary
proceedings under the Family Code when it ruled in Republic v. Tango: 9
This case presents an opportunity for us to settle the rule on appeal of judgments rendered in summary proceedings
under the Family Code and accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW, establishes
the rules that govern summary court proceedings in the Family Code:
ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this
Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to
technical rules.

171

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and three of the same title.
It states:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles
41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable. (Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
ART 247. The judgment of the court shall be immediately final and executory.
By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and executory.
As a matter of course, it follows that no appeal can be had of the trial court's judgment in a summary proceeding for the
declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes without saying,
however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of
jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To
be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the Court of
Appeals in certain cases, such concurrence does not sanction an unrestricted freedom of choice of court forum. From the
decision of the Court of Appeals, the losing party may then file a petition for review on certiorari under Rule 45 of the
Rules of Court with the Supreme Court. This is because the errors which the court may commit in the exercise of
jurisdiction are merely errors of judgment which are the proper subject of an appeal.
In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for the declaration of presumptive
death may file a petition for certiorari with the CA on the ground that, in rendering judgment thereon, the trial court
committed grave abuse of discretion amounting to lack of jurisdiction. From the decision of the CA, the aggrieved party
may elevate the matter to this Court via a petition for review on certiorari under Rule 45 of the Rules of Court.
Evidently then, the CA did not commit any error in dismissing the Republics Notice of Appeal on the ground that the RTC
judgment on the Petition for Declaration of Presumptive Death of respondents spouse was immediately final and
executory and, hence, not subject to ordinary appeal.
2. On whether the CA seriously erred in affirming the RTCs grant of the Petition for Declaration of Presumptive Death
under Article 41 of the Family Code based on the evidence that respondent had presented
Petitioner also assails the RTCs grant of the Petition for Declaration of Presumptive Death of the absent spouse of
respondent on the ground that she had not adduced the evidence required to establish a well-founded belief that her
absent spouse was already dead, as expressly required by Article 41 of the Family Code. Petitioner cites Republic v.
Nolasco,10 United States v. Biasbas11 and Republic v. Court of Appeals and Alegro12 as authorities on the subject.
In Nolasco, petitioner Republic sought the reversal of the CAs affirmation of the RTCs grant of respondents Petition for
Declaration of Presumptive Death of his absent spouse, a British subject who left their home in the Philippines soon after
giving birth to their son while respondent was on board a vessel working as a seafarer. Petitioner Republic sought the
reversal of the ruling on the ground that respondent was not able to establish his "well-founded belief that the absentee is
already dead," as required by Article 41 of the Family Code. In ruling thereon, this Court recognized that this provision
imposes more stringent requirements than does Article 83 of the Civil Code. 13 The Civil Code provision merely requires
either that there be no news that the absentee is still alive; or that the absentee is generally considered to be dead and is
believed to be so by the spouse present, or is presumed dead under Articles 390 and 391 of the Civil Code. In
comparison, the Family Code provision prescribes a "well-founded belief" that the absentee is already dead before a
petition for declaration of presumptive death can be granted. As noted by the Court in that case, the four requisites for the
declaration of presumptive death under the Family Code are as follows:

172

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil
Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.
In evaluating whether the present spouse has been able to prove the existence of a "well-founded belief" that the absent
spouse is already dead, the Court in Nolasco cited United States v. Biasbas, 14 which it found to be instructive as to the
diligence required in searching for a missing spouse.
In Biasbas, the Court held that defendant Biasbas failed to exercise due diligence in ascertaining the whereabouts of his
first wife, considering his admission that that he only had a suspicion that she was dead, and that the only basis of that
suspicion was the fact of her absence.
Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic sought the reversal of the CA ruling affirming the
RTCs grant of the Petition for Declaration of Presumptive Death of the absent spouse on the ground that the respondent
therein had not been able to prove a "well-founded belief" that his spouse was already dead. The Court reversed the CA,
granted the Petition, and provided the following criteria for determining the existence of a "well-founded belief" under
Article 41 of the Family Code:
For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute
a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
The spouse present is, thus, burdened to prove that his spouse has been absent and that he has a well-founded belief
that the absent spouse is already dead before the present spouse may contract a subsequent marriage. The law does not
define what is meant by a well-grounded belief. Cuello Callon writes that "es menester que su creencia sea firme se funde
en motivos racionales."
Belief is a state of the mind or condition prompting the doing of an overt act.1wphi1 It may be proved by direct evidence
or circumstantial evidence which may tend, even in a slight degree, to elucidate the inquiry or assist to a determination
probably founded in truth. Any fact or circumstance relating to the character, habits, conditions, attachments, prosperity
and objects of life which usually control the conduct of men, and are the motives of their actions, was, so far as it tends to
explain or characterize their disappearance or throw light on their intentions, competence [sic] evidence on the ultimate
question of his death.
The belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to ascertain the
whereabouts of the absent spouse and whether the absent spouse is still alive or is already dead. Whether or not the
spouse present acted on a well-founded belief of death of the absent spouse depends upon the inquiries to be drawn from
a great many circumstances occurring before and after the disappearance of the absent spouse and the nature and extent
of the inquiries made by present spouse. (Footnotes omitted, underscoring supplied.)
Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda did not initiate a
diligent search to locate her absent husband. While her brother Diosdado Cadacio testified to having inquired about the
whereabouts of Cyrus from the latters relatives, these relatives were not presented to corroborate Diosdados testimony.
In short, respondent was allegedly not diligent in her search for her husband. Petitioner argues that if she were, she would
have sought information from the Taiwanese Consular Office or assistance from other government agencies in Taiwan or

173

the Philippines. She could have also utilized mass media for this end, but she did not. Worse, she failed to explain these
omissions.
The Republics arguments are well-taken. Nevertheless, we are constrained to deny the Petition.
The RTC ruling on the issue of whether respondent was able to prove her "well-founded belief" that her absent spouse
was already dead prior to her filing of the Petition to declare him presumptively dead is already final and can no longer be
modified or reversed. Indeed, "[n]othing is more settled in law than that when a judgment becomes final and executory, it
becomes immutable and unalterable. The same may no longer be modified in any respect, even if the modification is
meant to correct what is perceived to be an erroneous conclusion of fact or law." 15
WHEREFORE, premises considered, the assailed Resolutions of the Court of Appeals dated 23 January 2009 and 3 April
2009 in CA-G.R. CV No. 90165 are AFFIRMED.
SO ORDERED.

G.R. No. 174689

October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo.
"Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed once, then twice. All of a
sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and the other was a
female. Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of
Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a
physician using scalpel, drugs and counseling with regard to a persons sex? May a person successfully petition for a
change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex
in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207,
impleaded the civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita
Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live
birth (birth certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and
that he had always identified himself with girls since childhood. 1 Feeling trapped in a mans body, he consulted several

174

doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His
attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment
surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction
surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his
birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was published in the Peoples Journal Tonight, a newspaper of general
circulation in Metro Manila, for three consecutive weeks. 3 Copies of the order were sent to the Office of the Solicitor
General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fianc, Richard P.
Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision 4 in favor of petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful
motive but solely for the purpose of making his birth records compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of
justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a
woman, now possesses the physique of a female. Petitioners misfortune to be trapped in a mans body is not his
own doing and should not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in
granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of
the petitioner and her [fianc] and the realization of their dreams.
Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice
and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to
change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioners first name from
"Rommel Jacinto" to MELY and petitioners gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of
Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial courts
decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the
ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republics petition, set aside the
decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it
was denied.9 Hence, this petition.

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Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to
413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048. 10
The petition lacks merit.
A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial
court:
Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful
motive but solely for the purpose of making his birth records compatible with his present sex. (emphasis
supplied)
Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry
changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for purposes of identification. 11 A change of name
is a privilege, not a right.12 Petitions for change of name are controlled by statutes. 13 In this connection, Article 376 of the
Civil Code provides:
ART. 376. No person can change his name or surname without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No
entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical
errors and change of first name or nickname which can be corrected or changed by the concerned city or
municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules
and regulations.
RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of first
name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over
applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent
and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition
for change of name is first filed and subsequently denied. 15 It likewise lays down the corresponding venue,16 form17 and
procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature,
not judicial.
RA 9048 likewise provides the grounds for which change of first name may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first name or nickname
may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to
write or pronounce;
(2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been
publicly known by that first name or nickname in the community; or

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(3) The change will avoid confusion.

Petitioners basis in praying for the change of his first name was his sex reassignment. He intended to make his first name
compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not
alter ones legal capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioners first name for his declared purpose may only create
grave complications in the civil registry and the public interest.
Before a person can legally change his given name, he must present proper or reasonable cause or any compelling
reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and official
name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and
official name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was not within that
courts primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could
be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under
RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where
his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice
him at all. For all these reasons, the Court of Appeals correctly dismissed petitioners petition in so far as the change of his
first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment
The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look to the
statutes.21 In this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or
typographical errors are involved. The correction or change of such matters can now be made through administrative
proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules
of Court the correction of such errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the
civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean:
xxx

xxx

xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in
writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such
as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other existing record or
records: Provided, however, That no correction must involve the change of nationality, age, status
or sex of the petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It
is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.

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The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those
provided in Articles 407 and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil
register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring
marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after
birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the
ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace
something with something else of the same kind or with something that serves as a substitute." 26 The birth certificate of
petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct.
No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths)
and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions,
naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name).
These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and
nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among
those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or
impliedly.
"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a
person in view of his age, nationality and his family membership. 27
The status of a person in law includes all his personal qualities and relations, more or less permanent in nature,
not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not.
The comprehensive term status include such matters as the beginning and end of legal personality, capacity to
have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption,
emancipation, marriage, divorce, and sometimes even succession. 28 (emphasis supplied)
A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal capacity and civil
status. In this connection, Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws.
But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioners
cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

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SEC. 5. Registration and certification of births. The declaration of the physician or midwife in attendance at the
birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall
be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance
at the birth or by either parent of the newborn child.
In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth;
(b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known,
of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may
be required in the regulations to be issued.
xxx

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of
birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by
examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the
determination of a persons sex made at the time of his or her birth, if not attended by error,30is immutable.31
When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a
contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the
civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no
legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that
distinguish a male from a female"32 or "the distinction between male and female." 33 Female is "the sex that produces ova
or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova." 35 Thus, the words
"male" and "female" in everyday understanding do not include persons who have undergone sex reassignment.
Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have
been used in that sense unless the context compels to the contrary." 36 Since the statutory language of the Civil Register
Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is
something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included
in the category "female."
For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of
modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal
basis for his petition for the correction or change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed
that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even
the trial court itself found that the petition was but petitioners first step towards his eventual marriage to his male fianc.
However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man
and a woman.37 One of its essential requisites is the legal capacity of the contracting parties who must be a male and a
female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage
and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-tofemale post-operative transsexual). Second, there are various laws which apply particularly to women such as the
provisions of the Labor Code on employment of women, 39 certain felonies under the Revised Penal Code40 and the
presumption of survivorship in case of calamities under Rule 131 of the Rules of Court, 41 among others. These laws
underscore the public policy in relation to women which could be substantially affected if petitioners petition were to be
granted.

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It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of
the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The
duty of the courts is to apply or interpret the law, not to make or amend it.
In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should
govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly
important in this case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in
the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what
procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the
privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the
guidelines in turn governing the conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having
successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else.
The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of
government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their
dreams." No argument about that. The Court recognizes that there are people whose preferences and orientation do not
fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an
ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the
legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.

REPUBLIC OF THE PHILIPPINES,

Petitioner,

G.R. No. 166676

Present:

- versus -

JENNIFER B. CAGANDAHAN,
Respondent.

QUISUMBING, J., Chairperson,

CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.
Promulgated:
September 12, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:

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This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and seeking a
reversal of the Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which
granted the Petition for Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan and ordered the following
changes of entries in Cagandahans birth certificate: (1) the name Jennifer Cagandahan changed to Jeff Cagandahan and (2)
gender from female to male.
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth
Certificate[2] before the RTC, Branch 33 of Siniloan, Laguna.
In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the
Certificate of Live Birth but while growing up, she developed secondary male characteristics and was diagnosed to have
Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female
characteristics. She further alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six,
underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen, tests revealed that her
ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development. She then
alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. Thus, she
prayed that her birth certificate be corrected such that her gender be changed from female to male and her first name be
changed from Jennifer to Jeff.
The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was posted
in conspicuous places by the sheriff of the court. The Solicitor General entered his appearance and authorized the
Assistant Provincial Prosecutor to appear in his behalf.
To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of the Department of
Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued a medical certificate stating that
respondents condition is known as CAH. He explained that genetically respondent is female but because her body
secretes male hormones, her female organs did not develop normally and she has two sex organs female and male. He
testified that this condition is very rare, that respondents uterus is not fully developed because of lack of female
hormones, and that she has no monthly period. He further testified that respondents condition is permanent and
recommended the change of gender because respondent has made up her mind, adjusted to her chosen role as male,
and the gender change would be advantageous to her.
The RTC granted respondents petition in a Decision dated January 12, 2005 which reads:
The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs
prayed [for]. Petitioner has adequately presented to the Court very clear and convincing proofs for the
granting of his petition. It was medically proven that petitioners body produces male hormones, and first

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his body as well as his action and feelings are that of a male. He has chosen to be male. He is a normal
person and wants to be acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to
make the following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment of the
prescribed fees:
a)

By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and

b)

By changing the gender from female to MALE.

It is likewise ordered that petitioners school records, voters registry, baptismal certificate, and
other pertinent records are hereby amended to conform with the foregoing corrected data.
SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN
COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF SEX OR GENDER IN
THE BIRTH CERTIFICATE, WHILE RESPONDENTS MEDICAL CONDITION, i.e., CONGENITAL
ADRENAL HYPERPLASIA DOES NOT MAKE HER A MALE.[4]
Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth certificate of
respondent to change her sex or gender, from female to male, on the ground of her medical condition known as CAH, and
her name from Jennifer to Jeff, under Rules 103 and 108 of the Rules of Court.
The OSG contends that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the
Rules of Court because while the local civil registrar is an indispensable party in a petition for cancellation or correction of
entries under Section 3, Rule 108 of the Rules of Court, respondents petition before the court a quo did not implead the
local civil registrar.[5] The OSG further contends respondents petition is fatally defective since it failed to state that
respondent is a bona fide resident of the province where the petition was filed for at least three (3) years prior to the date
of such filing as mandated under Section 2(b), Rule 103 of the Rules of Court. [6] The OSG argues that Rule 108 does not
allow change of sex or gender in the birth certificate and respondents claimed medical condition known as CAH does not
make her a male.[7]

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On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not formally
named a party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil Registrar was furnished a copy
of the Petition, the Order to publish on December 16, 2003 and all pleadings, orders or processes in the course of the
proceedings,[8] respondent is actually a male person and hence his birth certificate has to be corrected to reflect his true
sex/gender,[9] change of sex or gender is allowed under Rule 108, [10] and respondent substantially complied with the
requirements of Rules 103 and 108 of the Rules of Court. [11]
Rules 103 and 108 of the Rules of Court provide:

Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his name shall present the petition to the Regional Trial
Court of the province in which he resides, [or, in the City of Manila, to the Juvenile and Domestic
Relations Court].
SEC. 2. Contents of petition. A petition for change of name shall be signed and verified by the person
desiring his name changed, or some other person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the province where the petition is filed for
at least three (3) years prior to the date of such filing;
(b) The cause for which the change of the petitioner's name is sought;
(c) The name asked for.
SEC. 3. Order for hearing. If the petition filed is sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a
copy of the order be published before the hearing at least once a week for three (3) successive weeks in
some newspaper of general circulation published in the province, as the court shall deem best. The date
set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after
the last publication of the notice.
SEC. 4. Hearing. Any interested person may appear at the hearing and oppose the petition. The Solicitor
General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.
SEC. 5. Judgment. Upon satisfactory proof in open court on the date fixed in the order that such order
has been published as directed and that the allegations of the petition are true, the court shall, if proper
and reasonable cause appears for changing the name of the petitioner, adjudge that such name be
changed in accordance with the prayer of the petition.
SEC. 6. Service of judgment. Judgments or orders rendered in connection with this rule shall be furnished
the civil registrar of the municipality or city where the court issuing the same is situated, who shall
forthwith enter the same in the civil register.

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Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. Any person interested in any act, event, order or decree concerning
the civil status of persons which has been recorded in the civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province where
the corresponding civil registry is located.
SEC. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the following entries
in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal
separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the
beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k)
election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n)
voluntary emancipation of a minor; and (o) changes of name.
SEC. 3. Parties. When cancellation or correction of an entry in the civil register is sought, the civil registrar
and all persons who have or claim any interest which would be affected thereby shall be made parties to
the proceeding.
SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named
in the petition. The court shall also cause the order to be published once a week for three (3) consecutive
weeks in a newspaper of general circulation in the province.
SEC. 5. Opposition. The civil registrar and any person having or claiming any interest under the entry
whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from
the last date of publication of such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. The court in which the proceedings is brought may make orders
expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of
the parties pending such proceedings.
SEC. 7. Order. After hearing, the court may either dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon
the civil registrar concerned who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the
Rules of Court because respondents petition did not implead the local civil registrar. Section 3, Rule 108 provides that the
civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the
proceedings. Likewise, the local civil registrar is required to be made a party in a proceeding for the correction of name in
the civil registry. He is an indispensable party without whom no final determination of the case can be had. [12] Unless all
possible indispensable parties were duly notified of the proceedings, the same shall be considered as falling much too
short of the requirements of the rules. [13] The corresponding petition should also implead as respondents the civil registrar
and all other persons who may have or may claim to have any interest that would be affected thereby. [14] Respondent,

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however, invokes Section 6,[15] Rule 1 of the Rules of Court which states that courts shall construe the Rules liberally to
promote their objectives of securing to the parties a just, speedy and inexpensive disposition of the matters brought before
it. We agree that there is substantial compliance with Rule 108 when respondent furnished a copy of the petition to the
local civil registrar.
The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look to the
statutes. In this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected without a judicial order.
Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No. 9048 [17] in so far
as clerical or typographical errors are involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect, Rep. Act No. 9048 removed from the ambit
of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.[18]
Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court. [19]
The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are
those provided in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the
civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur
after birth.[20]
Respondent undisputedly has CAH. This condition causes the early or inappropriate appearance of male
characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone. A newborn
who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening at the base, an
ambiguous genitalia often appearing more male than female; (2) normal internal structures of the female reproductive
tract such as the ovaries, uterus and fallopian tubes; as the child grows older, some features start to appear male, such as
deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born with
CAH.
CAH is one of many conditions[21] that involve intersex anatomy. During the twentieth century, medicine adopted
the term intersexuality to apply to human beings who cannot be classified as either male or female. [22] The term is now of

185

widespread use. According to Wikipedia, intersexuality is the state of a living thing of a gonochoristic species whose sex
chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor
female. An organism with intersex may have biological characteristics of both male and female sexes.
Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals have
been expected to conform to either a male or female gender role. [23] Since the rise of modern medical science in Western
societies, some intersex people with ambiguous external genitalia have had their genitalia surgically modified to resemble
either male or female genitals.[24] More commonly, an intersex individual is considered as suffering from a disorder which
is almost always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the
individual as neatly as possible into the category of either male or female.
In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as
variations which should not be subject to outright denial. It has been suggested that there is some middle ground between
the sexes, a no-mans land for those individuals who are neither truly male nor truly female. [25] The current state of
Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not
controlled by mere appearances when nature itself fundamentally negates such rigid classification.
In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth
certificate entry for gender. But if we determine, based on medical testimony and scientific development
showing the respondent to be other than female, then a change in the
subjects birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor
consistently and categorically male) composition. Respondent has female (XX) chromosomes. However, respondents
body system naturally produces high levels of male hormones (androgen). As a result, respondent has ambiguous
genitalia and the phenotypic features of a male.
Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in
his gender classification would be what the individual, like respondent, having reached the age of majority, with good
reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high
levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual
development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the
gender of such persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with
what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have
undergone treatment and taken steps, like taking lifelong medication, [26] to force his body into the categorical mold of a

186

female but he did not. He chose not to do so. Nature has instead taken its due course in respondents development to
reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately
private as ones sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse
the male tendency due to CAH. The Court will not consider respondent as having erred in not choosing to undergo
treatment in order to become or remain as a female. Neither will the Court force respondent to undergo treatment and to
take medication in order to fit the mold of a female, as society commonly currently knows this gender of the human
species. Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of
happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path
of his sexual development and maturation. In the absence of evidence that respondent is an incompetent [27] and in the
absence of evidence to show that classifying respondent as a male will harm other members of society who are equally
entitled to protection under the law, the Court affirms as valid and justified the respondents position and his personal
judgment of being a male.
In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with
what nature has handed out. In other words, we respect respondents congenital condition and his mature decision to be a
male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with
his unordinary state and thus help make his life easier, considering the unique circumstances in this case.
As for respondents change of name under Rule 103, this Court has held that a change of name is not a matter of
right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow.
[28]

The trial courts grant of respondents change of name from Jennifer to Jeff implies a change of a feminine name to a

masculine name. Considering the consequence that respondents change of name merely recognizes his preferred
gender, we find merit in respondents change of name. Such a change will conform with the change of the entry in his birth
certificate from female to male.
WHEREFORE, the Republics petition is DENIED. The Decision dated January 12, 2005 of the Regional Trial
Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs.

MARIA VIRGINIA V. REMO, G.R. No. 169202

Petitioner,
Present:
CARPIO, J., Chairperson,
-versus- BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.

187

THE HONORABLE SECRETARY

OF FOREIGN AFFAIRS, Promulgated:
Respondent. March 5, 2010
x-----------------------------------------------------------------------------------------x

DECISION
CARPIO, J.:
The Case

Before the Court is a petition for review [1] of the 27 May 2005 Decision [2] and 2 August 2005 Resolution [3] of the Court of
Appeals in CA-G.R. SP No. 87710. The Court of Appeals affirmed the decision of the Office of the President, which in turn
affirmed the decision of the Secretary of Foreign Affairs denying petitioners request to revert to the use of her maiden
name in her replacement passport.
The Facts

Petitioner Maria Virginia V. Remo is a married Filipino citizen whose Philippine passport was then expiring on 27 October
2000. Petitioner being married to Francisco R. Rallonza, the following entries appear in her passport: Rallonza as her
surname, Maria Virginia as her given name, and Remo as her middle name. Prior to the expiry of the validity of her
passport, petitioner, whose marriage still subsists, applied for the renewal of her passport with the Department of Foreign
Affairs (DFA) office in Chicago, Illinois, U.S.A., with a request to revert to her maiden name and surname in the
replacement passport.
Petitioners request having been denied, Atty. Manuel Joseph R. Bretana III, representing petitioner, wrote then Secretary
of Foreign Affairs Domingo Siason expressing a similar request.
On 28 August 2000, the DFA, through Assistant Secretary Belen F. Anota, denied the request, stating thus:
This has reference to your letter dated 17 August 2000 regarding one Ms. Maria Virginia V. Remo who is
applying for renewal of her passport using her maiden name.
This Office is cognizant of the provision in the law that it is not obligatory for a married woman to use her husbands
name. Use of maiden name is allowed in passport application only if the married name has not been used in
previous application. The Implementing Rules and Regulations for Philippine Passport Act of 1996 clearly defines the
conditions when a woman applicant may revert to her maiden name, that is, only in cases of annulment of marriage,
divorce and death of the husband. Ms. Remos case does not meet any of these conditions. [4] (Emphasis supplied)

Petitioners motion for reconsideration of the above-letter resolution was denied in a letter dated 13 October 2000. [5]
On 15 November 2000, petitioner filed an appeal with the Office of the President.

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On 27 July 2004, the Office of the President dismissed the appeal [6] and ruled that Section 5(d) of Republic Act No. 8239
(RA 8239) or the Philippine Passport Act of 1996 offers no leeway for any other interpretation than that only in case of
divorce, annulment, or declaration [of nullity] of marriage may a married woman revert to her maiden name for passport
purposes. The Office of the President further held that in case of conflict between a general and special law, the latter will
control the former regardless of the respective dates of passage. Since the Civil Code is a general law, it should yield to
RA 8239.
On 28 October 2004, the Office of the President denied the motion for reconsideration. [7]
Petitioner filed with the Court of Appeals a petition for review under Rule 43 of the Rules of Civil Procedure.
In its Decision of 27 May 2005, the Court of Appeals denied the petition and affirmed the ruling of the Office of the
President. The dispositive portion of the Court of Appeals decision reads:
WHEREFORE, premises considered, the petition is DENIED, and the resolution dated July 27, 2004, and
the order dated October 28, 2004 of the Office of the President in O.P. Case No. 001-A-9344 are hereby
AFFIRMED.
SO ORDERED.[8]

Petitioner moved for reconsideration which the Court of Appeals denied in its Resolution dated 2 August 2005.
Hence, this petition.
The Court of Appeals Ruling

The Court of Appeals found no conflict between Article 370 of the Civil Code [9] and Section 5(d) of RA 8239. [10] The Court
of Appeals held that for passport application and issuance purposes, RA 8239 limits the instances when a married woman
applicant may exercise the option to revert to the use of her maiden name such as in a case of a divorce decree,
annulment or declaration of nullity of marriage. Since there was no showing that petitioner's marriage to Francisco
Rallonza has been annulled, declared void or a divorce decree has been granted to them, petitioner cannot simply revert
to her maiden name in the replacement passport after she had adopted her husbands surname in her old
passport. Hence, according to the Court of Appeals, respondent was justified in refusing the request of petitioner to revert
to her maiden name in the replacement passport.
The Issue

The sole issue in this case is whether petitioner, who originally used her husbands surname in her expired passport, can
revert to the use of her maiden name in the replacement passport, despite the subsistence of her marriage.
The Ruling of the Court
The petition lacks merit.

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Title XIII of the Civil Code governs the use of surnames. In the case of a married woman, Article 370 of the Civil
Code provides:
ART. 370. A married woman may use:
(1) HER MAIDEN FIRST NAME AND SURNAME AND ADD HER HUSBANDS SURNAME, OR
(2) HER MAIDEN FIRST NAME AND HER HUSBAND'S SURNAME, OR
(3) HER HUSBANDS FULL NAME, BUT PREFIXING A WORD INDICATING THAT SHE IS HIS
WIFE, SUCH AS MRS.

We agree with petitioner that the use of the word may in the above provision indicates that the use of the husbands
surname by the wife is permissive rather than obligatory. This has been settled in the case of Yasin v. Honorable Judge
Sharia District Court.[11]

In Yasin,[12] petitioner therein filed with the Sharia District Court a Petition to resume the use of maiden name in view of the
dissolution of her marriage by divorce under the Code of Muslim Personal Laws of the Philippines, and after marriage of
her former husband to another woman. In ruling in favor of petitioner therein, the Court explained that:
When a woman marries a man, she need not apply and/or seek judicial authority to use her
husbands name by prefixing the word Mrs. before her husbands full name or by adding her
husbands surname to her maiden first name. The law grants her such right (Art. 370, Civil Code).
Similarly, when the marriage ties or vinculum no longer exists as in the case of death of the
husband or divorce as authorized by the Muslim Code, the widow or divorcee need not seek
judicial confirmation of the change in her civil status in order to revert to her maiden name as use
of her former husbands is optional and not obligatory for her (Tolentino, Civil Code, p. 725, 1983
ed.; Art. 373, Civil Code). When petitioner married her husband, she did not change her but only
her civil status. Neither was she required to secure judicial authority to use the surname of her
husband after the marriage as no law requires it. (Emphasis supplied)

Clearly, a married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by
Article 370 of the Civil Code.[13] She is therefore allowed to use not only any of the three names provided in Article 370, but
also her maiden name upon marriage. She is not prohibited from continuously using her maiden name once she is
married because when a woman marries, she does not change her name but only her civil status. Further, this
interpretation is in consonance with the principle that surnames indicate descent. [14]
In the present case, petitioner, whose marriage is still subsisting and who opted to use her husbands surname in her old
passport, requested to resume her maiden name in the replacement passport arguing that no law prohibits her from using
her maiden name. Petitioner cites Yasin as the applicable precedent. However, Yasin is not squarely in point with this
case. Unlike inYasin, which involved a Muslim divorcee whose former husband is already married to another woman,
petitioners marriage remains subsisting. Another point, Yasin did not involve a request to resume ones maiden name in a
replacement passport, but a petition to resume ones maiden name in view of the dissolution of ones marriage.

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The law governing passport issuance is RA 8239 and the applicable provision in this case is Section 5(d), which states:
Sec. 5. Requirements for the Issuance of Passport. No passport shall be issued to an applicant unless
the Secretary or his duly authorized representative is satisfied that the applicant is a Filipino citizen who
has complied with the following requirements: x x x
(D) IN CASE OF A WOMAN WHO IS MARRIED, SEPARATED, DIVORCED OR WIDOWED OR
WHOSE MARRIAGE HAS BEEN ANNULLED OR DECLARED BY COURT AS VOID, A
COPY OF THE CERTIFICATE OF MARRIAGE, COURT DECREE OF SEPARATION,
DIVORCE OR ANNULMENT OR CERTIFICATE OF DEATH OF THE DECEASED SPOUSE
DULY ISSUED AND AUTHENTICATED BY THE OFFICE OF THE CIVIL REGISTRAR
GENERAL: PROVIDED, THAT IN CASE OF A DIVORCE DECREE, ANNULMENT OR
DECLARATION OF MARRIAGE AS VOID, THE WOMAN APPLICANT MAY REVERT TO
THE USE OF HER MAIDEN NAME: PROVIDED, FURTHER, THAT SUCH DIVORCE IS
RECOGNIZED UNDER EXISTING LAWS OF THE PHILIPPINES; X X X (EMPHASIS
SUPPLIED)

The Office of the Solicitor General (OSG), on behalf of the Secretary of Foreign Affairs, argues that the highlighted proviso
in Section 5(d) of RA 8239 limits the instances when a married woman may be allowed to revert to the use of her maiden
name in her passport. These instances are death of husband, divorce decree, annulment or nullity of marriage.
Significantly, Section 1, Article 12 of the Implementing Rules and Regulations of RA 8239 provides:
The passport can be amended only in the following cases:
A) AMENDMENT OF WOMANS NAME DUE TO MARRIAGE;
B) AMENDMENT OF WOMANS NAME DUE TO DEATH OF SPOUSE, ANNULMENT OF MARRIAGE OR DIVORCE
INITIATED BY A FOREIGN SPOUSE; OR
C) CHANGE OF SURNAME OF A CHILD WHO IS LEGITIMATED BY VIRTUE OF A SUBSEQUENT
MARRIAGE OF HIS PARENTS.

Since petitioners marriage to her husband subsists, placing her case outside of the purview of Section 5(d) of RA 8239 (as
to the instances when a married woman may revert to the use of her maiden name), she may not resume her maiden
name in the replacement passport. [15] This prohibition, according to petitioner, conflicts with and, thus, operates as an
implied repeal of Article 370 of the Civil Code.
PETITIONER IS MISTAKEN. THE CONFLICT BETWEEN ARTICLE 370 OF THE CIVIL CODE AND SECTION 5(D) OF
RA 8239 IS MORE IMAGINED THAN REAL. RA 8239, INCLUDING ITS IMPLEMENTING RULES AND REGULATIONS,
DOES NOT PROHIBIT A MARRIED WOMAN FROM USING HER MAIDEN NAME IN HER PASSPORT. IN FACT, IN
RECOGNITION OF THIS RIGHT, THE DFA ALLOWS A MARRIED WOMAN WHO APPLIES FOR A PASSPORT FOR
THE FIRST TIME TO USE HER MAIDEN NAME. SUCH AN APPLICANT IS NOT REQUIRED TO ADOPT HER
HUSBAND'S SURNAME.[16]
In the case of renewal of passport, a married woman may either adopt her husbands surname or continuously use her
maiden name. If she chooses to adopt her husbands surname in her new passport, the DFA additionally requires the
submission of an authenticated copy of the marriage certificate. Otherwise, if she prefers to continue using her maiden
name, she may still do so. The DFA will not prohibit her from continuously using her maiden name. [17]

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HOWEVER, ONCE A MARRIED WOMAN OPTED TO ADOPT HER HUSBANDS SURNAME IN HER PASSPORT, SHE
MAY NOT REVERT TO THE USE OF HER MAIDEN NAME, EXCEPT IN THE CASES ENUMERATED IN SECTION 5(D)
OF RA 8239. THESE INSTANCES ARE: (1) DEATH OF HUSBAND, (2) DIVORCE, (3) ANNULMENT, OR (4) NULLITY
OF MARRIAGE. SINCE PETITIONERS MARRIAGE TO HER HUSBAND SUBSISTS, SHE MAY NOT RESUME HER
MAIDEN NAME IN THE REPLACEMENT PASSPORT. OTHERWISE STATED, A MARRIED WOMAN'S REVERSION TO
THE USE OF HER MAIDEN NAME MUST BE BASED ONLY ON THE SEVERANCE OF THE MARRIAGE.
EVEN ASSUMING RA 8239 CONFLICTS WITH THE CIVIL CODE, THE PROVISIONS OF RA 8239 WHICH IS A
SPECIAL LAW SPECIFICALLY DEALING WITH PASSPORT ISSUANCE MUST PREVAIL OVER THE PROVISIONS OF
TITLE XIII OF THE CIVIL CODE WHICH IS THE GENERAL LAW ON THE USE OF SURNAMES. A BASIC TENET
IN STATUTORY CONSTRUCTION IS THAT A SPECIAL LAW PREVAILS OVER A GENERAL LAW,[18] THUS:
[I]t is a familiar rule of statutory construction that to the extent of any necessary repugnancy between
a general and a special law or provision, the latter will control the former without regard to the
respective dates of passage.[19]

Moreover, petitioners theory of implied repeal must fail. Well-entrenched is the rule that an implied repeal is disfavored. T
he apparently conflicting provisions of a law or two laws should be harmonized as much as possible, so that each shall be
effective.[20] For a law to operate to repeal another law, the two laws must actually be inconsistent. The former must be so
repugnant as to be irreconcilable with the latter act. [21] This petitioner failed to establish.

The Court notes that petitioner would not have encountered any problems in the replacement passport had she opted to
continuously and consistently use her maiden name from the moment she was married and from the time she first applied
for a Philippine passport. However, petitioner consciously chose to use her husbands surname before, in her previous
passport application, and now desires to resume her maiden name. If we allow petitioners present request, definitely
nothing prevents her in the future from requesting to revert to the use of her husbands surname. Such unjustified changes
in one's name and identity in a passport, which is considered superior to all other official documents, [22] cannot be
countenanced. Otherwise, undue confusion and inconsistency in the records of passport holders will arise. Thus, for
passport issuance purposes, a married woman, such as petitioner, whose marriage subsists, may not change her family
name at will.
THE ACQUISITION OF A PHILIPPINE PASSPORT IS A PRIVILEGE. THE LAW RECOGNIZES THE PASSPORT
APPLICANTS CONSTITUTIONAL RIGHT TO TRAVEL. HOWEVER, THE STATE IS ALSO MANDATED TO PROTECT
AND MAINTAIN THE INTEGRITY AND CREDIBILITY OF THE PASSPORT AND TRAVEL DOCUMENTS PROCEEDING
FROM IT[23] AS A PHILIPPINE PASSPORT REMAINS AT ALL TIMES THE PROPERTY OF THE GOVERNMENT. THE

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HOLDER IS MERELY A POSSESSOR OF THE PASSPORT AS LONG AS IT IS VALID AND THE SAME MAY NOT BE
SURRENDERED TO ANY PERSON OR ENTITY OTHER THAN THE GOVERNMENT OR ITS REPRESENTATIVE. [24]
As the OSG correctly pointed out:
[T]he issuance of passports is impressed with public interest. A passport is an official document of
identity and nationality issued to a person intending to travel or sojourn in foreign countries. It is issued
by the Philippine government to its citizens requesting other governments to allow its holder to pass
safely and freely, and in case of need, to give him/her aid and protection. x x x
Viewed in the light of the foregoing, it is within respondents competence to regulate any amendments intended to be
made therein, including the denial of unreasonable and whimsical requests for amendments such as in the instant case. [25]

WHEREFORE, we DENY the petition. We AFFIRM the 27 May 2005 Decision and 2 August 2005 Resolution of the Court
of Appeals in CA-G.R. SP No. 87710.
SO ORDERED.

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