DEFINITION AND DISTINCTION BETWEEN SPECIAL PROCEEDING AND ORDINARY

CIVIL ACTION

LUISA KHO MONTAER, G.R. No. 174975

ALEJANDRO MONTAER, JR.,
LILLIBETH MONTAER-BARRIOS,
AND RHODORA ELEANOR
MONTAER-DALUPAN, Present:
Petitioners,
PUNO, C.J., Chairperson,
CARPIO,
- versus - CORONA,
AZCUNA, and
LEONARDO-DE CASTRO, JJ.
SHARIA DISTRICT COURT,
FOURTH SHARIA JUDICIAL
DISTRICT, MARAWI CITY, LILING
DISANGCOPAN, AND ALMAHLEEN
LILING S. MONTAER, Promulgated:
Respondents.

JANUARY 20, 2009

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

DECISION

PUNO, C.J.:

This Petition for Certiorari and Prohibition seeks to set aside the Orders of the
Sharia District Court, Fourth Sharia Judicial District, Marawi City, dated August 22,
2006[1]and September 21, 2006.[2]

On August 17, 1956, petitioner Luisa Kho Montaer, a Roman Catholic, married
Alejandro Montaer, Sr. at the Immaculate Conception Parish in Cubao, Quezon
City.[3] Petitioners Alejandro Montaer, Jr., Lillibeth Montaer-Barrios, and Rhodora
Eleanor Montaer-Dalupan are their children.[4] On May 26, 1995, Alejandro Montaer,
Sr. died.[5]

On August 19, 2005, private respondents Liling Disangcopan and her daughter,
Almahleen Liling S. Montaer, both Muslims, filed a Complaint for the judicial partition
of properties before the Sharia District Court.[6] The said complaint was entitled
Almahleen Liling S. Montaer and Liling M. Disangcopan v. the Estates and Properties
of Late Alejandro Montaer, Sr., Luisa Kho Montaer, Lillibeth K. Montaer, Alejandro
Kho Montaer, Jr., and Rhodora Eleanor K. Montaer, and docketed as Special Civil
Action No. 7-05.[7] In the said complaint, private respondents made the following
allegations: (1) in May 1995, Alejandro Montaer, Sr. died; (2) the late Alejandro
Montaer, Sr. is a Muslim; (3) petitioners are the first family of the decedent; (4) Liling
Disangcopan is the widow of the decedent; (5) Almahleen Liling S. Montaer is the
daughter of the decedent; and (6) the estimated value of and a list of the properties
comprising the estate of the decedent.[8] Private respondents prayed for the Sharia
District Court to order, among others, the following: (1) the partition of the estate of
the decedent; and (2) the appointment of an administrator for the estate of the
decedent.[9]

Petitioners filed an Answer with a Motion to Dismiss mainly on the following grounds:
(1) the Sharia District Court has no jurisdiction over the estate of the late Alejandro
Montaer, Sr., because he was a Roman Catholic; (2) private respondents failed to
pay the correct amount of docket fees; and (3) private respondents complaint is
barred by prescription, as it seeks to establish filiation between Almahleen Liling S.
Montaer and the decedent, pursuant to Article 175 of the Family Code.[10]

On November 22, 2005, the Sharia District Court dismissed the private respondents
complaint. The district court held that Alejandro Montaer, Sr. was not a Muslim, and
its jurisdiction extends only to the settlement and distribution of the estate of
deceased Muslims.[11]

On December 12, 2005, private respondents filed a Motion for

Reconsideration.[12] On December 28, 2005, petitioners filed an Opposition to the
Motion for Reconsideration, alleging that the motion for reconsideration lacked a
notice of hearing.[13] On January 17, 2006, the Sharia District Court denied petitioners
opposition.[14]Despite finding that the said motion for reconsideration lacked notice
of hearing, the district court held that such defect was cured as petitioners were
notified of the existence of the pleading, and it took cognizance of the said
motion.[15] The Sharia District Court also reset the hearing for the motion for
reconsideration.[16]

In its first assailed order dated August 22, 2006, the Sharia District Court
reconsidered its order of dismissal dated November 22, 2005.[17] The district court
allowed private respondents to adduce further evidence.[18] In its second assailed
order dated September 21, 2006, the Sharia District Court ordered the continuation
of trial, trial on the merits, adducement of further evidence, and pre-trial
conference.[19]

Seeking recourse before this Court, petitioners raise the following issues:

I.

RESPONDENT SHARIA DISTRICT COURT MARAWI CITY LACKS

JURISDICTION OVER PETITIONERS WHO ARE ROMAN CATHOLICS AND
NON-MUSLIMS.

II.

RESPONDENT SHARIA DISTRICT COURT MARAWI CITY DID NOT

ACQUIRE JURISDICTION OVER THE ESTATES AND PROPERTIES OF THE
LATE ALEJANDRO MONTAER, SR. WHICH IS NOT A NATURAL OR
JURIDICAL PERSON WITH CAPACITY TO BE SUED.

III.

RESPONDENT SHARIA DISTRICT COURT DID NOT ACQUIRE

JURISDICTION OVER THE COMPLAINT OF PRIVATE RESPONDENTS
AGAINST PETITIONERS DUE TO NON-PAYMENT OF THE FILING AND
DOCKETING FEES.

IV.

RESPONDENT SHARIA DISTRICT COURTMARAWI CITY COMMITTED

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION WHEN IT DENIED THE OPPOSITION OF PETITIONERS
AND THEN GRANTED THE MOTION FOR RECONSIDERATION OF
RESPONDENTS LILING DISANGCOPAN, ET AL. WHICH WAS FATALLY
DEFECTIVE FOR LACK OF A NOTICE OF HEARING.
 V.

RESPONDENT SHARIA DISTRICT COURTMARAWI CITY COMMITTED

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION WHEN IT SET SPL. CIVIL ACTION 7-05 FOR TRIAL EVEN
IF THE COMPLAINT PLAINLY REVEALS THAT RESPONDENT ALMAHLEEN
LILING S. MONTAER SEEKS RECOGNITION FROM ALEJANDRO
MONTAER, SR. WHICH CAUSE OF ACTION PRESCRIBED UPON THE
DEATH OF ALEJANDRO MONTAER, SR. ON MAY 26, 1995.

In their Comment to the Petition for Certiorari, private respondents stress that the
Sharia District Court must be given the opportunity to hear and decide the question
of whether the decedent is a Muslim in order to determine whether it has
jurisdiction.[20]

Jurisdiction: Settlement of the Estate of Deceased Muslims

Petitioners first argument, regarding the Sharia District Courts jurisdiction, is

dependent on a question of fact, whether the late Alejandro Montaer, Sr. is a Muslim.
Inherent in this argument is the premise that there has already been a determination
resolving such a question of fact. It bears emphasis, however, that the assailed
orders did not determine whether the decedent is a Muslim. The assailed orders did,
however, set a hearing for the purpose of resolving this issue.

Article 143(b) of Presidential Decree No. 1083, otherwise known as the Code
of Muslim Personal Laws of the Philippines, provides that the Sharia District Courts
have exclusive original jurisdiction over the settlement of the estate of deceased
Muslims:

ARTICLE 143. Original jurisdiction. (1) The Shari'a District Court shall
have exclusive original jurisdiction over:

xxxx

(b) All cases involving disposition, distribution and settlement of the

estate of deceased Muslims, probate of wills, issuance of letters of
administration or appointment of administrators or executors regardless
of the nature or the aggregate value of the property.
The determination of the nature of an action or proceeding is controlled by the
averments and character of the relief sought in the complaint or petition.[21] The
designation given by parties to their own pleadings does not necessarily bind the
courts to treat it according to the said designation. Rather than rely on a falsa
descriptio or defective caption, courts are guided by the substantive averments of
the pleadings.[22]

Although private respondents designated the pleading filed before the Sharia
District Court as a Complaint for judicial partition of properties, it is a petition for the
issuance of letters of administration, settlement, and distribution of the estate of the
decedent. It contains sufficient jurisdictional facts required for the settlement of the
estate of a deceased Muslim,[23] such as the fact of Alejandro Montaer, Sr.s death as
well as the allegation that he is a Muslim. The said petition also contains an
enumeration of the names of his legal heirs, so far as known to the private
respondents, and a probable list of the properties left by the decedent, which are the
very properties sought to be settled before a probate court. Furthermore, the reliefs
prayed for reveal that it is the intention of the private respondents to seek judicial
settlement of the estate of the decedent.[24] These include the following: (1) the
prayer for the partition of the estate of the decedent; and (2) the prayer for the
appointment of an administrator of the said estate.

We cannot agree with the contention of the petitioners that the district court
does not have jurisdiction over the case because of an allegation in their answer with
a motion to dismiss that Montaer, Sr. is not a Muslim. Jurisdiction of a court over the
nature of the action and its subject matter does not depend upon the defenses set
forth in an answer[25]or a motion to dismiss.[26] Otherwise, jurisdiction would depend
almost entirely on the defendant[27] or result in having a case either thrown out of
court or its proceedings unduly delayed by simple stratagem.[28] Indeed, the defense
of lack of jurisdiction which is dependent on a question of fact does not render the
court to lose or be deprived of its jurisdiction.[29]
 The same rationale applies to an answer with a motion to dismiss.[30] In the
case at bar, the Sharia District Court is not deprived of jurisdiction simply because
petitioners raised as a defense the allegation that the deceased is not a Muslim. The
Sharia District Court has the authority to hear and receive evidence to determine
whether it has jurisdiction, which requires an a priori determination that the deceased
is a Muslim. If after hearing, the Sharia District Court determines that the deceased
was not in fact a Muslim, the district court should dismiss the case for lack of
jurisdiction.

Special Proceedings

The underlying assumption in petitioners second argument, that the

proceeding before the Sharia District Court is an ordinary civil action against a
deceased person, rests on an erroneous understanding of the proceeding before the
court a quo. Part of the confusion may be attributed to the proceeding before the
Sharia District Court, where the parties were designated either as plaintiffs or
defendants and the case was denominated as a special civil action. We reiterate that
the proceedings before the court a quo are for the issuance of letters of
administration, settlement, and distribution of the estate of the deceased, which is a
special proceeding. Section 3(c) of the Rules of Court (Rules) defines a special
proceeding as a remedy by which a party seeks to establish a status, a right, or a
particular fact. This Court has applied the Rules, particularly the rules on special
proceedings, for the settlement of the estate of a deceased Muslim.[31] In a petition
for the issuance of letters of administration, settlement, and distribution of estate,
the applicants seek to establish the fact of death of the decedent and later to be duly
recognized as among the decedents heirs, which would allow them to exercise their
right to participate in the settlement and liquidation of the estate of the
decedent.[32] Here, the respondents seek to establish the fact of Alejandro Montaer,
Sr.s death and, subsequently, for private respondent Almahleen Liling S. Montaer to
be recognized as among his heirs, if such is the case in fact.
 Petitioners argument, that the prohibition against a decedent or his estate from
being a party defendant in a civil action[33] applies to a special proceeding such as
the settlement of the estate of the deceased, is misplaced. Unlike a civil action which
has definite adverse parties, a special proceeding has no definite adverse party. The
definitions of a civil action and a special proceeding, respectively, in the Rules
illustrate this difference. A civil action, in which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a
wrong[34] necessarily has definite adverse parties, who are either the plaintiff or
defendant.[35] On the other hand, a special proceeding, by which a party seeks to
establish a status, right, or a particular fact,[36] has one definite party, who petitions
or applies for a declaration of a status, right, or particular fact, but no definite adverse
party. In the case at bar, it bears emphasis that the estate of the decedent is not
being sued for any cause of action. As a special proceeding, the purpose of the
settlement of the estate of the decedent is to determine all the assets of the
estate,[37] pay its liabilities,[38] and to distribute the residual to those entitled to the
same.[39]

Docket Fees

Petitioners third argument, that jurisdiction was not validly acquired for non-
payment of docket fees, is untenable. Petitioners point to private respondents petition
in the proceeding before the court a quo, which contains an allegation estimating the
decedents estate as the basis for the conclusion that what private respondents paid
as docket fees was insufficient. Petitioners argument essentially involves two aspects:
(1) whether the clerk of court correctly assessed the docket fees; and (2) whether
private respondents paid the correct assessment of the docket fees.

Filing the appropriate initiatory pleading and the payment of the prescribed
docket fees vest a trial court with jurisdiction over the subject matter.[40] If the party
filing the case paid less than the correct amount for the docket fees because that was
the amount assessed by the clerk of court, the responsibility of making a deficiency
assessment lies with the same clerk of court.[41] In such a case, the lower court
concerned will not automatically lose jurisdiction, because of a partys reliance on the
clerk of courts insufficient assessment of the docket fees.[42] As every citizen has the
right to assume and trust that a public officer charged by law with certain duties
knows his duties and performs them in accordance with law, the party filing the case
cannot be penalized with the clerk of courts insufficient assessment.[43] However, the
party concerned will be required to pay the deficiency.[44]

In the case at bar, petitioners did not present the clerk of courts assessment
of the docket fees. Moreover, the records do not include this assessment. There can
be no determination of whether private respondents correctly paid the docket fees
without the clerk of courts assessment.

Exception to Notice of Hearing

Petitioners fourth argument, that private respondents motion for

reconsideration before the Sharia District Court is defective for lack of a notice of
hearing, must fail as the unique circumstances in the present case constitute an
exception to this requirement. The Rules require every written motion to be set for
hearing by the applicant and to address the notice of hearing to all parties
concerned.[45] The Rules also provide that no written motion set for hearing shall be
acted upon by the court without proof of service thereof.[46] However, the Rules allow
a liberal construction of its provisions in order to promote [the] objective of securing
a just, speedy, and inexpensive disposition of every action and
proceeding.[47] Moreover, this Court has upheld a liberal construction specifically of
the rules of notice of hearing in cases where a rigid application will result in a manifest
failure or miscarriage of justice especially if a party successfully shows that the
alleged defect in the questioned final and executory judgment is not apparent on its
face or from the recitals contained therein.[48] In these exceptional cases, the Court
considers that no party can even claim a vested right in technicalities, and for this
reason, cases should, as much as possible, be decided on the merits rather than on
technicalities.[49]
 The case at bar falls under this exception. To deny the Sharia District Court of
an opportunity to determine whether it has jurisdiction over a petition for the
settlement of the estate of a decedent alleged to be a Muslim would also deny its
inherent power as a court to control its process to ensure conformity with the law
and justice. To sanction such a situation simply because of a lapse in fulfilling the
notice requirement will result in a miscarriage of justice.

In addition, the present case calls for a liberal construction of the rules on notice of
hearing, because the rights of the petitioners were not affected. This Court has held
that an exception to the rules on notice of hearing is where it appears that the rights
of the adverse party were not affected.[50] The purpose for the notice of hearing
coincides with procedural due process,[51] for the court to determine whether the
adverse party agrees or objects to the motion, as the Rules do not fix any period
within which to file a reply or opposition.[52] In probate proceedings, what the law
prohibits is not the absence of previous notice, but the absolute absence thereof
and lack of opportunity to be heard.[53] In the case at bar, as evident from the Sharia
District Courts order dated January 17, 2006, petitioners counsel received a copy of
the motion for reconsideration in question. Petitioners were certainly not denied an
opportunity to study the arguments in the said motion as they filed an opposition to
the same. Since the Sharia District Court reset the hearing for the motion for
reconsideration in the same order, petitioners were not denied the opportunity to
object to the said motion in a hearing. Taken together, these circumstances show
that the purpose for the rules of notice of hearing, procedural process, was duly
observed.

Prescription and Filiation

Petitioners fifth argument is premature. Again, the Sharia District Court has not yet
determined whether it has jurisdiction to settle the estate of the decedent. In the
event that a special proceeding for the settlement of the estate of a decedent is
pending, questions regarding heirship, including prescription in relation to recognition
and filiation, should be raised and settled in the said proceeding.[54] The court, in its
capacity as a probate court, has jurisdiction to declare who are the heirs of the
decedent.[55] In the case at bar, the determination of the heirs of the decedent
depends on an affirmative answer to the question of whether the Sharia District Court
has jurisdiction over the estate of the decedent.

IN VIEW WHEREOF, the petition is DENIED. The Orders of the Sharia District
Court, dated August 22, 2006 and September 21, 2006 respectively, are
AFFIRMED. Cost against petitioners.
SO ORDERED.
CIRCUMSTANCES WHEN RULES OF
SPEC PRO WILL APPLY IN SPECIAL
PROCEEDING

G.R. No. 157912

ALAN JOSEPH A. SHEKER,

Petitioner,

Present:

YNARES-SANTIAGO, J.,

- versus - Chairperson,

AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA, and

ESTATE OF ALICE O. SHEKER, REYES, JJ.

VICTORIA S. MEDINA-

Administratrix, Promulgated:

Respondent. December 13, 2007

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

DECISION

AUSTRIA-MARTINEZ, J.:
This resolves the Petition for Review on Certiorari seeking the reversal of the
Order[1] of the Regional Trial Court of Iligan City, Branch 6 (RTC) dated January 15,
2003 and its Omnibus Order dated April 9, 2003.

The undisputed facts are as follows.

The RTC admitted to probate the holographic will of Alice O. Sheker and thereafter
issued an order for all the creditors to file their respective claims against the
estate. In compliance therewith, petitioner filed on October 7, 2002 a contingent
claim for agent's commission due him amounting to approximately P206,250.00 in
the event of the sale of certain parcels of land belonging to the estate, and the
amount of P275,000.00, as reimbursement for expenses incurred and/or to be
incurred by petitioner in the course of negotiating the sale of said realties.

The executrix of the Estate of Alice O. Sheker (respondent) moved for the dismissal
of said money claim against the estate on the grounds that (1) the requisite docket
fee, as prescribed in Section 7(a), Rule 141 of the Rules of Court, had not been paid;
(2) petitioner failed to attach a certification against non-forum shopping; and (3)
petitioner failed to attach a written explanation why the money claim was not filed
and served personally.

On January 15, 2003, the RTC issued the assailed Order dismissing without prejudice
the money claim based on the grounds advanced by respondent. Petitioner's motion
for reconsideration was denied per Omnibus Order dated April 9, 2003.

Petitioner then filed the present petition for review on certiorari, raising the following
questions:

(a) must a contingent claim filed in the probate proceeding contain a

certification against non-forum shopping, failing which such claim should
be dismissed?
 (b) must a contingent claim filed against an estate in a probate
proceeding be dismissed for failing to pay the docket fees at the time of
its filing thereat?

(c) must a contingent claim filed in a probate proceeding be dismissed

because of its failure to contain a written explanation on the service and
filing by registered mail?[2]

Petitioner maintains that the RTC erred in strictly applying to a

probate proceeding the rules requiring a certification of non-forum shopping, a
written explanation for non-personal filing, and the payment of docket fees upon
filing of the claim. He insists that Section 2, Rule 72 of the Rules of Court provides
that rules in ordinary actions are applicable to special proceedings only in
a suppletory manner.

The Court gave due course to the petition for review on certiorari although
directly filed with this Court, pursuant to Section 2(c), Rule 41 of the Rules of Court.[3]

The petition is imbued with merit.

However, it must be emphasized that petitioner's contention that rules in ordinary

actions are only supplementary to rules in special proceedings is not entirely correct.

Section 2, Rule 72, Part II of the same Rules of Court provides:

Sec. 2. Applicability of rules of Civil Actions. - In the absence of

special provisions, the rules provided for in ordinary actions shall be,
as far as practicable, applicable in special proceedings.

Stated differently, special provisions under Part II of the Rules of Court govern
special proceedings; but in the absence of special provisions, the rules provided for
in Part I of the Rules governing ordinary civil actions shall be applicable to special
proceedings, as far as practicable.
 The word practicable is defined as: possible to practice or perform; capable of
being put into practice, done or accomplished.[4] This means that in the absence of
special provisions, rules in ordinary actions may be applied in special proceedings as
much as possible and where doing so would not pose an obstacle to said
proceedings. Nowhere in the Rules of Court does it categorically say that rules in
ordinary actions are inapplicable or merely suppletory to special
proceedings. Provisions of the Rules of Court requiring a certification of non-forum
shopping for complaints and initiatory pleadings, a written explanation for non-
personal service and filing, and the payment of filing fees for money claims against
an estate would not in any way obstruct probate proceedings, thus, they are
applicable to special proceedings such as the settlement of the estate of a deceased
person as in the present case.

Thus, the principal question in the present case is: did the RTC err in dismissing
petitioner's contingent money claim against respondent estate for failure of petitioner
to attach to his motion a certification against non-forum shopping?

The Court rules in the affirmative.

The certification of non-forum shopping is required only for complaints and

other initiatory pleadings. The RTC erred in ruling that a contingent money claim
against the estate of a decedent is an initiatory pleading. In the present case, the
whole probate proceeding was initiated upon the filing of the petition for
allowance of the decedent's will. Under Sections 1 and 5, Rule 86 of the Rules of
Court, after granting letters of testamentary or of administration, all persons having
money claims against the decedent are mandated to file or notify the court and the
estate administrator of their respective money claims; otherwise, they would be
barred, subject to certain exceptions.[5]

Such being the case, a money claim against an estate is more akin to a motion for
creditors' claims to be recognized and taken into consideration in the proper
disposition of the properties of the estate. In Arquiza v. Court of Appeals,[6] the Court
explained thus:
 x x x The office of a motion is not to initiate new litigation, but to
bring a material but incidental matter arising in the progress of
the case in which the motion is filed. A motion is not an
independent right or remedy, but is confined to incidental matters in
the progress of a cause. It relates to some question that is
collateral to the main object of the action and is connected with
and dependent upon the principal remedy.[7] (Emphasis supplied)

A money claim is only an incidental matter in the main action for the settlement of
the decedent's estate; more so if the claim is contingent since the claimant cannot
even institute a separate action for a mere contingent claim. Hence, herein
petitioner's contingent money claim, not being an initiatory pleading, does
not require a certification against non-forum shopping.

On the issue of filing fees, the Court ruled in Pascual v. Court of Appeals,[8] that the
trial court has jurisdiction to act on a money claim (attorney's fees) against an estate
for services rendered by a lawyer to the administratrix to assist her in fulfilling her
duties to the estate even without payment of separate docket fees because the filing
fees shall constitute a lien on the judgment pursuant to Section 2, Rule 141 of the
Rules of Court, or the trial court may order the payment of such filing fees within a
reasonable time.[9]After all, the trial court had already assumed jurisdiction over the
action for settlement of the estate. Clearly, therefore, non-payment of filing fees for
a money claim against the estate is not one of the grounds for dismissing a money
claim against the estate.

With regard to the requirement of a written explanation, Maceda v. De

Guzman Vda. de Macatangay [10]
is squarely in point. Therein, the Court held thus:

In Solar Team Entertainment, Inc. v. Ricafort, this Court, passing upon

Section 11 of Rule 13 of the Rules of Court, held that a court has the
discretion to consider a pleading or paper as not filed if said rule is not
complied with.
Personal service and filing are preferred for obvious reasons. Plainly,
such should expedite action or resolution on a pleading, motion or other
paper; and conversely, minimize, if not eliminate, delays likely to be
incurred if service or filing is done by mail, considering the inefficiency
of the postal service. Likewise, personal service will do away with the
practice of some lawyers who, wanting to appear clever, resort to the
following less than ethical practices: (1) serving or filing pleadings by
mail to catch opposing counsel off-guard, thus leaving the latter with
little or no time to prepare, for instance, responsive pleadings or an
opposition; or (2) upon receiving notice from the post office that the
registered mail containing the pleading of or other paper from the
adverse party may be claimed, unduly procrastinating before claiming
the parcel, or, worse, not claiming it at all, thereby causing undue delay
in the disposition of such pleading or other papers.

If only to underscore the mandatory nature of this innovation to our set

of adjective rules requiring personal service whenever practicable,
Section 11 of Rule 13 then gives the court the discretion to
consider a pleading or paper as not filed if the other modes of
service or filing were not resorted to and no written explanation
was made as to why personal service was not done in the first
place. The exercise of discretion must, necessarily consider the
practicability of personal service, for Section 11 itself begins
with the clause whenever practicable.

We thus take this opportunity to clarify that under Section 11, Rule 13
of the 1997 Rules of Civil Procedure, personal service and filing is the
general rule, and resort to other modes of service and filing, the
exception. Henceforth, whenever personal service or filing is
practicable, in the light of the circumstances of time, place and person,
personal service or filing is mandatory. Only when personal service or
filing is not practicable may resort to other modes be had, which must
then be accompanied by a written explanation as to why personal
service or filing was not practicable to begin with. In adjudging the
plausibility of an explanation, a court shall likewise consider the
importance of the subject matter of the case or the issues involved
therein, and the prima facie merit of the pleading sought to be
expunged for violation of Section 11. (Emphasis and italics supplied)

In Musa v. Amor, this Court, on noting the impracticality of personal

service, exercised its discretion and liberally applied Section 11 of Rule
13:

As [Section 11, Rule 13 of the Rules of Court] requires,

service and filing of pleadings must be done personally
whenever practicable. The court notes that in the
present case, personal service would not be
practicable. Considering the distance between the
Court of Appeals and Donsol, Sorsogon where the
petition was posted, clearly, service by registered
mail [sic] would have entailed considerable time,
effort and expense. A written explanation why
service was not done personally might have been
superfluous. In any case, as the rule is so worded
with the use of may, signifying permissiveness, a
 violation thereof gives the court discretion whether
or not to consider the paper as not filed. While it is
true that procedural rules are necessary to secure an
orderly and speedy administration of justice, rigid
application of Section 11, Rule 13 may be relaxed in
this case in the interest of substantial justice.
(Emphasis and italics supplied)

In the case at bar, the address of respondents counsel is Lopez, Quezon,

while petitioner Sonias counsels is Lucena City. Lopez, Quezon is 83
kilometers away from Lucena City. Such distance makes personal
service impracticable. As in Musa v. Amor, a written explanation why
service was not done personally might have been superfluous.

As this Court held in Tan v. Court of Appeals, liberal construction of a

rule of procedure has been allowed where, among other
cases, the injustice to the adverse party is not commensurate with the
degree of his thoughtlessness in not complying with the procedure
prescribed.[11] (Emphasis supplied)

In the present case, petitioner holds office in Salcedo Village, Makati City, while
counsel for respondent and the RTC which rendered the assailed orders are both
in Iligan City.The lower court should have taken judicial notice of the great distance
between said cities and realized that it is indeed not practicable to serve and file the
money claim personally.Thus, following Medina v. Court of Appeals,[12] the failure of
petitioner to submit a written explanation why service has not been done personally,
may be considered as superfluous and the RTC should have exercised its discretion
under Section 11, Rule 13, not to dismiss the money claim of petitioner, in the
interest of substantial justice.

The ruling spirit of the probate law is the speedy settlement of estates of
deceased persons for the benefit of creditors and those entitled to residue by way of
inheritance or legacy after the debts and expenses of administration have been
paid.[13] The ultimate purpose for the rule on money claims was further explained
in Union Bank of the Phil. v. Santibaez,[14] thus:

The filing of a money claim against the decedents estate in the probate
court is mandatory. As we held in the vintage case of Py Eng Chong v.
Herrera:
 x x x This requirement is for the purpose of protecting the estate
of the deceased by informing the executor or administrator of
the claims against it, thus enabling him to examine each claim and to
determine whether it is a proper one which should be allowed. The plain
and obvious design of the rule is the speedy settlement of the affairs of
the deceased and the early delivery of the property to the distributees,
legatees, or heirs. The law strictly requires the prompt
presentation and disposition of the claims against the
decedent's estate in order to settle the affairs of the estate as
soon as possible, pay off its debts and distribute the
residue.[15] (Emphasis supplied)

The RTC should have relaxed and liberally construed the procedural rule on the
requirement of a written explanation for non-personal service, again in the interest
of substantial justice.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court
of Iligan City, Branch 6 dated January 15, 2003 and April 9, 2003, respectively,
are REVERSED and SET ASIDE. The Regional Trial Court of Iligan City, Branch 6, is
hereby DIRECTED to give due course and take appropriate action on petitioner's
money claim in accordance with Rule 82 of the Rules of Court.
No pronouncement as to costs.

SO ORDERED.
GUARDIANSHIP: DEFINITION, NATURE AND PURPOSE

NILO OROPESA, G.R. No. 184528

Petitioner,
Present:

CORONA, C.J.,

Chairperson,

LEONARDO-DE CASTRO,

BERSAMIN,
- versus - DEL CASTILLO, and

VILLARAMA, JR., JJ.

Promulgated:

CIRILO OROPESA, April 25, 2012

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

LEONARDO-DE CASTRO, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure of the Decision[1] dated February 29, 2008, as well as the
Resolution[2] dated September 16, 2008, both rendered by the Court of Appeals in
CA-G.R. CV No. 88449, entitled NILO OROPESA vs. CIRILO OROPESA. The Court of
Appeals issuances affirmed the Order[3] dated September 27, 2006 and the
Order[4] dated November 14, 2006 issued by the Regional Trial Court (RTC) of
Paraaque City, Branch 260 in SP. Proc. Case No. 04-0016, which dismissed petitioner
Nilo Oropesas petition for guardianship over the properties of his father, respondent
Cirilo Oropesa (a widower), and denied petitioners motion for reconsideration thereof,
respectively.

The facts of this case, as summed in the assailed Decision, follow:

On January 23, 2004, the (petitioner) filed with the Regional Trial Court
of Paraaque City, a petition for him and a certain Ms. Louie Ginez to be
appointed as guardians over the property of his father, the (respondent)
Cirilo Oropesa. The case was docketed as SP Proc. No. 04-0016 and
raffled off to Branch 260.

In the said petition, it is alleged among others that the (respondent) has
been afflicted with several maladies and has been sickly for over ten
(10) years already having suffered a stroke on April 1, 2003 and June
1, 2003, that his judgment and memory [were] impaired and such has
been evident after his hospitalization; that even before his stroke, the
(respondent) was observed to have had lapses in memory and
judgment, showing signs of failure to manage his property properly;
that due to his age and medical condition, he cannot, without outside
aid, manage his property wisely, and has become an easy prey for deceit
and exploitation by people around him, particularly Ms. Ma. Luisa
Agamata, his girlfriend.

In an Order dated January 29, 2004, the presiding judge of the court a
quo set the case for hearing, and directed the court social worker to
conduct a social case study and submit a report thereon.

Pursuant to the abovementioned order, the Court Social Worker

conducted her social case study, interviewing the (petitioner) and his
witnesses. The Court Social Worker subsequently submitted her report
but without any finding on the (respondent) who refused to see and talk
to the social worker.

On July 6, 2004, the (respondent) filed his Opposition to the petition for
guardianship. On August 3, 2004, the (respondent) filed his
Supplemental Opposition.
 Thereafter, the (petitioner) presented his evidence which consists of his
testimony, and that of his sister Gianina Oropesa Bennett, and the
(respondents) former nurse, Ms. Alma Altaya.

After presenting evidence, the (petitioner) filed a manifestation dated

May 29, 2006 resting his case. The (petitioner) failed to file his written
formal offer of evidence.

Thus, the (respondent) filed his Omnibus Motion (1) to Declare the
petitioner to have waived the presentation of his Offer of Exhibits and
the presentation of his Evidence Closed since they were not formally
offered; (2) To Expunge the Documents of the Petitioner from the
Record; and (3) To Grant leave to the Oppositor to File Demurrer to
Evidence.

In an Order dated July 14, 2006, the court a quo granted the
(respondents) Omnibus Motion. Thereafter, the (respondent) then filed
his Demurrer to Evidence dated July 23, 2006.[5] (Citations omitted.)

The trial court granted respondents demurrer to evidence in an Order dated

September 27, 2006. The dispositive portion of which reads:

WHEREFORE, considering that the petitioner has failed to provide

sufficient evidence to establish that Gen. Cirilo O. Oropesa is
incompetent to run his personal affairs and to administer his properties,
Oppositors Demurrer to Evidence is GRANTED, and the case is
DISMISSED.[6]

Petitioner moved for reconsideration but this was denied by the trial court in
an Order dated November 14, 2006, the dispositive portion of which states:
 WHEREFORE, considering that the Court record shows that
petitioner-movant has failed to provide sufficient documentary and
testimonial evidence to establish that Gen. Cirilo Oropesa is incompetent
to run his personal affairs and to administer his properties, the Court
hereby affirms its earlier Order dated 27 September 2006.

Accordingly, petitioners Motion for Reconsideration is DENIED for

lack of merit.[7]

Unperturbed, petitioner elevated the case to the Court of Appeals but his
appeal was dismissed through the now assailed Decision dated February 29, 2008,
the dispositive portion of which reads:

WHEREFORE, premises considered the instant appeal is

DISMISSED. The assailed orders of the court a quo dated September
27, 2006 and November 14, 2006 are AFFIRMED.[8]

A motion for reconsideration was filed by petitioner but this was denied by the
Court of Appeals in the similarly assailed Resolution dated September 16,
2008. Hence, the instant petition was filed.

Petitioner submits the following question for consideration by this Court:

WHETHER RESPONDENT IS CONSIDERED AN INCOMPETENT PERSON

AS DEFINED UNDER SECTION 2, RULE 92 OF THE RULES OF COURT
WHO SHOULD BE PLACED UNDER GUARDIANSHIP[9]

After considering the evidence and pleadings on record, we find the petition to
be without merit.
 Petitioner comes before the Court arguing that the assailed rulings of the Court
of Appeals should be set aside as it allegedly committed grave and reversible error
when it affirmed the erroneous decision of the trial court which purportedly
disregarded the overwhelming evidence presented by him showing respondents
incompetence.

In Francisco v. Court of Appeals,[10] we laid out the nature and purpose of

guardianship in the following wise:

A guardianship is a trust relation of the most sacred character, in

which one person, called a guardian acts for another called the ward
whom the law regards as incapable of managing his own affairs. A
guardianship is designed to further the wards well-being, not that of the
guardian. It is intended to preserve the wards property, as well as to
render any assistance that the ward may personally require. It has been
stated that while custody involves immediate care and control,
guardianship indicates not only those responsibilities, but those of one
in loco parentis as well.[11]

In a guardianship proceeding, a court may appoint a qualified guardian if the

prospective ward is proven to be a minor or an incompetent.

A reading of Section 2, Rule 92 of the Rules of Court tells us that persons who,
though of sound mind but by reason of age, disease, weak mind or other similar
causes, are incapable of taking care of themselves and their property without outside
aid are considered as incompetents who may properly be placed under
guardianship. The full text of the said provision reads:

Sec. 2. Meaning of the word incompetent. Under this rule, the

word incompetent includes persons suffering the penalty of civil
interdiction or who are hospitalized lepers, prodigals, deaf and dumb
who are unable to read and write, those who are of unsound mind, even
though they have lucid intervals, and persons not being of unsound
mind, but by reason of age, disease, weak mind, and other similar
causes, cannot, without outside aid, take care of themselves and
manage their property, becoming thereby an easy prey for deceit and
exploitation.
 We have held in the past that a finding that a person is incompetent should be
anchored on clear, positive and definite evidence.[12] We consider that evidentiary
standard unchanged and, thus, must be applied in the case at bar.

In support of his contention that respondent is incompetent and, therefore,

should be placed in guardianship, petitioner raises in his Memorandum[13] the
following factual matters:

a. Respondent has been afflicted with several maladies and has

been sickly for over ten (10) years already;

b. During the time that respondent was hospitalized at the St. Lukes
Medical Center after his stroke, he purportedly requested one of his
former colleagues who was visiting him to file a loan application with
the Armed Forces of the Philippines Savings and Loan Association,
Inc. (AFPSLAI) for payment of his hospital bills, when, as far as his
children knew, he had substantial amounts of money in various
banks sufficient to cover his medical expenses;

c. Respondents residence allegedly has been left dilapidated due to

lack of care and management;

d. The realty taxes for respondents various properties remain unpaid

and therefore petitioner and his sister were supposedly compelled to
pay the necessary taxes;

e. Respondent allegedly instructed petitioner to sell his Nissan

Exalta car for the reason that the former would be purchasing
another vehicle, but when the car had been sold, respondent did not
procure another vehicle and refused to account for the money earned
from the sale of the old car;

f. Respondent withdrew at least $75,000.00 from a joint account

under his name and his daughters without the latters knowledge or
consent;

g. There was purportedly one occasion where respondent took a

kitchen knife to stab himself upon the orders of his girlfriend during
one of their fights;

h. Respondent continuously allows his girlfriend to ransack his house

of groceries and furniture, despite protests from his children.[14]
 Respondent denied the allegations made by petitioner and cited petitioners
lack of material evidence to support his claims. According to respondent, petitioner
did not present any relevant documentary or testimonial evidence that would attest
to the veracity of his assertion that respondent is incompetent largely due to his
alleged deteriorating medical and mental condition. In fact, respondent points out
that the only medical document presented by petitioner proves that he is indeed
competent to run his personal affairs and administer his properties. Portions of the
said document, entitled Report of Neuropsychological Screening,[15] were quoted by
respondent in his Memorandum[16] to illustrate that said report in fact favored
respondents claim of competence, to wit:

General Oropesa spoke fluently in English and Filipino, he enjoyed

and participated meaningfully in conversations and could be quite
elaborate in his responses on many of the test items. He spoke in a clear
voice and his articulation was generally comprehensible. x x x.

xxxx

General Oropesa performed in the average range on most of the

domains that were tested. He was able to correctly perform mental
calculations and keep track of number sequences on a task of attention.
He did BEST in visuo-constructional tasks where he had to copy
geometrical designs using tiles. Likewise, he was able to render and read
the correct time on the Clock Drawing Test. x x x.

xxxx

x x x Reasoning abilities were generally intact as he was able to

suggest effective solutions to problem situations. x x x.[17]

With the failure of petitioner to formally offer his documentary evidence, his
proof of his fathers incompetence consisted purely of testimonies given by himself
and his sister (who were claiming interest in their fathers real and personal
properties) and their fathers former caregiver (who admitted to be acting under their
direction). These testimonies, which did not include any expert medical testimony,
were insufficient to convince the trial court of petitioners cause of action and instead
lead it to grant the demurrer to evidence that was filed by respondent.
 Even if we were to overlook petitioners procedural lapse in failing to make a
formal offer of evidence, his documentary proof were comprised mainly of certificates
of title over real properties registered in his, his fathers and his sisters names as co-
owners, tax declarations, and receipts showing payment of real estate taxes on their
co-owned properties, which do not in any way relate to his fathers alleged incapacity
to make decisions for himself. The only medical document on record is the
aforementioned Report of Neuropsychological Screening which was attached to the
petition for guardianship but was never identified by any witness nor offered as
evidence. In any event, the said report, as mentioned earlier, was ambivalent at best,
for although the report had negative findings regarding memory lapses on the part
of respondent, it also contained findings that supported the view that respondent on
the average was indeed competent.

In an analogous guardianship case wherein the soundness of mind of the

proposed ward was at issue, we had the occasion to rule that where the sanity of a
person is at issue, expert opinion is not necessary [and that] the observations of the
trial judge coupled with evidence establishing the persons state of mental sanity will
suffice.[18]

Thus, it is significant that in its Order dated November 14, 2006 which denied
petitioners motion for reconsideration on the trial courts unfavorable September 27,
2006 ruling, the trial court highlighted the fatal role that petitioners own documentary
evidence played in disproving its case and, likewise, the trial court made known its
own observation of respondents physical and mental state, to wit:

The Court noted the absence of any testimony of a medical expert

which states that Gen. Cirilo O. Oropesa does not have the mental,
emotional, and physical capacity to manage his own affairs. On the
contrary, Oppositors evidence includes a Neuropsychological Screening
Report which states that Gen. Oropesa, (1) performs on the average
range in most of the domains that were tested; (2) is capable of mental
calculations; and (3) can provide solutions to problem situations. The
Report concludes that Gen. Oropesa possesses intact cognitive
functioning, except for mildly impaired abilities in memory, reasoning
and orientation. It is the observation of the Court that oppositor is
still sharp, alert and able.[19] (Citation omitted; emphasis supplied.)
 It is axiomatic that, as a general rule, only questions of law may be raised in
a petition for review on certiorari because the Court is not a trier of facts.[20] We only
take cognizance of questions of fact in certain exceptional
circumstances; [21]
however, we find them to be absent in the instant case. It is also
long settled that factual findings of the trial court, when affirmed by the Court of
Appeals, will not be disturbed by this Court. As a rule, such findings by the lower
courts are entitled to great weight and respect, and are deemed final and conclusive
on this Court when supported by the evidence on record.[22] We therefore adopt the
factual findings of the lower court and the Court of Appeals and rule that the grant
of respondents demurrer to evidence was proper under the circumstances obtaining
in the case at bar.

Section 1, Rule 33 of the Rules of Court provides:

Section 1. Demurrer to evidence. After the plaintiff has completed

the presentation of his evidence, the defendant may move for dismissal
on the ground that upon the facts and the law the plaintiff has shown
no right to relief. If his motion is denied, he shall have the right to
present evidence. If the motion is granted but on appeal the order of
dismissal is reversed he shall be deemed to have waived the right to
present evidence.

A demurrer to evidence is defined as an objection by one of the parties in an

action, to the effect that the evidence which his adversary produced is insufficient in
point of law, whether true or not, to make out a case or sustain the issue.[23] We have
also held that a demurrer to evidence authorizes a judgment on the merits of the
case without the defendant having to submit evidence on his part, as he would
ordinarily have to do, if plaintiffs evidence shows that he is not entitled to the relief
sought.[24]

There was no error on the part of the trial court when it dismissed the petition
for guardianship without first requiring respondent to present his evidence precisely
because the effect of granting a demurrer to evidence other than dismissing a cause
of action is, evidently, to preclude a defendant from presenting his evidence since,
upon the facts and the law, the plaintiff has shown no right to relief.
 WHEREFORE, premises considered, the petition is hereby DENIED. The
assailed Decision dated February 29, 2008 as well as the Resolution dated September
16, 2008 of the Court of Appeals in CA-G.R. CV No. 88449 are AFFIRMED.
WHO IS A GUARDIAN

CECILIO C. HERNANDEZ, G.R. No. 166470

MA. VICTORIA C. HERNANDEZ-
SAGUN, TERESA C. HERNANDEZ-
VILLA ABRILLE[1] and NATIVIDAD Present:
CRUZ-HERNANDEZ,
Petitioners, PUNO, C.J., Chairperson,
CARPIO,
CORONA,
LEONARDO-DE CASTRO and
- v e r s u s - BERSAMIN, JJ.

JOVITA SAN JUAN-SANTOS,

Respondent.

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

CECILIO C. HERNANDEZ, G.R. No. 169217

MA. VICTORIA C. HERNANDEZ-
SAGUN and TERESA C.
HERNANDEZ-VILLA ABRILLE,
Petitioners,

-versus-

JOVITA SAN JUAN-SANTOS,[2]

Respondent. Promulgated:
August 7, 2009

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

DECISION
CORONA, J.:

Maria Lourdes San Juan Hernandez (or Lulu) was born on February 14, 1947 to the

spouses Felix Hernandez and Maria San Juan Hernandez. Unfortunately, the latter
died due to complications during childbirth. After Maria's death, Felix left Lulu in the

care of her maternal uncle, Sotero C. San Juan.

On December 16, 1951, Felix married Natividad Cruz. The union produced three

children, petitioners Cecilio C. Hernandez, Ma. Victoria C. Hernandez-Sagun and

Teresa C. Hernandez-Villa Abrille.

Meanwhile, as the only child of Maria and the sole testate heir of Sotero, Lulu

inherited valuable real properties from the San Juan family (conservatively estimated

at P50 million in 1997).

Sometime in 1957, Lulu went to live with her father and his new family. She

was then 10 years old and studying at La Consolacion College. However, due to her

violent personality, Lulu stopped schooling when she reached Grade 5.

In 1968, upon reaching the age of majority, Lulu was given full control of her

estate.[3] Nevertheless, because Lulu did not even finish her elementary education,

Felix continued to exercise actual administration of Lulus properties. Upon Felix's

death in 1993, petitioners took over the task of administering Lulu's properties.

During the period of their informal administration (from 1968 until 1993), Felix

and petitioners undertook various projects involving Lulus real properties. In 1974,

Felix allegedly purchased one of Lulus properties for an undisclosed amount to

develop the Marilou Subdivision.[4] In 1995, Ma. Victoria informed Lulu that her 11-

hectare Montalban, Rizal property[5] was under litigation. Thus, Lulu signed a special

power of attorney[6] (SPA) believing that she was authorizing Ma. Victoria to appear

in court on her behalf when she was in fact unknowingly authorizing her half-sister

to sell the said property to the Manila Electric Company

for P18,206,400.[7] Thereafter, Cecilio asked Lulu to authorize him to lease her 45-
hectare property in Montalban, Rizal to Oxford Concrete Aggregates for P58,500 per

month so that she could have a car and driver at her disposal.

In September 1998, Lulu sought the assistance of her maternal first cousin,

respondent Jovita San Juan-Santos, after learning that petitioners had been

dissipating her estate. She confided to Jovita that she was made to live in the

basement of petitioners Montalban, Rizal home and was receiving a measly daily

allowance of P400 for her food and medication.

Respondent was appalled as Lulu was severely overweight, unkempt and

smelled of urine. She later found out that Lulu was occupying a cramped room lit by

a single fluorescent lamp without running water. Since she had not been given a

proper toilet, Lulu urinated and defecated in the garden. Due to Lulu's poor hygiene,

respondent brought her to several physicians for medical examination. Lulu was

found to be afflicted with tuberculosis, rheumatism and diabetes from which she was

suffering several complications.[8]

Thereafter, the San Juan family demanded an inventory and accounting of

Lulus estate from petitioners.[9] However, the demand was ignored.

On October 2, 1998, respondent filed a petition for guardianship [10] in the

Regional Trial Court (RTC) of San Mateo, Rizal, Branch 76. She alleged that Lulu was

incapable of taking care of herself and managing her estate because she was of weak

mind.

Subsequently, petitioners moved to intervene in the proceedings to oppose the

same.
 Natividad denied that Marilou Subdivision belonged to Lulu. Since she and her

late husband were the registered owners of the said property, it was allegedly part

of their conjugal partnership.

Cecilio, Teresa and Ma. Victoria, for their part, claimed that the issue of Lulus

competency had been settled in 1968 (upon her emancipation) when the court

ordered her legal guardian and maternal uncle, Ciriaco San Juan, to deliver the

properties for her to manage.

They likewise asserted that Lulu was literate and, for that reason, aware of the

consequences of executing an SPA. Furthermore, whether or not Cecilio and Ma.

Victoria acted within the scope of their respective authorities could not be determined

in a guardianship proceeding, such matter being the proper subject of an ordinary

civil action.

Petitioners also admitted that the property developed into the Marilou

Subdivision was among those parcels of land Lulu inherited from the San Juan family.

However, because the sale between Felix and Lulu had taken place in 1974, questions

regarding its legality were already barred by the statute of limitations. Thus, its

validity could no longer be impugned, or so they claimed.

During the hearing, Lulu was presented and asked to testify on her genealogy

and experiences with the San Juan and Hernandez families. Lulu identified and

described her parents, stepmother, half-siblings and maternal relatives. She claimed

inheriting tracts of land from the San Juan family. However, these properties were

dissipated by the Hernandez family as they lived a luxurious lifestyle. When asked to

explain this allegation, Lulu said that her stepmother and half-siblings rode in cars

while she was made to ride a tricycle.

 Medical specialists testified to explain the results of Lulus examinations which

revealed the alarming state of her health.[11] Not only was Lulu severely afflicted with

diabetes mellitus and suffering from its complications,[12] she also had an existing

artheroselorotic cardiovascular disease (which was aggravated by her obesity).

Furthermore, they unanimously opined that in view of Lulus intelligence level (which

was below average) and fragile mental state, she would not be able to care for herself

and self-administer her medications.

In a decision dated September 25, 2001,[13] the RTC concluded that, due to

her weak physical and mental condition, there was a need to appoint a legal guardian

over the person and property of Lulu. Thus, it declared Lulu an incompetent and

appointed respondent as guardian over the person and property of Lulu on a P1

million bond.

Petitioners moved for reconsideration asserting that the P1 million bond was

grossly insufficient to secure Lulus P50-million estate against fraudulent loss or

dissipation.[14]The motion, however, was denied.[15]

On July 2, 2002, petitioners appealed the September 25, 2001 decision of the

RTC to the Court of Appeals (CA).[16] The appeal was docketed as CA-G.R. CV No.

75760.

On December 29, 2004, the CA issued a decision affirming the September 25,

2001 decision of the RTC (in the petition for guardianship) in toto.[17] It held that

respondent presented sufficient evidence to prove that Lulu, because of her illnesses

and low educational attainment, needed assistance in taking care of herself and

managing her affairs considering the extent of her estate. With regard to the

respondents appointment as the legal guardian, the CA found that, since Lulu did not

trust petitioners, none of them was qualified to be her legal guardian. Because
guardianship was a trust relationship, the RTC was bound to appoint someone Lulu

clearly trusted.

Petitioners now assail the December 29, 2004 decision of the CA in this Court

in a petition for review on certiorari docketed as G.R. No. 166470.[18]

Meanwhile, Lulu moved into 8 R. Santos St., Marikina City (Marikina

apartment) and was provided with two housemaids tasked to care for her. Sometime

in November 2003, Lulu was abducted from her Marikina apartment. Jovita

immediately sought the assistance of the Police Anti-Crime Emergency Response

(PACER) division of the Philippine National Police.

The PACER subsequently discovered that petitioners were keeping Lulu

somewhere in Rodriguez, Rizal. Despite their initial hostility to the investigation, Ma.

Victoria and Cecilio subsequently contacted the PACER to inform them that Lulu

voluntarily left with Natividad because her guardian had allegedly been maltreating

her.[19]

On December 15, 2003, respondent filed a petition for habeas corpus[20] in the

CA alleging that petitioners abducted Lulu and were holding her captive in an

undisclosed location in Rodriguez, Rizal.

On April 26, 2005, the CA granted the petition for habeas corpus, ruling that

Jovita, as her legal guardian, was entitled to her custody. [21]

Petitioners moved for the reconsideration of the said decision but it was denied

in a resolution dated July 12, 2005.[22] Aggrieved, they filed this petition for review

on certiorari docketed as G.R. No. 169217. This was consolidated with G.R. No.

166470.
 The basic issue in petitions of this nature is whether the person is an

incompetent who requires the appointment of a judicial guardian over her person and

property.

Petitioners claim that the opinions of Lulu's attending physicians[23] regarding

her mental state were inadmissible in evidence as they were not experts in

psychiatry. Respondent therefore failed to prove that Lulu's illnesses rendered her an

incompetent. She should have been presumed to be of sound mind and/or in full

possession of her mental capacity. For this reason, Lulu should be allowed to live with

them since under Articles 194 to 196 of the Family Code,[24] legitimate brothers and

sisters, whether half-blood or full-blood are required to support each other fully.

Respondent, on the other hand, reiterated her arguments before the courts a

quo. She disclosed that Lulu had been confined in Recovery.com, a psychosocial

rehabilitation center and convalescent home care facility in Quezon City, since 2004

due to violent and destructive behavior. She also had delusions of being physically

and sexually abused by Boy Negro and imaginary pets she called Michael and

Madonna.[25] The November 21, 2005 medical report[26] stated Lulu had unspecified

mental retardation with psychosis but claimed significant improvements in her

behavior.

We find the petition to be without merit.

Under Section 50, Rule 103 of the Rules of Court, an ordinary witness may give his

opinion on the mental sanity of a person with whom he is sufficiently

acquainted.[27] Lulu's attending physicians spoke and interacted with her. Such

occasions allowed them to thoroughly observe her behavior and conclude that her
intelligence level was below average and her mental stage below normal. Their

opinions were admissible in evidence.

Furthermore, where the sanity of a person is at issue, expert opinion is not

necessary.[28] The observations of the trial judge coupled with

evidence[29] establishing the person's state of mental sanity will suffice.[30] Here, the

trial judge was given ample opportunity to observe Lulu personally when she testified

before the RTC.

Under Section 2, Rule 92 of the Rules of Court,[31] persons who, though of sound

mind but by reason of age, disease, weak mind or other similar causes are incapable

of taking care of themselves and their property without outside aid, are considered

as incompetents who may properly be placed under guardianship. The RTC and the

CA both found that Lulu was incapable of taking care of herself and her properties

without outside aid due to her ailments and weak mind. Thus, since determining

whether or not Lulu is in fact an incompetent would require a reexamination of the

evidence presented in the courts a quo, it undoubtedly involves questions of fact.

As a general rule, this Court only resolves questions of law in a petition for review.

We only take cognizance of questions of fact in exceptional circumstances, none of

which is present in this case.[32] We thus adopt the factual findings of the RTC as

affirmed by the CA.

Similarly, we see no compelling reason to reverse the trial and appellate courts

finding as to the propriety of respondent's appointment as the judicial guardian of

Lulu.[33] We therefore affirm her appointment as such. Consequently, respondent is

tasked to care for and take full custody of Lulu, and manage her estate as well.[34]
Inasmuch as respondents appointment as the judicial guardian of Lulu was proper,

the issuance of a writ of habeas corpus in her favor was also in order.

A writ of habeas corpus extends to all cases of illegal confinement or detention or by

which the rightful custody of person is withheld from the one entitled

thereto.[35]Respondent, as the judicial guardian of Lulu, was duty-bound to care for

and protect her ward. For her to perform her obligation, respondent must have

custody of Lulu. Thus, she was entitled to a writ of habeas corpus after she was

unduly deprived of the custody of her ward.[36]

WHEREFORE, the petitions are hereby DENIED.

Petitioners are furthermore ordered to render to respondent, Lulus legal guardian, an

accurate and faithful accounting of all the properties and funds they unlawfully

appropriated for themselves from the estate of Maria Lourdes San Juan Hernandez,

within thirty (30) days from receipt of this decision. If warranted, the proper

complaints should also be filed against them for any criminal liability in connection

with the dissipation of Maria Lourdes San Juan Hernandezs estate and her unlawful

abduction from the custody of her legal guardian.

Treble costs against petitioners.

SO ORDERED.
DUTIES OF A GUARDIAN

[G.R. No. 110427. February 24, 1997]

The Incompetent, CARMEN CAIZA, represented by her legal guardian,

AMPARO EVANGELISTA, petitioner, vs. COURT OF APPEALS (SPECIAL
FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA
ESTRADA, respondents.

DECISION
NARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza,
a spinster, a retired pharmacist, and former professor of the College of Chemistry
and Pharmacy of the University of the Philippines, was declared incompetent by
judgment[1] of the Regional Trial Court of Quezon City, Branch 107,[2] in a
guardianship proceeding instituted by her niece, Amparo A. Evangelista.[3] She was
so adjudged because of her advanced age and physical infirmities which included
cataracts in both eyes and senile dementia. Amparo A. Evangelista was appointed
legal guardian of her person and estate.
Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On
September 17, 1990, her guardian Amparo Evangelista commenced a suit in the
Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses
Pedro and Leonora Estrada from said premises.[4] The complaint was later amended
to identify the incompetent Caiza as plaintiff, suing through her legal guardian,
Amparo Evangelista.
The amended Complaint[5] pertinently alleged that plaintiff Caiza was the
absolute owner of the property in question, covered by TCT No. 27147; that out of
kindness, she had allowed the Estrada Spouses, their children, grandchildren and
sons-in-law to temporarily reside in her house, rent-free; that Caiza already had
urgent need of the house on account of her advanced age and failing health, "so
funds could be raised to meet her expenses for support, maintenance and medical
treatment;" that through her guardian, Caiza had asked the Estradas verbally and in
writing to vacate the house but they had refused to do so; and that "by the
defendants' act of unlawfully depriving plaintiff of the possession of the house in
question, they ** (were) enriching themselves at the expense of the incompetent,
because, while they ** (were) saving money by not paying any rent for the house,
the incompetent ** (was) losing much money as her house could not be rented by
others." Also alleged was that the complaint was "filed within one (1) year from the
date of first letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been
living in Caiza's house since the 1960's; that in consideration of their faithful service
they had been considered by Caiza as her own family, and the latter had in fact
executed a holographic will on September 4, 1988 by which she "bequeathed" to the
Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor,[6] the
Estradas being ordered to vacate the premises and pay Caiza P5,000.00 by way of
attorney's fees.
But on appeal,[7] the decision was reversed by the Quezon City Regional Trial
Court, Branch 96.[8] By judgment rendered on October 21, 1992,[9] the RTC held that
the "action by which the issue of defendants' possession should be resolved is accion
publiciana, the obtaining factual and legal situation ** demanding adjudication by
such plenary action for recovery of possession cognizable in the first instance by the
Regional Trial Court."
Caiza sought to have the Court of Appeals reverse the decision of October 21,
1992, but failed in that attempt. In a decision[10] promulgated on June 2, 1993, the
Appellate Court[11] affirmed the RTC's judgment in toto. It ruled that (a) the proper
remedy for Caiza was indeed an accion publiciana in the RTC, not an accion
interdictal in the MetroTC, since the "defendants have not been in the subject
premises as mere tenants or occupants by tolerance, they have been there as a sort
of adopted family of Carmen Caiza," as evidenced by what purports to be the
holographic will of the plaintiff; and (b) while "said will, unless and until it has passed
probate by the proper court, could not be the basis of defendants' claim to the
property, ** it is indicative of intent and desire on the part of Carmen Caiza that
defendants are to remain and are to continue in their occupancy and possession, so
much so that Caiza's supervening incompetency can not be said to have vested in
her guardian the right or authority to drive the defendants out."[12]
Through her guardian, Caiza came to this Court praying for reversal of the
Appellate Court's judgment. She contends in the main that the latter erred in (a)
holding that she should have pursued an accion publiciana, and not an accion
interdictal; and in (b) giving much weight to "a xerox copy of an alleged holographic
will, which is irrelevant to this case."[13]
In the responsive pleading filed by them on this Court's requirement,[14] the
Estradas insist that the case against them was really not one of unlawful detainer;
they argue that since possession of the house had not been obtained by them by any
"contract, express or implied," as contemplated by Section 1, Rule 70 of the Rules of
Court, their occupancy of the premises could not be deemed one "terminable upon
mere demand (and hence never became unlawful) within the context of the law."
Neither could the suit against them be deemed one of forcible entry, they add,
because they had been occupying the property with the prior consent of the "real
owner," Carmen Caiza, which "occupancy can even ripen into full ownership once the
holographic will of petitioner Carmen Caiza is admitted to probate." They conclude,
on those postulates, that it is beyond the power of Caiza's legal guardian to oust
them from the disputed premises.
Carmen Caiza died on March 19, 1994,[15] and her heirs -- the aforementioned
guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew,
respectively -- were by this Court's leave, substituted for her.[16]
 Three issues have to be resolved: (a) whether or not an ejectment action is the
appropriate judicial remedy for recovery of possession of the property in dispute; (b)
assuming desahucio to be proper, whether or not Evangelista, as Caiza's legal
guardian had authority to bring said action; and (c) assuming an affirmative answer
to both questions, whether or not Evangelista may continue to represent Caiza after
the latter's death.
I
It is axiomatic that what determines the nature of an action as well as which
court has jurisdiction over it, are the allegations of the complaint and the character
of the relief sought.[17] An inquiry into the averments of the amended complaint in
the Court of origin is thus in order.[18]
The amended Complaint alleges:[19]

"6. That the plaintiff, Carmen Caiza, is the sole and absolute owner of a house and
lot at No. 61 Scout Tobias, Quezon City, which property is now the subject of this
complaint;

** ** **

9. That the defendants, their children, grandchildren and sons-in-law, were allowed
to live temporarily in the house of plaintiff, Carmen Caiza, for free, out of her
kindness;

10. That the plaintiff, through her legal guardian, has duly notified the defendants,
for them to vacate the said house, but the two (2) letters of demand were ignored
and the defendants refused to vacate the same. **

11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made
another demand on the defendants for them to vacate the premises, before Barangay
Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but after two (2)
conferences, the result was negative and no settlement was reached. A photocopy of
the Certification to File Action dated July 4, 1990; issued by said Barangay Captain
is attached, marked Annex "D" and made an integral part hereof;

12. That the plaintiff has given the defendants more than thirty (30) days to vacate
the house, but they still refused to vacate the premises, and they are up to this time
residing in the said place;

13. That this complaint is filed within one (1) year from the date of first letter of
demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the
defendants, by her legal guardian -- Amparo Evangelista;

14. By the defendants' act of unlawfully depriving the plaintiff of the possession of
the house in question, they are enriching themselves at the expense of the
incompetent plaintiff, because, while they are saving money by not paying any rent
for the house, the plaintiff is losing much money as her house could not be rented by
others;

15. That the plaintiff's health is failing and she needs the house urgently, so that
funds could be raised to meet her expenses for her support, maintenance and medical
treatment;

16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias,
Quezon City, the plaintiff, through her legal guardian, was compelled to go to court
for justice, and she has to spend P10,000.00 as attorney's fees."

Its prayer[20] is quoted below:

"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Caiza,
represented by her legal guardian. Amparo Evangelista, respectfully prays to this
Honorable Court, to render judgment in favor of plaintiff and against the defendants
as follows:

1. To order the defendants, their children, grandchildren, sons-in-law and other

persons claiming under them, to vacate the house and premises at No. 61 Scout
Tobias, Quezon City, so that its possession can be restored to the plaintiff, Carmen
Caiza: and

2. To pay attorney's fees in the amount of P10,000.00;

3. To pay the costs of the suit."

In essence, the amended complaint states:

1) that the Estradas were occupying Caiza's house by tolerance -- having been
"allowed to live temporarily ** (therein) for free, out of ** (Caiza's) kindness;"

2) that Caiza needed the house "urgently" because her "health ** (was) failing and
she ** (needed) funds ** to meet her expenses for her support, maintenance and
medical treatment;"

3) that through her general guardian, Caiza requested the Estradas several times,
orally and in writing, to give back possession of the house;

4) that the Estradas refused and continue to refuse to give back the house to Caiza,
to her continuing prejudice; and

5) that the action was filed within one (1) year from the last demand to vacate.

Undoubtedly, a cause of action for desahucio has been adequately set out. It is
settled that in an action for unlawful detainer, it suffices to allege that the defendant
is unlawfully withholding possession from the plaintiff is deemed sufficient, [21] and a
complaint for unlawful detainer is sufficient if it alleges that the withholding of
possession or the refusal to vacate is unlawful without necessarily employing the
terminology of the law.[22]
The Estradas' first proffered defense derives from a literal construction of Section
1, Rule 70 of the Rules of Court which inter alia authorizes the institution of an
unlawful detainer suit when "the possession of any land or building is unlawfully
withheld after the expiration or termination of the right to hold possession, by virtue
of any contract, express or implied." They contend that since they did not acquire
possession of the property in question "by virtue of any contract, express or implied"
-- they having been, to repeat, "allowed to live temporarily ** (therein) for free, out
of ** (Caiza's) kindness" -- in no sense could there be an "expiration or termination
of ** (their) right to hold possession, by virtue of any contract, express or implied."
Nor would an action for forcible entry lie against them, since there is no claim that
they had "deprived (Caiza) of the possession of ** (her property) by force,
intimidation, threat, strategy, or stealth."
The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy
her house, rent-free, did not create a permanent and indefeasible right of possession
in the latter's favor. Common sense, and the most rudimentary sense of fairness
clearly require that act of liberality be implicitly, but no less certainly, accompanied
by the necessary burden on the Estradas of returning the house to Caiza upon her
demand. More than once has this Court adjudged that a person who occupies the
land of another at the latter's tolerance or permission without any contract between
them is necessarily bound by an implied promise that he will vacate upon demand,
failing which a summary action for ejectment is the proper remedy against
him.[23] The situation is not much different from that of a tenant whose lease expires
but who continues in occupancy by tolerance of the owner, in which case there is
deemed to be an unlawful deprivation or withholding of possession as of the date of
the demand to vacate.[24] In other words, one whose stay is merely tolerated
becomes a deforciant illegally occupying the land or property the moment he is
required to leave.[25] Thus, in Asset Privatization Trust vs. Court of Appeals,[26] where
a company, having lawfully obtained possession of a plant upon its undertaking to
buy the same, refused to return it after failing to fulfill its promise of payment despite
demands, this Court held that "(a)fter demand and its repudiation, ** (its) continuing
possession ** became illegal and the complaint for unlawful detainer filed by the **
(plant's owner) was its proper remedy."
It may not be amiss to point out in this connection that where there had been
more than one demand to vacate, the one-year period for filing the complaint for
unlawful detainer must be reckoned from the date of the last demand,[27] the reason
being that the lessor has the option to waive his right of action based on previous
demands and let the lessee remain meanwhile in the premises.[28] Now, the complaint
filed by Caiza's guardian alleges that the same was "filed within one (1) year from
the date of the first letter of demand dated February 3, 1990." Although this
averment is not in accord with law because there is in fact a second letter of demand
to vacate, dated February 27, 1990, the mistake is inconsequential, since the
complaint was actually filed on September 17, 1990, well within one year from the
second (last) written demand to vacate.
 The Estradas' possession of the house stemmed from the owner's express
permission. That permission was subsequently withdrawn by the owner, as was her
right; and it is immaterial that the withdrawal was made through her judicial
guardian, the latter being indisputably clothed with authority to do so. Nor is it of any
consequence that Carmen Caiza had executed a will bequeathing the disputed
property to the Estradas; that circumstance did not give them the right to stay in the
premises after demand to vacate on the theory that they might in future become
owners thereof, that right of ownership being at best inchoate, no transfer of
ownership being possible unless and until the will is duly probated.
Thus, at the time of the institution of the action of desahucio, the Estradas had
no legal right to the property, whether as possessors by tolerance or sufferance, or
as owners. They could not claim the right of possession by sufferance, that had been
legally ended. They could not assert any right of possession flowing from their
ownership of the house; their status as owners is dependent on the probate of the
holographic will by which the property had allegedly been bequeathed to them -- an
event which still has to take place; in other words; prior to the probate of the will,
any assertion of possession by them would be premature and inefficacious.
In any case, the only issue that could legitimately be raised under the
circumstances was that involving the Estradas' possession by tolerance, i.e.,
possession de facto, not de jure. It is therefore incorrect to postulate that the proper
remedy for Caiza is not ejectment but accion publiciana, a plenary action in the RTC
or an action that is one for recovery of the right to possession de jure.
II
The Estradas insist that the devise of the house to them by Caiza clearly denotes
her intention that they remain in possession thereof, and legally incapacitated her
judicial guardian, Amparo Evangelista, from evicting them therefrom, since their
ouster would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it may
be changed or revoked;[29] and until admitted to probate, it has no effect whatever
and no right can be claimed thereunder, the law being quite explicit: "No will shall
pass either real or personal property unless it is proved and allowed in accordance
with the Rules of Court" (ART. 838, id.).[30] An owner's intention to confer title in the
future to persons possessing property by his tolerance, is not inconsistent with the
former's taking back possession in the meantime for any reason deemed sufficient.
And that in this case there was sufficient cause for the owner's resumption of
possession is apparent: she needed to generate income from the house on account
of the physical infirmities afflicting her, arising from her extreme age.
Amparo Evangelista was appointed by a competent court the general guardian of
both the person and the estate of her aunt, Carmen Caiza. Her Letters of
Guardianship[31] dated December 19, 1989 clearly installed her as the "guardian over
the person and properties of the incompetent CARMEN CAIZA with full authority to
take possession of the property of said incompetent in any province or provinces in
which it may be situated and to perform all other acts necessary for the management
of her properties ** "[32] By that appointment, it became Evangelista's duty to care
for her aunt's person, to attend to her physical and spiritual needs, to assure her
well-being, with right to custody of her person in preference to relatives and
friends.[33] It also became her right and duty to get possession of, and exercise
control over, Caiza's property, both real and personal, it being recognized principle
that the ward has no right to possession or control of his property during her
incompetency.[34] That right to manage the ward's estate carries with it the right to
take possession thereof and recover it from anyone who retains it,[35] and bring and
defend such actions as may be needful for this purpose. [36]
Actually, in bringing the action of desahucio, Evangelista was merely discharging
the duty to attend to "the comfortable and suitable maintenance of the ward"
explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:

"SEC. 4. Estate to be managed frugally, and proceeds applied to maintenance of

ward. A guardian must manage the estate of his ward frugally and without waste,
and apply the income and profits thereof, so far as maybe necessary, to the
comfortable and suitable maintenance of the ward and his family, if there be any;
and if such income and profits be insufficient for that purpose, the guardian may sell
or encumber the real estate, upon being authorized by order to do so, and apply to
such of the proceeds as may be necessary to such maintenance."

Finally, it may be pointed out in relation to the Estradas's defenses in the

ejectment action, that as the law now stands, even when, in forcible entry and
unlawful detainer cases, the defendant raises the question of ownership in his
pleadings and the question of possession cannot be resolved without deciding the
issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts nevertheless have the undoubted competence to
resolve. "the issue of ownership ** only to determine the issue of possession."[37]
III
As already stated, Carmen Caiza passed away during the pendency of this appeal.
The Estradas thereupon moved to dismiss the petition, arguing that Caiza's death
automatically terminated the guardianship, Amaparo Evangelista lost all authority as
her judicial guardian, and ceased to have legal personality to represent her in the
present appeal. The motion is without merit.
While it is indeed well-established rule that the relationship of guardian and ward
is necessarily terminated by the death of either the guardian or the ward,[38] the rule
affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Caiza,
is one of the latter's only two (2) surviving heirs, the other being Caiza's nephew,
Ramon C. Nevado. On their motion and by Resolution of this Court[39] of June 20,
1994, they were in fact substituted as parties in the appeal at bar in place of the
deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.:[40]

"SEC. 18. Death of a party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of
the deceased to appear and be substituted for the deceased within a period of thirty
(30) days, or within such time as may be granted. If the legal representative fails to
appear within said time, the court may order the opposing party to procure the
appointment of a legal representative of the deceased within a time to be specified
by the court, and the representative shall immediately appear for and on behalf of
the interest of the deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be recovered as costs. The heirs
of the deceased may be allowed to be substituted for the deceased, without requiring
the appointment of an executor or administrator and the court may appoint
guardian ad litem for the minor heirs.

To be sure, an ejectment case survives the death of a party. Caiza's demise did
not extinguish the desahucio suit instituted by her through her guardian.[41] That
action, not being a purely personal one, survived her death; her heirs have taken her
place and now represent her interests in the appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals
promulgated on June 2, 1993 -- affirming the Regional Trial Court's judgment and
dismissing petitioner's petition for certiorari -- is REVERSED and SET ASIDE, and the
Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch
35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private
respondents.
SO ORDERED.
PARAMOUNT CONSIDERATION

G.R. No. 132223 June 19, 2001

BONIFACIA P. VANCIL, petitioner,

vs.
HELEN G. BELMES, respondent.

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.
1618-CEB. At the time, Valerie was only 6 years old while Vincent was a 2-
year old child. It is claimed in the petition that the minors are residents of Cebu
City, Philippines and have an estate consisting of proceeds from their father’s
death pension benefits with a probable value of P100,000.00.

"Finding sufficiency in form and in substance, the case was set for hearing after
a 3-consecutive-weekly publications with the Sunstar Daily.

"On July 15, 1987, petitioner, Bonifacia Vancil was appointed legal and judicial
guardian over the persons and estate of Valerie Vancil and Vincent Vancil Jr.

"On August 13, 1987, the natural mother of the minors, Helen Belmes,
submitted an opposition to the subject guardianship proceedings asseverating
that she had already filed a similar petition for guardianship under Special
Proceedings No. 2819 before the Regional Trial Court of Pagadian City.

"Thereafter, on June 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 Oppositor’s 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.3Respondent thus prayed
that this case be dismissed with respect to Valerie, she being no longer a proper
subject of guardianship proceedings. The said "Manifestation/Motion" was noted by
this Court in its Resolution dated November 11, 1998.

Considering that Valerie is already of major age, this petition has become moot with
respect to her. Thus, only the first and third "legal points" raised by petitioner should
be resolved.

The basic issue for our resolution is who between the mother and grandmother of
minor Vincent should be his guardian.

We agree with the ruling of the Court of Appeals that respondent, being the natural
mother of the minor, has the preferential right over that of petitioner to be his
guardian. This ruling finds support in Article 211 of the Family Code which provides:

"Art. 211. The father and the mother shall jointly exercise parental authority
over the persons of their common children. In case of disagreement, the
father’s 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.

Petitioner’s claim to be the guardian of said minor can only be realized by way
of substitute parental authoritypursuant 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 minor’s guardian,
respondent’s 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 (respondent’s) 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 respondent’s allegation that petitioner has not set foot in
the Philippines since 1987 has not been controverted by her. Besides, petitioner’s old
age and her conviction of libel by the Regional Trial Court, Branch 6, Cebu City in
Criminal Case No. CBU-168846 filed by one Danilo R. Deen, will give her a second
thought of staying here. Indeed, her coming back to this country just to fulfill the
duties of a guardian to Vincent for only two years is not certain.

Significantly, this Court has held that courts should not appoint persons as guardians
who are not within the jurisdiction of our courts for they will find it difficult to protect
the wards. In Guerrero vs. Teran,7 this Court held:

"Doña Maria Muñoz 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.
 [G.R. No. 122906. February 7, 2002]

DINAH B. TONOG, petitioner, vs. COURT OF APPEALS and EDGAR V.

DAGUIMOL, respondents.

DECISION
DE LEON, JR., J.:

Before us is a petition for review on certiorari seeking the reversal of two (2)
Resolutions dated August 29, 1995 and November 29, 1995 issued by the former
Second Division[1] of the Court of Appeals in CA-G.R. SP No. 35971. The first
resolution modified the appellate courts decision promulgated in the said case, and
granted custody of the minor, Gardin Faith Belarde Tonog, to private respondent. The
second resolution denied petitioners motion for reconsideration.
The pertinent facts are:
On September 23, 1989, petitioner Dinah B. Tonog gave birth[2] to Gardin Faith
Belarde Tonog, her illegitimate daughter with private respondent Edgar V.
Daguimol. Petitioner was then a nursing student while private respondent was a
licensed physician. They cohabited for a time and lived with private respondents
parents and sister in the latters house in Quezon City where the infant, Gardin Faith,
was a welcome addition to the family.
A year after the birth of Gardin Faith, petitioner left for the United States of
America where she found work as a registered nurse. Gardin Faith was left in the
care of her father (private respondent herein) and paternal grandparents.
On January 10, 1992, private respondent filed a petition for guardianship over
Gardin Faith, docketed as Sp. Proc. No. Q-92-11053, in the Regional Trial Court of
Quezon City. On March 9, 1992, the trial court rendered judgment appointing private
respondent as legal guardian of the minor, Gardin Faith.
Petitioner avers that she learned of the judgment of the trial court rendered in
Sp. Proc. No. Q-92-11053 only on April 1, 1992. Accordingly, on May 27, 1992, she
filed a petition for relief from judgment. In a resolution dated September 15, 1992,
the trial court set aside its original judgment and allowed petitioner to file her
opposition to private respondents petition. The latter, in turn, filed a motion for
reconsideration. In a related incident, petitioner filed on October 4, 1993, a motion
to remand custody of Gardin Faith to her.
On November 18, 1994, the trial court issued a resolution denying private
respondents motion for reconsideration and granting petitioners motion for custody
of their child, Gardin. Petitioner moved for immediate execution of the said resolution.
Due to the adverse turn of events, private respondent filed a petition for certiorari
before the Court of Appeals, docketed as CA-G.R. SP No. 35971, questioning the
actuations of the trial court. On March 21, 1995, the appellate court dismissed the
petition on the ground of lack of merit. However, after private respondent filed a
motion for reconsideration, the appellate court issued a Resolution[3] dated August
29, 1995 modifying its decision, as follows:

Although We do find the Petition dismissible, insofar as it assails the September 15,
1993 Resolution of the respondent Court, giving due course to private respondents
Petition for Relief from Judgment, and the November 18, 1995 Resolution denying
his Motion for Reconsideration, We discern a good ground to let physical custody of
subject child, Gardin Faith Belarde Tonog, continue under the petitioner, with whom
the said child had been living, since birth.

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

enforcement of her legal and natural rights as the natural guardian of her child, the
emotional and psychological effects upon the latter of a change in custody should be
considered. To be sure, transfer of custody of the child from petitioner to private
respondent will be painful for the child who, all her life, has been in the company of
petitioner and her paternal grandparents.

Now, inasmuch as the issue of guardianship and custody over the same child is still
pending determination before the respondent Court, the possibility of petitioners
appointment as the guardian cannot be discounted. It would certainly wreak havoc
on the childs psychological make-up to give her to the custody of private respondent,
only to return her to petitioner should the latter prevail in the main case. Subjecting
the child to emotional seesaw should be avoided. It is thus more prudent to let
physical custody of the child in question be with petitioner until the matter of her
custody shall have been determined by final judgment.

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

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

Petitioner thus interposed the instant appeal after the appellate court denied her
motion for reconsideration in its Resolution[4] dated November 29, 1995.
Petitioner contends that she is entitled to the custody of the minor, Gardin Faith,
as a matter of law. First, as the mother of Gardin Faith, the law confers parental
authority upon her as the mother of the illegitimate minor. Second, Gardin Faith
cannot be separated from her since she had not, as of then, attained the age of
seven. Employing simple arithmetic however, it appears that Gardin Faith is now
twelve years old.
In custody disputes, it is axiomatic that the paramount criterion is the welfare
and well-being of the child.[5] In arriving at its decision as to whom custody of the
minor should be given, the court must take into account the respective resources and
social and moral situations of the contending parents.[6]
In turn, the parents right to custody over their children is enshrined in law. Article
220 of the Family Code thus provides that parents and individuals exercising parental
authority over their unemancipated children are entitled, among other rights, to keep
them in their company. In legal contemplation, the true nature of the parent-child
relationship encompasses much more than the implication of ascendancy of one and
obedience by the other. We explained this in Santos, Sr. v. Court of Appeals: [7]

The right of custody accorded to parents springs from the exercise of parental
authority. Parental authority or patria potestas in Roman Law is the juridical
institution whereby parents rightfully assume control and protection of their
unemancipated children to the extent required by the latters needs. It is a mass of
rights and obligations which the law grants to parents for the purpose of the childrens
physical preservation and development, as well as the cultivation of their intellect
and the education of their heart and senses. As regards parental authority, there is
no power, but a task; no complex of rights, but a sum of duties; no sovereignty but
a sacred trust for the welfare of the minor.

Parental authority and responsibility are inalienable and may not be transferred or
renounced except in cases authorized by law. The right attached to parental
authority, being purely personal, the law allows a waiver of parental authority only
in cases of adoption, guardianship and surrender to a childrens home or an orphan
institution. When a parent entrusts the custody of a minor to another, such as a friend
or godfather, even in a document, what is given is merely temporary custody and it
does not constitute a renunciation of parental authority. Even if a definite
renunciation is manifest, the law still disallows the same.

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

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

The general rule is recommended in order to avoid many a tragedy where a mother
has seen her baby torn away from her. No man can sound the deep sorrows of a
mother who is deprived of her child of tender age. The exception allowed by the rule
has to be for compelling reasons for the good of the child; those cases must indeed
be rare, if the mothers heart is not to be unduly hurt. If she has erred, as in cases of
adultery, the penalty of imprisonment and the divorce decree (relative divorce) will
ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have
any effect upon the baby who is as yet unable to understand her situation.[8]

This is not intended, however, to denigrate the important role fathers play in the
upbringing of their children. Indeed, we have recognized that both parents
complement each other in giving nurture and providing that holistic care which takes
into account the physical, emotional, psychological, mental, social and spiritual needs
of the child.[9] Neither does the law nor jurisprudence intend to downplay a fathers
sense of loss when he is separated from his child:
While the bonds between a mother and her small child are special in nature, either
parent, whether father or mother, is bound to suffer agony and pain if deprived of
custody. One cannot say that his or her suffering is greater than that of the other
parent. It is not so much the suffering, pride, and other feelings of either parent but
the welfare of the child which is the paramount consideration.[10]

For these reasons, even a mother may be deprived of the custody of her child
who is below seven years of age for compelling reasons. Instances of unsuitability
are neglect, abandonment, unemployment and immorality, habitual drunkenness,
drug addiction, maltreatment of the child, insanity, and affliction with a
communicable illness.[11] If older than seven years of age, a child is allowed to state
his preference, but the court is not bound by that choice. The court may exercise its
discretion by disregarding the childs preference should the parent chosen be found
to be unfit, in which instance, custody may be given to the other parent, or even to
a third person. [12]
In the case at bar, we are being asked to rule on the temporary custody of the
minor, Gardin Faith, since it appears that the proceedings for guardianship before the
trial court have not been terminated, and no pronouncement has been made as to
who should have final custody of the minor. Bearing in mind that the welfare of the
said minor as the controlling factor, we find that the appellate court did not err in
allowing her father (private respondent herein) to retain in the meantime parental
custody over her. Meanwhile, the child should not be wrenched from her familiar
surroundings, and thrust into a strange environment away from the people and places
to which she had apparently formed an attachment.
Moreover, whether a mother is a fit parent for her child is a question of fact to
be properly entertained in the special proceedings before the trial court.[13] It should
be recalled that in a petition for review on certiorari, we rule only on questions of
law. We are not in the best position to assess the parties respective merits vis--
vis their opposing claims for custody. Yet another sound reason is that inasmuch as
the age of the minor, Gardin Faith, has now exceeded the statutory bar of seven
years, a fortiori, her preference and opinion must first be sought in the choice of
which parent should have the custody over her person.
A word of caution: our pronouncement here should not be interpreted to imply a
preference toward the father (herein private respondent) relative to the final custody
of the minor, Gardin Faith.Nor should it be taken to mean as a
statement against petitioners fitness to have final custody of her said minor
daughter. It shall be only understood that, for the present and until finally adjudged,
temporary custody of the subject minor should remain with her father, the private
respondent herein pending final judgment of the trial court in Sp. Proc. No. Q-92-
11053.
WHEREFORE, the instant petition is hereby DENIED. The trial court is directed
to immediately proceed with hearing Sp. Proc. No. Q-92-11053 upon notice of this
decision. No pronouncement as to costs.
SO ORDERED.
TENDER AGE PRESUMPTION

[G.R. No. 156254. June 28, 2005]

CRISANTO RAFAELITO G. GUALBERTO V, petitioner, vs. COURT OF APPEALS;

Hon. HELEN B. RICAFORT, Presiding Judge, Regional Trial
Court Paraaque City, Branch 260; and JOYCELYN D. PABLO-
GUALBERTO, respondents.

DECISION
PANGANIBAN, J.:

When love is lost between spouses and the marriage inevitably results in
separation, the bitterest tussle is often over the custody of their children. The Court
is now tasked to settle the opposing claims of the parents for custody pendente lite of
their child who is less than seven years of age. There being no sufficient proof of any
compelling reason to separate the minor from his mother, custody should remain
with her.

The Case

Before us are two consolidated petitions. The first is a Petition for Review[1] filed
by Joycelyn Pablo-Gualberto under Rule 45 of the Rules of Court, assailing the August
30, 2002 Decision[2]of the Court of Appeals (CA) in CA-GR SP No. 70878. The assailed
Decision disposed as follows:

WHEREFORE, premises considered, the Petition for Certiorari is

hereby GRANTED. The assailed Order of May 17, 2002 is hereby SET
ASIDE and ANNULLED. The custody of the child is hereby ordered returned to
[Crisanto Rafaelito G. Gualberto V].

The [respondent] court/Judge is hereby directed to consider, hear and resolve

[petitioners] motion to lift the award of custody pendente lite of the child to
[respondent].[3]

The second is a Petition for Certiorari[4] filed by Crisanto Rafaelito Gualberto V

under Rule 65 of the Rules of Court, charging the appellate court with grave abuse
of discretion for denying his Motion for Partial Reconsideration of the August 30, 2002
Decision. The denial was contained in the CAs November 27, 2002 Resolution, which
we quote:
We could not find any cogent reason why the [last part of the dispositive portion of
our Decision of August 30, 2002] should be deleted, hence, subject motion is hereby
DENIED.[5]

The Facts

The CA narrated the antecedents as follows:

x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the
Regional Trial Court of Paraaque City] a petition for declaration of nullity of his
marriage to x x x Joycelyn D. Pablo Gualberto, with an ancillary prayer for
custody pendente lite of their almost 4-year-old son, minor Rafaello (the child, for
brevity), whom [Joycelyn] allegedly took away with her from the conjugal home and
his school (Infant Toddlers Discovery Center in Paraaque City) when [she] decided
to abandon [Crisanto] sometime in early February 2002[.] x x x [O]n April 2, 2002,
[RTC Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for
custody pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to appear despite
notice, [Crisanto], a certain Col. Renato Santos, and Ms. Cherry Batistel, testified
before the x x x Judge; x x x documentary evidence [was] also presented[.] x x x
[O]n April 3, 2002, x x x [the] Judge awarded custody pendente lite of the child to
[Crisanto.] [T]he Order partly read x x x:

x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their

minor child with her to Caminawit, San Jose, Occidental Mindoro. At that time, the
minor was enrolled at B.F. Homes, Paraaque City. Despite effort[s] exerted by him,
he has failed to see his child. [Joycelyn] and the child are at present staying with the
formers step-father at the latters [residence] at Caminawit, San Jose, Occidental
Mindoro.

Renato Santos, President of United Security Logistic testified that he was

commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and came up with
the conclusion that [she] is having lesbian relations with one Noreen Gay Cuidadano
in Cebu City.

The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper
of the spouses who stated that [the mother] does not care for the child as she very
often goes out of the house and on one occasion, she saw [Joycelyn] slapping the
child.

Art. 211 of the Family Code provides as follows:

The father and the mother shall jointly exercise parental authority over the persons
of their children. In the case of disagreement, the fathers decision shall prevail,
unless there is a judicial order to the contrary.
The authority of the father and mother over their children is exercised jointly. This
recognition, however, does not place her in exactly the same place as the father; her
authority is subordinated to that of the father.

In all controversies regarding the custody of minors, the sole and foremost
consideration is the physical, educational, social and moral welfare of the child, taking
into account the respective resources and social and moral situations of the
contending parties.

The Court believes that [Joycelyn] had no reason to take the child with her. Moreover,
per Sheriff returns, she is not with him at Caminawit, San Jose, Occidental Mindoro.

WHEREFORE, pendente lite, the Court hereby awards custody of the minor, Crisanto
Rafaello P. Gualberto X to his father, Crisanto Rafaelito G. Gualberto V.

x x x [O]n April 16, 2002, the hearing of [Joycelyns] motion to lift the award of
custody pendente lite of the child to [Crisanto] was set but the former did not
allegedly present any evidence to support her motion. However, on May 17, 2002,
[the] Judge allegedly issued the assailed Order reversing her Order of April 3, 2002
and this time awarding custody of the child to [Joycelyn]. [T]he entire text of the
Order [is] herein reproduced, to wit:

Submitted is [Crisantos] Motion to Resolve Prayer for Custody Pendente Lite and
[Joycelyns] Motion to Dismiss and the respective Oppositions thereto.

[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person referred
to in the caption of the Petition is one JOCELYN Pablo Gualberto and not Joycelyn
Pablo Gualberto. [Joycelyn] knows she is the person referred to in the Complaint. As
a matter of fact, the body of the Complaint states her name correct[ly]. The law is
intended to facilitate and promote the administration of justice, not to hinder or delay
it. Litigation should be practicable and convenient. The error in the name of Joycelyn
does not involve public policy and has not prejudiced [her].

This case was filed on March 12, 2002. Several attempts were made to serve
summons on [Joycelyn] as shown by the Sheriffs returns. It appears that on the
4th attempt on March 21, 2002, both Ma. Daisy and x x x Ronnie Nolasco, [Joycelyns
mother and stepfather, respectively,] read the contents of the documents presented
after which they returned the same.

The Court believes that on that day, summons was duly served and this Court
acquired jurisdiction over [Joycelyn].

The filing of [Joycelyns annulment] case on March 26, 2002 was an after thought,
perforce the Motion to [D]ismiss should be denied.

The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years
old. Under Article 213 of the Family Code, he shall not be separated from his mother
unless the Court finds compelling reasons to order otherwise. The Court finds the
reason stated by [Crisanto] not [to] be compelling reasons. The father should
however be entitled to spend time with the minor. These do not appear compelling
reasons to deprive him of the company of his child.

When [Joycelyn] appeared before this Court, she stated that she has no objection to
the father visiting the child even everyday provided it is in Mindoro.

The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello P.
Gualberto, with [the] right of [Crisanto] to have the child with him every other
weekend.

WHEREFORE:

1. The [M]otion to Dismiss is hereby DENIED;

2. Custody pendente lite is hereby given to the mother Joycelyn Pablo
Gualberto with the right of the father, x x x [Crisanto], to
have him every other week-end.
3. Parties are admonished not to use any other agencies of the
government like the CIDG to interfere in this case and to
harass the parties.[6]
In a Petition for Certiorari[7] before the CA, Crisanto charged the Regional Trial
Court (Branch 260) of Paraaque City with grave abuse of discretion for issuing its
aforequoted May 17, 2002 Order. He alleged that this Order superseded, without any
factual or legal basis, the still valid and subsisting April 3, 2002 Order awarding him
custody pendente lite of his minor son; and that it violated Section 14 of Article VII
of the 1987 Constitution.

Ruling of the Court of Appeals

Partly in Crisantos favor, the CA ruled that grave abuse of discretion had been
committed by the trial court in reversing the latter courts previous Order dated April
3, 2002, by issuing the assailed May 17, 2002 Order. The appellate court explained
that the only incident to resolve was Joycelyns Motion to Dismiss, not the issuance
of the earlier Order. According to the CA, the prior Order awarding provisional custody
to the father should prevail, not only because it was issued after a hearing, but also
because the trial court did not resolve the correct incident in the later Order.
Nonetheless, the CA stressed that the trial court judge was not precluded from
considering and resolving Joycelyns Motion to lift the award of custody pendente
lite to Crisanto, as that Motion had yet to be properly considered and ruled upon.
However, it directed that the child be turned over to him until the issue was resolved.
Hence, these Petitions.[8]
Issues

In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration:

1. Whether or not the Respondent Court of Appeals, when it awarded the custody of
the child to the father, violated Art. 213 of the Family Code, which mandates that no
child under seven years of age shall be separated from the mother, unless the court
finds compelling reasons to order otherwise.

2. Is it Article 213 or Article 211 which applies in this case involving four-year old
Rafaello?[9]

On the other hand, Crisanto raises the following issues:

A. Did Respondent Court commit grave abuse of discretion amounting to or in excess

of jurisdiction when, in its August 30, 2002 Decision, it ordered respondent
court/Judge to consider, hear and resolve the motion to lift award of custody
pendente lite of the child to petitioner and x x x denied the motion for reconsideration
thereof in its November 27, 2002 Resolution, considering that: (1) there is no such
motion ever, then or now pending, with the court a quo; (2) the November 27, 2002
Resolution is unconstitutional; and (3) the April 3, 2002 Order of respondent Judge,
the validity of which has been upheld in the August 30, 2002 Decision of the
respondent Court, has become final and executory; and

B. Ought not the ancillary remedies [o]f habeas corpus, because the whereabouts,
physical and mental condition of the illegally detained Minor Rafaello is now unknown
to petitioner and preliminary mandatory injunction with urgent prayer for immediate
issuance of preliminary [injunction], petitioner having a clear and settled right to
custody of Minor Rafaello which has been violated and still is being continuously
violated by [petitioner Joycelyn], be granted by this Honorable Court?[10]

Being interrelated, the procedural challenges and the substantive issues in the
two Petitions will be addressed jointly.

The Courts Ruling

There is merit in the Petition in GR No. 154994, but not in GR No. 156254.

Preliminary Issue:
The Alleged Prematurity
of the Petition in GR No. 154994

Before going into the merits of the present controversy, the Court shall first
dispose of a threshold issue. In GR No. 154994, therein Respondent Crisanto
contends that the Petition for Review was filed beyond the deadline (October 24,
2002) allowed by the Rules of Court and by this Court. He claims that Registry Bill
No. 88 shows that the Petition was sent by speed mail, only on November 4, 2002.
Furthermore, he assails the Petition for its prematurity, since his Motion for Partial
Reconsideration of the August 30, 2002 CA Decision was still pending before the
appellate court. Thus, he argues that the Supreme Court has no jurisdiction over
Joycelyns Petition.

Timeliness of the Petition

The manner of filing and service Joycelyns Petition by mail is governed by

Sections 3 and 7 of Rule 13 of the Rules of Court, which we quote:

SEC. 3. Manner of filing. The filing of pleadings, appearances, motions, notices,

orders, judgments and all other papers shall be made by presenting the original
copies thereof, plainly indicated as such personally to the clerk of court or by sending
them by registered mail. xxx In the second case, the date of mailing of motions,
pleadings and other papers or payments or deposits, as shown by the post office
stamp on the envelope or the registry receipt, shall be considered as the date of their
filing, payment, or deposit in court. The envelope shall be attached to the records of
the case.

xxxxxxxxx

SEC. 7. Service by mail. Service by registered mail shall be made by depositing the
copy in the office, in a sealed envelope, plainly addressed to the party or his counsel
at his office, if known, otherwise at his residence, if known, with postage fully pre-
paid, and with instructions to the postmaster to return the mail to the sender after
ten (10) days if undelivered. If no registry service is available in the locality of either
the sender of the addressee, service may be done by ordinary mail. (Italics supplied)

The records disclose that Joycelyn received the CAs August 30, 2002 Decision on
September 9, 2002. On September 17, she filed before this Court a Motion for a 30-
day extension of time to file a petition for review on certiorari. This Motion was
granted,[11] and the deadline was thus extended until October 24, 2002.
A further perusal of the records reveals that copies of the Petition were sent to
this Court and to the parties by registered mail[12] at the Bian, Laguna Post Office on
October 24, 2002. This is the date clearly stamped on the face of the envelope[13] and
attested to in the Affidavit of Service[14] accompanying the Petition. Petitioner
Joycelyn explained that the filing and the service had been made by registered mail
due to the volume of delivery assignments and the lack of a regular messenger.[15]
The Petition is, therefore, considered to have been filed on October 24, 2002, its
mailing date as shown by the post office stamp on the envelope. The last sentence
of Section 3 of Rule 13 of the Rules provides that the date of filing may be
shown either by the post office stamp on the envelope or by the registry receipt.
Proof of its filing, on the other hand, is shown by the existence of the petition in the
record, pursuant to Section 12 of Rule 13.[16]
The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows the
date November 2, 2002, merely discloses when the mail matters received by the Bian
Post Office on October 24, 2002, were dispatched or sent to the Central Mail Exchange
for distribution to their final destinations.[17] The Registry Bill does not reflect the
actual mailing date. Instead, it is the postal Registration Book[18] that shows the list
of mail matters that have been registered for mailing on a particular day, along with
the names of the senders and the addressees. That book shows that Registry Receipt
Nos. 2832-A and 2832-B, pertaining to the mailed matters for the Supreme Court,
were issued on October 24, 2002.

Prematurity of the Petition

As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out that
his Urgent Motion for Partial Reconsideration[19] was still awaiting resolution by the
CA when she filed her Petition before this Court on October 24, 2002. The CA ruled
on the Motion only on November 27, 2002.
The records show, however, that the Motion of Crisanto was mailed only on
September 12, 2002. Thus, on September 17, 2002, when Joycelyn filed her Motion
for Extension of Time to file her Petition for Review, she might have still been unaware
that he had moved for a partial reconsideration of the August 20, 2002 CA Decision.
Nevertheless, upon being notified of the filing of his Motion, she should have
manifested that fact to this Court.
With the CAs final denial of Crisantos Motion for Reconsideration, Joycelyns lapse
may be excused in the interest of resolving the substantive issues raised by the
parties.

First Issue:
Grave Abuse of Discretion

In GR No. 156254, Crisanto submits that the CA gravely abused its discretion
when it ordered the trial court judge to consider, hear and resolve the motion to lift
the award of custody pendente lite without any proper motion by Joycelyn and after
the April 3, 2002 Order of the trial court had become final and executory. The CA is
also charged with grave abuse of discretion for denying his Motion for Partial
Reconsideration without stating the reasons for the denial, allegedly in contravention
of Section 1 of Rule 36 of the Rules of Court.

The Order to Hear the Motion

to Lift the Award of Custody
Pendente Lite Proper
 To begin with, grave abuse of discretion is committed when an act is 1) done
contrary to the Constitution, the law or jurisprudence;[20] or 2) executed whimsically
or arbitrarily in a manner so patent and so gross as to amount to an evasion of a
positive duty, or to a virtual refusal to perform the duty enjoined.[21] What constitutes
grave abuse of discretion is such capricious and arbitrary exercise of judgment as
that which is equivalent, in the eyes of the law, to lack of jurisdiction.[22]
On the basis of these criteria, we hold that the CA did not commit grave abuse of
discretion.
First, there can be no question that a court of competent jurisdiction is vested
with the authority to resolve even unassigned issues. It can do so when such a step
is indispensable or necessary to a just resolution of issues raised in a particular
pleading or when the unassigned issues are inextricably linked or germane to those
that have been pleaded.[23] This truism applies with more force when the relief
granted has been specifically prayed for, as in this case.
Explicit in the Motion to Dismiss[24] filed by Joycelyn before the RTC is her ancillary
prayer for the court to lift and set aside its April 3, 2002 Order awarding to Crisanto
custody pendente lite of their minor son. Indeed, the necessary consequence of
granting her Motion to Dismiss would have been the setting aside of the Order
awarding Crisanto provisional custody of the child. Besides, even if the Motion to
Dismiss was denied -- as indeed it was -- the trial court, in its discretion and if
warranted, could still have granted the ancillary prayer as an alternative relief.
Parenthetically, Joycelyns Motion need not have been verified because of the
provisional nature of the April 3, 2002 Order. Under Rule 38[25] of the Rules of Court,
verification is required only when relief is sought from a final and executory Order.
Accordingly, the court may set aside its own orders even without a proper motion,
whenever such action is warranted by the Rules and to prevent a miscarriage of
justice.[26]

Denial of the Motion for

Reconsideration Proper

Second, the requirement in Section 1 of Rule 36 (for judges to state clearly and
distinctly the reasons for their dispositions) refers only to decisions and final
orders on the merits, not to those resolving incidental matters.[27] The provision
reads:

SECTION 1. Rendition of judgments and final orders. A judgment or final order

determining the merits of the case shall be in writing personally and directly prepared
by the judge, stating clearly and distinctly the facts and the law on which it is based,
signed by him, and filed with the clerk of court. (Italics supplied)

Here, the declaration of the nullity of marriage is the subject of the main case, in
which the issue of custody pendente lite is an incident. That custody and support of
common children may be ruled upon by the court while the action is pending is
provided in Article 49 of the Family Code, which we quote :

Art. 49. During the pendency of the action[28] and in the absence of adequate
provisions in a written agreement between the spouses, the Court shall provide for
the support of the spouses and the custody and support of their common children. x
x x.

Clearly then, the requirement cited by Crisanto is inapplicable. In any event, in

its questioned Resolution, the CA clearly stated that it could not find any cogent
reason to reconsider and set aside the assailed portion of its August 30, 2002
Decision.

The April 3, 2002 Order Not

Final and Executory

Third, the award of temporary custody, as the term implies, is provisional and
subject to change as circumstances may warrant. In this connection, there is no need
for a lengthy discussion of the alleged finality of the April 3, 2002 RTC Order granting
Crisanto temporary custody of his son. For that matter, even the award of child
custody after a judgment on a marriage annulment is not permanent; it may be
reexamined and adjusted if and when the parent who was given custody becomes
unfit.[29]

Second Issue:
Custody of a Minor Child

When love is lost between spouses and the marriage inevitably results in
separation, the bitterest tussle is often over the custody of their children. The Court
is now tasked to settle the opposing claims of the parents for custody pendente lite of
their child who is less than seven years old.[30] On the one hand, the mother insists
that, based on Article 213 of the Family Code, her minor child cannot be separated
from her. On the other hand, the father argues that she is unfit to take care of their
son; hence, for compelling reasons, he must be awarded custody of the child.
Article 213 of the Family Code[31] provides:

ART. 213. In case of separation of the parents, parental authority shall be exercised
by the parent designated by the court. The court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the
parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise.
 This Court has held that when the parents are separated, legally or otherwise,
the foregoing provision governs the custody of their child.[32] Article 213 takes its
bearing from Article 363 of the Civil Code, which reads:

Art. 363. In all questions on the care, custody, education and property of children,
the latters welfare shall be paramount. No mother shall be separated from her child
under seven years of age, unless the court finds compelling reasons for such
measure.(Italics supplied)

The general rule that children under seven years of age shall not be separated
from their mother finds its raison detre in the basic need of minor children for their
mothers loving care.[33] In explaining the rationale for Article 363 of the Civil Code,
the Code Commission stressed thus:

The general rule is recommended in order to avoid a tragedy where a mother has
seen her baby torn away from her. No man can sound the deep sorrows of a mother
who is deprived of her child of tender age. The exception allowed by the rule has to
be for compelling reasons for the good of the child: those cases must indeed be rare,
if the mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery,
the penalty of imprisonment and the (relative) divorce decree will ordinarily be
sufficient punishment for her. Moreover, her moral dereliction will not have any effect
upon the baby who is as yet unable to understand the situation. (Report of the Code
Commission, p. 12)

A similar provision is embodied in Article 8 of the Child and Youth Welfare Code
(Presidential Decree No. 603).[34] Article 17 of the same Code is even more explicit
in providing for the childs custody under various circumstances, specifically in case
the parents are separated. It clearly mandates that no child under five years of age
shall be separated from his mother, unless the court finds compelling reasons to do
so. The provision is reproduced in its entirety as follows:

Art. 17. Joint Parental Authority. The father and the mother shall exercise jointly just
and reasonable parental authority and responsibility over their legitimate or adopted
children. In case of disagreement, the fathers decision shall prevail unless there is a
judicial order to the contrary.

In case of the absence or death of either parent, the present or surviving parent shall
continue to exercise parental authority over such children, unless in case of the
surviving parents remarriage, the court for justifiable reasons, appoints another
person as guardian.

In case of separation of his parents, no child under five years of age shall be
separated from his mother, unless the court finds compelling reasons to do so. (Italics
supplied)

The above mandates reverberate in Articles 211, 212 and 213 of the Family Code.
It is unmistakable from the language of these provisions that Article 211[35] was
derived from the first sentence of the aforequoted Article 17; Article 212,[36] from the
second sentence; and Article 213,[37] save for a few additions, from the third
sentence. It should be noted that the Family Code has reverted to the Civil Code
provision mandating that a child below seven years should not be separated from the
mother.[38]

Mandatory Character
of Article 213 of the Family Code

In Lacson v. San Jose-Lacson,[39] the Court held that the use of shall in Article
363 of the Civil Code and the observations made by the Code Commission underscore
the mandatory character of the word.[40] Holding in that case that it was a mistake to
deprive the mother of custody of her two children, both then below the age of seven,
the Court stressed:

[Article 363] prohibits in no uncertain terms the separation of a mother and her child
below seven years, unless such a separation is grounded upon compelling reasons as
determined by a court.[41]

In like manner, the word shall in Article 213 of the Family Code and Section
6[42] of Rule 99 of the Rules of Court has been held to connote a mandatory
character.[43] Article 213 and Rule 99 similarly contemplate a situation in which the
parents of the minor are married to each other, but are separated by virtue of either
a decree of legal separation or a de facto separation.[44] In the present case, the
parents are living separately as a matter of fact.

The Best Interest of the Child

a Primary Consideration

The Convention on the Rights of the Child provides that [i]n 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.[45]
The principle of best interest of the child pervades Philippine cases involving
adoption, guardianship, support, personal status, minors in conflict with the law, and
child custody. In these cases, it has long been recognized that in choosing the parent
to whom custody is given, the welfare of the minors should always be the paramount
consideration.[46] Courts are mandated to take into account all relevant circumstances
that would have a bearing on the childrens well-being and development. Aside from
the material resources and the moral and social situations of each parent, other
factors may also be considered to ascertain which one has the capability to attend to
the physical, educational, social and moral welfare of the children.[47] Among these
factors are the previous care and devotion shown by each of the parents; their
religious background, moral uprightness, home environment and time availability; as
well as the childrens emotional and educational needs
Tender-Age
Presumption

As pointed out earlier, there is express statutory recognition that, as a general

rule, a mother is to be preferred in awarding custody of children under the age of
seven. The caveat in Article 213 of the Family Code cannot be ignored, except when
the court finds cause to order otherwise.[48]
The so-called tender-age presumption under Article 213 of the Family Code may
be overcome only by compelling evidence of the mothers unfitness. The mother has
been declared unsuitable to have custody of her children in one or more of the
following instances: neglect, abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a
communicable disease.[49]
Here, Crisanto cites immorality due to alleged lesbian relations as the compelling
reason to deprive Joycelyn of custody. It has indeed been held that under certain
circumstances, the mothers immoral conduct may constitute a compelling reason to
deprive her of custody.[50]
But sexual preference or moral laxity alone does not prove parental neglect or
incompetence. Not even the fact that a mother is a prostitute or has been unfaithful
to her husband would render her unfit to have custody of her minor child.[51] To
deprive the wife of custody, the husband must clearly establish that her moral lapses
have had an adverse effect on the welfare of the child or have distracted the offending
spouse from exercising proper parental care.[52]
To this effect did the Court rule in Unson III v. Navarro,[53] wherein the mother
was openly living with her brother-in-law, the childs uncle. Under that circumstance,
the Court deemed it in the nine-year-old childs best interest to free her from the
obviously unwholesome, not to say immoral influence, that the situation in which the
mother ha[d] placed herself might create in [the childs] moral and social outlook.[54]
In Espiritu v. CA,[55] the Court took into account psychological and case study
reports on the child, whose feelings of insecurity and anxiety had been traced to
strong conflicts with the mother. To the psychologist the child revealed, among other
things, that the latter was disturbed upon seeing her mother hugging and kissing a
bad man who lived in their house and worked for her father. The Court held that the
illicit or immoral activities of the mother had already caused the child emotional
disturbances, personality conflicts, and exposure to conflicting moral values x x x.
Based on the above jurisprudence, it is therefore not enough for Crisanto to show
merely that Joycelyn was a lesbian. He must also demonstrate that she carried on
her purported relationship with a person of the same sex in the presence of their son
or under circumstances not conducive to the childs proper moral development. Such
a fact has not been shown here. There is no evidence that the son was exposed to
the mothers alleged sexual proclivities or that his proper moral and psychological
development suffered as a result.
Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort,
ruled in her May 17, 2002 Order that she had found the reason stated by [Crisanto]
not to be compelling[56] as to suffice as a ground for separating the child from his
mother. The judge made this conclusion after personally observing the two of them,
both in the courtroom and in her chambers on April 16, 2002, and after a chance to
talk to the boy and to observe him firsthand. This assessment, based on her unique
opportunity to witness the childs behavior in the presence of each parent, should
carry more weight than a mere reliance on the records. All told, no compelling reason
has been adduced to wrench the child from the mothers custody.

No Grant of Habeas Corpus

and Preliminary Injunction

As we have ruled that Joycelyn has the right to keep her minor son in her custody,
the writ of habeas corpus and the preliminary mandatory injunction prayed for by
Crisanto have no leg to stand on. A writ of habeas corpus may be issued only when
the rightful custody of any person is withheld from the person entitled thereto,[57] a
situation that does not apply here.
On the other hand, the ancillary remedy of preliminary mandatory injunction
cannot be granted, because Crisantos right to custody has not been proven to be
clear and unmistakable.[58]Unlike an ordinary preliminary injunction, the writ of
preliminary mandatory injunction is more cautiously regarded, since the latter
requires the performance of a particular act that tends to go beyond the maintenance
of the status quo.[59] Besides, such an injunction would serve no purpose, now that
the case has been decided on its merits.[60]
WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision
of the Court of Appeals is hereby REVERSED and the May 17, 2002 Regional Trial Court
Order REINSTATED. The Petition in GR No. 156254 is DISMISSED. Costs against
Petitioner Crisanto Rafaelito Gualberto V.
SO ORDERED.