THIRD DIVISION

[G.R. No. 164201. December 10, 2012.]

EFREN PANA,  petitioner, vs. HEIRS OF JOSE JUANITE, SR. and JOSE

JUANITE, JR.,  respondents.

DECISION

ABAD,  J p:

This case is about the propriety of levy and execution on conjugal properties where one of the
spouses has been found guilty of a crime and ordered to pay civil indemnities to the victims' heirs.
The Facts and the Case
The prosecution accused petitioner Efren Pana (Efren), his wife Melecia, and others of
murder before the Regional Trial Court (RTC) of Surigao City in Criminal Cases 4232 and 4233. 1
On July 9, 1997 the RTC rendered a consolidated decision 2 acquitting Efren of the charge
for insufficiency of evidence but finding Melecia and another person guilty as charged and sentenced
them to the penalty of death. The RTC ordered those found guilty to pay each of the heirs of the
victims, jointly and severally, P50,000.00 as civil indemnity, P50,000.00 each as moral damages, and
P150,000.00 actual damages.
On appeal to this Court, it affirmed on May 24, 2001 the conviction of both accused but
modified the penalty to reclusion perpetua. With respect to the monetary awards, the Court also
affirmed the award of civil indemnity and moral damages but deleted the award for actual damages for
lack of evidentiary basis. In its place, however, the Court made an award of P15,000.00 each by way
of temperate damages. In addition, the Court awarded P50,000.00 exemplary damages per victim to
be paid solidarily by them. 3 The decision became final and executory on October 1, 2001. 4 TSacAE
Upon motion for execution by the heirs of the deceased, on March 12, 2002 the RTC ordered
the issuance of the writ, 5 resulting in the levy of real properties registered in the names of Efren and
Melecia. 6 Subsequently, a notice of levy 7 and a notice of sale on execution 8 were issued.
On April 3, 2002, petitioner Efren and his wife Melecia filed a motion to quash the writ of
execution, claiming that the levied properties were conjugal assets, not paraphernal assets of
Melecia. 9 On September 16, 2002 the RTC denied the motion. 10 The spouses moved for
reconsideration but the RTC denied the same on March 6, 2003. 11
Claiming that the RTC gravely abused its discretion in issuing the challenged orders, Efren
filed a petition for certiorari before the Court of Appeals (CA). On January 29, 2004 the CA dismissed
the petition for failure to sufficiently show that the RTC gravely abused its discretion in issuing its
assailed orders. 12 It also denied Efren's motion for reconsideration, 13 prompting him to file the
present petition for review on certiorari.
The Issue Presented
The sole issue presented in this case is whether or not the CA erred in holding that the
conjugal properties of spouses Efren and Melecia can be levied and executed upon for the
satisfaction of Melecia's civil liability in the murder case.
Ruling of the Court
To determine whether the obligation of the wife arising from her criminal liability is chargeable
against the properties of the marriage, the Court has first to identify the spouses' property relations.
 Efren claims that his marriage with Melecia falls under the regime of conjugal partnership of
gains, given that they were married prior to the enactment of the Family Code and that they did not
execute any prenuptial agreement. 14 Although the heirs of the deceased victims do not dispute that it
was the Civil Code, not the Family Code, which governed the marriage, they insist that it was the
system of absolute community of property that applied to Efren and Melecia. The reasoning
goes: TADCSE
Admittedly, the spouses were married before the effectivity of the Family
Code. But that fact does not prevent the application of [A]rt. 94, last paragraph, of
the Family Code because their property regime is precisely governed by the law on
absolute community. This finds support in Art. 256 of the Family Code which states:
"This code shall have retroactive effect in so far as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other
laws."
None of the spouses is dead. Therefore, no vested rights have been
acquired by each over the properties of the community. Hence, the liabilities
imposed on the accused-spouse may properly be charged against the community
as heretofore discussed. 15
The RTC applied the same reasoning as above. 16 Efren and Melecia's property relation was
admittedly conjugal under the Civil Code but, since the transitory provision of the Family Code gave
its provisions retroactive effect if no vested or acquired rights are impaired, that property relation
between the couple was changed when the Family Code took effect in 1988. The latter code now
prescribes in Article 75 absolute community of property for all marriages unless the parties entered
into a prenuptial agreement. As it happens, Efren and Melecia had no prenuptial agreement. The CA
agreed with this position. 17
Both the RTC and the CA are in error on this point. While it is true that the personal stakes of
each spouse in their conjugal assets are inchoate or unclear prior to the liquidation of the conjugal
partnership of gains and, therefore, none of them can be said to have acquired vested rights in
specific assets, it is evident that Article 256 of the Family Code does not intend to reach back and
automatically convert into absolute community of property relation all conjugal partnerships of gains
that existed before 1988 excepting only those with prenuptial agreements. CETIDH
The Family Code itself provides in Article 76 that marriage settlements cannot be modified
except prior to marriage.
Art. 76. In order that any modification in the marriage settlements may be
valid, it must be made before the celebration of the marriage, subject to the
provisions of Articles 66, 67, 128, 135 and 136.
Clearly, therefore, the conjugal partnership of gains that governed the marriage between
Efren and Melecia who were married prior to 1988 cannot be modified except before the celebration
of that marriage.
Post-marriage modification of such settlements can take place only where: (a) the absolute
community or conjugal partnership was dissolved and liquidated upon a decree of legal
separation; 18 (b) the spouses who were legally separated reconciled and agreed to revive their
former property regime; 19 (c) judicial separation of property had been had on the ground that a
spouse abandons the other without just cause or fails to comply with his obligations to the
family; 20 (d) there was judicial separation of property under Article 135; (e) the spouses jointly filed a
petition for the voluntary dissolution of their absolute community or conjugal partnership of
gains. 21 None of these circumstances exists in the case of Efren and Melecia.
What is more, under the conjugal partnership of gains established by Article 142 of the Civil
Code, the husband and the wife place only the fruits of their separate property and incomes from their
work or industry in the common fund. Thus:
Art. 142. By means of the conjugal partnership of gains the husband and
wife place in a common fund the fruits of their separate property and the income
from their work or industry, and divide equally, upon the dissolution of the marriage
 or of the partnership, the net gains or benefits obtained indiscriminately by either
spouse during the marriage.
This means that they continue under such property regime to enjoy rights of ownership over
their separate properties. Consequently, to automatically change the marriage settlements of couples
who got married under the Civil Code into absolute community of property in 1988 when the Family
Code took effect would be to impair their acquired or vested rights to such separate
properties. ICHAaT
The RTC cannot take advantage of the spouses' loose admission that absolute community of
property governed their property relation since the record shows that they had been insistent that their
property regime is one of conjugal partnership of gains. 22 No evidence of a prenuptial agreement
between them has been presented.
What is clear is that Efren and Melecia were married when the Civil Code was still the
operative law on marriages. The presumption, absent any evidence to the contrary, is that they were
married under the regime of the conjugal partnership of gains. Article 119 of the  Civil Code thus
provides:
Art. 119. The future spouses may in the marriage settlements agree upon
absolute or relative community of property, or upon complete separation of
property, or upon any other regime. In the absence of marriage settlements, or
when the same are void, the system of relative community or conjugal partnership
of gains as established in this Code, shall govern the property relations between
husband and wife.
Of course, the Family Code contains terms governing conjugal partnership of gains that
supersede the terms of the conjugal partnership of gains under the Civil Code. Article 105 of
the Family Code states:
"xxx xxx xxx
The provisions of this Chapter [on the Conjugal Partnership of Gains] shall
also apply to conjugal partnerships of gains already established between spouses
before the effectivity of this Code, without prejudice to vested rights already
acquired in accordance with the Civil Code or other laws, as provided in Article
256." 23
Consequently, the Court must refer to the Family Code provisions in deciding whether or not
the conjugal properties of Efren and Melecia may be held to answer for the civil liabilities imposed on
Melecia in the murder case. Its Article 122 provides:
Art. 122. The payment of personal debts contracted by the husband or the
wife before or during the marriage shall not be charged to the conjugal properties
partnership except insofar as they redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon them be
charged to the partnership. IDASHa
However, the payment of personal debts contracted by either spouse
before the marriage, that of fines and indemnities imposed upon them, as well as
the support of illegitimate children of either spouse, may be enforced against the
partnership assets after the responsibilities enumerated in the preceding Article
have been covered, if the spouse who is bound should have no exclusive property
or if it should be insufficient; but at the time of the liquidation of the partnership,
such spouse shall be charged for what has been paid for the purpose above-
mentioned.
Since Efren does not dispute the RTC's finding that Melecia has no exclusive property of her
own, 24 the above applies. The civil indemnity that the decision in the murder case imposed on her
may be enforced against their conjugal assets after the responsibilities enumerated in Article 121 of
the Family Code have been covered. 25 Those responsibilities are as follows:
Art. 121. The conjugal partnership shall be liable for:
 (1) The support of the spouse, their common children, and the legitimate
children of either spouse; however, the support of illegitimate children shall be
governed by the provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the conjugal partnership of gains,
or by both spouses or by one of them with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent
of the other to the extent that the family may have benefited;
(4) All taxes, liens, charges, and expenses, including major or minor repairs
upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during the marriage
upon the separate property of either spouse; SHTcDE
(6) Expenses to enable either spouse to commence or complete a
professional, vocational, or other activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they have redounded to
the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of
their common legitimate children for the exclusive purpose of commencing or
completing a professional or vocational course or other activity for self-
improvement; and
(9) Expenses of litigation between the spouses unless the suit is found to
be groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities,
the spouses shall be solidarily liable for the unpaid balance with their separate
properties.
Contrary to Efren's contention, Article 121 above allows payment of the criminal indemnities
imposed on his wife, Melecia, out of the partnership assets even before these are liquidated. Indeed,
it states that such indemnities "may be enforced against the partnership assets after the
responsibilities enumerated in the preceding article have been covered." 26 No prior liquidation of
those assets is required. This is not altogether unfair since Article 122 states that "at the time of
liquidation of the partnership, such [offending] spouse shall be charged for what has been paid for the
purposes above-mentioned."
WHEREFORE, the Court AFFIRMS with MODIFICATION the Resolutions of the Court of
Appeals in CA-G.R. SP 77198 dated January 29, 2004 and May 14, 2004. The Regional Trial Court of
Surigao City, Branch 30, shall first ascertain that, in enforcing the writ of execution on the conjugal
properties of spouses Efren and Melecia Pana for the satisfaction of the indemnities imposed by final
judgment on the latter accused in Criminal Cases 4232 and 4233, the responsibilities enumerated in
Article 121 of the Family Code have been covered.
SO ORDERED.
Peralta, *  Bersamin, **  Mendoza and Leonen, JJ., concur.

|||  (Pana v. Heirs of Juanite, Sr., G.R. No. 164201, [December 10, 2012], 700 PHIL 525-534)
 SECOND DIVISION

[G.R. No. 122134. October 3, 2003.]

ROMANA LOCQUIAO VALENCIA and CONSTANCIA L.

VALENCIA,  petitioners, vs. BENITO A. LOCQUIAO, now deceased and
substituted by JIMMY LOCQUIAO, TOMASA MARA and the REGISTRAR OF
DEEDS OF PANGASINAN,  respondents.

CONSTANCIA L. VALENCIA,  petitioner, vs. BENITO A. LOCQUIAO, now

deceased and substituted by JIMMY LOCQUIAO, respondent.

DECISION

TINGA,  J p:

The Old Civil Code 1 and the Old Code of Civil Procedure, 2 repealed laws that they both are
notwithstanding, have not abruptly become mere quiescent items of legal history since their relevance
do not wear off for a long time. Verily, the old statutes proved to be decisive in the adjudication of the
case at bar.
Before us is a petition for review seeking to annul and set aside the joint  Decision 3 dated
November 24, 1994, as well as the  Resolution 4 dated September 8, 1995, of the former Tenth
Division 5 of the Court of Appeals in two consolidated cases involving an action for annulment of
title 6 and an action for ejectment. 7
Both cases involve a parcel of land consisting of 4,876 square meters situated in Urdaneta,
Pangasinan. This land was originally owned by the spouses Herminigildo and Raymunda Locquiao,
as evidenced by Original Certificate of Title No.  18383 8 issued on October 3, 1917 by the Register of
Deeds of Pangasinan.
On May 22, 1944, Herminigildo and Raymunda Locquiao executed a deed of
donation propter nuptias which was written in the Ilocano dialect, denominated as Inventario Ti
Sagut 9 in favor of their son, respondent Benito Locquiao (hereafter, respondent Benito) and his
prospective bride, respondent Tomasa Mara (hereafter, respondent Tomasa). By the terms of the
deed, the donees were gifted with four (4) parcels of land, including the land in question, as well as a
male cow and one-third (1/3) portion of the conjugal house of the donor parents, in consideration of
the impending marriage of the donees.
The donees took their marriage vows on June 4, 1944 and the fact of their marriage was
inscribed at the back of O.C.T. No. 18383. 10
Herminigildo and Raymunda died on December 15, 1962 and January 9, 1968, respectively,
leaving as heirs their six (6) children, namely: respondent Benito, Marciano, Lucio, Emeteria,
Anastacia, and petitioner Romana, all surnamed Locquiao 11 . With the permission of respondents
Benito and Tomasa, petitioner Romana Valencia (hereinafter, Romana) took possession and
cultivated the subject land. 12 When respondent Romana's husband got sick sometime in 1977, her
daughter petitioner Constancia Valencia (hereafter, petitioner Constancia) took over, and since then,
has been in possession of the land. 13
Meanwhile, respondents Benito and Tomasa registered the Inventario Ti Sagut with the Office
of the Register of Deeds of Pangasinan on May 15, 1970. 14 In due course, the original title was
cancelled and in lieu thereof Transfer Certificate of Title No. 84897 15 was issued in the name of the
respondents Benito and Tomasa.
On March 18, 1973, the heirs of the Locquiao spouses, including respondent Benito and
petitioner Romana, executed a Deed of Partition with Recognition of Rights, 16 wherein they
distributed among only three (3) of them, the twelve (12) parcels of land left by their common
progenitors, excluding the land in question and other lots disposed of by the Locquiao spouses earlier.
Contained in the deed is a statement that respondent Benito and Marciano Locquiao, along with the
heirs of Lucio Locquiao, "have already received our shares in the estates of our parents, by virtue of
previous donations and conveyances," and that for that reason the heirs of Lucio Locquaio were not
made parties to the deed. All the living children of the Locquaio spouses at the time, including
petitioner Romana, confirmed the previous dispositions and waived their rights to whomsoever the
properties covered by the deed of partition were adjudicated. 17
Later on, disagreements among five (5) heirs or groups of heirs, including petitioner Romana,
concerning the distribution of two (2) of the lots covered by the deed of partition which are Lots No.
2467 and 5567 of the Urdaneta Cadastral Survey surfaced. As their differences were settled, the heirs
concerned executed a Deed of Compromise Agreement 18 on June 12, 1976, which provided for the
re-distribution of the two (2) lots. Although not directly involved in the discord, Benito signed the
compromise agreement together with his feuding siblings, nephews and nieces. Significantly, all the
signatories to the compromise agreement, including petitioner Romana, confirmed all the other
stipulations and provisions of the deed of partition. 19 IaDTES
Sometime in 1983, the apparent calm pervading among the heirs was disturbed when
petitioner Constancia filed an action for annulment of title against the respondents before the Regional
Trial Court of Pangasinan. 20 The record shows that the case was dismissed by the trial court but it
does not indicate the reason for the dismissal. 21
On December 13, 1983, respondent Benito filed with the Municipal Trial Court of Urdaneta,
Pangasinan a Complaint 22 seeking the ejectment of petitioner Constancia from the subject property.
On November 25, 1985, the Municipal Trial Court rendered a Decision, 23 ordering the
defendant in the case, petitioner Constancia, to vacate the land in question.
Petitioners Romana and Constancia countered with a Complaint 24 for the annulment
of Transfer Certificate of Title No. 84897 against respondents Benito and Tomasa 25 which they filed
with the Regional Trial Court of Pangasinan on December 23, 1985. Petitioners alleged that the
issuance of the transfer certificate of title was fraudulent; that the Inventario Ti Sagut is spurious; that
the notary public who notarized the document had no authority to do so, and; that the donation did not
observe the form required by law as there was no written acceptance on the document itself or in a
separate public instrument.
Meanwhile, the decision in the ejectment case was appealed to the same RTC where the
case for annulment of title was also pending. Finding that the question of ownership was the central
issue in both cases, the court issued an Order 26 suspending the proceedings in the ejectment case
until it shall have decided the ownership issue in the title annulment case.
After trial, the RTC rendered a Decision 27 dated January 30, 1989 dismissing the complaint
for annulment of title on the grounds of prescription and laches. It likewise ruled that the Inventario Ti
Sagut is a valid public document which transmitted ownership over the subject land to the
respondents. With the dismissal of the complaint and the confirmation of the respondents' title over
the subject property, the RTC affirmed in toto the decision of the MTC in the ejectment case 28 .
Dissatisfied, petitioners elevated the two (2) decisions to the respondent Court of Appeals.
Since they involve the same parties and the same property, the appealed cases were consolidated by
the appellate court.
On November 24, 1994, the Court of Appeals rendered the assailed Decision affirming the
appealed RTC decisions. The appellate court upheld the RTC's conclusion that the petitioners' cause
of action had already prescribed, considering that the complaint for annulment of title was filed more
than fifteen (15) years after the issuance of the title, or beyond the ten (10) — year prescriptive period
for actions for reconveyance. It likewise rejected the petitioners' assertion that the donation propter
nuptias is null and void for want of acceptance by the donee, positing that the implied acceptance
flowing from the very fact of marriage between the respondents, coupled with the registration of the
fact of marriage at the back of OCT No. 18383, constitutes substantial compliance with the
requirements of the law.
The petitioners filed a Motion for Reconsideration 29 but it was denied by the appellate court
in its Resolution 30 dated September 8, 1995. Hence, this petition.
We find the petition entirely devoid of merit.
Concerning the annulment case, the issues to be threshed out are: (1) whether the
donation propter nuptias is authentic; (2) whether acceptance of the donation by the donees is
required; (3) if so, in what form should the acceptance appear, and; (4) whether the action is barred
by prescription and laches.
The Inventario Ti Sagut which contains the donation  propter nuptias was executed and
notarized on May 22, 1944. It was presented to the Register of Deeds of Pangasinan for registration
on May 15, 1970. The photocopy of the document presented in evidence as Exhibit "8" was
reproduced from the original kept in the Registry of Deeds of Pangasinan. 31
The petitioners have launched a two-pronged attack against the validity of the
donation propter nuptias, to wit: first, the Inventario Ti Sagut is not authentic; and second, even
assuming that it is authentic, it is void for the donee's failure to accept the donation in a public
instrument.
To buttress their claim that the document was falsified, the petitioners rely mainly on
the Certification 32 dated July 9, 1984 of the Records Management and Archives Office that there
was no notarial record for the year 1944 of Cipriano V. Abenojar who notarized the document on May
22, 1944 and that therefore a copy of the document was not available.
The certification is not sufficient to prove the alleged inexistence or spuriousness of the
challenged document. The appellate court is correct in pointing out that the mere absence of the
notarial record does not prove that the notary public does not have a valid notarial commission and
neither does the absence of a file copy of the document with the archives effect evidence of the
falsification of the document. 33 This Court ruled that the failure of the notary public to furnish a copy
of the deed to the appropriate office is a ground for disciplining him, but certainly not for invalidating
the document or for setting aside the transaction therein involved. 34
Moreover, the heirs of the Locquaio spouses, including petitioner Romana, made reference in
the deed of partition and the compromise agreement to the previous donations made by the spouses
in favor of some of the heirs. As pointed out by the RTC, 35 respondent Benito was not allotted any
share in the deed of partition precisely because he received his share by virtue of previous donations.
His name was mentioned in the deed of partition only with respect to the middle portion of Lot No.
2638 which is the eleventh (11th) parcel in the deed but that is the same one-third (1/3) portion of Lot
No. 2638 covered by O.C.T. No. 18259 included in the donation propter nuptias. Similarly, Marciano
Locquiao and the heirs of Lucio Locquiao were not allocated any more share in the deed of partition
since they received theirs by virtue of prior donations or conveyances.
The pertinent provisions of the deed of partition read:
xxx xxx xxx
That the heirs of Lucio Locquiao are not included in this Partition by reason
of the fact that in the same manner as we, BENITO and MARCIANO
LOCQUIAO are concerned, we have already received our shares in the estate of
our parents by virtue of previous donations and conveyances, and that we hereby
confirm said dispositions, waiving our rights to whomsoever will these properties
will now be adjudicated;
xxx xxx xxx
That we, the Parties herein, do hereby waive and renounce as against
each other any claim or claims that we may have against one or some of us, and
that we recognize the rights of ownership of our co-heirs with respect to those
parcels already distributed and adjudicated and that in the event that one of us is
cultivating or in possession of any one of the parcels of land already adjudicated in
favor of another heir or has been conveyed, donated or disposed of previously, in
favor of another heir, we do hereby renounce and waive our right of possession in
favor of the heir in whose favor the donation or conveyance was made
previously. 36 (Emphasis supplied) ACHEaI
The exclusion of the subject property in the deed of partition dispels any doubt as to the
authenticity of the earlier Inventario Ti Sagut.
This brings us to the admissibility of the Deed of Partition with Recognition of Rights, marked
as Exhibit "2", and the Deed of Compromise Agreement, marked as Exhibit "3".
The petitioners fault the RTC for admitting in evidence the deed of partition and the
compromise agreement on the pretext that the documents "were not properly submitted in evidence",
pointing out that "when presented to respondent Tomasa Mara for identification, she simply stated
that she knew about the documents but she did not actually identify them." 37
The argument is not tenable. Firstly, objection to the documentary evidence must be made at
the time it is formally offered. 38 Since the petitioners did not even bother to object to the documents
at the time they were offered in evidence, 39 it is now too late in the day for them to question their
admissibility. Secondly, the documents were identified during the Pre-Trial, marked as Exhibits "2"
and "3" and testified on by respondent Tomasa. 40 Thirdly, the questioned deeds, being public
documents as they were duly notarized, are admissible in evidence without further proof of their due
execution and are conclusive as to the truthfulness of their contents, in the absence of clear and
convincing evidence to the contrary. 41 A public document executed and attested through the
intervention of the notary public is evidence of the facts therein expressed in clear, unequivocal
manner. 42
Concerning the issue of form, petitioners insist that based on a provision 43 of the Civil Code
of Spain (Old Civil Code), the acceptance by the donees should be made in a public instrument. This
argument was rejected by the RTC and the appellate court on the theory that the implied acceptance
of the donation had flowed from the celebration of the marriage between the respondents, followed by
the registration of the fact of marriage at the back of OCT No. 18383.
The petitioners, the appellate court and the trial court all erred in applying the requirements on
ordinary donations to the present case instead of the rules on donation propter nuptias. Underlying
the blunder is their failure to take into account the fundamental dichotomy between the two kinds of
donations.
 Unlike ordinary donations, donations  propter nuptias or donations by reason of marriage are
those "made before its celebration, in consideration of the same and in favor of one or both of the
future spouses." 44 The distinction is crucial because the two classes of donations are not governed
by exactly the same rules, especially as regards the formal essential requisites.
Under the Old Civil Code, donations  propter nuptias must be made in a public instrument in
which the property donated must be specifically described. 45 However, Article 1330 of the
same Code provides that "acceptance is not necessary to the validity of such gifts". In other words,
the celebration of the marriage between the beneficiary couple, in tandem with compliance with the
prescribed form, was enough to effectuate the donation  propter nuptias under the Old Civil Code.
Under the New Civil Code, the rules are different. Article 127 thereof provides that the form of
donations propter nuptias are regulated by the Statute of Frauds. Article 1403, paragraph 2, which
contains the Statute of Frauds requires that the contracts mentioned thereunder need be in writing
only to be enforceable. However, as provided in Article 129, express acceptance "is not necessary for
the validity of these donations." Thus, implied acceptance is sufficient.
The pivotal question, therefore, is which formal requirements should be applied with respect
to the donation propter nuptias at hand. Those under the Old Civil Code or the New Civil Code?
It is settled that only laws existing at the time of the execution of a contract are applicable
thereto and not later statutes, unless the latter are specifically intended to have retroactive
effect. 46 Consequently, it is the Old Civil Code which applies in this case since the donation propter
nuptias was executed in 1944 and the New Civil Code took effect only on August 30, 1950. 47 The
fact that in 1944 the Philippines was still under Japanese occupation is of no consequence. It is a
well-known rule of the Law of Nations that municipal laws, as contra-distinguished from laws of
political nature, are not abrogated by a change of sovereignty. 48 This Court specifically held that
during the Japanese occupation period, the Old Civil Code was in force. 49 As a consequence,
applying Article 1330 of the Old Civil Code in the determination of the validity of the questioned
donation, it does not matter whether or not the donees had accepted the donation. The validity of the
donation is unaffected in either case.
Even the petitioners agree that the Old Civil Code should be applied. However, they invoked
the wrong provisions 50 thereof.
Even if the provisions of the New Civil Code were to be applied, the case of the petitioners
would collapse just the same. As earlier shown, even implied acceptance of a donation  propter
nuptias suffices under the New Civil Code. 51
With the genuineness of the donation propter nuptias and compliance with the applicable
mandatory form requirements fully established, petitioners' hypothesis that their action is
imprescriptible cannot take off.
Viewing petitioners' action for reconveyance from whatever feasible legal angle, it is definitely
barred by prescription. Petitioners' right to file an action for the reconveyance of the land accrued in
1944, when the Inventario Ti Sagut was executed. It must be remembered that before the effectivity of
the New Civil Code in 1950, the Old Code of Civil Procedure (Act No. 190) governed
prescription. 52 Under the Old Code of Civil Procedure, an action for recovery of the title to, or
possession of, real property, or an interest therein, can only be brought within ten years after the
cause of such action accrues. 53 Thus, petitioners' action, which was filed on December 23, 1985, or
more than forty (40) years from the execution of the deed of donation on May 22, 1944, was clearly
time-barred.
Even following petitioners' theory that the prescriptive period should commence from the
discovery of the alleged fraud, the conclusion would still be the same. As early as May 15, 1970,
when the deed of donation was registered and the transfer certificate of title was issued, petitioners
were considered to have constructive knowledge of the alleged fraud, following the jurisprudential rule
that registration of a deed in the public real estate registry is constructive notice to the whole world of
its contents, as well as all interests, legal and equitable, included therein. 54 As it is now settled that
the prescriptive period for the reconveyance of property allegedly registered through fraud is ten (10)
years, reckoned from the date of the issuance of the certificate of title, 55 the action filed on
December 23, 1985 has clearly prescribed.
 In any event, independent of prescription, petitioners' action is dismissible on the ground of
laches. The elements of laches are present in this case, viz:
(1) conduct on the part of the defendant, or one under whom he claims,
giving rise to the situation that led to the complaint and for which the complainant
seeks a remedy;
(2) delay in asserting the complainant's rights, having had knowledge or
notice of defendant's conduct and having been afforded an opportunity to institute a
suit;
(3) lack of knowledge or notice on the part of the defendant that the
complainant would assert the right on which he bases his suit; and TCIEcH
 
(4) injury or prejudice to the defendant in the event relief is accorded to the
complainant, or the suit is not held barred. 56
Of the facts which support the finding of laches, stress should be made of the following: (a)
the petitioners Romana unquestionably gained actual knowledge of the donation propter
nuptias when the deed of partition was executed in 1973 and the information must have surfaced
again when the compromise agreement was forged in 1976, and; (b) as petitioner Romana was a
party-signatory to the two documents, she definitely had the opportunity to question the
donation propter nuptias on both occasions, and she should have done so if she were of the mindset,
given the fact that she was still in possession of the land in dispute at the time. But she did not make
any move. She tarried for eleven (11) more years from the execution of the deed of partition until she,
together with petitioner Constancia, filed the annulment case in 1985.
Anent the ejectment case, we find the issues raised by the petitioners to be factual and,
therefore, beyond this Court's power of review. Not being a trier of facts, the Court is not tasked to go
over the proofs presented by the parties and analyze, assess, and weigh them to ascertain if the trial
court and the appellate court were correct in according them superior credit in this or that piece of
evidence of one party or the other. 57 In any event, implicit in the affirmance of the Court of Appeals is
the existence of substantial evidence supporting the decisions of the courts below.
WHEREFORE, finding no reversible error in the assailed decision, the same is hereby
AFFIRMED.
Costs against petitioners.
SO ORDERED.
Bellosillo, Quisumbing and Callejo, Sr., JJ  ., concur.
Austria-Martinez, J ., took no part, concurred in CA decision.

).
|||  (Valencia v. Locquiao, G.R. No. 122134, [October 3, 2003], 459 PHIL 247-263)

EN BANC

[G.R. No. L-28771. March 31, 1971.]

 CORNELIA MATABUENA, plaintiff-appellant, vs. PETRONILA
CERVANTES,  defendant-appellee.

Alegre, Roces, Salazar & Sañez  for plaintiff-appellant.

Fernando Gerona, Jr.  for defendant-appellee.

SYLLABUS

1. CIVIL LAW; PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE;

DONATIONS BY REASON OF MARRIAGE; PROHIBITION AGAINST DONATION BETWEEN
SPOUSES DURING MARRIAGE; APPLICABLE TO COMMON LAW RELATIONSHIP. — While
Art. 133 of the Civil Code considers as void a "donation between the spouses during the
marriage", policy considerations of the most exigent character as well as the dictates of morality
require that the same prohibition should apply to a common-law relationship. A 1954 Court of
Appeals decision Buenaventura v. Bautista, (50 O.G. 3679) interpreting a similar provision of the
old Civil Code speaks unequivocally. If the policy of the law is, in the language of the opinion of
the then Justice J.B.L. Reyes of that Court, "to prohibit donations in favor of the other consort and
his descendants because of fear of undue and improper pressure and influence upon the donor, a
prejudice deeply rooted in our ancient law; 'porque no se engañen despojandose el uno al otro
por amor que han de consuno,' [according to] the Partidas (Part. IV, Tit. Xl, LAW IV), reiterating
the rationale 'Ne mutuato amore invicem spoliarentur' of the Pandects (Bk 24, Tit. I, De donat,
inter virum et uxorem); then there is every reason to apply the same prohibitive policy to persons
living together as husband and wife without benefit of nuptials. For it is not to be doubted that
assent to such irregular connection for thirty years bespeaks greater influence of one party over
the other, so that the danger that the law seeks to avoid is correspondingly increased. Moreover,
as already pointed out by Ulpian (in his lib. 32 ad Sabinum, fr. 1), it would not be just that such
donations should subsist lest the condition of those who incurred guilt should turn out to be better.
So long as marriage remains the cornerstone of our family law, reason and morality alike demand
that the disabilities attached to marriage should likewise attach to concubinage.
2. ID.; SUCCESSION; INTESTATE SUCCESSION; SURVIVING SPOUSE; RULE
WHERE A SISTER SURVIVES WITH THE WIDOW. — The lack of validity of the donation made
b~ the deceased to defendant Petronila Cervantes does not necessarily result in plaintiff having
exclusive right to the disputed property. Prior to the death of Felix Matabuena, the relationship
between him and the defendant was legitimated by their marriage on March 28. 1962. She is
therefore his widow. As provided in the Civil Code, she is entitled to one-half of the inheritance
and the plaintiff, as the surviving sister to the other half.

DECISION

FERNANDO, J  p:

A question of first impression is before this Court in this litigation. We are called upon to
decide whether the ban on a donation between the spouses during a marriage applies to a
common-law relationship. 1 The plaintiff, now appellant Cornelia Matabuena, a sister to the
deceased Felix Matabuena, maintains that a donation made while he was living maritally without
benefit of marriage to defendant, now appellee Petronila Cervantes, was void. Defendant would
uphold its validity. The lower court, after noting that it was made at a time before defendant was
married to the donor, sustained the latter's stand. Hence this appeal. The question, as noted, is
novel in character, this Court not having had as yet the opportunity of ruling on it. A 1954 decision
of the Court of Appeals, Buenaventura v. Bautista, 2 by the then Justice J. B. L. Reyes, who was
appointed to this Court later that year, is indicative of the appropriate response that should be
given. The conclusion reached therein is that a donation between common-law spouses falls
within the prohibition and is "null and void as contrary to public policy." 3 Such a view merits fully
the acceptance of this Court. The decision must be reversed.
In the decision of November 23, 1965, the lower court, after stating that in plaintiff's
complaint alleging absolute ownership of the parcel of land in question, she specifically raised the
question that the donation made by Felix Matabuena to defendant Petronila Cervantes was null
and void under the aforesaid article of the Civil Code and that defendant on the other hand did
assert ownership precisely because such a donation was made in 1956 and her marriage to the
deceased did not take place until 1962, noted that when the case was called for trial on
November 19, 1965, there was stipulation of facts which it quoted. 4 Thus: "The plaintiff and the
defendant assisted by their respective counsels, jointly agree and stipulate: (1) That the deceased
Felix Matabuena owned the property in question; (2) That said Felix Matabuena executed a Deed
of Donation inter vivos in favor of Defendant, Petronila Cervantes over the parcel of land in
question on February 20, 1956, which same donation was accepted by defendant; (3) That the
donation of the land to the defendant which took effect immediately was made during the common
law relationship as husband and wife between the defendant-done and the now deceased donor
and later said donor and done were married on March 28, 1962; (4) That the deceased Felix
Matabuena died intestate on September 13, 1962; (5) That the plaintiff claims the property by
reason of being the only sister and nearest collateral relative of the deceased by virtue of an
affidavit of self-adjudication executed by her in 1962 and had the land declared in her name and
paid the estate and inheritance taxes thereon'" 5
The judgment of the lower court on the above facts was adverse to plaintiff. It reasoned
out thus: "A donation under the terms of Article 133 of the Civil Code is void if made between the
spouses during the marriage. When the donation was made by Felix Matabuena in favor of the
defendant on February 20, 1956, Petronila Cervantes and Felix Matabuena were not yet married.
At that time they were not spouses. They became spouses only when they married on March 28,
1962, six years after the deed of donation had been executed." 6
We reach a different conclusion. While Art. 133 of the Civil Code considers as void a
"donation between the spouses during the marriage," policy considerations of the most exigent
character as well as the dictates of morality require that the same prohibition should apply to a
common-law relationship. We reverse.
1. As announced at the outset of this opinion, a 1954 Court of Appeals decision,
Buenaventura v. Bautista, 7 interpreting a similar provision of the old Civil Code 8 speaks
unequivocally. If the policy of the law is, in the language of the opinion of the then Justice J.B.L.
Reyes of that Court, "to prohibit donations in favor of the other consort and his descendants
because of fear of undue and improper pressure and influence upon the donor, a prejudice deeply
rooted in our ancient law; 'porque no se engañen despojandose el uno al otro por amor que han
de consuno [according to] the Partidas (Part IV, Tit. XI, LAW IV), reiterating the rationale 'Ne
mutuato amore invicem spoliarentur' of the Pandects (Bk. 24, Tit. 1, De donat, inter virum et
uxorem); then there is every reason to apply the same prohibitive policy to persons living together
as husband and wife without the benefit of nuptials. For it is not to be doubted that assent to such
irregular connection for thirty years bespeaks greater influence of one party over the other, so that
the danger that the law seeks to avoid is correspondingly increased. Moreover, as already pointed
out by Ulpian (in his lib. 32 ad Sabinum, fr. 1), 'it would not be just that such donations should
subsist, lest the condition of those who incurred guilt should turn out to be better.' So long as
marriage remains the cornerstone of our family law, reason and morality alike demand that the
disabilities attached to marriage should likewise attach to concubinage." 9
2. It is hardly necessary to add that even in the absence of the above pronouncement,
any other conclusion cannot stand the test of scrutiny. It would be to indict the framers of the Civil
Code for a failure to apply a laudable rule to a situation which in its essentials cannot be
distinguished. Moreover, if it is at all to be differentiated, the policy of the law which embodies a
deeply-rooted notion of what is just and what is right would be nullified if such irregular
relationship instead of being visited with disabilities would be attended with benefits. Certainly a
legal norm should not be susceptible to such a reproach. If there is ever any occasion where the
principle of statutory construction that what is within the spirit of the law is as much a part of it as
what is written, this is it. Otherwise the basic purpose discernible in such codal provision would
not be attained. Whatever omission may be apparent in an interpretation purely literal of the
language used must be remedied by an adherence to its avowed objective. In the language of
 Justice Pablo: "El espiritu que informa la ley debe ser la luz que ha de guiar a los tribunales en la
aplicación de sus disposiciones.'' 10
3. The lack of validity of the donation made by the deceased to defendant Petronila
Cervantes does not necessarily result in plaintiff having exclusive right to the disputed property.
Prior to the death of Felix Matabuena, the relationship between him and the defendant was
legitimated by their marriage on March 28, 1962. She is therefore his widow. As provided for in
the Civil Code, she is entitled to one-half of the inheritance and the plaintiff, as the surviving
sister, to the other half. 11
WHEREFORE, the lower court decision of November 23, 1965 dismissing the complaint
with costs is reversed. The questioned donation is declared void, with the rights of plaintiff and
defendant as pro indiviso heirs to the property in question recognized. The case is remanded to
the lower court for its appropriate disposition in accordance with the above opinion. Without
pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Barredo,
Villamor and Makasiar, JJ., concur.
Teehankee, J, took no part.
 
|||  (Matabuena v. Cervantes, G.R. No. L-28771, [March 31, 1971], 148 PHIL 295-300)

SECOND DIVISION

[G.R. No. 146683. November 22, 2001.]

CIRILA ARCABA, petitioner, vs. ERLINDA TABANCURA VDA. DE BATOCAEL,

SEIGFREDO C. TABANCURA, DORIS C. TABANCURA, LUZELLI C.
TABANCURA, BELEN C. TABANCURA, RAUL A. COMILLE, BERNADETTE A.
COMILLE, and ABNER A. COMILLE,  respondents.

Pacatang Barbaso and Pacatang Law Offices  for petitioner.

Feliciano M. Maraon for respondents.

SYNOPSIS

Having no children to take care of him after his retirement, Francisco Comille, then a widower,
asked his niece Leticia Bellosillo, the latter's cousin, Luzviminda Paghacian, and petitioner Cirila
Arcaba to take care of his house, as well as the store inside. A few months before his death,
Francisco executed an instrument denominated "Deed of Donation Inter Vivos," in which he ceded a
portion of his lot consisting of 150 square meters, together with his house, to Cirila, who accepted the
donation in the same instrument. Respondents filed a complaint against petitioner for declaration of
nullity of a deed of donation inter vivos, recovery of possession, and damages. Respondents, who are
Francisco's nephews and nieces and his heirs by intestate succession, alleged that Cirila was the
common-law wife of Francisco, and the donation inter vivos made by Francisco in her favor is void
under Article 87 of the Family Code. Conflicting testimonies were offered as to the nature of the
relationship between Cirila and Francisco. Leticia Bellosillo said Francisco and Cirila were lovers
since they slept in the same room, while Erlinda Tabancura, another niece of Francisco, claimed that
the latter had told her that Cirila was his mistress. On the other hand, Cirila said she was a mere
helper who could enter the master's bedroom only when the old man asked her to and that Francisco
in any case was too old for her. She denied they ever had sexual intercourse. The trial court rendered
judgment in favor of respondents, holding the donation void under the provision of the  Family Code.
On appeal, the Court of Appeals affirmed the decision of the trial court. Hence, the present petition.
The main issue is whether Cirila is an employee or the common-law wife of Francisco.
The Supreme Court affirmed the decision of the Court of Appeals. According to the Court,
human reason would lead to the conclusion that Cirila was Francisco's common-law spouse. Cirila
admitted that she and Francisco resided under one roof for a long time and the possibility that the two
consummated their relationship could be established from Leticia Bellosillo's testimony that Cirila and
Francisco slept in the same bedroom. The Court also considered the fact that Cirila signed some
documents using Francisco's surname clearly indicating that she saw herself as Francisco's common-
law wife, otherwise, she would not have used his last name. Also, the fact that Cirila did not demand
from Francisco a regular cash wage is an indication that she was not simply a caregiver-employee,
but Francisco's common law spouse. She was, after all, entitled to a regular cash wage under the law
and it is difficult to believe that she stayed with Francisco and served him out of pure beneficence.
Their public conduct, therefore, indicated that theirs was not just a relationship of caregiver and
patient, but that of exclusive partners akin to husband and wife.

SYLLABUS

1. CIVIL LAW; FAMILY CODE; PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE;

VOID DONATIONS; COHABITATION IS THE PUBLIC ASSUMPTION BY A MAN A WOMAN OF
THE MARITAL RELATION, AND DWELLING TOGETHER AS MAN AND WIFE, THEREBY
HOLDING THEMSELVES OUT TO THE PUBLIC AS SUCH. — We previously held that the term
"cohabitation" or "living together as husband and wife" means not only residing under one roof, but
also having repeated sexual intercourse. Cohabitation, of course, means more than sexual
intercourse, especially when one of the parties is already old and may no longer be interested in sex.
At the very least, cohabitation is the public assumption by a man and a woman of the marital relation,
and dwelling together as man and wife, thereby holding themselves out to the public as such. Secret
meetings or nights clandestinely spent together, even if often repeated, do not constitute such kind of
cohabitation; they are merely meretricious. In this jurisdiction, this Court has considered as sufficient
proof of common-law relationship the stipulations between the parties, a conviction of concubinage or
the existence of illegitimate children.
2. ID.; ID.; ID.; DONATION MADE IN FAVOR OF A COMMON-LAW SPOUSE IS VOID
UNDER THE FAMILY CODE; CASE AT BAR. — Cirila admitted that she and Francisco resided under
one roof for a long time. It is very possible that the two consummated their relationship, since Cirila
gave Francisco therapeutic massage and Leticia said they slept in the same bedroom. At the very
least, their public conduct indicated that theirs was not just a relationship of caregiver and patient, but
that of exclusive partners akin to husband and wife. Aside from Erlinda Tabancura's testimony that
her uncle told her that Cirila was his mistress, there are other indications that Cirila and Francisco
were common-law spouses. Seigfredo Tabancura presented documents apparently signed by Cirila
using the surname "Comille." As previously stated, these are an application for a business permit to
operate as a real estate lessor, a sanitary permit to operate as real estate lessor with a health
certificate, and the death certificate of Francisco. These documents show that Cirila saw herself as
Francisco's common-law wife, otherwise, she would not have used his last name. Similarly, in the
answer filed by Francisco's lessees in "Erlinda Tabancura, et al. vs. Gracia Adriatico Sy and Antonio
Sy," RTC Civil Case No. 4719 (for collection of rentals), these lessees referred to Cirila as "the
common-law spouse of Francisco." Finally, the fact that Cirila did not demand from Francisco a
regular cash wage is an indication that she was not simply a caregiver-employee, but Francisco's
common law spouse. She was, after all, entitled to a regular cash wage under the law. It is difficult to
believe that she stayed with Francisco and served him out of pure beneficence. Human reason would
thus lead to the conclusion that she was Francisco's common-law spouse. Respondents having
proven by a preponderance of evidence that Cirila and Francisco lived together as husband and wife
without a valid marriage, the inescapable conclusion is that the donation made by Francisco in favor
of Cirila is void under Art. 87 of the Family Code. IEaATD

DECISION

MENDOZA, J  p:

Petitioner Cirila Arcaba seeks review on certiorari of the decision 1 of the Court of Appeals,
which affirmed with modification the decision 2 of the Regional Trial Court, Branch 10, Dipolog City,
Zamboanga del Norte in Civil Case No. 4593, declaring as void a deed of donation  inter
vivos executed by the late Francisco T. Comille in her favor and its subsequent resolution 3 denying
reconsideration.
The facts are as follows:
On January 16, 1956, Francisco Comille and his wife Zosima Montallana became the
registered owners of Lot No. 437-A located at the corner of Calle Santa Rosa (now Balintawak Street)
and Calle Rosario (now Rizal Avenue) in Dipolog City, Zamboanga del Norte. The total area of the lot
was 418 square meters. 4 After the death of Zosima on October 3, 1980, Francisco and his mother-in-
law, Juliana Bustalino Montallana, executed a deed of extrajudicial partition with waiver of rights, in
which the latter waived her share consisting of one-fourth (1/4) of the property to Francisco.  5 On
June 27, 1916, Francisco registered the lot in his name with the Registry of Deeds. 6
Having no children to take care of him after his retirement, Francisco asked his niece Leticia
Bellosillo, 7 the latter's cousin, Luzviminda Paghacian, 8 and petitioner Cirila Arcaba, then a widow, to
take care of his house, as well as the store inside. 9
Conflicting testimonies were offered as to the nature of the relationship between Cirila and
Francisco. Leticia Bellosillo said Francisco and Cirila were lovers since they slept in the same
room, 10 while Erlinda Tabancura, 11 another niece of Francisco, claimed that the latter had told her
that Cirila was his mistress. 12 On the other hand, Cirila said she was a mere helper who could enter
the master's bedroom only when the old man asked her to and that Francisco in any case was too old
for her. She denied they ever had sexual intercourse. 13
It appears that when Leticia and Luzviminda were married, only Cirila was left to take care of
Francisco. 14 Cirila testified that she was a 34-year old widow while Francisco was a 75-year old
widower when she began working for the latter; that he could still walk with her assistance at that
time; 15 and that his health eventually deteriorated and he became bedridden. 16 Erlinda Tabancura
testified that Francisco's sole source of income consisted of rentals from his lot near the public
streets. 17 He did not pay Cirila a regular cash wage as a househelper, though he provided her family
with food and lodging. 18
On January 24, 1991, a few months before his death, Francisco executed an instrument
denominated "Deed of Donation Inter Vivos," in which he ceded a portion of Lot 437-A, consisting of
150 square meters, together with his house, to Cirila, who accepted the donation in the same
instrument. Francisco left the larger portion of 268 square meters in his name. The deed stated that
the donation was being made in consideration of "the faithful services [Cirila Arcaba] had rendered
over the past ten (10) years." The deed was notarized by Atty. Vic T. Lacaya, Sr.  19 and later
registered by Cirila as its absolute owner. 20
On October 4, 1991, Francisco died without any children. In 1993, the lot which Cirila
received from Francisco had a market value of P57,105.00 and an assessed value of P28,550.00. 21
 On February 18, 1993, respondents filed a complaint against petitioner for declaration of
nullity of a deed of donation inter vivos, recovery of possession, and damages. Respondents, who are
the decedent's nephews and nieces and his heirs by intestate succession, alleged that Cirila was the
common-law wife of Francisco and the donation inter vivos made by Francisco in her favor is void
under Article 87 of the Family Code, which provides:
Every donation or grant of gratuitous advantage, direct or indirect, between
the spouses during the marriage shall be void, except moderate gifts which the
spouses may give each other on the occasion of any family rejoicing. The
prohibition shall also apply to persons living together as husband and wife without a
valid marriage.
On February 25, 1999, the trial court rendered judgment in favor of respondents, holding the
donation void under this provision of the Family Code. The trial court reached this conclusion based
on the testimony of Erlinda Tabancura and certain documents bearing the signature of one "Cirila
Comille." The documents were (1) an application for a business permit to operate as real estate
lessor, dated January 8, 1991, with a carbon copy of the signature "Cirila Comille"; 22 (2) a sanitary
permit to operate as real estate lessor with a health certificate showing the signature "Cirila Comille"
in black ink; 23 and (3) the death certificate of the decedent with the signature "Cirila A. Comille"
written in black ink. 24 The dispositive portion of the trial court's decision states:
WHEREFORE, in view of the foregoing, judgment is rendered:
1. Declaring the Deed of Donation Inter Vivos executed by the late
Francisco Comille recorded as Doc. No. 7; Page No. 3; Book No. V; Series of 1991
in the Notarial Register of Notary Public Vic T. Lacaya (Annex "A" to the Complaint)
null and void;
2. Ordering the defendant to deliver possession of the house and lot
subject of the deed unto the plaintiffs within thirty (30) days after finality of this
decision; and finally
3. Ordering the defendant to pay attorney's fees in the sum of P10,000.00.
SO ORDERED. 25
Petitioner appealed to the Court of Appeals, which rendered on June 19, 2000 the decision
subject of this appeal. As already stated, the appeals court denied reconsideration. Its conclusion was
based on (1) the testimonies of Leticia, Erlinda, and Cirila; (2) the copies of documents purportedly
showing Cirila's use of Francisco's surname; (3) a pleading in another civil case mentioning payment
of rentals to Cirila as Francisco's common-law wife; and (4) the fact that Cirila did not receive a
regular cash wage.
Petitioner assigns the following errors as having been committed by the Court of Appeals:
(a) The judgment of the Court of Appeals that petitioner was the common-
law wife of the late Francisco Comille is not correct and is a reversible error
because it is based on a misapprehension of facts, and unduly breaks the chain of
circumstances detailed by the totality of the evidence, its findings being predicated
on totally incompetent or hearsay evidence, and grounded on mere speculation,
conjecture or possibility. (Salazar v. Gutierrez, 33 SCRA 243 and other cases; cited
in Quiason, Philippine Courts and their Jurisdictions, 1993 ed., p. 604)
(b) The Court of Appeals erred in shifting the burden of evidence from the
plaintiff to defendant. (Bunyi v. Reyes, 39 SCRA 504; Quiason, id.)
(c) The Court of Appeals decided the case in a way probably not in accord
with law or with the applicable jurisprudence in Rodriguez v. Rodriguez, 20 SCRA
908, and Liguez v. CA, 102 Phil. 577, 584. 26
The issue in this case is whether the Court of Appeals correctly applied Art. 87 of the Family
Code to the circumstances of this case. After a review of the records, we rule in the affirmative.
The general rule is that only questions of law may be raised in a petition for review under Rule
45 of the Rules of Court, subject only to certain exceptions: (a) when the conclusion is a finding
grounded entirely on speculations, surmises, or conjectures; (b) when the inference made is
manifestly mistaken, absurd, or impossible; (c) where there is grave abuse of discretion; (d) when the
judgment is based on a misapprehension of facts; (e) when the findings of fact are conflicting; (f)
when the Court of Appeals, in making its findings, went beyond the issues of the case and the same
are contrary to the admissions of both appellant and appellee; (g) when the findings of the Court of
Appeals are contrary to those of the trial court; (h) when the findings of fact are conclusions without
citation of specific evidence on which they are based; (i) when the finding of fact of the Court of
Appeals is premised on the supposed absence of evidence but is contradicted by the evidence on
record; and j) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by
the parties and which, if properly considered, would justify a different conclusion. 27 It appearing that
the Court of Appeals based its findings on evidence presented by both parties, the general rule should
apply.
In Bitangcor v. Tan, 28 we held that the term "cohabitation" or "living together as husband and
wife" means not only residing under one roof, but also having repeated sexual intercourse.
Cohabitation, of course, means more than sexual intercourse, especially when one of the parties is
already old and may no longer be interested in sex. At the very least, cohabitation is
the  public assumption by a man and a woman of the marital relation, and dwelling together as man
and wife, thereby holding themselves out to the public as such. Secret meetings or nights
clandestinely spent together, even if often repeated, do not constitute such kind of cohabitation; they
are merely meretricious. 29 In this jurisdiction, this Court has considered as sufficient proof of
common-law relationship the stipulations between the parties, 30 a conviction of concubinage, 31 or
the existence of illegitimate children. 32
Was Cirila Francisco's employee or his common-law wife? Cirila admitted that she and
Francisco resided under one roof for a long time. It is very possible that the two consummated their
relationship, since Cirila gave Francisco therapeutic massage and Leticia said they slept in the same
bedroom. At the very least, their public conduct indicated that theirs was not just a relationship of
caregiver and patient, but that of exclusive partners akin to husband and wife.
Aside from Erlinda Tabancura's testimony that her uncle told her that Cirila was his mistress,
there are other indications that Cirila and Francisco were common-law spouses. Seigfredo Tabancura
presented documents apparently signed by Cirila using the surname "Comille." As previously stated,
these are an application for a business permit to operate as a real estate lessor,  33 a sanitary permit
to operate as real estate lessor with a health certificate, 34 and the death certificate of
Francisco. 35 These documents show that Cirila saw herself as Francisco's common-law wife,
otherwise, she would not have used his last name. Similarly, in the answer filed by Francisco's
lessees in "Erlinda Tabancura, et al. vs. Gracia Adriatico Sy and Antonio Sy," RTC Civil Case No.
4719 (for collection of rentals), these lessees referred to Cirila as "the common-law spouse of
Francisco." Finally, the fact that Cirila did not demand from Francisco a regular cash wage is an
indication that she was not simply a caregiver-employee, but Francisco's common law spouse.  She
was, after all, entitled to a regular cash wage under the law. 36 It is difficult to believe that she stayed
with Francisco and served him out of pure beneficence. Human reason would thus lead to the
conclusion that she was Francisco's common-law spouse.
Respondents having proven by a preponderance of evidence that Cirila and Francisco lived
together as husband and wife without a valid marriage, the inescapable conclusion is that the
donation made by Francisco in favor of Cirila is void under Art. 87 of the Family Code.
WHEREFORE, the decision of the Court of Appeals affirming the decision of the trial court is
hereby AFFIRMED.
SO ORDERED.
Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.

|||  (Arcaba v. Vda. de Batocael, G.R. No. 146683, [November 22, 2001], 421 PHIL 1096-1106)
 THIRD DIVISION

[G.R. No. 193038. March 11, 2015.]

JOSEFINA V. NOBLEZA, petitioner, vs. SHIRLEY B. NUEGA,  respondent.

DECISION

VILLARAMA, JR.,  J  p:
At bar is a petition for review on certiorari of the Decision 1 dated May 14, 2010 and the
Resolution 2 dated July 21, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 70235, which
affirmed with modification the assailed Decision 3 dated February 14, 2001 of the Regional Trial
Court (RTC) of Marikina City, Branch 273, in Civil Case No. 96-274-MK.
The following facts are found by the trial court and affirmed by the appellate court:
Respondent Shirley B. Nuega (Shirley) was married to Rogelio A. Nuega (Rogelio) on
September 1, 1990. 4 Sometime in 1988 when the parties were still engaged, Shirley was working
as a domestic helper in Israel. Upon the request of Rogelio, Shirley sent him money 5 for the
purchase of a residential lot in Marikina where they had planned to eventually build their home.
Rogelio was then also working abroad as a seaman. The following year, or on September 13,
1989, Rogelio purchased the subject house and lot for One Hundred Two Thousand Pesos
(P102,000.00) 6 from Rodeanna Realty Corporation. The subject property has an aggregate area
of one hundred eleven square meters (111 sq. m.) covered by Transfer Certificate of Title (TCT)
No. N-133844. 7 Shirley claims that upon her arrival in the Philippines sometime in 1989, she
settled the balance for the equity over the subject property with the developer through
SSS 8 financing. She likewise paid for the succeeding monthly amortizations. On October 19,
1989, TCT No. 171963 9 over the subject property was issued by the Registry of Deeds of
Marikina, Rizal solely under the name of Rogelio.
On September 1, 1990, Shirley and Rogelio got married and lived in the subject property.
The following year, Shirley returned to Israel for work. While overseas, she received information
that Rogelio had brought home another woman, Monica Escobar, into the family home. She also
learned, and was able to confirm upon her return to the Philippines in May 1992, that Rogelio had
been introducing Escobar as his wife.
In June 1992, Shirley filed two cases against Rogelio: one for Concubinage before the
Provincial Prosecution Office of Rizal, and another for Legal Separation and Liquidation of
Property before the RTC of Pasig City. Shirley later withdrew the complaint for legal separation
and liquidation of property, but re-filed 10 the same on January 29, 1993. In between the filing of
these cases, Shirley learned that Rogelio had the intention of selling the subject property. Shirley
then advised the interested buyers — one of whom was their neighbor and petitioner Josefina V.
Nobleza (petitioner) — of the existence of the cases that she had filed against Rogelio and
cautioned them against buying the subject property until the cases are closed and terminated.
Nonetheless, under a Deed of Absolute Sale 11 dated December 29, 1992, Rogelio sold the
subject property to petitioner without Shirley's consent in the amount of Three Hundred Eighty
Thousand Pesos (P380,000.00), including petitioner's undertaking to assume the existing
mortgage on the property with the National Home Mortgage Finance Corporation and to pay the
real property taxes due thereon.
Meanwhile, in a Decision 12 dated May 16, 1994, the RTC of Pasig City, Branch 70,
granted the petition for legal separation and ordered the dissolution and liquidation of the regime
of absolute community of property between Shirley and Rogelio,  viz.:
WHEREFORE, in view of the foregoing, the Court hereby grants the
instant petition for legal separation between the subject spouses with all its legal
effects as provided for in Art. 63 of the Family Code. Their community property is
consequently dissolved and must be liquidated in accordance with Art. 102 of the
New Family Code. The respondent is thus hereby enjoined from selling,
encumbering or in any way disposing or alienating any of their community
property including the subject house and lot before the required liquidation.
Moreover, he, being the guilty spouse, must forfeit the net profits of the
community property in favor of the petitioner who is the innocent spouse pursuant
to Art. 43 of the aforesaid law. Finally, in the light of the claim of ownership by the
present occupants who have not been impleaded in the instant case, a separate
action must be instituted by the petitioner against the alleged buyer or buyers
thereof to determine their respective rights thereon.
Let a copy of this decision be furnished the Local Civil Registrar of
Manila, the Register of Deeds of Marikina, Metro Manila and the National
Statistics Office (NSO), Sta. Mesa, Manila.
SO ORDERED. 13
Rogelio appealed the above-quoted ruling before the CA which denied due course and
dismissed the petition. It became final and executory and a writ of execution was issued in August
1995. 14
On August 27, 1996, Shirley instituted a Complaint 15 for Rescission of Sale and
Recovery of Property against petitioner and Rogelio before the RTC of Marikina City, Branch 273.
After trial on the merits, the trial court rendered its decision on February 14, 2001, viz.:
WHEREFORE, foregoing premises considered, judgment is hereby
rendered in favor of plaintiff Shirley Nuega and against defendant Josefina
Nobleza, as follows:
1) the Deed of Absolute Sale dated December 29, 1992 insofar as the
55.05 square meters representing the one half (1/2) portion of
plaintiff Shirley Nuega is concerned, is hereby ordered rescinded,
the same being null and void;
2) defendant Josefina Nobleza is ordered to reconvey said 55.05 square
meters to plaintiff Shirley Nuega, or in the alternative to pay plaintiff
 Shirley Nuega the present market value of said 55.05 square
meters; and
3) to pay plaintiff Shirley Nuega attorney's fees in the sum of Twenty
Thousand Pesos (P20,000.00).
For lack of merit, defendant's counterclaim is hereby DENIED.
SO ORDERED. 16
Petitioner sought recourse with the CA, while Rogelio did not appeal the ruling of the trial
court. In its assailed Decision promulgated on May 14, 2010, the appellate court affirmed with
modification the trial court's ruling, viz.:
WHEREFORE, subject to the foregoing disquisition, the appeal
is DENIED. The Decision dated 14 February 2001 of the Regional Trial Court of
Marikina City, Branch 273 in  Civil Case No. 96-274-
MK is AFFIRMED with MODIFICATION in that the Deed of Absolute Sale dated
29 December 1992 is hereby declared null and void in its entirety, and defendant-
appellant Josefina V. Nobleza is ordered to reconvey the entire subject property
to plaintiff-appellee Shirley B. Nuega and defendant Rogelio Nuega, without
prejudice to said defendant-appellant's right to recover from defendant Rogelio
whatever amount she paid for the subject property. Costs against defendant-
appellant Nobleza.
SO ORDERED. 17
Petitioner moved for reconsideration. In a Resolution dated July 21, 2010, the appellate
court denied the motion for lack of merit. Hence, this petition raising the following assignment of
errors:
[I.] THE HONORABLE COURT OF APPEALS ERRED WHEN IT AFFIRMED THE
DECISION OF THE REGIONAL TRIAL COURT BY SUSTAINING THE
FINDING THAT PETITIONER WAS NOT A PURCHASER IN GOOD
FAITH.
[II.] THE HONORABLE COURT OF APPEALS ERRED WHEN IT MODIFIED THE
DECISION OF THE REGIONAL TRIAL COURT BY DECLARING AS NULL
AND VOID THE DEED OF ABSOLUTE SALE DATED 29 DECEMBER
1992 IN ITS ENTIRETY. 18
We deny the petition.
Petitioner is not a buyer in good faith.
An innocent purchaser for value is one who buys the property of another, without notice
that some other person has a right or interest in the property, for which a full and fair price is
paid by the buyer at the time of the purchase or before receipt of any notice of claims or interest
of some other person in the property. 19 It is the party who claims to be an innocent purchaser for
value who has the burden of proving such assertion, and it is not enough to invoke the ordinary
presumption of good faith. 20 To successfully invoke and be considered as a buyer in good faith,
the presumption is that first and foremost, the "buyer in good faith" must have shown prudence
and due diligence in the exercise of his/her rights. It presupposes that the buyer did everything
that an ordinary person would do for the protection and defense of his/her rights and interests
against prejudicial or injurious concerns when placed in such a situation. The prudence required
of a buyer in good faith is "not that of a person with training in law, but rather that of an average
man who 'weighs facts and circumstances without resorting to the calibration of our technical
rules of evidence of which his knowledge is nil.'" 21 A buyer in good faith does his homework and
verifies that the particulars are in order — such as the title, the parties, the mode of transfer and
the provisions in the deed/contract of sale, to name a few. To be more specific, such prudence
can be shown by making an ocular inspection of the property, checking the title/ownership with
the proper Register of Deeds alongside the payment of taxes therefor, or inquiring into the
minutiae such as the parameters or lot area, the type of ownership, and the capacity of the seller
to dispose of the property, which capacity necessarily includes an inquiry into the civil status of
the seller to ensure that if married, marital consent is secured when necessary. In fine, for a
purchaser of a property in the possession of another to be in good faith, he must exercise due
diligence, conduct an investigation, and weigh the surrounding facts and circumstances like what
any prudent man in a similar situation would do. 22
In the case at bar, petitioner claims that she is a buyer in good faith of the subject
property which is titled under the name of the seller Rogelio A. Nuega alone as evidenced by TCT
No. 171963 and Tax Declaration Nos. D-012-04723 and D-012-04724. 23 Petitioner argues,
among others, that since she has examined the TCT over the subject property and found the
property to have been registered under the name of seller Rogelio alone, she is an innocent
purchaser for value and "she is not required to go beyond the face of the title in verifying the
status of the subject property at the time of the consummation of the sale and at the date of the
sale." 24
We disagree with petitioner.
A buyer cannot claim to be an innocent purchaser for value by merely relying on the TCT
of the seller while ignoring all the other surrounding circumstances relevant to the sale.
In the case of Spouses Raymundo v. Spouses Bandong, 25 petitioners therein — as
does petitioner herein — were also harping that due to the indefeasibility of a Torrens title, there
was nothing in the TCT of the property in litigation that should have aroused the buyer's suspicion
as to put her on guard that there was a defect in the title of therein seller. The Court held in
the  Spouses Raymundo case that the buyer therein could not hide behind the cloak of being an
innocent purchaser for value by merely relying on the TCT which showed that the registered
owner of the land purchased is the seller. The Court ruled in this case that the buyer was not an
innocent purchaser for value due to the following attendant circumstances, viz.:
In the present case, we are not convinced by the petitioners' incessant
assertion that Jocelyn is an innocent purchaser for value. To begin with, she is a
grandniece of Eulalia and resides in the same locality where the latter lives and
conducts her principal business. It is therefore impossible for her not to acquire
knowledge of her grand aunt's business practice of requiring her biyaheros to
surrender the titles to their properties and to sign the corresponding deeds of sale
over said properties in her favor, as security. This alone should have put Jocelyn
on guard for any possible abuses that Eulalia may commit with the titles and the
deeds of sale in her possession. 26
Similarly, in the case of Arrofo v. Quiño, 27 the Court held that while "the law does not
require a person dealing with registered land to inquire further than what the Torrens Title on its
face indicates," the rule is not absolute. 28 Thus, finding that the buyer therein failed to take the
necessary precaution required of a prudent man, the Court held that Arrofo was not an innocent
purchaser for value, viz.:
In the present case, the records show that Arrofo failed to act as a
prudent buyer. True, she asked her daughter to verify from the Register of Deeds
if the title to the Property is free from encumbrances. However, Arrofo admitted
that the Property is within the neighborhood and that she conducted an ocular
inspection of the Property. She saw the house constructed on the Property. Yet,
Arrofo did not even bother to inquire about the occupants of the house.
Arrofo also admitted that at the time of the sale, Myrna was occupying a room in
her house as her lessee. The fact that Myrna was renting a room from Arrofo yet
selling a land with a house should have put Arrofo on her guard. She knew that
Myrna was not occupying the house. Hence, someone else must have been
occupying the house.
Thus, Arrofo should have inquired who occupied the house, and if a
lessee, who received the rentals from such lessee. Such inquiry would have led
Arrofo to discover that the lessee was paying rentals to Quiño, not to Renato and
Myrna, who claimed to own the Property. 29
An analogous situation obtains in the case at bar.
The TCT of the subject property states that its sole owner is the seller Rogelio himself
who was therein also described as "single". However, as in the cases of Spouses
Raymundo and Arrofo, there are circumstances critical to the case at bar which convince us to
affirm the ruling of both the appellate and lower courts that herein petitioner is not a buyer in good
faith.
First, petitioner's sister Hilda Bautista, at the time of the sale, was residing near Rogelio
and Shirley's house — the subject property — in Ladislao Diwa Village, Marikina City. Had
petitioner been more prudent as a buyer, she could have easily checked if Rogelio had the
capacity to dispose of the subject property. Had petitioner been more vigilant, she could have
inquired with such facility — considering that her sister lived in the same Ladislao Diwa Village
where the property is located — if there was any person other than Rogelio who had any right or
interest in the subject property.
To be sure, respondent even testified that she had warned their neighbors at Ladislao
Diwa Village — including petitioner's sister — not to engage in any deal with Rogelio relative to
the purchase of the subject property because of the cases she had filed against Rogelio.
Petitioner denies that respondent had given such warning to her neighbors, which includes her
sister, therefore arguing that such warning could not be construed as "notice" on her part that
there is a person other than the seller himself who has any right or interest in the subject property.
Nonetheless, despite petitioner's adamant denial, both courts  a quo gave probative value to the
testimony of respondent, and the instant petition failed to present any convincing evidence for this
Court to reverse such factual finding. To be sure, it is not within our province to second-guess the
courts a quo, and the re-determination of this factual issue is beyond the reach of a petition for
review on certiorari where only questions of law may be reviewed. 30
Second, issues surrounding the execution of the Deed of Absolute Sale also pose
question on the claim of petitioner that she is a buyer in good faith. As correctly observed by both
courts a quo, the Deed of Absolute Sale was executed and dated on December 29, 1992.
However, the Community Tax Certificates of the witnesses therein were dated January 2 and 20,
1993. 31 While this irregularity is not a direct proof of the intent of the parties to the sale to make it
appear that the Deed of Absolute Sale was executed on December 29, 1992 — or before Shirley
filed the petition for legal separation on January 29, 1993 — it is circumstantial and relevant to the
claim of herein petitioner as an innocent purchaser for value.
That is not all.
In the Deed of Absolute Sale dated December 29, 1992, the civil status of Rogelio as
seller was not stated, while petitioner as buyer was indicated as "single," viz.:
ROGELIO A. NUEGA, of legal age, Filipino citizen and with postal address at 2-
A-2 Ladislao Diwa St., Concepcion, Marikina, Metro Manila, hereinafter referred
to as the VENDOR
And
JOSEFINA V. NOBLEZA, of legal age, Filipino citizen, single and with postal
address at No. L-2-A-3 Ladislao Diwa St., Concepcion, Marikina, Metro Manila,
hereinafter referred to as the VENDEE. 32
It puzzles the Court that while petitioner has repeatedly claimed that Rogelio is "single"
under TCT No. 171963 and Tax Declaration Nos. D-012-04723 and D-012-04724, his civil status
as seller was not stated in the Deed of Absolute Sale — further creating a cloud on the claim of
petitioner that she is an innocent purchaser for value.
As to the second issue, we rule that the appellate court did not err when it modified the
decision of the trial court and declared that the Deed of Absolute Sale dated December 29, 1992
is void in its entirety.
The trial court held that while the TCT shows that the owner of the subject property is
Rogelio alone, respondent was able to prove at the trial court that she contributed in the payment
of the purchase price of the subject property. This fact was also settled with finality by the RTC of
Pasig City, Branch 70, and affirmed by the CA, in the case for legal separation and liquidation of
property docketed as JDRC Case No. 2510. The pertinent portion of the decision reads:
. . . Clearly, the house and lot jointly acquired by the parties prior to their
marriage forms part of their community property regime. . . .
 From the foregoing, Shirley sufficiently proved her financial contribution
for the purchase of the house and lot covered by TCT 171963. Thus, the present
lot which forms part of their community property should be divided equally
between them upon the grant of the instant petition for legal separation. Having
established by preponderance of evidence the fact of her husband's guilt in
contracting a subsequent marriage . . ., Shirley alone should be entitled to the net
profits earned by the absolute community property. 33
However, the nullity of the sale made by Rogelio is not premised on proof of respondent's
financial contribution in the purchase of the subject property. Actual contribution is not relevant in
determining whether a piece of property is community property for the law itself defines what
constitutes community property.
Article 91 of the Family Code thus provides:
Art. 91. Unless otherwise provided in this Chapter or in the marriage
settlements, the community property shall consist of all the property owned by the
spouses at the time of the celebration of the marriage or acquired thereafter.
The only exceptions from the above rule are: (1) those excluded from the absolute
community by the Family Code; and (2) those excluded by the marriage settlement.
Under the first exception are properties enumerated in Article 92 of the Family Code,
which states:
Art. 92. The following shall be excluded from the community property:
(1) Property acquired during the marriage by gratuitous title by either
spouse, and the fruits as well as the income thereof, if any, unless it is expressly
provided by the donor, testator or grantor that they shall form part of the
community property;
(2) Property for personal and exclusive use of either spouse; however,
jewelry shall form part of the community property;
(3) Property acquired before the marriage by either spouse who has
legitimate descendants by a former marriage, and the fruits as well as the
income, if any, of such property.
As held in  Quiao v. Quiao: 34
When a couple enters into a regime of absolute community, the husband
and the wife becomes joint owners of all the properties of the marriage. Whatever
property each spouse brings into the marriage, and those acquired during the
marriage (except those excluded under Article 92 of the Family Code) form the
common mass of the couple's properties. And when the couple's marriage or
community is dissolved, that common mass is divided between the spouses, or
their respective heirs, equally or in the proportion the parties have established,
irrespective of the value each one may have originally owned.
Since the subject property does not fall under any of the exclusions provided in Article 92,
it therefore forms part of the absolute community property of Shirley and Rogelio. Regardless of
their respective contribution to its acquisition before their marriage, and despite the fact that only
Rogelio's name appears in the TCT as owner, the property is owned jointly by the spouses Shirley
and Rogelio.
Respondent and Rogelio were married on September 1, 1990. Rogelio, on his own and
without the consent of herein respondent as his spouse, sold the subject property via a Deed of
Absolute Sale dated December 29, 1992 — or during the subsistence of a valid contract of
marriage. Under Article 96 of Executive Order No. 209, otherwise known as The Family Code of
the Philippines, the said disposition of a communal property is void,  viz.:
Art. 96. The administration and enjoyment of the community property
shall belong to both spouses jointly. In case of disagreement, the husband's
decision shall prevail, subject to recourse to the court by the wife for a proper
remedy, which must be availed of within five years from the date of the contract
implementing such decision.
 In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the common properties, the other spouse may
assume sole powers of administration. These powers do not include the
powers of disposition or encumbrance without the authority of the court or
the written consent of the other spouse. In the absence of such authority or
consent, the disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the part of the consenting
spouse and the third person, and may be perfected as a binding contract upon
the acceptance by the other spouse or authorization by the court before the offer
is withdrawn by either or both offerors. 35
It is clear under the foregoing provision of the Family Code that Rogelio could not sell the
subject property without the written consent of respondent or the authority of the court. Without
such consent or authority, the entire sale is void. As correctly explained by the appellate court:
In the instant case, defendant Rogelio sold the entire subject property to
defendant-appellant Josefina on 29 December 1992 or during the existence of
Rogelio's marriage to plaintiff-appellee Shirley, without the consent of the latter.
The subject property forms part of Rogelio and Shirley's absolute community of
property. Thus, the trial court erred in declaring the deed of sale null and void
only insofar as the 55.05 square meters representing the one-half (1/2) portion of
plaintiff-appellee Shirley. In absolute community of property, if the husband,
without knowledge and consent of the wife, sells (their) property, such sale is
void. The consent of both the husband Rogelio and the wife Shirley is required
and the absence of the consent of one renders the entire sale null and void
including the portion of the subject property pertaining to defendant Rogelio who
contracted the sale with defendant-appellant Josefina. Since the Deed of
Absolute Sale . . . entered into by and between defendant-appellant Josefina and
defendant Rogelio dated 29 December 1992, during the subsisting marriage
between plaintiff-appellee Shirley and Rogelio, was without the written consent of
Shirley, the said Deed of Absolute Sale is void in its entirety. Hence, the trial court
erred in declaring the said Deed of Absolute Sale as void only insofar as the 1/2
portion pertaining to the share of Shirley is concerned. 36
Finally, consistent with our ruling that Rogelio solely entered into the contract of sale with
petitioner and acknowledged receiving the entire consideration of the contract under the Deed of
Absolute Sale, Shirley could not be held accountable to petitioner for the reimbursement of her
payment for the purchase of the subject property. Under Article 94 of the Family Code, the
absolute community of property shall only be "liable for . . . [d]ebts and obligations contracted by
either spouse without the consent of the other to the extent that the family may have been
benefited . . . ." As correctly stated by the appellate court, there being no evidence on record that
the amount received by Rogelio redounded to the benefit of the family, respondent cannot be
made to reimburse any amount to petitioner. 37
WHEREFORE, in view of the foregoing, the petition is DENIED. The assailed Decision
and Resolution of the Court of Appeals dated May 14, 2010 and July 21, 2010, respectively, in
CA-G.R. CV No. 70235 are AFFIRMED.
Costs against petitioner.
SO ORDERED.
Velasco, Jr., Peralta, Reyes and Jardeleza, JJ., concur.
|||  (Nobleza v. Nuega, G.R. No. 193038, [March 11, 2015], 755 PHIL 656-672)
 SECOND DIVISION

[G.R. No. 183984. April 13, 2011.]

ARTURO SARTE FLORES,  petitioner, vs. SPOUSES ENRICO L. LINDO, JR. and

EDNA C. LINDO,  respondents.

DECISION

CARPIO,  J p:

The Case
Before the Court is a petition for review 1 assailing the 30 May 2008 Decision 2 and the 4
August 2008 Resolution 3 of the Court of Appeals in CA-G.R. SP No. 94003.
The Antecedent Facts
The facts, as gleaned from the Court of Appeals' Decision, are as follows:
On 31 October 1995, Edna Lindo (Edna) obtained a loan from Arturo Flores (petitioner)
amounting to P400,000 payable on 1 December 1995 with 3% compounded monthly interest and
3% surcharge in case of late payment. To secure the loan, Edna executed a Deed of Real Estate
Mortgage 4 (the Deed) covering a property in the name of Edna and her husband Enrico (Enrico)
Lindo, Jr. (collectively, respondents). Edna also signed a Promissory Note 5 and the Deed for
herself and for Enrico as his attorney-in-fact.
Edna issued three checks as partial payments for the loan. All checks were dishonored
for insufficiency of funds, prompting petitioner to file a Complaint for Foreclosure of Mortgage with
Damages against respondents. The case was raffled to the Regional Trial Court of Manila,
Branch 33 (RTC, Branch 33) and docketed as Civil Case No. 00-97942.
In its 30 September 2003 Decision, 6 the RTC, Branch 33 ruled that petitioner was not
entitled to judicial foreclosure of the mortgage. The RTC, Branch 33 found that the Deed was
executed by Edna without the consent and authority of Enrico. The RTC, Branch 33 noted that the
Deed was executed on 31 October 1995 while the Special Power of Attorney (SPA) executed by
Enrico was only dated 4 November 1995. AcDHCS
The RTC, Branch 33 further ruled that petitioner was not precluded from recovering the
loan from Edna as he could file a personal action against her. However, the RTC, Branch 33 ruled
that it had no jurisdiction over the personal action which should be filed in the place where the
plaintiff or the defendant resides in accordance with Section 2, Rule 4 of the Revised Rules on
Civil Procedure.
Petitioner filed a motion for reconsideration. In its Order 7 dated 8 January 2004, the
RTC, Branch 33 denied the motion for lack of merit.
On 8 September 2004, petitioner filed a Complaint for Sum of Money with Damages
against respondents. It was raffled to Branch 42 (RTC, Branch 42) of the Regional Trial Court of
Manila, and docketed as Civil Case No. 04-110858.
Respondents filed their Answer with Affirmative Defenses and Counterclaims where they
admitted the loan but stated that it only amounted to P340,000. Respondents further alleged that
Enrico was not a party to the loan because it was contracted by Edna without Enrico's signature.
Respondents prayed for the dismissal of the case on the grounds of improper venue, res
judicata and forum-shopping, invoking the Decision of the RTC, Branch 33. On 7 March 2005,
respondents also filed a Motion to Dismiss on the grounds of res judicata and lack of cause of
action.
The Decision of the Trial Court
On 22 July 2005, the RTC, Branch 42 issued an Order 8 denying the motion to dismiss.
The RTC, Branch 42 ruled that res judicata will not apply to rights, claims or demands which,
although growing out of the same subject matter, constitute separate or distinct causes of action
and were not put in issue in the former action. Respondents filed a motion for reconsideration. In
its Order 9 dated 8 February 2006, the RTC, Branch 42 denied respondents' motion. The RTC,
Branch 42 ruled that the RTC, Branch 33 expressly stated that its decision did not mean that
petitioner could no longer recover the loan petitioner extended to Edna.
Respondents filed a Petition for Certiorari and  Mandamus  with Prayer for a Writ of
Preliminary Injunction and/or Temporary Restraining Order before the Court of Appeals.
The Decision of the Court of Appeals
In its 30 May 2008 Decision, the Court of Appeals set aside the 22 July 2005 and 8
February 2006 Orders of the RTC, Branch 42 for having been issued with grave abuse of
discretion.
The Court of Appeals ruled that while the general rule is that a motion to dismiss is
interlocutory and not appealable, the rule admits of exceptions. The Court of Appeals ruled that
the RTC, Branch 42 acted with grave abuse of discretion in denying respondents' motion to
dismiss. ICTcDA
The Court of Appeals ruled that under Section 3, Rule 2 of the 1997 Rules of Civil
Procedure, a party may not institute more than one suit for a single cause of action. If two or more
suits are instituted on the basis of the same cause of action, the filing of one on a judgment upon
the merits in any one is available ground for the dismissal of the others. The Court of Appeals
ruled that on a nonpayment of a note secured by a mortgage, the creditor has a single cause of
action against the debtor, that is recovery of the credit with execution of the suit. Thus, the
creditor may institute two alternative remedies: either a personal action for the collection of debt
or a real action to foreclose the mortgage, but not both. The Court of Appeals ruled that petitioner
had only one cause of action against Edna for her failure to pay her obligation and he could not
split the single cause of action by filing separately a foreclosure proceeding and a collection case.
By filing a petition for foreclosure of the real estate mortgage, the Court of Appeals held that
petitioner had already waived his personal action to recover the amount covered by the
promissory note.
Petitioner filed a motion for reconsideration. In its 4 August 2008 Resolution, the Court of
Appeals denied the motion.
 Hence, the petition before this Court.
The Issue
The sole issue in this case is whether the Court of Appeals committed a reversible error in
dismissing the complaint for collection of sum of money on the ground of multiplicity of suits.
The Ruling of this Court
The petition has merit.
The rule is that a mortgage-creditor has a single cause of action against a mortgagor-
debtor, that is, to recover the debt. 10 The mortgage-creditor has the option of either filing a
personal action for collection of sum of money or instituting a real action to foreclose on the
mortgage security. 11 An election of the first bars recourse to the second, otherwise there would
be multiplicity of suits in which the debtor would be tossed from one venue to another depending
on the location of the mortgaged properties and the residence of the parties. 12
The two remedies are alternative and each remedy is complete by itself. 13 If the
mortgagee opts to foreclose the real estate mortgage, he waives the action for the collection of
the debt, and vice versa. 14 The Court explained:
. . . in the absence of express statutory provisions, a mortgage creditor
may institute against the mortgage debtor either a personal action for debt or a
real action to foreclose the mortgage. In other words, he may pursue either of the
two remedies, but not both. By such election, his cause of action can by no
means be impaired, for each of the two remedies is complete in itself. Thus, an
election to bring a personal action will leave open to him all the properties of the
debtor for attachment and execution, even including the mortgaged property
itself. And, if he waives such personal action and pursues his remedy against the
mortgaged property, an unsatisfied judgment thereon would still give him the right
to sue for deficiency judgment, in which case, all the properties of the defendant,
other than the mortgaged property, are again open to him for the satisfaction of
the deficiency. In either case, his remedy is complete, his cause of action
undiminished, and any advantages attendant to the pursuit of one or the other
remedy are purely accidental and are all under his right of election. On the other
hand, a rule that would authorize the plaintiff to bring a personal action against
the debtor and simultaneously or successively another action against the
mortgaged property, would result not only in multiplicity of suits so offensive to
justice (Soriano v. Enriques, 24 Phil. 584) and obnoxious to law and equity
(Osorio v. San Agustin, 25 Phil. 404), but also in subjecting the defendant to the
vexation of being sued in the place of his residence or of the residence of the
plaintiff, and then again in the place where the property lies. 15 HSCAIT
The Court has ruled that if a creditor is allowed to file his separate complaints
simultaneously or successively, one to recover his credit and another to foreclose his mortgage,
he will, in effect, be authorized plural redress for a single breach of contract at so much costs to
the court and with so much vexation and oppressiveness to the debtor. 16
In this case, however, there are circumstances that the Court takes into consideration.
Petitioner filed an action for foreclosure of mortgage. The RTC, Branch 33 ruled that
petitioner was not entitled to judicial foreclosure because the Deed of Real Estate Mortgage was
executed without Enrico's consent. The RTC, Branch 33 stated:
All these circumstances certainly conspired against the plaintiff who has
the burden of proving his cause of action. On the other hand, said circumstances
tend to support the claim of defendant Edna Lindo that her husband did not
consent to the mortgage of their conjugal property and that the loan application
was her personal decision.
Accordingly, since the Deed of Real Estate Mortgage was executed by
defendant Edna Lindo lacks the consent or authority of her husband Enrico Lindo,
the Deed of Real Estate Mortgage is void pursuant to Article 96 of the Family
Code.
 This does not mean, however, that the plaintiff cannot recover the
P400,000 loan plus interest which he extended to defendant Edna Lindo. He can
institute a personal action against the defendant for the amount due which should
be filed in the place where the plaintiff resides, or where the defendant or any of
the principal defendants resides at the election of the plaintiff in accordance with
Section 2, Rule 4 of the Revised Rules on Civil Procedure. This Court has no
jurisdiction to try such personal action. 17  
Edna did not deny before the RTC, Branch 33 that she obtained the loan. She claimed,
however, that her husband did not give his consent and that he was not aware of the
transaction. 18 Hence, the RTC, Branch 33 held that petitioner could still recover the amount due
from Edna through a personal action over which it had no jurisdiction.
Edna also filed an action for declaratory relief before the RTC, Branch 93 of San Pedro
Laguna (RTC, Branch 93), which ruled:
At issue in this case is the validity of the promissory note and the Real
Estate Mortgage executed by Edna Lindo without the consent of her husband.
The real estate mortgage executed by petition Edna Lindo over their
conjugal property is undoubtedly an act of strict dominion and must be consented
to by her husband to be effective. In the instant case, the real estate mortgage,
absent the authority or consent of the husband, is necessarily void. Indeed, the
real estate mortgage is this case was executed on October 31, 1995 and the
subsequent special power of attorney dated November 4, 1995 cannot be made
to retroact to October 31, 1995 to validate the mortgage previously made by
petitioner. ISTDAH
The liability of Edna Lindo on the principal contract of the loan however
subsists notwithstanding the illegality of the mortgage. Indeed, where a mortgage
is not valid, the principal obligation which it guarantees is not thereby rendered
null and void. That obligation matures and becomes demandable in accordance
with the stipulation pertaining to it. Under the foregoing circumstances, what is
lost is merely the right to foreclose the mortgage as a special remedy for
satisfying or settling the indebtedness which is the principal obligation. In case of
nullity, the mortgage deed remains as evidence or proof of a personal obligation
of the debtor and the amount due to the creditor may be enforced in an ordinary
action.
In view of the foregoing, judgment is hereby rendered declaring the deed
of real estate mortgage as void in the absence of the authority or consent of
petitioner's spouse therein. The liability of petitioner on the principal contract of
loan however subsists notwithstanding the illegality of the real estate
mortgage. 19
The RTC, Branch 93 also ruled that Edna's liability is not affected by the illegality of the
real estate mortgage.
Both the RTC, Branch 33 and the RTC, Branch 93 misapplied the rules.
Article 124 of the Family Code provides:
Art. 124.The administration and enjoyment of the conjugal partnership
property shall belong to both spouses jointly. In case of disagreement, the
husband's decision shall prevail, subject to recourse to the court by the wife for
proper remedy, which must be availed of within five years from the date of
contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the conjugal properties, the other spouse may
assume sole powers of administration. These powers do not include disposition
or encumbrance without authority of the court or the written consent of the other
spouse. In the absence of such authority or consent the disposition or
encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person,
 and may be perfected as a binding contract upon the acceptance by the
other spouse or authorization by the court before the offer is withdrawn by
either or both offerors. (Emphasis supplied)
Article 124 of the Family Code which applies to conjugal partnership property, is a
reproduction of Article 96 of the Family Code which applies to community property.
Both Article 96 and Article 127 of the Family Code provide that the powers do not include
disposition or encumbrance without the written consent of the other spouse. Any disposition or
encumbrance without the written consent shall be void. However, both provisions also state that
"the transaction shall be construed as a continuing offer on the part of the consenting spouse and
the third person, and may be perfected as a binding contract upon the acceptance by the
other spouse . . . before the offer is withdrawn by either or both offerors." HEcIDa
In this case, the Promissory Note and the Deed of Real Estate Mortgage were executed
on 31 October 1995. The Special Power of Attorney was executed on 4 November 1995. The
execution of the SPA is the acceptance by the other spouse that perfected the continuing
offer as a binding contract between the parties, making the Deed of Real Estate Mortgage a
valid contract.
However, as the Court of Appeals noted, petitioner allowed the decisions of the RTC,
Branch 33 and the RTC, Branch 93 to become final and executory without asking the courts for
an alternative relief. The Court of Appeals stated that petitioner merely relied on the declarations
of these courts that he could file a separate personal action and thus failed to observe the rules
and settled jurisprudence on multiplicity of suits, closing petitioner's avenue for recovery of the
loan.
Nevertheless, petitioner still has a remedy under the law.
In Chieng v. Santos, 20 this Court ruled that a mortgage-creditor may institute against the
mortgage-debtor either a personal action for debt or a real action to foreclose the mortgage. The
Court ruled that the remedies are alternative and not cumulative and held that the filing of a
criminal action for violation of Batas Pambansa Blg. 22 was in effect a collection suit or a suit for
the recovery of the mortgage-debt. 21 In that case, however, this Court pro hac vice, ruled that
respondents could still be held liable for the balance of the loan, applying the principle that no
person may unjustly enrich himself at the expense of another. 22
The principle of unjust enrichment is provided under Article 22 of the Civil Code which
provides:
Art. 22.Every person who through an act of performance by another, or
any other means, acquires or comes into possession of something at the
expense of the latter without just or legal ground, shall return the same to him.
There is unjust enrichment "when a person unjustly retains a benefit to the loss of
another, or when a person retains money or property of another against the fundamental
principles of justice, equity and good conscience." 23 The principle of unjust enrichment requires
two conditions: (1) that a person is benefited without a valid basis or justification, and (2) that such
benefit is derived at the expense of another. 24
The main objective of the principle against unjust enrichment is to prevent one from
enriching himself at the expense of another without just cause or consideration. 25 The principle
is applicable in this case considering that Edna admitted obtaining a loan from petitioners, and the
same has not been fully paid without just cause. The Deed was declared void erroneously at the
instance of Edna, first when she raised it as a defense before the RTC, Branch 33 and second,
when she filed an action for declaratory relief before the RTC, Branch 93. Petitioner could not be
expected to ask the RTC, Branch 33 for an alternative remedy, as what the Court of Appeals
ruled that he should have done, because the RTC, Branch 33 already stated that it had no
jurisdiction over any personal action that petitioner might have against Edna. aDECHI
Considering the circumstances of this case, the principle against unjust enrichment, being
a substantive law, should prevail over the procedural rule on multiplicity of suits. The Court of
Appeals, in the assailed decision, found that Edna admitted the loan, except that she claimed it
only amounted to P340,000. Edna should not be allowed to unjustly enrich herself because of the
erroneous decisions of the two trial courts when she questioned the validity of the Deed.
 Moreover, Edna still has an opportunity to submit her defenses before the RTC, Branch 42 on her
claim as to the amount of her indebtedness.
WHEREFORE, the 30 May 2008 Decision and the 4 August 2008 Resolution of the Court
of Appeals in CA-G.R. SP No. 94003 are SET ASIDE. The Regional Trial Court of Manila, Branch
42 is directed to proceed with the trial of Civil Case No. 04-110858.
SO ORDERED.
Nachura, Peralta, Abad  and Mendoza, JJ., concur.
|||  (Flores v. Spouses Lindo, Jr., G.R. No. 183984, [April 13, 2011], 664 PHIL 210-222)

EN BANC

[G.R. No. L-19565. January 30, 1968.]

ESTRELLA DE LA CRUZ,  plaintiff-appellee, vs. SEVERINO DE LA

CRUZ, defendant-appellant.

Estacion & Patriguera  for plaintiff-appellee.

Manuel O. Soriano and  Pio G. Villoso for defendant-appellant.

SYLLABUS

1. CIVIL LAW; CONJUGAL PARTNERSHIP; SEPARATION OF CONJUGAL

PROPERTIES; ABANDONMENT DEFINED; CASE AT BAR. — To constitute abandonment of
the wife by the husband, as the term is used in Article 178 of the New Civil Code, there must be
absolute cessation of marital relations and duties and rights, with the intention of perpetual
separation. The abandonment must not only be physical estrangement but also amount to
financial and moral desertion. In the case at bar, the evidence shows that the defendant did not
intend to leave his wife and children permanently for he continued to give support to his family
despite his absence from the conjugal home. This fact negatives any intent on his part not to
return to the conjugal abode and resume his marital duties and rights. Where there is only
physical separation between the spouses engendered by the husband's leaving the conjugal
abode, but the husband continues to manage the conjugal properties with the same zeal, industry
and efficiency as he did prior to the separation, and religiously gives support to his wife and
children, as in the case at bar, the wife's petition for separation of property must be denied.
2. ID.; ID.; ID.; ABUSE OF ADMINISTRATION DEFINED. — Mere refusal or failure of the
husband as administrator of the conjugal partnership to inform the wife of the progress of the
family businesses does not constitute abuse of administration. For "abuse" to exist, it is not
enough that the husband perform an act or acts prejudicial to the wife. Nor is it sufficient that he
commits acts injurious to the partnership, for these may be the result of mere inefficient or
negligent administration. Abuse connotes willful and utter disregard of the interests of the
partnership, evidenced by a repetition of deliberate acts and/or omissions prejudicial to the latter.
3. ID.; ID.; ID.; JUDICIAL RESTRAINT ESSENTIAL. — Courts must exercise judicial
restraint and reasoned hesitance in ordering a separation of conjugal properties because the
policy of the law is homiletic, to promote healthy family life and to preserve the union of the
spouses, in person, in spirit and in property.
4. ATTORNEY'S FEES; ACTIONS FOR LEGAL SUPPORT. — Because defendant, by
leaving the conjugal abode, has given cause for the plaintiff to seek redress in the courts, and ask
for adequate support, an award of attorney's fees is proper. Ample authority for such award is
 found in paragraphs 6 and 11 of the new Civil Code which empower courts to grant counsel's fees
"in actions for legal support" and in cases "where the court deems it just and equitable that
attorney's fees . . . should be recovered."

DECISION

CASTRO, J p:

The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of First
Instance of Negros Occidental, alleging in essence that her husband, the defendant Severino de
la Cruz, had not only abandoned her but as well was mismanaging their conjugal partnership
properties, and praying for (1) separation of property, (2) monthly support of P2,500 during the
pendency of the action, and (3) payment of P20,000 as attorney's fees, and costs.
The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as
alimony pendente lite, which, however, upon defendant's motion, was reduced to P2,000.
On June 1, 1961 the trial court rendered judgment ordering separation and division of the
conjugal assets, and directing the defendant to pay to the plaintiff the sum of P20,000 as
attorney's fees, with legal interest from the date of the original complaint, that is from July 22,
1958, until fully paid, plus costs. From this judgment the defendant appealed to the Court of
Appeals which certified the case to us, "it appearing that the total value of the conjugal assets is
over P500,000."
The basic facts are not controverted. The plaintiff and the defendant were married in
Bacolod City on February 1, 1938. Six children were born to them, namely, Zenia (1939), Ronnie
(1942), Victoria (1944), Jessie (1945), Bella (1946), and Felipe (1948). During their coverture they
acquired seven parcels of land of the Bacolod Cadastre, all assessed at P45,429, and three
parcels of the Silay Cadastre. all assessed at P43,580. All these parcels are registered in their
names. The hacienda in Silay yielded for the year 1957 a net profit of P3,390.49.
They are also engaged in varied business ventures with fixed assets valued as of
December 31, 1956 at P496,006.92, from which they obtained for that year a net profit of
P75,655.78. The net gain of the Philippine Texboard Factory, the principal business of the
spouses, was P90,454,48 for the year 1957. As of December 31, 1959, the total assets of the
various enterprises of the conjugal partnership were valued at P1,021,407.68, not including those
of the Top Service Inc., of which firm the defendant has been the president since its organization
in 1959 in Manila with a paid-up capital of P50,000, P10,000 of which was contributed by him.
This corporation owns the Beverly Hills Subdivision in Antipolo, Rizal, the Golden Acres
Subdivision and Green Valley Subdivision in Las Piñas, Rizal, and a lot and building located at
M.H. del Pilar, Manila purchased for P285,000, an amount borrowed from the Manufacturer's
Bank and Trust Company.
The spouses are indebted to the Philippine National Bank and the Development Bank of
the Philippines for loans obtained, to secure which they mortgaged the Philippine Texboard
Factory, the Silay hacienda, their conjugal house, and all their parcels of land located in Bacolod
City.
The essential issues of fact may be gleaned from the nine errors the defendant imputes to
the court a quo, namely,
1. In finding that the only visit, from May 15, 1955 to the rendition of the
decision, made by the defendant to the conjugal abode to see his wife was on June
15, 1955;
2. In finding that the letter exh. 3 was written by one Nenita Hernandez and
that she and the defendant are living as husband and wife;
3. In finding that since 1951 the relations between the plaintiff and the
defendant were far from cordial and that it was from 1948 that the former has been
receiving an allowance from the latter;
 4. In finding that the defendant has abandoned the plaintiff;
5. In finding that the defendant since 1956 has not discussed with his wife
the business activities of the partnership, and that this silence constituted "abuse of
administration of the conjugal partnership;
6. In declaring that the defendant mortgaged the conjugal assets without
the knowledge of the plaintiff and thru false pretences to which the latter was prey;
7. In allowing the plaintiff, on the one hand, to testify on facts not actually
known by her, and, on the other hand, in not allowing the defendant to establish his
special defenses;
8. In ordering separation of the conjugal partnership properties; and
9. In sentencing the defendant to pay to the plaintiff attorney's fees in the
amount of P20,000, with interest at the legal rate.
Two issues of law as well emerge, requiring resolution: (1) Did the separation of the
defendant from the plaintiff constitute abandonment in law that would justify a separation of the
conjugal partnership properties? (2) Was the defendant's failure and/or refusal to inform the
plaintiff of the state of their business enterprises such an abuse of his powers of administration of
the conjugal partnership as to warrant a division of the matrimonial assets?
The plaintiff's evidence may be summarized briefly. The defendant started living in Manila
in 1955, although he occasionally returned to Bacolod City, sleeping in his office at the Philippine
Texboard Factory in Mandalagan, instead of in the conjugal home at 2nd Street, Bacolod City.
Since 1955 the defendant had not slept in the conjugal dwelling, although in the said year he paid
short visits during which they engaged in brief conversations. After 1955 up to the time of the trial,
the defendant had never once visited the conjugal abode, and when he was in Bacolod, she was
denied communication with him. He has abandoned her and their children, to live in Manila with
his concubine, Nenita Hernandez. In 1949 she began to suspect the existence of illicit relations
between her husband and Nenita. This suspicion was confirmed in 1951 when she found an
unsigned note in a pocket of one of her husband's polo shirts, which was written by Nenita and in
which she asked "Bering" to meet her near the church. She confronted her husband who forthwith
tore the note even as he admitted his amorous liaison with Nenita. He then allayed her fears by
vowing to forsake his mistress. Subsequently, in November 1951, she found in the iron safe of her
husband a letter, exh. C, also written by Nenita. In this letter the sender (who signed as "D")
apologized for her conduct, and expressed the hope that the addressee ("Darling") could join her
in Baguio as she was alone in the Patria Inn and lonely in "a place for honeymooners".
Immediately after her husband departed for Manila the following morning, the plaintiff enplaned
for Baguio, where she learned that Nenita had actually stayed at the Patria Inn, but had already
left for Manila before her arrival. Later she met her husband in the house of a relative in Manila
from whence they proceeded to the Avenue Hotel where she again confronted him about Nenita.
He denied having further relations with this woman.
Celia Bañez, testifying for the plaintiff, declared that she was employed as a cook in the
home of the spouses from May 15, 1955 to August 15, 1958, and that during the entire period of
her employment she saw the defendant in the place only once. This declaration is contradicted,
however, by the plaintiff herself who testified that in 1955 the defendant "used to have a short visit
there," which statement implies more than one visit.
The defendant, for his part, denied having abandoned his wife and children, but admitted
that in 1957, or a year before the filing of the action, he started to live separately from his wife.
When he transferred his living quarters to his office in Mandalagan, Bacolod City, his intention
was not, as it never has been, to abandon his wife and children, but only to teach her a lesson as
she was quarrelsome and extremely jealous of every woman. He decided to live apart from his
wife temporarily because at home he could not concentrate on his work as she always quarreled
with him, while in Mandalagan he could pass the nights in peace. Since 1953 he stayed in Manila
for some duration of time to manage their expanding business and look for market outlets for their
texboard products. Even the plaintiff admitted in both her original and amended complaints that
"sometime in 1953, because of the expanding business of the herein parties, the defendant
established an office in the City of Manila, wherein some of the goods, effects and merchandise
manufactured or produced in the business enterprises of the parties were sold or disposed of".
From the time he started living separately in Mandalagan up to the filing of the complaint, the
plaintiff herself furnished him food and took care of his laundry. This latter declaration was not
rebutted by the plaintiff.
The defendant with vehemence, denied that he has abandoned his wife and family,
averring that he has never failed, even for a single month, to give them financial support, as
witnessed by the plaintiff's admission in her original and amended complaints as well as in open
court that during the entire period of their estrangement, he was giving her around P500 a month
for support. In point of fact, his wife and children continued to draw allowances from his office of a
total ranging from P1,200 to P1,500 a month. He financed the education of their children, two of
whom were studying in Manila at the time of the trial and were not living with the plaintiff. While in
Bacolod City, he never failed to visit his family, particularly the children. His wife was always in
bad need of money because she played mahjong, an accusation which she did not traverse,
explaining that she played mahjong to entertain herself and forget the infidelities of her husband.
Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated the
testimony of the defendant on the matter of the support the latter gave to his family, by declaring
in court that since the start of his employment in 1950 as assistant general manager, the plaintiff
has been drawing an allowance of P1,000 to P1,500 monthly, which amount was given personally
by the defendant or, in his absence, by the witness himself.
The defendant denied that he ever maintained a mistress in Manila. He came to know
Nenita Hernandez when she was barely 12 years old, but had lost track of her thereafter. His
constant presence in Manila was required by the pressing demands of an expanding business.
He denied having destroyed the alleged note which the plaintiff claimed to have come from
Nenita, nor having seen, previous to the trial, the letter exh. C. The allegation of his wife that he
has a concubine is based on mere suspicion. He has always been faithful to his wife, and not for
a single instance has he been caught or surprised by her with another woman.
On the matter of the alleged abuse by the defendant of his powers of administration of the
conjugal partnership, the plaintiff declared that the defendant refused and failed to inform her of
the progress of their various business concerns. Although she did not allege, much less prove,
that her husband had dissipated the conjugal properties, she averred nevertheless that her
husband might squander and dispose of the conjugal assets in favor of his concubine. Hence, the
urgency of separation of property.
The defendant's answer to the charge of mismanagement is that he has applied his
industry, channeled his ingenuity, and devoted his time, to the management, maintenance and
expansion of their business concerns, even as his wife threw money away at the mahjong tables.
Tangible proof of his endeavors is that from a single cargo truck which he himself drove at the
time of their marriage, he had built up one business after another, the Speedway Trucking
Service, the Negros Shipping Service, the Bacolod Press, the Philippine Texboard Factory, and
miscellaneous other business enterprises worth over a million pesos; that all that the spouses
now own have been acquired through his diligence, intelligence and industry; that he has steadily
expanded the income and assets of said business enterprises from year to year, contrary to the
allegations of the complainant, as proved by his balance sheet and profit and loss statements for
the year 1958 and 1959 (exhibits 1 and 2); and that out of the income of their enterprises he had
purchased additional equipment and machineries and has partially paid their indebtedness to the
Philippine National Bank and the Development Bank of the Philippines.
It will be noted that the plaintiff does not ask for legal separation. The evidence presented
by her to prove concubinage on the part of the defendant, while pertinent and material in the
determination of the merits of a petition for legal separation, must in this case be regarded merely
as an attempt to bolster her claim that the defendant had abandoned her, which abandonment, if
it constitutes abandonment in law, would justify separation of the conjugal assets under the
applicable provisions of article 178 of the new Civil Code which read: "The separation in fact
between husband and wife without judicial approval shall not affect the conjugal partnership,
except that . . . if the husband has abandoned the wife without just cause for at least one year,
she may petition the court for a receivership, or administration by her of the conjugal partnership
property, or separation of property." In addition to abandonment as a ground, the plaintiff also
invokes article 167 of the new Civil Code in support of her prayer for division of the matrimonial
assets. This article provides that "In case of abuse of powers of administration of the conjugal
partnership property by the husband, the courts, on the petition of the wife, may provide for a
receivership, or administration by the wife, or separation of property." It behooves us, therefore, to
inquire, in the case at bar, whether there has been abandonment, in the legal sense, by the
defendant of the plaintiff, and/or whether the defendant has abused his powers of administration
of the conjugal partnership property, so as to justify the plaintiff's plea for separation of property.
We have made a searching scrutiny of the record, and it is our considered view that the
defendant is not guilty of abandonment of his wife, nor of such abuse of his powers of
administration of the conjugal partnership, as to warrant division of the conjugal assets.
The extraordinary remedies afforded to the wife by article 178 when she has been
abandoned by the husband for at least one year are the same as those granted to her by article
167 in case of abuse of the powers of administration by the husband. To entitle her to any of
these remedies, under article 178, there must be real abandonment, and not mere
separation. 1 The abandonment must not only be physical estrangement but also amount to
financial and moral desertion.
Although an all-embracing definition of the term "abandonment" is yet to be spelled out in
explicit words, we nevertheless can determine its meaning from the context of the law as well as
from its ordinary usage. The concept of abandonment in article 178 may be established in relation
to the alternative remedies granted to the wife when she has been abandoned by the husband,
namely, receivership, administration by her, or separation of property, all of which are designed to
protect the conjugal assets from waste and dissipation rendered imminent by the husband's
continued absence from the conjugal abode, and to assure the wife of a ready and steady source
of support. Therefore, physical separation alone is not the full meaning of the term
"abandonment", if the husband, despite his voluntary departure from the society of his spouse,
neither neglects the management of the conjugal partnership nor ceases to give support to his
wife.
The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or
renounce utterly. 2 The dictionaries trace this word to the root idea of "putting under a ban." The
emphasis is on the finality and the publicity with which some thing or body is thus put in the
control of another, and hence the meaning of giving up absolutely, with intent never again to
resume or claim one's rights or interests. 3 When referring to desertion of a wife by a husband,
the word has been defined as "the act of a husband in voluntarily leaving his wife with intention to
forsake her entirely, never to return to her, and never to resume his marital duties towards her, or
to claim his marital rights; such neglect as either leaves the wife destitute of the common
necessaries of life, or would leave her destitute but for the charity of others."  4 The word
"abandonment," when referring to the act of one consort of leaving the other, is "the act of the
husband or the wife who leaves his or her consort willfully, and with an intention of causing
perpetual separation." 5 Giving to the word "abandoned," as used in article 178, the meaning
drawn from the definitions above reproduced, it seems rather clear that to constitute
abandonment of the wife by the husband, there must be absolute cessation of marital relations
and duties and rights, with the intention of perpetual separation.
Coming back to the case at bar, we believe that the defendant did not intend to leave his
wife and children permanently. The record conclusively shows that he continued to give support
to his family despite his absence from the conjugal home. This fact is admitted by the
complainant, although she minimized the amount of support given, saying that it was only P500
monthly. There is good reason to believe, however, that she and the children received more than
this amount, as the defendant's claim that his wife and children continued to draw from his office
more than P500 monthly was substantially corroborated by Marcos Ganaban, whose declarations
were not rebutted by the plaintiff. And then there is at all no showing that the plaintiff and the
children were living in want. On the contrary, the plaintiff admitted, albeit reluctantly, that she
frequently played mahjong, from which we can infer that she had money to spare.
The fact that the defendant never ceased to give support to his wife and children
negatives any intent on his part not to return to the conjugal abode and resume his marital duties
and rights. In People v. Schelske, 6 it was held that where a husband, after leaving his wife,
continued to make small contributions at intervals to her support and that of their minor child, he
was not guilty of their "abandonment", which is an act of separation with intent that it shall be
perpetual, since contributing to their support negative such intent. In In re Hess' Estate, supra, it
was ruled that a father did not abandon his family where the evidence disclosed that he almost
always did give his wife part of his earnings during the period of their separation and that he
gradually paid some old rental and grocery bills.
With respect to the allegation that the defendant maintained a concubine, we believe,
contrary to the findings of the court a quo, that the evidence on record fails to preponderate in
favor of the plaintiff s thesis. The proof that Nenita Hernandez was the concubine of the defendant
and that they were living as husband and wife in Manila, is altogether too indefinite. Aside from
the uncorroborated statement of the plaintiff that she knew that Nenita Hernandez was her
husband's concubine, without demonstrating by credible evidence the existence of illicit relations
between Nenita and the defendant, the only evidence on record offered to link the defendant to
his alleged mistress is exh. C. The plaintiff however failed to connect authorship of the said letter
with Nenita, on the face whereof the sender merely signed as "D" and the addressee was one
unidentified "Darling." The plaintiff's testimony on cross-examination, hereunder quoted,
underscores such failure:
Q. You personally never received any letter from Nenita?
A. No.
Q. Neither have you received on any time until today from 1949 from
Nenita?
A. No.
Q. Neither have you written to her any letter yourself until now?
A. Why should I write a letter to her.
Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting of
Nenita. Is that right?
A. I can say that Nenita writes very well.
Q. I am not asking you whether she writes very well or not but, my question
is this: In view of the fact that you have never received a letter from
Nenita, you have not sent any letter to her, you are not familiar with
her handwriting?
A. Yes.
Q. You have not seen her writing anybody?
A. Yes.
Anent the allegation that the defendant had mismanaged the conjugal partnership
property, the record presents a different picture. There is absolutely no evidence to show that he
has squandered the conjugal assets. Upon the contrary, he proved that through his industry and
zeal, the conjugal assets at the time of the trial had increased to a value of over a million pesos.
The lower court likewise erred in holding that mere refusal or failure of the husband as
administrator of the conjugal partnership to inform the wife of the progress of the family
businesses constitutes abuse of administration. For "abuse" to exist, it is not enough that the
husband perform an act or acts prejudicial to the wife. Nor is it sufficient that he commit acts
injurious to the partnership, for these may be the result of mere inefficient or negligent
administration. Abuse connotes willful and utter disregard of the interests of the partnership,
evidenced by a repetition of deliberate acts and/or omissions prejudicial to the latter. 7
If there is only physical separation between the spouses (and nothing more), engendered
by the husband's leaving the conjugal abode, but the husband continues to manage the conjugal
properties with the same zeal, industry, and efficiency as he did prior to the separation, and
religiously gives support to his wife and children, as in the case at bar, we are not disposed to
grant the wife's petition for separation of property. This decision may appear to condone the
husband's separation from his wife; however, the remedies granted to the wife by articles 167 and
178 are not to be construed as condonation of the husband's act but are designed to protect the
conjugal partnership from waste and shield the wife from want. Therefore, a denial of the wife's
prayer does not imply a condonation of the husband's act but merely points up the insufficiency or
absence of a cause of action.
Courts must needs exercise judicial restraint and reasoned hesitance in ordering a
separation of conjugal properties because the basic policy of the law is homiletic, to promote
healthy family life and to preserve the union of the spouses, in person, in spirit and in property.
"Consistently with its policy of discouraging a regime of separation as not in
harmony with the unity of the family and the mutual affection and help expected of
the spouses, the Civil Code (both old and new) requires that separation of property
shall not prevail unless expressly stipulated in marriage settlements before the
union is solemnized or by formal judicial decree during the existence of the
marriage (Article 190, new Civil Code, Article 1432, old Civil Code); and in the latter
case, it may only be ordered by the court for causes specified in Article 191 of the
new Civil Code." 8
Furthermore, a judgment ordering the division of conjugal assets where there has been
no real abandonment, the separation not being wanton and absolute, may altogether slam shut
the door for possible reconciliation. The estranged spouses may drift irreversibly further apart; the
already broken family solidarity may be irretrievably shattered; and any flickering hope for a new
life together may be completely and finally extinguished.
The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958, long
before the devaluation of the Philippine peso in 1962, should be increased to P3,000.
On the matter of attorney's fees, it is our view that because the defendant, by leaving the
conjugal abode, has given cause for the plaintiff to seek redress in the courts, and ask
for adequate support, an award of attorney's fees to the plaintiff must be made. Ample authority
for such award is found in paragraphs 6 and 11 of article 2208 of the new Civil Code which
empower courts to grant counsel's fees "in actions for legal support" and in cases "where the
court deems it just and equitable that attorney's fees . . . should be recovered." However, an
award of P10,000, in our opinion, is, under the environmental circumstances, sufficient.
This Court would be remiss if it did not, firstly, remind the plaintiff and the defendant that
the law enjoins husband and wife to live together, and, secondly, exhort them to avail of —
mutually, earnestly and steadfastly — all opportunities for reconciliation to the end that their
marital differences may be happily resolved, and conjugal harmony may return and, on the basis
of mutual respect and understanding, endure.
ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal
properties, is reversed and set aside. Conformably to our observations, however, the defendant is
ordered to pay to the plaintiff, in the concept of support, the amount of P3,000 per month, until he
shall have rejoined her in the conjugal home, which amount may, in the meantime, be reduced or
increased in the discretion of the court a quo as circumstances warrant. The award of attorney's
fees to the plaintiff is reduced. to P10,000, without interest. No pronouncement as to costs.
Concepcion, C J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Angeles and Fernando, JJ., concur.

FIRST DIVISION

[G.R. No. 143286. April 14, 2004.]

PROCOPIO VILLANUEVA, NICOLAS RETUYA and PACITA

VILLANUEVA,  petitioners, vs. COURT OF APPEALS and THE HEIRS OF
EUSEBIA NAPISA RETUYA,  respondents.

DECISION
CARPIO,  J p:

This petition for review on certiorari 1 seeks the reversal of the Court of Appeals' Decision
dated 31 January 2000 as well as its Resolution dated 25 April 2000 in CA-G.R. No. CV-46716. The
assailed Decision dismissed petitioners' appeal of the Decision of the Regional Trial Court, Branch 55,
Mandaue City ("trial court").
On 13 October 1988, Eusebia Napisa Retuya (“Eusebia”) filed a complaint before the trial
court against her husband Nicolas Retuya ("Nicolas"), Pacita Villanueva ("Pacita"), and Nicolas' son
with Pacita, Procopio Villanueva ("Procopio"). Eusebia sought the reconveyance from Nicolas and
Pacita of several properties listed in paragraph 2 of the complaint ("subject properties"), claiming the
subject properties are her conjugal properties with Nicolas. Eusebia also prayed for accounting,
damages and the delivery of rent and other income from the subject properties.
Antecedent Facts
The facts as found by the trial court are as follows:
Plaintiff Eusebia Napisa Retuya, is the legal wife of defendant Nicolas
Retuya, having been married to the latter on October 7, 1926. Out of the lawful
wedlock, they begot five (5) children, namely, Natividad, Angela, Napoleon,
Salome, and Roberta. Spouses Retuya resided at Tipolo, Mandaue City. During
their marriage they acquired real properties and all improvements situated in
Mandaue City, and Consolacion, Cebu, more particularly described as follows:
'1. A parcel of land located at Pulpugan, Consolacion, Cebu under
tax dec. No. 24951;
2. A parcel of land located at Pulpugan, Consolacion, Cebu under
tax dec. No. 24952;
3. A parcel of land located at Pulpugan, Consolacion, Cebu under
tax dec. No. 24953;
4. A parcel of land located at Pulpugan, Consolacion, Cebu under
tax dec. No. 24954;
5. A parcel of land located at Pulpugan, Consolacion, Cebu under
tax dec. No. 24956;
6. A parcel of land located at Pulpugan, Consolacion, Cebu under
tax dec. No. 24957;
7. A parcel of land located at Pulpugan, Consolacion, Cebu under
tax dec. No. 24958;
8. A parcel of land located at Tipolo, Mandaue City, covered by tax
dec. No. 01042;
9. A parcel of land located at Tipolo, Mandaue City, covered by tax
dec. No. 01043;
10. A parcel of land located at Tipolo, Mandaue City, covered by
tax dec. No. 01046;
11. A parcel of land located at Tipolo, Mandaue City, covered by
tax dec. No. 01041;
12. A parcel of land located at Nawanao-Subangdaku, Mandaue
City covered by tax dec. No. 01488;
13. A parcel of land located at Baklid, Mandaue City, covered by
tax dec. No. 00492;
14. A parcel of land located at Tipolo, Mandaue City covered by tax
dec. No. 01044;
 15. A residential house located at Tipolo, Mandaue City covered by
tax dec. No. 01050;
16. A parcel of land located at Tipolo, Mandaue City covered by tax
dec. No. 01048;
17. A parcel of land located at Tipolo, Mandaue City covered by tax
dec. No. 01051;
18. A parcel of land located at Tipolo, Mandaue City covered by tax
dec. No. 01047;
19. A parcel of land located at Banilad, Mandaue City covered by
tax dec. No. 02381;
20. A parcel of land located at Tipolo, Mandaue City covered by tax
dec. No. 01049;
21. A parcel of land located at Tipolo, Mandaue City covered by tax
dec. No. 01045;
22. A parcel of land located at Tipolo, Mandaue City covered by tax
dec. No. 01450 (in the name of Pacita Villanueva).'
Also, defendant, Nicolas Retuya, is co-owner of a parcel of land situated in
Mandaue City which he inherited from his parents Esteban Retuya and Balbina
Solon as well as the purchaser of hereditary shares of approximately eight (8)
parcels of land in Mandaue City.
Some of these properties above-mentioned earn income from coconuts
and the other lands/houses are leased to the following:
a) Mandaue Food Products Company — for Lot 121-F, Lot 121-G
and Lot 121-H under TCT No. 11300 at an annual rental of P10,800.00;
b) Barben Wood Industries, Inc. — for Lot 148 covered by TCT No.
1731 for an annual rental of P21,600.00;
c) Metaphil, Inc. — parcel of land consisting of 2,790.51 sq. meters
at the rate of P2,700.00 annually for the first five (5) years, and P3,240.00
for the second years;
d) Benedicto Development Corp. — for a portion of Lot 148
covered by TCT No. 1731 for a period of 20 years at an annual rate of
P3,500.00 renewable for another 20 years after April 1, 1995 at an annual
rate of P4,000.00;
e) Benedicto Development Corporation — for a portion of Lot No.
148 covered by Certificate of Title No. 1731 over an area of 6,000 sq.
meters for an annual rental of P9,500.00 for a period of 2 years from June
1, 1982;
f) Visayan Timber and Machinery Corp. — over a parcel of land at
Nawanaw, Mandaue City, for a period of 2 years from June 1, 1987 and
renewable for another 12 years at an annual income of P4,000.00;
g) House lessees listed in Exhibit "13" with total monthly rentals of
P1,975.00 a month for the 24 lessees or P24,700.00 annually. (Exhs. "7" to
"13")
In 1945, defendant Nicolas Retuya no longer lived with his legitimate family
and cohabited with defendant, Pacita Villanueva, wherein defendant, Procopio
Villanueva, is their illegitimate son. Nicolas, then, was the only person who received
the income of the above-mentioned properties.
 Defendant, Pacita Villanueva, from the time she started living in
concubinage with Nicolas, has no occupation, she had no properties of her own
from which she could derive income.
In 1985, Nicolas suffered a stroke and cannot talk anymore, cannot walk
anymore and they have to raise him up in order to walk. Natividad Retuya knew of
the physical condition of her father because they visited him at the hospital. From
the time defendant Nicolas Retuya suffered a stroke on January 27, 1985 and until
the present, it is defendant Procopio Villanueva, one of Nicolas' illegitimate children
who has been receiving the income of these properties. Witness Natividad Retuya
went to Procopio to negotiate because at this time their father Nicolas was already
senile and has a childlike mind. She told defendant, Procopio that their father was
already incapacitated and they had to talk things over and the latter replied that it
was not yet the time to talk about the matter.
Plaintiff, then, complained to the Barangay Captain for
reconciliation/mediation but no settlement was reached, hence, the said official
issued a certification to file action. Written demands were made by plaintiff, through
her counsel, to the defendants, including the illegitimate family asking for settlement
but no settlement was reached by the parties.
Further, plaintiff's witness, Natividad Retuya, testified that the parcel of land
covered by tax declaration marked Exhibit "T" was the property bought by her
father from Adriano Marababol for at the time of purchase of the property,
defendant Pacita Villanueva had no means of livelihood (TSN, p. 6).
The trial court rendered its Decision on 16 February 1994 in favor of Eusebia. The dispositive
portion of the Decision states:
WHEREFORE, in view of the foregoing considerations, judgment is
rendered in favor of the plaintiff Eusebia Napisa Retuya and against defendants
Procopio Villanueva, Nicolas Retuya and Pacita Villanueva:
1. Declaring the properties listed in paragraph 2 of the amended complaint
as conjugal properties of the spouses plaintiff Eusebia Retuya and the defendant
Nicolas Retuya;
2. Ordering the transfer of the sole administration of conjugal properties of
the spouses Eusebia Retuya and Nicolas Retuya in accordance with Art. 124 of
the Family Code to the plaintiff Eusebia Napisa Retuya;
3. Ordering defendant Procopio Villanueva to account and turnover all
proceeds or rentals or income of the conjugal properties from January 27, 1985
when he took over as 'administrator' thereof and until he shall have ceased
administering the same in accordance with the judgment of this Court;
4. Ordering defendants jointly and severally to reconvey the parcel of land
situated at Tipolo, Mandaue City now in the name of defendant Pacita Villanueva
under tax dec. No. 01450 and transfer the same into the names of the conjugal
partners Eusebia N. Retuya and Nicolas Retuya;
5. Ordering the City Assessor's Office of Mandaue City to cancel tax
declaration No. 01450 in the name of Pacita Villanueva and direct the issuance of a
new title and tax declaration in the names of Eusebia Napisa Retuya and Nicolas
Retuya;
6. Ordering defendants jointly and severally to reconvey that certain
building of strong materials located at Tipolo, Mandaue City under tax dec. No.
01450 into the names of Eusebia Retuya and Nicolas Retuya;
7. Ordering defendants jointly and severally to pay plaintiff the sum of
P50,000.00 by way of attorney's fees and expenses of litigation in the sum of
P5,000.00 plus the costs.
SO ORDERED.
 Petitioners appealed the trial court's decision to the Court of Appeals. Eusebia died on 23
November 1996. Thereafter, Eusebia's heirs substituted her pursuant to the resolution of the Court of
Appeals dated 7 April 1997. The Court of Appeals eventually upheld the Decision of the trial court but
deleted the award of attorney's fees, ruling in this wise:
WHEREFORE, the decision dated February 16, 1994 is AFFIRMED with
the modification that the award of attorney's fees of P50,000.00 is deleted.
SO ORDERED. HAEIac
Petitioners filed a Motion for Reconsideration on 23 February 2000 which the Court of
Appeals denied in a Resolution dated 11 May 2000.
Hence, this petition.
The Trial Court's Ruling
The trial court applied Article 116 of the Family Code, which reads:
Art. 116. All property acquired during the marriage, whether the acquisition
appears to have been made, contracted or registered in the name of one or both
spouses, is presumed conjugal unless the contrary is proved.
The trial court ruled that the documents and other evidence Eusebia presented constitute
"solid evidence" which proved that the subject properties were acquired during her marriage with
Nicolas. This made the presumption in Article 116 applicable to the subject properties. Thus, the trial
court ruled that Eusebia had proved that the subject properties are conjugal in nature. On the other
hand, the trial court found that petitioners failed to meet the standard of proof required to maintain
their claim that the subject properties are paraphernal properties of Nicolas. The trial court added that
Pacita presented no "factual solidity" to support her claim that she bought Lot No. 152 2 exclusively
with her own money.
 
The Court of Appeals' Ruling
The Court of Appeals concurred with the findings of the trial court. The appellate court found
that Pacita failed to rebut the presumption under Article 116 of the Family Code that the subject
properties are conjugal. The appellate court dismissed Pacita's defense of prescription and laches
since she failed to have the issue included in the pre-trial order after raising it in her answer with her
co-petitioners.
The Issues
Petitioners Nicolas, Pacita and Procopio contend that both the trial and appellate courts erred
in ruling in favor of Eusebia. They seek a reversal and raise the following issues for resolution:
1. WHETHER THE COURT OF APPEALS ERRED IN SUSTAINING THE
DECLARATION OF THE TRIAL COURT THAT THE PROPERTIES
LISTED IN PARAGRAPH 2 OF THE COMPLAINT ARE CONJUGAL
PROPERTIES OF NICOLAS RETUYA AND EUSEBIA RETUYA
ALTHOUGH THIS WAS NOT ONE OF THE CAUSES OF ACTION IN
EUSEBIA'S COMPLAINT.
2. WHETHER THE COURT OF APPEALS ERRED IN APPLYING THE
PRESUMPTION THAT PROPERTIES ACQUIRED DURING THE
EXISTENCE OF THE MARRIAGE OF NICOLAS RETUYA AND EUSEBIA
RETUYA ARE CONJUGAL.
3. WHETHER THE COURT OF APPEALS ERRED IN NOT APPLYING INSTEAD
THE PRESUMPTION UNDER ARTICLE 148 OF THE FAMILY CODE IN
FAVOR OF CO-OWNERSHIP BETWEEN NICOLAS RETUYA AND
PACITA VILLANUEVA.
4. WHETHER THE COURT OF APPEALS ERRED IN NOT DECLARING THAT
THE ACTION FOR RECONVEYANCE OVER LOT NO. 152 IS ALREADY
BARRED BY PRESCRIPTION OR LACHES. 3
 The Ruling of the Court
The petition lacks merit.
First Issue:  On the Alleged Failure To
Claim that the Properties are Conjugal
Petitioners' contention that Eusebia's complaint failed to state that the subject properties are
conjugal is absolutely without basis. A cursory reading of the complaint readily shows that the
complaint maintains that the subject properties are conjugal. 4 The first sentence of the second
paragraph of the complaint states:
2. The plaintiff Eusebia Retuya and defendant Nicolas Retuya are husband
and wife and conjugal owners of real properties and all improvements thereon
situated in Mandaue City and Consolacion, Cebu more particularly described as
follows: (Emphasis added)
The same claim is restated and repleaded throughout the complaint. Petitioners should know
better than to clutter their appeal with useless arguments such as this.
The other issues petitioners raise contest in essence the finding that the subject properties
are conjugal in nature. Apart from this, the only other issue raised is whether prescription or laches
bars Eusebia's complaint. We shall resolve first the issue of prescription and laches.
Second Issue: Prescription and Laches
We agree with the Court of Appeals' observation that while petitioners did raise the issue of
prescription and laches in their Answer, 5 they failed to have the same included in the pre-trial order
for consideration during the trial. Now, petitioners wish to raise the issue on appeal by relying
on Section 1, Rule 9 of the Rules of Court, which provides:
Section 1. Defenses and objections not pleaded. — Defenses and
objections not pleaded either in a motion to dismiss or in the answer are deemed
waived. However, when it appears from the pleadings or the evidence on record
that the court has no jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that the action is barred
by a prior judgment or by statute of limitations, the court shall dismiss the claim.
Petitioners are mistaken.
The determination of issues during the pre-trial conference bars the consideration of other
questions, whether during trial or on appeal. 6 Section 1 of Rule 9 covers situations where a defense
or objection is not raised in a motion to dismiss or an answer. What we have before us is the exact
opposite. Here, petitioners in fact raised in their answer the defense of prescription and laches.
However, despite raising the defense of prescription and laches in their answer, petitioners failed to
include this defense among the issues for consideration during the trial. The non-inclusion of this
defense in the pre-trial order barred its consideration during the trial. Clearly, Section 1 of Rule 9 does
not apply to the present case.
Pre-trial is primarily intended to insure that the parties properly raise all issues necessary to
dispose of a case. 7 The parties must disclose during pre-trial all issues they intend to raise during the
trial, except those involving privileged or impeaching matters. 8 Although a pre-trial order is not meant
to catalogue each issue that the parties may take up during the trial, issues not included in the pre-
trial order may be considered only if they are impliedly included in the issues raised or inferable from
the issues raised by necessary implication. 9 The basis of the rule is simple. Petitioners are bound by
the delimitation of the issues during the pre-trial because they themselves agreed to the same. 10
Petitioners argue that in past instances we have reviewed matters raised for the first time
during appeal. True, but we have done so only by way of exception involving clearly meritorious
situations. 11 This case does not fall under any of those exceptions. The fact that the case proceeded
to trial, with the petitioners actively participating without raising the necessary objection, all the more
requires that they be bound by the stipulations they made at the pre-trial. 12 Petitioners were well
aware that they raised the defense of prescription and laches since they included it in their answer.
However, for reasons of their own, they did not include this defense in the pre-trial.
 Able counsels represented both parties. We see no claim that either counsel erred or was
negligent. This could only mean that petitioners' counsel chose to waive, or did not consider
important, the defense of prescription and laches. Petitioners are bound by their counsel's choice.
Other than arguing that it is allowable to raise the issue for the first time on appeal, we have no
explanation from petitioners why they suddenly decided to change their mind. Parties are not allowed
to flip-flop. Courts have neither the time nor the resources to accommodate parties who choose to go
to trial haphazardly. Moreover, it would be grossly unfair to allow petitioners the luxury of changing
their mind to the detriment of private respondents at this late stage. To put it simply, since petitioners
did not raise the defense of prescription and laches during the trial, they cannot now raise this
defense for the first time on appeal. 13
Third Issue:  Whether the Subject Properties Are Conjugal
We proceed to the crux of this petition.
We reiterate the basic rule that a petition for review should only cover questions of
law. 14 Questions of fact are not reviewable. The exceptions apply only in the presence of extremely
meritorious circumstances. 15 None exists in this case. We note with disfavor that most of the issues
raised in this petition are factual. We caution the petitioners that this practice of deluging the Court
with factual issues in defiance of well-settled rule, in the hope of having them reviewed, is
unacceptable.
The only issue proper for resolution is the question of whether the subject properties are
conjugal. Petitioners claim that the subject properties 16 are exclusive properties of Nicolas except for
Lot No. 152, which they claim is Pacita's exclusive property. This issue is easily resolved. The Family
Code provisions on conjugal partnerships govern the property relations between Nicolas and Eusebia
even if they were married before the effectivity of Family Code. 17 Article 105 18 of the Family
Code explicitly mandates that the Family Code shall apply to conjugal partnerships established before
the Family Code without prejudice to vested rights already acquired under the Civil Code or other
laws. Thus, under the Family Code, if the properties are acquired during the marriage, the
presumption is that they are conjugal. 19 The burden of proof is on the party claiming that they are not
conjugal. 20 This is counter-balanced by the requirement that the properties must first be proven to
have been acquired during the marriage before they are presumed conjugal. 21 Petitioners argue that
Eusebia failed to prove this pre-requisite. We disagree.
The question of whether the subject properties were acquired during the marriage of Nicolas
and Eusebia is a factual issue. Both the trial and appellate courts agreed that the subject properties
were in fact acquired during the marriage of Nicolas and Eusebia. 22 The tax declarations 23 covering
the subject properties, along with the unrebutted testimony of Eusebia's witnesses, establish this fact.
We give due deference to factual findings of trial courts, 24 especially when affirmed by the appellate
court. A reversal of this finding can only occur if petitioners show sufficient reason for us to doubt its
correctness. Petitioners in the present case have not.
Moreover, on whether Lot No. 152 is conjugal or not, the answer came from petitioners
themselves. Nicolas and Eusebia were married on 7 October 1926. Nicolas and Pacita started
cohabiting in 1936. Eusebia died on 23 November 1996. Pacita and Nicolas were married on 16
December 1996. Petitioners themselves admit that Lot No. 152 was purchased on 4 October
1957. 25 The date of acquisition of Lot No. 152 is clearly during the marriage of Nicolas and Eusebia.
Since the subject properties, including Lot No. 152, were acquired during the marriage of
Nicolas and Eusebia, the presumption under Article 116 of the Family Code is that all these are
conjugal properties of Nicolas and Eusebia. The burden is on petitioners to prove that the subject
properties are not conjugal. The presumption in Article 116, which subsists "unless the contrary is
proved," stands as an obstacle to any claim the petitioners may have. The burden of proving that a
property is exclusive property of a spouse rests on the party asserting it and the evidence required
must be clear and convincing. 26 Petitioners failed to meet this standard.
 
Petitioners point out that the deed of sale, the transfer certificate of title and the tax
declaration of Lot No. 152 are all in the name of Pacita. Petitioners maintain that this can only mean
that Pacita is the real owner of Lot No. 152. We disagree. The totality of the evidence reveals that this
was merely just one of the several schemes Nicolas employed to deprive Eusebia of their conjugal
property. Ironically, petitioners themselves submitted in evidence a decision rendered by the Regional
Trial Court of Cebu, Branch IV, in Civil Case No. R-9602 27 involving the acquisition of Lot No. 152.
The decision in Civil Case No. R-9602 stated that Tranquiliana Marababol Remulta testified
that the one who offered to buy the lot from her was none other than Nicolas Retuya. 28 Tranquiliana
narrated that at first she refused to sign the deed of sale because the buyer placed in the deed was
Pacita and not Nicolas, her understanding being that the buyer was Nicolas. We find that the trial
court in the present case correctly took into consideration the decision in Civil Case No. R-
9602. 29 Considering that the decision in Civil Case No. R-9602 has become final and executory, its
findings of fact involving the sale of Lot No. 152 to Nicolas and Pacita are conclusive and binding on
petitioners who introduced in evidence the decision.
Petitioners also point out that all the other tax declarations presented before the trial court are
in the name of Nicolas alone. Petitioners argue that this serves as proof of Nicolas' exclusive
ownership of these properties. Petitioners are mistaken. The tax declarations are not sufficient proof
to overcome the presumption under Article 116 of the Family Code. All property acquired by the
spouses during the marriage, regardless in whose name the property is registered, is presumed
conjugal unless proved otherwise. 30 The presumption is not rebutted by the mere fact that the
certificate of title of the property or the tax declaration is in the name of one of the spouses
only. 31 Article 116 of the Family Code expressly provides that the presumption remains even if the
property is "registered in the name of one or both of the spouses."
In some of the documents that petitioners presented, Nicolas misrepresented his civil status
by claiming that he was single. Petitioners point to this as proof of Nicolas' desire to exclude Eusebia
from the properties covered by the documents. 32 Petitioners further claim that this supports their
stand that the subject properties are not conjugal. This argument is baseless. Whether a property is
conjugal or not is determined by law and not by the will of one of the spouses. No unilateral
declaration by one spouse can change the character of conjugal property. The clear intent of Nicolas
in placing his status as single is to exclude Eusebia from her lawful share in the conjugal property.
The law does not allow this.
Petitioners point out that Pacita had the means to buy Lot No. 152. Even if Pacita had the
financial capacity, this does not prove that Pacita bought Lot No. 152 with her own money. To rebut
the presumption that Lot No. 152 is conjugal, petitioners must prove that Pacita used her own money
to pay for Lot No. 152. Petitioners failed to prove this.
Petitioners further argue that since Nicolas and Pacita were already cohabiting when Lot No.
152 was acquired, the lot cannot be deemed conjugal property of Nicolas and Eusebia. Petitioners
keep belaboring this point in their petition and memorandum.
Petitioners' argument is flawed.
The cohabitation of a spouse with another person, even for a long period, does not sever the
tie of a subsisting previous marriage. 33 Otherwise, the law would be giving a stamp of approval to an
act that is both illegal and immoral. What petitioners fail to grasp is that Nicolas and Pacita's
cohabitation cannot work to the detriment of Eusebia, the legal spouse. The marriage of Nicolas and
Eusebia continued to exist regardless of the fact that Nicolas was already living with Pacita. Hence, all
property acquired from 7 October 1926, the date of Nicolas and Eusebia's marriage, until 23
November 1996, the date of Eusebia's death, are still presumed conjugal. Petitioners have neither
claimed nor proved that any of the subject properties was acquired outside or beyond this period.
Finally, petitioners' reliance on Article 148 of the Family Code 34 is misplaced. A reading of
Article 148 readily shows that there must be proof of "actual joint contribution" by both the live-in
partners before the property becomes co-owned by them in proportion to their contribution. The
presumption of equality of contribution arises only in the absence of proof of their proportionate
contributions, subject to the condition that actual joint contribution is proven first. Simply put, proof of
actual contribution by both parties is required, otherwise there is no co-ownership and no presumption
of equal sharing. Petitioners failed to show proof of actual contribution by Pacita in the acquisition of
Lot No. 152. In short, petitioners failed to prove that Pacita bought Lot No. 152 with her own money,
or that she actually contributed her own money to acquire it. IEcaHS
WHEREFORE, we DENY the petition. The Decision of the Court of Appeals dated 31 January
2000 in CA-G.R. CV No. 46716 is AFFIRMED.
 SO ORDERED.
Davide, Jr., C  .J ., Panganiban, Ynares-Santiago and Azcuna, JJ ., concur.

|||  (Villanueva v. Court of Appeals, G.R. No. 143286, [April 14, 2004], 471 PHIL 394-415)

EN BANC

[G.R. No. 34583. October 22, 1931.]

THE BANK OF THE PHILIPPINE ISLANDS,
administrator of the estate of the late Adolphe Oscar Schuetze,  plaintiff-
appellant, vs. JUAN POSADAS, JR., Collector  of  Internal Revenue, defendant-
appellee.

Araneta, De Joya, Zaragoza & Araneta,  for appellant.

Attorney-General Jaranilla,  for appellee.

SYLLABUS

1. LIFE INSURANCE; AMOUNT OF POLICY; KIND OF PROPERTY.

— the proceeds of a life-insurance policy payable to the insured person's estate, on
which the premiums were paid by the conjugal partnership, constitute community property, and
belong onehalf to the husband exclusively, and the other half to the wife.
2. ID.; ID.; ID. — If the premiums were paid partly with paraphernal and partly conjugal
funds, the proceeds are in like proportion paraphernal in part and conjugal in part.
 3. ID.; ID.; INHERITANCE TAX. — The proceeds of a life-insurance policy payable
to the insured person's estate as beneficiary, if delivered to the testamentary
administrator of the former as part of the assets of said estate under probate administration, are
subject to the inheritance tax according to the law on the matter, if they belong to the assured
exclusively, and it is immaterial that he was domiciled in these Islands or outside.

DECISION

VILLA-REAL, J  p:

The Bank of the Philippine Islands, as administrator of the estate of the deceased
Adolphe Oscar Schuetze, has appealed to this court from the judgment of the Court of First
Instance of Manila absolving the defendant Juan Posadas, Jr., Collector of Internal Revenue,
from the complaint filed against him by said plaintiff bank, and dismissing the complaint with
costs.
The appellant has assigned the following alleged errors as committed by the trial court in
its judgment, to wit:
"1. The lower court erred in holding that the testimony of Mrs. Schuetze
was inefficient to establish the domicile of her husband.
"2. The lower court erred in holding that under section
1536 of the Administrative Code the tax imposed by the defendant is lawful and
valid.
"3. The lower court erred in not holding that one-half
(1/2) of the proceeds of the policy in question is community property and that
therefore no inheritance tax can be levied, at least on one-half (1/2) of the said
proceeds.
"4. The lower court erred in not declaring that it would be unconstitutional to
impose an inheritance tax upon the insurance policy here in question as it would be
a taking of property without due process of law."
The present complaint seeks to recover from the defendant Juan Posadas, Jr.,
Collector of Internal Revenue, the amount of P1,209 paid by the plaintiff under protest, in its
capacity of administrator of the estate of the late Adolphe Oscar Schuetze, as inheritance tax
upon the sum of P20,150, which is the amount of an insurance policy on the deceased's life,
wherein his own estate was named the beneficiary.
At the hearing, in addition to documentary and parol evidence, both parties
submitted the following agreed statement of facts to the court for consideration:
"It is hereby stipulated and agreed by and between the parties
in the above-entitled action through their respective undersigned attorneys:
"1. That the plaintiff, Rosario Gelano Vda. de Schuetze, widow of the late
Adolphe Oscar Schuetze, is of legal age, a native of Manila, Philippine Islands, and
is and was at all times hereinafter mentioned a resident of Germany, and
at the time of the death of her husband, the late Adolphe Oscar Schuetze, she was
actually residing and living in Germany;
"2. That the Bank of the Philippine Islands, is and was at all times
hereinafter mentioned a banking institution duly organized and existing under and
by virtue of the laws of the Philippine Islands;
"3. That on or about August 23, 1928, the herein plaintiff before notary
public Salvador Zaragoza, drew a general power appointing the above-
mentioned Bank of the Philippine Islands as her attorney-in- fact, and
among the powers conferred to said attorney-in-fact was the power to represent her
in all legal actions instituted by or against her;
 "4. That the defendant, of legal age, is and at all times hereinafter
mentioned the duly appointed Collector of Internal Revenue with offices at
Manila, Philippine Islands;
"5. That the deceased Adolphe Oscar Schuetze came
to the Philippine Islands for the first time on March 31, 1890, and worked
in the several German firm as a mere employee and that from the year 1903
until the year 1918 he was partner in the business of Alfredo Roensch;
"6. That from 1903 to 1922 the said Adolphe Oscar Schuetze was
in the habit of making various trips to Europe;
"7. That on December 3, 1927, the late Adolphe Oscar Schuetze coming
from Java, and with the intention of going to Bremen, landed
in the Philippine Islands where he met his death on February 2, 1928;
"8. That on March 31, 1926, the said Adolphe Oscar Schuetze, while in
Germany, executed a will, in accordance with its laws, wherein plaintiff was named
his universal heir;
"9. That the Bank of the Philippine Islands by order of the Court of First
Instance of Manila under date of May 24, 1928, was appointed
administrator of the estate of the deceased Adolphe Oscar Schuetze;
"10. That, according to the testamentary proceedings instituted
in the Court of First Instance of Manila, civil case No. 33089, the deceased
at the time of his death was possessed of not only real property situated
in the Philippine Islands, but also personal property consisting of shares of stock in
nineteen (19) domestic corporations;
"11. That the fair market value of all the property
in the Philippine Islands left by the deceased at the time of his death in accordance
with the inventory submitted to the Court of First Instance of Manila, civil case No.
33089, was P217,560.38;
"12. That the Bank of the Philippine Islands, as
administrator of the estate of the deceased rendered its final account on June 19,
1929, and that said estate was closed on July 16, 1929;
"13. That among the personal property of the deceased was found life-
insurance policy No. 194538 issued at Manila, Philippine Islands, on January 14,
1913, for the sum of $10,000 by the Sun Life Assurance Company of Canada,
Manila branch, a foreign corporation duly organized and existing under and by
virtue of the laws of Canada, and duly authorized business in the Philippine Islands;
"14. That in the insurance policy the estate of the said Adolphe Oscar
Schuetze was named the beneficiary without any qualification whatsoever;
"15. That for five consecutive years, the deceased Adolphe Oscar
Schuetze paid the premiums of said policy to the Sun Life Assurance
Company of Canada, Manila branch;
"16. That on or about the year 1918, the Sun Life Assurance
Company of Canada, Manila branch, transferred said policy to the Sun Life
Assurance Company of Canada, London branch;
"17. That due to said transfer the said Adolphe Oscar Schuetze from 1918
to the time of his death paid the premiums of said policy to the Sun Life Assurance
Company of Canada, London Branch;
"18. That the sole and only heir of the deceased Adolphe Oscar Schuetze
is his widow, the plaintiff herein;
"19. That at the time of the death of the deceased and at all times
thereafter including the date when the said insurance policy was
paid, the insurance policy was not in the hands or possession of the Manila
office of the Sun Life Assurance Company of Canada, nor
in the possession of the herein plaintiff, nor in the possession of her attorney-in-
 fact the Bank of the Philippine Islands, but the same was in the hands of the Head
Office of the Sun Life Assurance Company of Canada, at Montreal, Canada;
"20. That on July 13, 1928, the Bank of the Philippine Islands as
administrator of the decedent's estate received from the Sun Life Assurance
Company of Canada, Manila branch, the sum of P20,150
representing the proceeds of the insurance policy, as shown
in the statement of income and expenses of the estate of the deceased submitted
on June 18, 1929 by the administrator to the Court of First Instance of Manila, civil
case No. 33089;
"21. That the Bank of the Philippine Islands delivered to the plaintiff
herein the said sum of P20,150;
"22. That the herein defendant on or about July 5, 1929, imposed an
inheritance tax upon the transmission of the proceeds of the policy in question
in the sum of P20,150 from the estate of the late Adolphe Oscar Schuetze
to the sole heir of the deceased, or the plaintiff herein, which inheritance tax
amounted to the sum of P1,209;
"23. That the Bank of the Philippine Islands as
administrator of the decedent's estate and as attorney-in-fact of the herein plaintiff,
having been demanded by the herein defendant to pay inheritance tax amounting
to the sum of P1,209, paid to the defendant under protest the above-mentioned
sum;
"24. That notwithstanding the various demands made by plaintiff
to the defendant, said defendant has refused and refuses to refund to
plaintiff the above mentioned sum of P1,209;
"25. That plaintiff reserves the right to adduce evidence as
regards the domicile of the deceased, and so the defendant, the right to present
rebuttal evidence;
"26. That both plaintiff and defendant submit this stipulation of facts without
prejudice to their right to introduce such evidence, on points not covered
by the agreement, which they may deem proper and necessary to support their
respective contentions."
Inasmuch as one of the questions raised in the appeal is whether an insurance policy on
said Adolphe Oscar Schuetze's life was, by reason of its ownership, subject to the inheritance tax,
it would be well to decide first whether the amount thereof is paraphernal or community property.
According to the foregoing agreed statement of facts, the estate of Adolphe Oscar
Schuetze is the sole beneficiary named in the life-insurance policy for $10,000, issued by the Sun
Life Assurance Company of Canada on January 14, 1913. During the following five
years the insured paid the premiums at the Manila branch of the company, and in 1918 the policy
was transferred to the London branch.
The record shows that the deceased Adolphe Oscar Schuetze married the plaintiff-
appellant Rosario Gelano on January 16, 1914.
With the exception of the premium for the first year covering the period from January 14,
1913 to January 14, 1914, all the money used for paying the premiums, i. e., from the second
year, or January 14, 1914, or when the deceased Adolphe Oscar Schuetze married the plaintiff-
appellant Rosario Gelano, until his death on February 2, 1929, is conjugal property inasmuch as it
does not appear to have exclusively belonged to him or to his wife (art. 1407, Civil Code).
As the sum of P20,150 here in controversy is a product of such premium it must also be deemed
community property, because it was acquired for a valuable consideration, during said Adolphe
Oscar Schuetze's marriage with Rosario Gelano at the expense of the common fund (art. 1401,
No. 1, Civil Code), except for the small part corresponding to the first premium paid
with the deceased's own money.
In his Commentaries on the Civil Code, volume 9, page 589, second edition, Manresa
treats of life insurance in the following terms, to wit:
"The amount of the policy represents the premium to be paid, and the right
to it arises the moment the contract is perfected, for at that
 moment the power of disposing of it may be exercised, and if death occurs payment
may be demanded. It is therefore something acquired for a valuable consideration
during the marriage, though the period of its fulfillment, depend
upon the death of one of the spouses, which terminates the partnership. So
considered, the question may be said to be decided by articles 1396 and 1401:
if the premiums are paid with the exclusive property of husband or wife, the policy
belongs to the owner; if with conjugal property, or if the money cannot be proved as
coming from one or the other of the spouses, the policy is community property."
The Supreme Court of Texas, United States, in the case of Martin vs. Moran (11 Tex. Civ.
A., 509) laid down the following doctrine:
"COMMUNITY PROPERTY — LIFE INSURANCE POLICY. — A husband
took out an endowment life insurance policy on his life, payable 'as directed by will.'
He paid the premiums thereon out of community funds, and by his will
made the proceeds of the policy payable to his own estate. Held, that the proceeds
were community estate, one-half of which belonged to the wife."
In In re Stan's Estate, Myr. Prob (Cal.) 5, the Supreme Court of California laid
down the following doctrine:
"A testator, after marriage, took out an insurance policy, on which he
paid the premiums from his salary. Held that the insurance money was community
property, to one-half of which, the wife was entitled as survivor."
In In re Webb's Estate, Myr. Prob. (Cal.), 93, the same court laid down the following
doctrine:
"A decedant paid the first third of the amount of the premiums on his life-
insurance policy out of his earnings before marriage, and the remainder from his
earnings received after marriage. Held, that one- third of the policy belonged to his
separate estate, and the remainder to the community property."
Thus both according to our Civil Code and to the ruling of those North American States
where the Spanish Civil Code once governed, the proceeds of a life-insurance policy
whereon the premiums were paid with conjugal money, belong to the conjugal partnership.
The appellee alleges that it is a fundamental principle that a life-insurance policy belongs
exclusively to the beneficiary upon the death of the person insured, and that in the present case,
as the late Adolphe Oscar Schuetze named his own estate as the sole
beneficiary of the insurance on his life, upon his death the latter became the sole
owner of the proceeds, which therefore became subject to the inheritance tax, citing Del
Val vs. Del Val (29 Phil., 534), where the doctrine was laid down that an heir appointed
beneficiary to a life- insurance policy taken out by the deceased, becomes the absolute
owner of the proceeds of such policy upon the death of the insured.
The estate of a deceased person cannot be placed on the same footing as an individual
heir. The proceeds of a life-insurance policy payable to the estate of the insured passed
to the executor or administrator of such estate, and forms part of its assets (37 Corpus Juris, 565,
sec. 322); whereas the proceeds of a life-insurance policy payable to an heir of the insured as
beneficiary belongs exclusively to said heir and does not form part of the deceased's estate
subject to administration. (Del Val vs.  Del Val, supra; 37 Corpus Juris, 566, sec. 323, and articles
419 and 428 of the Code of Commerce.)
Just as an individual beneficiary of a life-insurance policy taken out by a married person
becomes the exclusive owner of the proceeds upon the death of the insured even if the premiums
were paid by the conjugal partnership, so, it is argued, where the beneficiary named
is the estate of the deceased whose life is insured, the proceeds of the policy become a
part of said estate upon the death of the insured even if the premium have been paid with
conjugal funds.
In a conjugal partnership the husband is the manager, empowered to
alienate the partnership property without the wife's consent (art. 1413, Civil Code), a third person,
therefore, named beneficiary in a life-insurance policy becomes the absolute owner of its
proceeds upon the death of the insured even if the premiums should have been paid with money
belonging to the community property. When a married man has his life insured and names his
own estate after death, beneficiary, he makes no alienation of the proceeds of conjugal funds to a
third person, but appropriates them himself, adding them to the assets of his estate, in
contravention of the provisions of article 1401, paragraph 1, of the Civil Code cited above, which
provides that "To the conjugal partnership belongs: (1) Property acquired for a valuable
consideration during the marriage at the expense of the common fund, whether the acquisition is
made for the partnership or for one of the spouses only." Furthermore, such appropriation is a
fraud practised upon the wife, which cannot be allowed to prejudice her, according to article 1413,
paragraph 2, of said Code. Although the husband is the manager of the conjugal partnership, he
cannot of his own free will convert the partnership property into his own exclusive property.
As all the premiums on the life-insurance policy taken out by the late Adolphe Oscar
Schuetze, were paid out of the conjugal funds,
with the exception of the first, the proceeds of the policy, excluding the proportional part
corresponding to the first premium, constitute community property, notwithstanding the fact
that the policy was made payable to the deceased's estate, so that one-half of said proceeds
belongs to the estate, and the other half to the deceased's widow, the plaintiff-appellant Rosario
Gelano Vda. de Schuetze.
The second point to decide in this appeal is whether the Collector of Internal Revenue
has authority, under the law, to collect the inheritance tax upon one-half of the life-insurance
policy taken out by the late Adolphe Oscar Schuetze, which belongs to him and is made payable
to his estate.
According to the agreed statement of facts mentioned above, the plaintiff-
appellant, the Bank of the Philippine Islands, was appointed administrator of the late Adolphe
Oscar Schuetze's testamentary estate by an order dated March 24, 1928, entered
by the Court of First Instance of Manila. On July 13, 1928, the Sun Life Assurance
Company of Canada, whose main office is in Montreal, Canada, paid Rosario Gelano Vda. de
Schuetze upon her arrival at Manila, the sum of P20,150, which was the amount of the insurance
policy on the life of said deceased, payable to the latter's estate. On the same date Rosario
Gelano Vda. de Schuetze delivered the money to said Bank of the Philippine Islands, as
administrator of the deceased's estate, which entered it in the inventory of the testamentary
estate, and then returned the money to said widow.
Section 1536 of the Administrative Code, as amended by section 10 of Act No. 2835 and
section 1 of Act No. 3031, contains the following relevant provision:
"SEC. 1536. Conditions and rate of taxation. — Every transmission by
virtue of inheritance, devise, bequest, gift mortis causa or advance in
anticipation of inheritance, devise, or bequest of real property located
in the Philippine Islands and real rights in such property; of any franchise which
must be exercised in the Philippine Islands; of any shares, obligations, or bonds
issued by any corporation or sociedad anonima organized or constituted
in the Philippine Islands in accordance with its laws; of any shares or rights in any
partnership, business or industry established in the Philippine Islands or of any
personal property located in the Philippine Islands shall be subject to the following
tax:
"xxx xxx xxx"
Inasmuch as the proceeds of the insurance policy on the life of the late Adolphe Oscar
Schuetze were paid to the Bank of the Philippine Islands, as administrator of the deceased's
estate, for management and partition, and as such proceeds were turned over to the sole and
universal testamentary heiress Rosario Gelano Vda. de Schuetze, the plaintiff-appellant, here in
Manila, the situs of said proceeds is the Philippine Islands.
In his work "The Law of Taxation," Cooley enunciates the general rule
governing the leving of taxes upon tangible personal property, in the following words:
"GENERAL RULE. — The situs of tangible personal property, for
purposes of taxation may be where the owner is domiciled but is not necessarily so.
Unlike intangible personal property, it may acquire a taxable situs in a state other
than the one where the owner is domiciled, merely because it is located there. Its
taxable situs is where it is more or less permanently located,
regardless of the domicile of the owner. It is well settled that the state where it is
 more or less permanently located has the power to tax it although the owner
resides out of the state, regardless of whether it has been taxed for the same
period at the domicile of the owner, provided there is statutory authority for taxing
such property. It is equally well settled that the state where the owner is domiciled
has no power to tax it where the property has acquired an actual situs in another
state by reason of its more or less permanent location in that state. . . " (2
Cooley, The Law of Taxation, 4th ed., p. 975, par. 451.)
With reference to the meaning of the words "permanent" and "in transit," he
has the following to say:
"PERMANENCY OF LOCATION; PROPERTY IN TRANSIT. — In order to
acquire a situs in a state or taxing district so as to be taxable in the state or district
regardless of the domicile of the owner and not taxable in another state or district
at the domicile of the owner, tangible personal property must be more or less
permanently located in the state or district. In other words, the situs of tangible
personal property is where it is more or less permanently located rather than where
it is merely in transit or temporarily and for no considerable length of time. If
tangible personal property is more or less permanently located in a state other
than the one where the owner is domiciled, it is not taxable in the latter state but is
taxable in the state where it is located. If tangible personal property belonging to
one domiciled in one state is in another state merely in transitu or for a short time, it
is taxable in the former state, and is not taxable in the state where it is for the time
being. . . .
"Property merely in transit through a state ordinarily is not taxable there.
Transit beings when an article is committed to a carrier for transportation
to the state of its destination, or started on its ultimate passage. Transit ends
when the goods arrive at their destination. But intermediate these points questions
may arise as to when a temporary stop in transit is such as to make the property
taxable at the place of stoppage. Whether the property is taxable in such a case
usually depends on the length of time
and the purpose of the interruption of transit. . .
". . . It has been held that property of a construction company, used in
construction of a railroad, acquires a situs at the place where used for an indefinite
period. So tangible personal property in the state for the purpose of undergoing a
partial finishing process is not to be regarded as in the course of transit nor as
in the state for a mere temporary purpose." (2 Cooley, The Law of Taxation, 4th
ed., pp. 982, 983 and 988, par. 452.)
If the proceeds of the life-insurance policy taken out by the late Adolphe Oscar Schuetze
and made payable to his estate, were delivered to the Bank of the Philippine Islands for
administration and distribution, they were not in transit but were more or less permanently located
in the Philippine Islands, according to the foregoing rules. If this be so, half of the proceeds which
is community property, belongs to the estate of the deceased and is subject to the inheritance tax,
in accordance with the legal provision quoted above, irrespective of whether or not the late
Adolphe Oscar Schuetze was domiciled in the Philippine Islands at the time of his death.
By virtue of the foregoing, we are of opinion and so hold: (1) That the proceeds of a life-
insurance policy payable to the insured's estate, on which the premiums were paid
by the conjugal partnership, constitute community property, and belong one-half to the husband
and the other half to the wife, exclusively; (2) that if the premiums were paid partly with
paraphernal and partly conjugal funds, the proceeds are likewise in like proportion paraphernal in
part and conjugal in part; and (3) that the proceeds of a life-insurance policy payable
to the insured's estate as the beneficiary, if delivered to the testamentary
administrator of the former as part of the assets of said estate under probate administration, are
subject to the inheritance tax according to the law on the matter, if they belong to the assured
exclusively, and it is immaterial that the insured was domiciled in these Islands or outside.
Wherefore, the judgment appealed from is reversed, and the defendant is ordered to
return to the plaintiff the one-half of the tax collected upon the amount of P20,150,
being the proceeds of the insurance policy on the life of the late Adolphe Oscar Schuetze, after
deducting the proportional part corresponding to the first premium, without special
pronouncement of costs. So ordered.
Avancena, C.J., Johnson, Street, Malcolm, Villamor  and Ostrand, JJ., concur.

Separate Opinions

IMPERIAL,  J., dissenting:

I cannot concur with the majority in holding that one-half of the insurance policy

on the life of the late Adolphe Oscar Schuetze, excepting the proportional part corresponding
to the first year's premium is community property belonging to the deceased's widow, named
Rosario Gelano, and as such is not subject to the inheritance tax.
There is no question in regard to the facts: It is admitted that Schuetze insured himself
in the Sun Life Insurance Company of Canada in Manila, and that the policy was issued on
January 14, 1913, payable to his estate after death. He died in Manila on February 2, 1928,
leaving his widow as his sole testamentary
heiress. The appellant, the Bank of the Philippine Islands, as administrator of the late Schuetze's
testamentary estate, received from the insurer the amount of this policy, or the net
sum of P20,150.
It is an established and generally recognized principle that in a life-insurance policy
where the insured has named a beneficiary, the proceeds belong to said beneficiary, and to him
alone. "Vested Interest  of  Beneficiary. — In practically every jurisdiction it is the rule that in an
ordinary life insurance policy made payable to a beneficiary, and which does not authorize a
change of beneficiary, the named beneficiary has an absolute, vested interest in the policy
from the date of its issuance, delivery and acceptance, and this is true of a policy payable
to the children of the insured equally, without naming them, or their executors, administrators or
assigns." (14 R. C. L., 1376.) (Del Val vs. Del Val, 29 Phil., 534 et seq.; Gercio  vs. Sun Life
Assurance Co. of Canada, 48 Phil., 53 et se.) When in a life-insurance policy the insured's estate
is named beneficiary, the proceeds must be delivered not to the decedent's heirs, but to his
administrator or legal representative. "Policy Payable to Insured, His Estate, or Legal
Representatives. . . .Ordinarily the proceeds of a life insurance policy are payable to the executor
or administrator of insured as assets of his estate where by the terms of the policy the proceeds
are payable to insured, his estate, his legal representatives, his executors or administrators, his
'executors, administrators, or assigns,' or even his 'heirs, executors, administrators, or assigns.' . .
." (37 C. J., 565.) "Personal Representatives or Legal Representatives. — While there is some
authority to the effect that 'legal representatives' means the persons entitle
to the estate of the insured, and not his executor or administrator, the better view is that
ordinarily the proceeds of such a policy pass to his executor or administrator." (14 R. C. L., 1372.)
If the foregoing are the principles which should govern life- insurance policies with
reference to beneficiaries and the right to the proceeds of such policies, it is evident that
Schuetze's estate, and not his widow or the conjugal partnership, is entitled
to the proceeds of said policy exclusively, and may receive them from the insurer. The parties
must have so understood it when the insurer delivered the net amount of the policy
to the Bank of the Philippine Islands, as judicial administrator of the insured.
It is stated in the majority opinion that the money with which the premiums were paid
during the marriage of the Schuetzes is presumed to have been taken from the conjugal funds,
according to article 1407 of the Civil Code, which provides that "All the property of the spouses
shall be deemed partnership property in the absence of proof that it belongs exclusively
to the husband or to the wife." This is the very argument which led
to the settlement of the point of law raised. The provisions of the Civil Code on conjugal property
have been improperly applied without considering that a life-insurance contract is a peculiar
contract governed by special laws, such as Act No. 2427 with its amendments,
and the Code of Commerce, which is still in force. In Del Val, supra,  it was already held:
"We cannot agree with these contentions. The contract of life insurance is a
special contract and the destination of the proceeds thereof is determined by
special laws which deal exclusively with that subject. The Civil Code has no
 provisions which relate directly and specifically to life-insurance contracts or
to the destination of life insurance proceeds. That subject is regulated exclusively
by the Code of Commerce which provides
for the terms of the contract, the relations of the parties
and the destination of the proceeds of the policy."
The main point to be decided was not whether the premiums were paid out of conjugal or
personal funds of one of the spouses, but whether or not the proceeds of the policy became
assets of the insured's estate. If it be admitted that the estate is the sole owner of the aforesaid
proceeds, which cannot be denied, inasmuch as the policy itself names the estate
as the beneficiary, it is beside the point to discuss the nature and origin of the amounts used to
pay the premiums, as the title to the proceeds of the policy is vested in the insured's estate, and
any right the widow might have should be vindicated in another action. In such a case she might
be entitled to reimbursement of her share in the conjugal funds, but not in the present case, for
she has been instituted the sole testamentary heiress.
From the foregoing, it follows that as the proceeds of the policy belong to Schuetze's
estate, and inasmuch as the inheritance tax is levied upon the transmission of a deceased
person's estate upon, or on the occasion of his death, it is clear that the whole proceeds, and not
one-half thereof, are subject to such tax.
In my opinion the judgment appealed from should have been affirmed in its entirety.
Romualdez, J.,  concurs.
 
|||  (Bank of the Philippine Islands v. Posadas, Jr., G.R. No. 34583, [October 22, 1931], 56 PHIL
215-230)

FIRST DIVISION

[G.R. No. L-55322. February 16, 1989.]

MOISES JOCSON, petitioner, vs. HON. COURT OF APPEALS, AGUSTINA

JOCSON-VASQUEZ, ERNESTO VASQUEZ,  respondents.

Dolorfino  and Dominguez Law Offices  for petitioner.

Gabriel G.  Mascardo for private respondents.

DECISION
MEDIALDEA, J  p:

This is a petition for review on certiorari under Rule 45 of the Rules of Court of the
decision of the Court of Appeals in CA-G.R. No. 63474, promulgated on April 30, 1980, entitled
"MOISES JOCSON, plaintiff-appellee, versus AGUSTINA JOCSON-VASQUEZ and ERNESTO
VASQUEZ, defendant-appellants," upholding the validity of three (3) documents questioned by
Moises Jocson, in total reversal of the decision of declared them as null and void; and of its
resolution, dated September 30, 1980, denying therein appellee's motion for reconsideration.
Petitioner Moises Jocson and respondent Agustina Jocson-Vasquez are the only
surviving offsprings of the spouses Emilio Jocson and Alejandra Poblete, while respondent
Ernesto Vasquez is the husband of Agustina, Alejandra Poblete predeceased her husband
without her intestate estate being settled. Subsequently, Emilio Jocson also died intestate on April
1, 1972.
As adverted to above, the present controversy concerns the validity of three (3)
documents executed by Emilio Jocson during his lifetime. These documents purportedly
conveyed, by sale, to Agustina Jocson-Vasquez what apparently covers almost all of his
properties, including his one-third (1/3) share in the estate of his wife. Petitioner Moises Jocson
assails these documents and prays that they be declared null and void and the properties subject
matter therein be partitioned between him and Agustina as the only heirs of their deceased
parents.
The documents, which were presented as evidence not by Moises Jocson, as the party
assailing its validity, but rather by herein respondents, are the following:
1) "Kasulatan ng Bilihan ng Lupa," marked as Exhibit 3 (pp. 12-13, Records) for the
defendant in the court a quo, dated July 27, 1968. By this document Emilio Jocson sold to
Agustina Jocson-Vasquez six (6) parcels of land, all located at Naic, Cavite, for the sum of ten
thousand (10,000.00) pesos. On the same document Emilio Jocson acknowledged receipt of the
purchase price, thus:
"Na ngayon, alang-alang sa halagang SAMPUNG LIBONG PISO
(P10,000) salaping Pilipino na aking tinanggap ng buong kasiyahan loob at ang
pagkakatanggap ay aking hayagang inaamin sa pamamagitan ng kasulatang ito,
sa aking anak na si Agustina Jocson, na may sapat na gulang, mamamayang
Pilipino, asawa ni Ernesto Vasquez, at naninirahan sa Poblacion, Naic, Cavite, ay
aking ipinagbile ng lubusan at kagyat at walang ano mang pasubali ang
nabanggit na anim na pirasong lupa na nasa unang dahon ng dokumentong ito,
sa nabanggit na Agustina Jocson, at sa kaniyang tagapagmana o makakahalili at
gayon din nais kong banggitin na kahit na may kamurahan ang ginawa kong
pagbibile ay dahilan sa ang nakabile ay aking anak na mahal sa akin at
mapaglingkod, madamayin at ma-alalahanin, na tulad din ng isa ko pang anak na
lalaki. Ang kuartang tinanggap ko na P10,000.00, ay gagamitin ko sa aking
katandaan at mga huling araw at sa aking mga ibang mahahalagang
pangangailangan. [Emphasis supplied].
"Na nais ko ring banggitin na ang ginawa kong ito ay hindi labag sa ano
mang batas o kautusan, sapagkat ang aking pinagbile ay akin at nasa aking
pangalan. Ang mga lupang nasa pangalan ng aking nasirang asawa ay hindi ko
ginagalaw ni pinakikialaman at iyon ay dapat na hatiin ng dalawa kong anak
alinsunod sa umiiral na batas (p. 13, Records.)"
2) "kasulatan ng Ganap na Bilihan," dated July 27, 1968, marked as Exhibit 4 (p. 14,
Records). On the face of this document, Emilio Jocson purportedly sold to Agustina Jocson-
Vasquez, for the sum of FIVE THOUSAND (P5,000.00) PESOS, two rice mills and a camarin
(camalig) located at Naic, Cavite. As in the first document, Moises Jocson acknowledged receipt
of the purchase price:
"Na alang-alang sa halagang LIMANG LIBONG PISO (P5,000.00)
salaping pilipino na aking tinanggap ng buong kasiyahan loob sa aking aking
anak na Agustin Jocson . . . Na ang halagang ibinayad sa akin ay may
kamurahan ng kaunti ngunit dahil sa malaking pagtingin ko sa kaniya . . . kaya at
 pinagbile ko sa kaniya ang mga nabanggit na pagaari kahit na hindi malaking
halaga . . . (p. 14, Records)"
3) Lastly, the "Deed of Extrajudicial Partition and Adjudication with Sale, "dated March 9,
1969, marked as Exhibit 2 (p. 10-11, Records), whereby Emilio Jocson and Agustina Jocson-
Vasquez, without the participants and intervention of Moises Jocson, extrajudicially partitioned the
unsettled estate of Alejandra Poblete, dividing the same into three parts, one-third (1/3) each for
the heirs of Alejandra Poblete, namely: Emilio Jocson, Agustina Jocson-Vasquez and Moises
Jocson. By the same instrument, Emilio sold his one-third (1/3) share to Agustina for the sum of
EIGHT THOUSAND (P8,000.00) PESOS. As in the preceding documents, Emilio Jocson
acknowledged receipt of the purchase price: LLpr
"Now for and in consideration of the sum of only eight thousand
(P8,000.00) pesos, which I, the herein Emilio Jocson had received from my
daughter Agustina Jocson, do hereby sell, cede, convey and transfer, unto the
said Agustina Jocson, her heirs and assigns, administrators and successors in
interests, in the nature of absolute and irrevocable sale, all my rights, interest,
shares and participation, which is equivalent to one third (1/3) share in the
properties herein mentioned and described, the one third being adjudicated unto
Agustina Jocson and the other third (1/3) portion being the share of Moises
Jocson. (p. 11, Records)."
These documents were executed before a notary public. Exhibits 3 and 4 were registered
with the Office of the Register of Deeds of Cavite on July 29, 1968 and the transfer certificates of
title covering the properties therein in the name of Emilio Jocson, married to Alejandra Poblete,"
were cancelled and new certificates of title were issued in the name of Agustina Jocson-Vasquez.
Exhibit 2 was not registered with the Office of the Register of Deeds.
Herein petitioner filed his original complaint (Record on Appeal, p. 27, Rollo) on June 20,
1973 with the then Court of First Instance of Naic, Cavite (docketed as Civil Case No. TM-531),
and which was twice amended. In his Second Amended Complaint (pp. 47-58, Record on
Appeal), herein petitioner assailed the above documents, as aforementioned, for being null and
void.
It is necessary to partly quote the allegation of petitioner in his complaint for the reason
that the nature of his causes of action is at issue, thus:
"8. [With regard the first document, that] the defendants, through fraud,
deceit, undue pressure and influence and other illegal machinations, were able to
induce, led, and procured in their father . . . to sign [the] contract of sale . . ., for
the simulated price of P10,000.00, which is a consideration that is shocking to the
conscience of ordinary man and despite the fact that said defendants have no
work or livelihood of their own . . .; that the sale is null and void, also, because it
is fictitious, simulated and fabricated contract . . . (pp. 52-53, Record on Appeal).
[Emphasis supplied]
xxx xxx xxx
"12. [With regards the second and third document, that they] are null and
void because the consent of the father, Emilio Jocson, was obtained with fraud,
deceit, undue pressure, misrepresentation and unlawful machinations and
trickeries committed by the defendant on him; and that the said contracts
are simulated, fabricated and fictitious, having been made deliberately to exclude
the plaintiff from participating and with the dishonest and selfish motive on the
part of the defendants to defraud him of his legitimate share on said properties
[subject matter thereof]; and that without any other business or employment or
any other source of income, defendants who were just employed in the
management and administration of the business of their parents, would not have
the sufficient and ample means to purchase the said properties except by getting
the earnings of the business or by simulated consideration . . . (pp. 54-55, Record
on Appeal)." [Emphasis supplied]
Petitioner explained that there could be no real sale between a father and daughter who
are living under the same roof, especially so when the father has no need of money as the
properties supposedly sold were all income-producing. Further, petitioner claimed that the
properties mentioned in Exhibits 3 and 4 are the unliquidated conjugal properties of Emilio Jocson
and Alejandra Poblete which the former, therefore, cannot validly sell (pp. 53, 57, Record on
Appeal). As far as Exhibit 2 is concerned, petitioner questions not the extrajudicial partition but
only the sale by his father to Agustina of the former's 1/3 share (p. 13, Rollo). LLphil
The trial court sustained the foregoing contentions of petitioner (pp. 59-81, Record on
Appeal). It declared that the considerations mentioned in the documents were merely simulated
and fictitious because: 1) there was no showing that Agustina Jocson-Vasquez paid for the
properties; 2) the prices were grossly inadequate which is tantamount to lack of consideration at
all; and 3) the improbability of the sale between Emilio Jocson and Agustina Jocson-Vasquez,
taking into consideration the circumstances obtaining between the parties; and the real intention
of the parties were donations designed to exclude Moises Jocson from participating in the estate
of his parents. It further declared the properties mentioned in Exhibits 3 and 4 as conjugal
properties of Emilio Jocson and Alejandra Poblete, because they were registered in the name of
"Emilio Jocson, married to Alejandra Poblete" and ordered that the properties subject matter of all
the documents be registered in the name of herein petitioners and private respondents.
On appeal, the Court of Appeals in CA-G.R. No. 63474-R rendered a decision (pp. 29-42,
Rollo) and reversed that of the trial court's and ruled that:
"1. That insofar as Exhibits 2 and 4 are concerned the appellee's
complaint for annulment, which is indisputably based on fraud, and undue
influence, is now barred by prescription, pursuant to the settled rule that an action
for annulment of a contract based on fraud must be filed within four (4) years,
from the discovery of the fraud, . . . which in legal contemplation is deemed to be
the date of the registration of said document with the Register of Deeds . . . and
the records admittedly show that both Exhibits 3 and 4, were all registered on
July 29, 1968, while on the other hand, the appellee's complaint was filed on
June 20, 1973, clearly beyond the aforesaid four-year prescriptive period
provided by law;
"2. That the aforesaid contracts, Exhibits 2, 3, and 4, are decisively not
simulated or fictitious contracts, since Emilio Jocson actually and really intended
them to be effective and binding against him, as to divest him of the full dominion
and ownership over the properties subject of said assailed contracts, as in fact all
his titles over the same were all cancelled and new ones issued to appellant
Agustina Jocson Vasquez . . .;
3. That in regard to Exhibit 2, the same is valid and subsisting, and the
partition with sale therein made by and between Emilio Jocson and Agustin
Jocson Vasquez, affecting the 2/3 portion of the subject properties described
therein have all been made in accordance with Article 996 of the New Civil Code
on intestate succession, and the appellee's (herein petitioner) remaining 1/3 has
not been prejudiced (pp. 41-42, Rollo)."
In this petition for review, Moises Jocson raised the following assignments of errors:
I. HAS THE RESPONDENT COURT OF APPEALS ERRED IN
CONCLUDING THAT THE SUIT FOR THE ANNULMENT OF CONTRACTS
FILED BY PETITIONERS WITH THE TRIAL COURT IS "BASED ON FRAUD"
AND NOT ON ITS INEXISTENCE AND NULLITY BECAUSE OF ITS BEING
SIMULATED OR FICTITIOUS OR WHOSE CAUSE IS CONTRARY TO LAW,
MORALS AND GOOD CUSTOMS?
II. HAS THE RESPONDENT COURT OF APPEALS ERRED IN
CONCLUDING THAT THE COMPLAINT FILED BY PETITIONER IN THE TRIAL
COURT IS BARRED BY PRESCRIPTION?
III. HAS THE RESPONDENT COURT OF APPEALS ERRED IN NOT
DECLARING AS INEXISTENT AND NULL AND VOID THE CONTRACTS IN
QUESTION AND IN REVERSING THE DECISION OF THE TRIAL COURT? (p.
2, Rollo).
I
 The first and second assignment of errors are related and shall be jointly discussed.
According to the Court of Appeals, herein petitioner's causes of action were based on
fraud. Under Article 1330 of the Civil Code, a contract tainted by vitiated consent, as when
consent was obtained through fraud, is voidable; and the action for annulment must be brought
within four years from the time of the discovery of the fraud (Article 1391, par. 4, Civil Code),
otherwise the contract may no longer be contested. Under present jurisprudence, discovery of
fraud is deemed to have taken place at the time the convenant was registered with the Register of
Deeds (Gerona vs. De Guzman, No. L-19060, May 29, 1964, 11 SCRA 153). Since Exhibits 3 and
4 were registered on July 29, 1968 but Moises Jocson filed his complaint only on June 20, 1973,
the Court of Appeals ruled that insofar as these documents were concerned, petitioner's
"annulment suit" had prescribed.
If fraud were the only ground relied upon by Moises Jocson in assailing the questioned
documents, We would have sustained the above sustained the above pronouncement. But it is
not so. As pointed out by petitioner, he further assailed the deeds of conveyance on the ground
that they were without consideration since the amounts appearing thereon as paid were in fact
merely simulated. cdrep
According to Article 1352 of the Civil Code, contracts without cause produce no effect
whatsoever. A contract of sale with a simulated price is void (Article 1471; also Article 1409 [3]),
and an action for the declaration of its nullity does not prescribe (Article 1410, Civil Code; See
also, Castillo v. Galvan, No. L-27841, October 20, 1978, 85 SCRA 526). Moises Jocson's action,
therefore, being for the judicial declaration of nullity of Exhibits 3 and 4 on the ground of simulated
price, is imprescriptible.
II
For petitioner, however, the above discussion may be purely academic. The burden of
proof in showing that contracts lack consideration rests on he who alleged it. The degree of proof
becomes more stringent where the documents themselves show that the vendor acknowledged
receipt of the price, and more so where the documents were notarized, as in the case at bar.
Upon consideration of the records of his case, We are of the opinion that petitioner has not
sufficiently proven that the questioned documents are without consideration.
Firstly, Moises Jocson's claim that Agustina Jocson-Vasquez had no other source of
income other than what she derives from helping in the management of the family business
(ricefields and ricemills), and which was insufficient to pay for the purchase price, was
contradicted by his own witness, Isaac Bagnas, who testified that Agustina and her husband were
engaged in the buy and sell of palay and rice (p. 10, t.s.n., January 14, 1975). Amazingly,
petitioner himself and his wife testified that they did not know whether or not Agustina was
involved in some other business (p. 40, t.s.n., July 30, 1974; p. 36, t.s.n., May 24, 1974).
On the other hand, Agustina testified that she was engaged in the business of buying and
selling palay and rice even before her marriage to Ernesto Vasquez sometime in 1948 and
continued doing so thereafter (p. 4, t.s.n., March 15, 1976). Considering the foregoing and the
presumption that a contract is with a consideration (Article 1354, Civil Code), it is clear that
petitioner miserably failed to prove his allegation.
Secondly, neither may the contract be declared void because of alleged inadequacy of
price. To begin with, there was no showing that the prices were grossly inadequate. In fact, the
total purchase price paid by Agustina Jocson-Vasquez is above the total assessed value of the
properties alleged by petitioner. In his Second Amended Complaint, petitioner alleged that the
total assessed value of the properties mentioned in Exhibit 3 was P8,920; Exhibit 4, P3,500; and
Exhibit 2, P24,840, while the purchase price paid was P10,000, P5,000, and P8,000, respectively,
the latter for the 1/3 share of Emilio Jocson from the paraphernal properties of his wife, Alejandra
Poblete. And any difference between the market value and the purchase price, which as admitted
by Emilio Jocson was only slight, may not be so shocking considering that the sales were affected
by a father to her daughter in which case filial love must be taken into consideration (Alsua-Betts
vs. Court of Appeals, No. L-46430-31, April 30, 1979, 92 SCRA 332).
Further, gross inadequacy of price alone does not affect a contract of sale, except that it
may indicate a defect in the consent, or that the parties really intended a donation or some other
act or contract (Article 1470, Civil Code) and there is nothing in the records at all to indicate any
defect in Emilio Jocson's consent. cdll
Thirdly, any discussion as to the improbability of a sale between a father a his daughter is
purely speculative which has no relevance to a contract where all the essential requisites of
consent, object and cause are clearly present.
There is another ground relied upon by petitioner in assailing Exhibits 3 and 4, that the
properties subject matter therein are conjugal properties of Emilio Jocson and Alejandra Poblete.
It is the position of petitioner that since the properties sold to Agustina Jocson-Vasquez under
Exhibit 3 were registered in the name of "Emilio Jocson, married to Alejandra Poblete," the
certificate of title he presented as evidence (Exhibits "E", to "J", pp. 4-9, Records) were enough
proof to show that the properties covered therein were acquired during the marriage of their
parents, and, therefore, under Article 160 of the Civil Code, presumed to be conjugal properties.
Article 160 of the Civil Code provides that:
"All property of the marriage is presumed to belong to the conjugal
partnership, unless it be proved that it pertains exclusively to the husband or to
the wife."
In Cobb-Perez vs. Hon. Gregorio Lantin, No. L-22320, May 22, 1968, 23, SCRA 637, 644,
We held that:
"Anent their claim that the shares in question are conjugal assets, the
spouses Perez adduced not a modicum of evidence, although they repeatedly
invoked article 160 of the New Civil Code which provides that . . . As interpreted
by this Court, the party who invokes this presumption must first prove that the
property in controversy was acquired during the marriage, In other words, proof of
acquisition during the coverture is a condition sine qua non for the operation of
the presumption in favor of conjugal ownership. Thus in Camia de Reyes vs.
Reyes de Ilano [62 Phil. 629, 639], it was held that 'according to law and
jurisprudence, it is sufficient to prove that the property was acquired during the
marriage in order that the same may be deemed conjugal property.' In the recent
case of Maramba vs. Lozano, et. al. [L-21533, June 29, 1967, 20 SCRA 474], this
Court, thru Mr. Justice Makalintal, reiterated that 'the presumption under Article
160 of the Civil Code refers to property acquired during the marriage,' and then
concluded that since 'there is no showing as to when the property in question was
acquired . . . the fact that the title is in the wife's name alone is determinative.'
Similarly, in the case at bar, since there is no evidence as to when the shares of
stock were acquired, the fact that they are registered in the name of the husband
alone is an indication that the shares belong exclusively to said spouse."
This pronouncement was reiterated in the case of Ponce de Leon vs. Rehabilitation
Finance Corporation, No. L-24571, December 18, 1970, 36 SCRA 289, and later in Torela vs.
Torela, No. L-27843, October 11, 1979, 93 SCRA 391. prLL
It is thus clear before Moises Jocson may validly invoke the presumption under Article
160 he must first present proof that the disputed properties were acquired during the marriage of
Emilio Jocson and Alejandra Poblete. The certificates of title, however, upon which petitioner
rests his claim is insufficient. The fact that the properties were registered in the name of "Emilio
Jocson, married to Alejandra Poblete" is no proof that the properties were acquired during the
spouses' coverture. Acquisition of title and registration thereof are two different acts. It is well
settled that registration does not confer title but merely confirms one already existing (See Torela
vs. Torela, supra). It may be that the properties under dispute were acquired by Emilio Jocson
when he was still a bachelor but were registered only after his marriage to Alejandra Poblete,
which explains why he was described in the certificates of title as married to the latter.
Contrary to petitioner's position, the certificates of title show, on their face, that the
properties were exclusively Emilio Jocson's, the registered owner. This is so because the words
"married to" preceding "Alejandra Poblete" are merely descriptive of the civil status of Emilio
Jocson (Litam v. Rivera, 100 Phil. 354; Stuart v. Yatco, No. L-16467, April 27, 1962, 4 SCRA
1143; Magallon v. Montejo, G.R. No. L-73733, December 16, 1986, 146 SCRA 282). In other
 words, the import from the certificates of title is that Emilio Jocson is the owner of the properties,
the same having been registered in his name alone, and that he is married to Alejandra Poblete.
We are not unmindful that in numerous cases We consistently held that registration of the
property in the name of only one spouse does not negate the possibility of it being conjugal (See
Bucoy vs. Paulino, No. L-25775, April 26, 1968, 23, SCRA 248). But this ruling is not inconsistent
with the above pronouncement for in those cases there was proof that the properties, though
registered in the name of only one spouse, were indeed conjugal properties, or that they have
been acquired during the marriage of the spouses, and therefore, presumed conjugal, without the
adverse party having presented proof to rebut the presumption (See Mendoza vs. Reyes, No. L-
31618, August 17, 1983, 124 SCRA 154). cdll
In the instant case, had petitioner, Moises Jocson, presented sufficient proof to show that
the disputed properties were acquired during his parents' converture. We would have ruled that
properties, though registered in the name of Emilio Jocson alone, are conjugal properties in view
of the presumption under Article 160. There being no such proof, the condition  sine qua non for
the application of the presumption does not exist. Necessarily, We rule that the properties under
Exhibit 3 are the exclusive properties of Emilio Jocson.
There being no showing also that the camarin and the two ricemills, which are the subject
of Exhibit 4, were conjugal properties of the spouses Emilio Jocson and Alejandra Poblete, they
should be considered, likewise, as the exclusive properties of Emilio Jocson, the burden of proof
being on petitioner.
ACCORDINGLY, the petition is DISMISSED and the decision of the Court of Appeals if
AFFIRMED.
SO ORDERED.
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ  ., concur.
|||  (Jocson v. Court of Appeals, G.R. No. L-55322, [February 16, 1989], 252 PHIL 342-355)

SECOND DIVISION

[G.R. No. 100728. June 18, 1992.]

 WILHELMINA JOVELLANOS, MERCY JOVELLANOS-MARTINEZ and JOSE
HERMILO JOVELLANOS, petitioners, vs. THE COURT OF APPEALS, and
ANNETTE H. JOVELLANOS, for and in her behalf, and in representation of her
two minor daughters as natural guardian, ANA MARIA and MA. JENNETTE,
both surnamed JOVELLANOS, respondents.

Felipe S. Aldana for petitioners.

Paciano B. Balita for private respondents.

SYLLABUS

1. CIVIL LAW; NO LEGAL IMPEDIMENT TO THE APPLICATION IN THE PRESENT CASE OF

RULE OF RETROACTIVITY UNDER ART. 256 OF THE FAMILY CODE. — It is petitioners' position
that the Family Code should not be applied in determining the successional rights of the party litigants
to the estate of Daniel Jovellanos, for to do so would be to impair their vested property rights over the
property in litigation which they have acquired long before the Family Code took effect. To arrive at
the applicable law, it would accordingly be best to look into the nature of the contract entered into by
the contracting parties. As oppositely observed by respondent court, the so-called lease agreement is,
therefore, very much in issue. We find no legal impediment to the application in this case of the rule of
retroactivity provided in the Family Code to the effect that — "Art. 256. This Code shall have
retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance
with the Civil Code or other laws." The right of Daniel Jovellanos to the property under the contract
with Philamlife was merely an inchoate and expectant right which would ripen into a vested right only
upon his acquisition of ownership which, as aforestated, was contingent upon his full payment of the
rentals and compliance with all his contractual obligations thereunder.
2. CONDITIONAL SALE AS CONTRA DISTINGUISHED FROM A CONTRACT OF SALE. — The
conditional sale agreement in said contract is, therefore, also in the nature of a contract to sell, as
contra distinguished from a contract of sale. In a contract to sell or a conditional sale, ownership is not
transferred upon delivery of the property but upon full payment of the purchase price. Generally,
ownership is transferred upon delivery, but even if delivered, the ownership may still be with the seller
until full payment of the price is made, if there is a stipulation to this effect. The stipulation is usually
known as pactum reservati dominii, or contractual reservation of title, and is common in sales on the
installment plan. Compliance with the stipulated payments is a suspensive condition, the failure of
which prevents the obligation of the vendor to convey title from acquiring binding force. Hornbook lore
from civilists clearly lays down the distinctions between a contract of sale in which the title passes to
the buyer upon delivery of the thing sold, and a contract to sell where, by agreement, the ownership is
reserved in the seller and is not to pass until full payment of the purchase-price. In the former, non-
payment of the price is a negative resolutory condition; in the latter, full payment is a positive
suspensive condition. In the former, the vendor loses and cannot recover the ownership of the thing
sold until and unless the contract of sale is rescinded or set aside; in the latter, the title remains in the
vendor if the vendee does not comply with the condition precedent of making full payment as
specified in the contract.
3. A VESTED RIGHT DISTINGUISHED FROM AN EXPECTANT OR CONTINGENT RIGHT. — A
vested right is an immediate fixed right of present and future enjoyment. It is to be distinguished from
a right that is expectant or contingent. It is a right which is fixed, unalterable, absolute, complete and
unconditional to the exercise of which no obstacle exists, and which is perfect in itself and not
dependent upon a contingency.
4. CONDITION FOR A PROPERTY RIGHT TO BE VESTED. — Thus, for a property right to be
vested, there must be a transition from the potential or contingent to the actual, and the proprietary
interest must have attached to a thing; it must have become fixed or established and is no longer
open to doubt or controversy.
5. THE NATURE OF SALE OF FRIAR LANDS UNDER ACT 1120; INAPPLICABLE TO CASE AT
BAR. — The trial court, which was upheld by respondent court, correctly ruled that the cases cited by
petitioners are inapplicable to the case at bar since said cases involved friar lands which are governed
by a special law, Act 1120, which was specifically enacted for the purpose. In the sale of friar lands,
upon execution of the contract to sell, a certificate of sale is delivered to the vendee and such act is
considered as a conveyance of ownership, subject only to the resolutory condition that the sale may
be rescinded if the agreed price shall not be paid in full.
6. THE PROPERTY IN CONTROVERSY BELONGED TO DANIEL JOVELLANO'S CONJUGAL
PARTNERSHIP WITH HIS SECOND WIFE; REASON. — We have earlier underscored that the deed
of absolute sale was executed in 1975 by Philamlife, pursuant to the basic contract between the
parties, only after full payment of the rentals. Upon the execution of said deed of absolute sale, full
ownership was vested in Daniel Jovellanos. Since, as early as 1967, he was already married to
Annette H. Jovellanos, this property necessarily belonged to his conjugal partnership with his said
second wife.

DECISION

REGALADO, J p:

This petition for review on certiorari seeks to reverse and set aside the decision 1 promulgated by
respondent court on June 28, 1991 in CA-G.R. CV No. 27556 affirming with some modifications the
earlier decision of the Regional Trial Court of Quezon City, Branch 85, which, inter alia, awarded one-
half (1/2) of the property subject of Civil Case No. Q-52058 therein to private respondent Annette H.
Jovellanos and one-sixth (1/6) each of the other half of said property to the three private respondents,
all as pro indiviso owners of their aforesaid respective portions.
As found by respondent court, 2 on September 2, 1955, Daniel Jovellanos and Philippine American
Life Insurance Company (Philamlife) entered into a contract denominated as a lease and conditional
sale agreement over Lot 8, Block 3 of the latter's Quezon City Community Development Project,
including a bungalow thereon, located at and known as No. 55 South Maya Drive, Philamlife Homes,
Quezon City. At that time, Daniel Jovellanos was married to Leonor Dizon, with whom he had three
children, the petitioners herein, Leonor Dizon died on January 2, 1959. On May 30, 1967, Daniel
married private respondent Annette H. Jovellanos with whom he begot two children, her herein co-
respondents. LLjur
On December 18, 1971, petitioner Mercy Jovellanos married Gil Martinez and, at the behest of Daniel
Jovellanos, they built a house on the back portion of the premises. On January 8, 1975, with the lease
amounts having been paid. Philamlife executed to Daniel Jovellanos a deed of absolute sale and, on
the next day, the latter donated to herein petitioners all his rights, title and interests over the lot and
bungalow thereon. On September 8, 1985, Daniel Jovellanos died and his death spawned the present
controversy, resulting in the filing by private respondents of Civil Case No. Q-52058 in the court
below.
Private respondent Annette H. Jovellanos claimed in the lower court that the aforestated property was
acquired by her deceased husband while their marriage was still subsisting, by virtue of the deed of
absolute sale dated January 8, 1975 executed by Philamlife in favor of her husband. Daniel
Jovellanos, who was issued Transfer Certificate of Title No. 212286 of the Register of Deeds of
Quezon City and which forms part of the conjugal partnership of the second marriage. Petitioners, on
the other hand, contend that the property, specifically the lot and the bungalow erected thereon, as
well as the beneficial and equitable title thereto, were acquired by their parents during the existence of
the first marriage under their lease and conditional sale agreement with Philamlife of September 2,
1955.
On December 28, 1989, the court a quo rendered judgment 3 with the following dispositions:
"WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. Ordering the liquidation of the partnership of the second marriage and directing
the reimbursement of the amount advanced by the partnership of the first marriage
as well (as) by the late Daniel Jovellanos and the defendants spouses Gil and
 Mercia * J. Martinez in the acquisition of the lot and bungalow described in the
Lease and Conditional Sale Agreement (Exhs. D and 1);
2. After such liquidation and reimbursement, declaring the plaintiff Annette
Jovellanos as  pro-indiviso owner of 1/2 of the property described in TCT No.
212268 (sic) and the bungalow erected there in;
3. Declaring the plaintiff Annette Jovellanos, as well as the minors Anna Marie and
Ma. Jeannette (sic) both surnamed Jovellanos and the herein defendants, as
owners pro indiviso of 1/6 each of the other half of said property;
4. Declaring the defendants spouses Gil and Mercia Martinez as exclusive owners
of the two-storey house erected on the property at the back of the said bungalow,
with all the rights vested in them as builders in good faith under Article 448 of the
New Civil Code;
5. Ordering the parties to make a partition among themselves by proper
instruments of conveyances, subject to the confirmation of this Court, and if they
are unable to agree upon the partition, ordering that the partition should be made
by not more than three (3) competent and disinterested persons as commissioners
who shall make the partition in accordance with Sec. 5, Rule 69 of the Revised
Rules of Court;
6. Ordering the defendant(s) to pay plaintiffs, jointly and severally, the sum of
P5,000.00 as attorney's fees, plus costs.
SO ORDERED." 4
Respondent Court of Appeals, in its challenged decision, held that the lease and conditional sale
agreement executed by and between Daniel Jovellanos, and Philamlife is a lease contract and, in
support of its conclusion, reproduced as its own the following findings of the trial court: LexLib
 
"It is therefore incumbent upon the vendee to comply with all his obligations, i.e.,
the payment of the stipulated rentals and adherence to the limitations set forth in
the contract before the legal title over the property is conveyed to the lessee-
vendee. This, in effect, is a pactum reservati dominii which is common in sales on
installment plan of real estate whereby ownership is retained by the vendor and
payment of the agreed price being a condition precedent before full ownership
could be transferred (Wells vs. Samonte, 38768-R, March 23, 1973; Perez vs.
Erlanger and Galinger Inc., CA 54 OG 6088). The dominion or full ownership of the
subject property was only transferred to Daniel Jovellanos upon full payment of the
stipulated price giving rise to the execution of the Deed of Absolute Sale on
January 8, 1975 (Exh. 2) when the marriage between the plaintiff and Daniel
Jovellanos was already in existence.
"The contention of the defendants that the jus in re aliena or right in the property of
another person (Gabuya vs. Cruz, 38 SCRA 98) or beneficial use and enjoyment of
the property or the equitable title has long been vested in the vendee-lessee Daniel
Jovellanos upon execution of Exh. '1' is true. But the instant case should be
differentiated from the cited cases of Pugeda v. Trias, et al., 4 SCRA 849; and
Alvarez vs. Espiritu, G.R. L-18833, August 14, 1965, which cannot be applied
herein even by analogy. In Pugeda, the subject property refers solely to friar lands
and is governed by Act 1120 wherein the certificate of sale is considered a
conveyance of ownership subject only to the resolutory condition that the sale may
be rescinded if the agreed price has not been paid in full; in the case at bar,
however, payment of the stipulated price is a condition precedent before ownership
could be transferred to the vendee." 5
With the modification that private respondents should also reimburse to petitioners their proportionate
shares in the proven hospitalization and burial expenses of the late Daniel Jovellanos, respondent
Court of Appeals affirmed the judgment of the trial court, applying Article 118 of the Family Code
which provides:
 "Art. 118. Property bought on installment paid partly from exclusive funds of either
or both spouses and partly from conjugal funds belongs to the buyer or buyers if full
ownership was vested before the marriage and to the conjugal partnership if such
ownership was vested during the marriage. In either case, any amount advanced
by the partnership or by either or both spouses shall be reimbursed by the owner or
owners upon liquidation of the partnership."
Petitioners now seek this review, invoking their assignment of errors raised before the respondent
court and which may be capsulized into two contentions, namely, that (1) the lower court erred in
holding that the lot and bungalow covered by the lease and conditional sale agreement (Exhibit 1) is
conjugal property of the second marriage of the late Daniel Jovellanos; and (2) the lower court erred
in holding that the provisions of the Family Code are applicable in resolving the rights of the parties
herein. 6
It is petitioners' position that the Family Code should not be applied in determining the successional
rights of the party litigants to the estate of Daniel Jovellanos, for to do so would be to impair their
vested property rights over the property in litigation which they have acquired long before the Family
Code took effect. 7
To arrive at the applicable law, it would accordingly be best to look into the nature of the contract
entered into by the contracting parties. As oppositely observed by respondent court, the so-called
lease agreement is, therefore, very much in issue. Preliminarily, we do not lose sight of the basic rule
that a contract which is not contrary to law, morals, good customs, public order or public policy has
the force of law between the contracting parties and should be complied with in good faith. 8 Its
provisions are binding not only upon them but also upon their heirs and assigns. 9
The contract entered into by the late Daniel Jovellanos and Philamlife is specifically denominated as a
"Lease and Conditional Sale Agreement" over the property involved with a lease period of twenty
years at a monthly rental of P288.87, by virtue of which the former, as lessee-vendee, had only the
right of possession over the property. 10 In a lease agreement, the lessor transfers merely the
temporary use and enjoyment of the thing leased. 11 In fact, Daniel Jovellanos bound himself therein,
among other things, to use the property solely as a residence, take care thereof like a good father of a
family, permit inspection thereof by representatives of Philamlife, and abide by all rules and
regulations of Philamlife, and abide by all rules and regulations of Philamlife in regard to the use and
preservation of the property. 12
It is specifically provided, however, that "(i)f, at the expiration of the lease period herein agreed upon,
the LESSEE-VENDEE shall have fully and faithfully complied with all his obligations herein stipulated,
the LESSOR-VENDOR shall immediately sell, transfer and convey to the LESSEE-VENDEE the
property which is the subject matter of this agreement; . . ." 13
The conditional sale agreement in said contract is, therefore, also in the nature of a contract to sell, as
contradistinguished from a contract of sale. In a contract to sell or a conditional sale, ownership is not
transferred upon delivery of the property but upon full payment of the purchase price. 14 Generally,
ownership is transferred upon delivery, but even if delivered, the ownership may still be with the seller
until full payment of the price is made, if there is a stipulation to this effect. The stipulation is usually
known as pactum reservati dominii, or contractual reservation of title, and is common in sales on the
installment plan. 15 Compliance with the stipulated payments is a suspensive condition. 16 the failure
of which prevents the obligation of the vendor to convey title from acquiring binding force. 17
Hornbook lore from civilists clearly lays down the distinctions between a contract of sale in which the
title passes to the buyer upon delivery of the thing sold, and a contract to sell where, by agreement,
the ownership is reserved in the seller and is not to pass until full payment of the purchase-price. In
the former, non-payment of the price is a negative resolutory condition; in the latter, full payment is a
positive suspensive condition. In the former, the vendor loses and cannot recover the ownership of
the thing sold until and unless the contract of sale is rescinded or set aside; in the latter, the title
remains in the vendor if the vendee does not comply with the condition precedent of making full
payment as specified in the contract. prcd
Accordingly, viewed either as a lease contract or a contract to sell, or as a contractual amalgam with
facets of both, what was vested by the aforestated contract in petitioners' predecessor in interest was
merely the beneficial title to the property in question. His monthly payments were made in the concept
of rentals, but with the agreement that if he faithfully complied with all the stipulations in the contract
the same would in effect be considered as amortization payments to be applied to the predetermined
price of the said property. He consequently acquired ownership thereof only upon full payment of the
said amount hence, although he had been in possession of the premises since September 2, 1955, it
was only on January 8, 1975 that Philamlife executed the deed of absolute sale thereof in his favor.
The conditions of the aforesaid agreement also bear notice, considering the stipulations therein that
Daniel Jovellanos, as lessee-vendee, shall not —
xxx xxx xxx
"(b) Sublease said property to a third party;
(c) Engage in business or practice any profession within the property;
xxx xxx xxx
(f) Make any alteration or improvement on the property without the prior
written consent of the LESSOR-VENDOR;
(g) Cut down, damage, or remove any tree or shrub, or remove or quarry
any stone, rock or earth within the property, without the prior written consent of the
LESSOR-VENDOR;
(h) Assign to another his right, title and interest under and by virtue of this
Agreement, without the prior written consent and approval of the LESSOR-
VENDOR." 18
The above restrictions further bolster the conclusion that Daniel Jovellanos did not enjoy the full
attributes of ownership until the execution of the deed of sale in his favor. The law recognizes in
the owner the right to enjoy and dispose of a thing, without other limitations than those
established by law, 19 and, under the contract, Daniel Jovellanos evidently did not possess or
enjoy such rights of ownership.
We find no legal impediment to the application in this case of the rule of retroactivity provided in the
Family Code to the effect that —
"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws."
The right of Daniel Jovellanos to the property under the contract with Philamlife was merely an
inchoate and expectant right which would ripen into a vested right only upon his acquisition of
ownership which, as aforestated, was contingent upon his full payment of the rentals and compliance
with all his contractual obligations thereunder. A vested right is an immediate fixed right of present
and future enjoyment. It is to be distinguished from a right that is expectant or contingent. 20 It is a
right which is fixed, unalterable, absolute, complete and unconditional to the exercise of which no
obstacle exists, 21 and which is perfect in itself and not dependent upon a contingency. 22 Thus, for a
property right to be vested, there must be a transition from the potential or contingent to the actual,
and the proprietary interest must have attached to a thing; it must have become fixed or established
and is no longer open to doubt or controversy. 23
 
The trial court, which was upheld by respondent court, correctly ruled that the cases cited by
petitioners are inapplicable to the case at bar since said cases involved friar lands which are governed
by a special law, Act 1120, which was specifically enacted for the purpose. In the sale of friar lands,
upon execution of the contract to sell, a certificate of sale is delivered to the vendee and such act is
considered as a conveyance of ownership, subject only to the resolutory condition that the sale may
be rescinded if the agreed price shall not be paid in full. In the instant case, no certificate of sale was
delivered and full payment of the rentals was a condition precedent before ownership could be
transferred to the vendee. 24
We have earlier underscored that the deed of absolute sale was executed in 1975 by Philamlife,
pursuant to the basic contract between the parties, only after full payment of the rentals. Upon the
execution of said deed of absolute sale, full ownership was vested in Daniel Jovellanos. Since, as
early as 1967, he was already married to Annette H. Jovellanos, this property necessarily belonged to
his conjugal partnership with his said second wife. llcd
As found by the trial court, the parties stipulated during the pre-trial conference in the case below that
the rentals/installments under the lease and conditional sale agreement were paid as follows: (a) from
September 2, 1955 to January 2, 1959, by conjugal funds of the first marriage; (b) from January 3,
1959 to May 29, 1967, by capital of Daniel Jovellanos; (c) from May 30, 1967 to 1971, by conjugal
funds of the second marriage; and (d) from 1972 to January 8, 1975, by conjugal funds of the spouses
Gil and Mercy Jovellanos-Martinez. 25 Both courts, therefore, ordered that reimbursements should be
made in line with the pertinent provision of Article 118 of the Family Code that "any amount advanced
by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon
liquidation of the partnership."
ACCORDINGLY, finding no reversible error in the judgment of respondent court, the same is hereby
AFFIRMED.
SO ORDERED.
Narvasa, C  .J ., Paras and Padilla, JJ .,  concur.

EN BANC

[G.R. No. L-16857. May 29, 1964.]

MARCELO CASTILLO, JR., FELICISIMO CASTILLO, ENCARNACION

CASTILLO, AMELIA CASTILLO, JAIME CASTILLO, RONALDO CASTILLO,
VICTORIA CASTILLO, LETICIA CINCO, LEVI CINCO and DANIEL
CINCO, petitioners, vs. MACARIA PASCO, respondent.

Tomas Yumol  for petitioners.

Mariano G. Bustos & Associates for respondent.

SYLLABUS

1. CONJUGAL PARTNERSHIP; RULE UNDER OLD CIVIL CODE; PROPERTY

ACQUIRED DURING MARRIAGE. — Under the Spanish Civil Code of 1889, the law applicable to
the case at bar, the property acquired for onerous consideration during the marriage was deemed
conjugal or separate property depending on the source of the funds employed for its acquisition,
irrespective of in whose name the property was acquired.
2. ID.; ID.; ID.; PROPERTY ACQUIRED PARTLY WITH PARAPHERNAL AND PARTLY
WITH CONJUGAL FUNDS. — Property acquired during the effectivity of the old Civil Code partly
with paraphernal funds of the wife and partly with conjugal funds is held to belong to both
patrimonies in common, in proportion to the contributions of each to the total purchase price.
3. ID.; ID.; ID.; INITIAL PAYMENT PARTLY OUT OF INDEBTEDNESS TO WIFE
ALONE. — Where the initial payment for property acquired during coverture under the old Civil
Code was made partly out of indebtedness of third persons due to the wife alone, in the absence
of proof that the husband authorized her to use conjugal funds, such payment was considered
made out of private funds of the wife.
4. ID.; ID.; ID.; MONEY RAISED BY LOANS GUARANTEED BY MORTGAGE ON
PARAPHERNAL PROPERTY. — Money obtained during coverture by loans to the husband or to
both spouses, even if guaranteed by mortgage on the paraphernal property of the wife, was
considered, under the old law, conjugal property repayable at maturity with conjugal partnership
funds.
5. ID.; ID.; ID.; PAYMENT BY WIDOW OF LOAN SECURED BY PARAPHERNAL
PROPERTY DOES NOT INCREASE HER SHARE. — The payment by the widow with her private
funds, after her husband's death, of a loan to the conjugal partnership secured by her paraphernal
property, the proceeds of which were used to acquire property during coverture under the old Civil
 Code, does not result in increasing her share in said property but only in creating a lien in her
favor over the share of the conjugal partnership in the property so required for the repayment of
the amount she had advanced. cdphil

DECISION

REYES, J.B.L., J p:

The legitimate children and descendants of the late Marcelo Castillo, Sr. pray for the
review and reversal of the decision of the Court of Appeals, in its Case CA-G.R No. 19377-R, that
affirmed the decision of the Court of First Instance of Bulacan, declaring that the fishpond in San
Roque, Paombong, Bulacan, (covered by TCT No. 9928 of the Registry of Deeds of said
province), was the exclusive paraphernal property of respondent, Macaria Pasco, surviving
spouse of the deceased Marcelo Castillo, Sr., and dismissing the complaint for partition and
accounting filed by petitioners in said Court of First Instance.
The Court of Appeals found, and the petitioners-appellants do not dispute, that in October
1931 Marcelo Castillo, Sr., being a widower, married Macaria Pasco, a widow who had survived
two previous husbands. Petitioners were children and grandchildren (representing their deceased
parents) of Marcelo Castillo, Sr. by his previous marriage. On April 3, 1933, Marcelo Castillo, Sr.
died and his widow married her fourth husband, Luis San Juan, on June 8, 1934.
On December 22, 1932, Gabriel and Purificacion Gonzales, as co- owners of the litigated
fishpond, executed a deed of sale (Exh. I) conveying said property to the spouses Marcelo
Castillo and Macaria Pasco for the sum of P6,000 (although the deed recited a higher amount),
payable in three installments: P1,000 upon execution of the deed (Exh. I), P2,000 on January 25,
1933 without interest; and P3,000 within one year thereafter, with 11% interest from February 1,
1933, but extendible for another year.
Against the contention of petitioners-appellants that the fishpond thus bought should be
considered conjugal for its having been acquired during coverture, the Court of Appeals declared
it to be paraphernal, because it was purchased with exclusive funds of the wife, Macaria Pasco.
She was admittedly a woman of means even before she married Marcelo Castillo, Sr., and the
latter's principal source of income was only his P80 a month salary, as provincial treasurer (as
found by the Court of First Instance), besides two small residential lots and fishponds, which were
encumbered and later transferred to his five children by his first wife and whom he was then
supporting in medical and high school. Actually, Marcelo Castillo, Sr. died without enough assets
to pay his debts.
In point of fact, the Court of Appeals found that the initial payment of P1,000 for the
fishpond now in litigation was made up of P600, that one of the vendors (Gabriel Gonzales) owed
to appellee Pasco, and P400 in cash, which the latter paid out of the proceeds of the sale of one
of her nipa lands. The second installment of P2,000 appears to have been paid with the proceeds
of the loan from Dr. Nicanor Jacinto, to whom the fishpond was mortgaged by both spouses. Dr.
Jacinto later assigned his interest to Dr. Antonio Pasco. The last payment of P3,000 was derived
from a loan secured by a mortgage (Exh. 2) on 2 parcels of land assessed in the name of Macaria
Pasco, and one of which she had inherited from a former husband, Justo S. Pascual, while the
other lot encumbered was assessed in her exclusive name.
It was also found by the Court of Appeals that upon the death of Marcelo Castillo, Sr., the
loan and mortgage in favor of Dr. Jacinto (later assigned by him to Dr. Antonio Pasco) was still
outstanding. Unable to collect the loan, Dr. Pasco foreclosed the mortgaged, and the encumbered
fishpond was sold to him; but the sale was subsequently annulled. Later, on September 7, 1949,
respondent Macaria Pasco judicially consigned P12,300 on account of the mortgage debt and its
interest, and completed payment by a second consignation of P752.43 made on April 24, 1950.
As the estate of Castillo had no assets adequate to pay off the claims against it, the Court of
Appeals concluded that the amounts consigned belonged to the widow Macaria Pasco,
respondent herein.
 It is not gainsaid that under the Spanish Civil Code of 1889, that was the applicable law in
1932, the property acquired for onerous consideration during the marriage was deemed conjugal
or separate property depending on the source of the funds employed for its acquisition. Thus,
Article 1396 of said Code provided:
"ART. 1396. The following is separate property of either spouse:
1. . . .
2. . . .
3. . . .
4. That bought with money belonging exclusively to the wife as or to the
husband."
On the other hand, Article 1401 prescribed that:
"ART. 1401. To the conjugal property belong:
1. Property acquired for valuable consideration during the marriage at the
expense of the common fund, whether the acquisition is made for the partnership or
for one of the spouses only."
The last clause in Article 1401 (par. 1) indicates that the circumstance of the sale of the
fishpond in question being made by the original owners in favor of both spouses Marcelo Castillo,
Sr. and Macaria Pasco, is indifferent for the determination of whether the property should be
deemed paraphernal or conjugal. As remarked by Manresa in his Commentaries to the Civil
Code, Vol. IX (5th Ed.) p. 549, "la ley atiende, no a la persona en cuyo nombre ó a favor del cual
se realiza la compra, sino a la procedencia del dinero." prcd
As above-noted, the Court of Appeals determined that the initial payment of P1,000 for
the fishpond now disputed was made out of private funds of Macaria Pasco. Appellants, however,
argue that since there is no express finding that the P600 debt owed by Gabriel Gonzales came
exclusively from private funds of Pasco, they should be presumed conjugal funds, in accordance
with Article 1407 of the Civil Code of 1889. The argument is untenable. Since the wife, under
Article 1416, can not bind the conjugal partnership without the consent of the husband, her private
transactions are presumed to be for her own account, and not for the account of the partnership.
The finding of the Court of Appeals is that Gabriel Gonzales owed this particular indebtedness to
Macaria Pasco alone, and in the absence of proof that the husband authorized her to use
community funds therefor, the appellate Court's finding can not be disturbed by us. Whether the
evidence adverted to should be credited or not is for the Court of Appeals to decide.
Appellants next assail the conclusion of the Court of Appeals that the other two
installments of the purchase price should be, like the first one, deemed to have been paid with
exclusive funds of the wife, because the money was raised by loans guaranteed by mortgage on
paraphernal property of the wife. The position thus taken by appellants is meritorious, for the
reason that the deeds show the loans to have been made by Dr. Nicanor Jacinto, and by Gabriel
and Purificacion Gonzales, to both spouses Marcelo Castillo and Macaria Pasco, as joint
borrowers. The loans thus became obligations of the conjugal partnership of both debtor spouses,
and the money loaned is logically conjugal property. While the securing mortgage is on the wife's
paraphernalia, the mortgage is a purely accessory obligation that the lenders could waive if they
so chose, without affecting the principal debt which was owed by the conjugal partnership, and
which the creditors could enforce exclusively against the latter if they so desired.
In Palanca vs. Smith Bell & Co., 9 Phil. 131, this Court ruled as follows (cas. cit. at p.
133):
"This P14,000, borrowed by said Emiliano Boncan upon the credit of the
property of his wife, became conjugal property (par. 3, Art. 1401, Civil Code) and
when the same was reinvested in the construction of a house, the house became
conjugal property and was liable for the payment of the debts of the husband (Art.
1408. Civ. Code)."
If money borrowed by the husband alone on the security of his wife's property is conjugal
in character, a fortiori should it be conjugal when borrowed by both spouses. The reason
 obviously is that the loan becomes an obligation of the conjugal partnership which is the one
primarily bound for its repayment.
The case of Lim Queco vs. Cartagena, 71 Phil. 162, is clearly distinguishable from the
Palanca case in that in the Lim Queco case the wife alone borrowed the money from "El Ahorro
Insular" although she guaranteed repayment with a mortgage on her parapherna, executed with
her husband's consent. Since the wife does not have the management or representation of the
conjugal partnership where the husband is qualified therefor, the loan to her constituted a
transaction that did not involve the community, and the creditor could seek repayment exclusively
from her properties. Logically, as this Court then held, the money loaned to the wife, as well as
the property acquired thereby, should be deemed to be the wife's exclusive property,.
The analogy between the case now before us and the Palanca vs. Smith Bell case is
undeniable, and the Palanca ruling applies. We, therefore, find that the two installments, totalling
P5,000, of the price of the fishpond were paid with conjugal funds, unlike the first installment of
1,000 that was paid exclusively with money belonging to the wife Macaria Pasco, appellee herein.
As the litigated fishpond was purchased partly with paraphernal funds and partly with
money of the conjugal partnership, justice requires that the property be held to belong to both
patrimonies in common, in proportion to the contributions of each to the total purchase price of
P6,000. An undivided one-sixth 1/6 should be deemed paraphernal, and the remaining five-sixths
(5/6ths) held property of the conjugal partnership of spouses Marcelo Castillo and Macaria Pasco
(9 Manresa, Com. al Codigo Civil (5th Ed.), p. 549).
"Puesto que la ley atiende, no a la persona en cuyo nombre ó a favor del
cual se realiza la compra, sino a la procedencia del dinero, considerando el hecho
como una verdadera sustitución ó conversión del dinero en otros objetos, debemos
deducir que cuando una finca, por ejemplo, se compra con dinero del marido y de
la mujer, ó de la mujer y de la Sociedad, pertenece a aquellos dequienes procede
el precio, y en la proporción entregada por cada cual. Si pues marido y mujer
compran una casa, entregando el primero de su capital proprio 10,000 pesetas, y
la segunda 5,000, la casa pertenecerá a los dos conyuges pro indiviso, en la
proporcion de los tercenas partes al marido y una tercera a la mujer (Manresa, op
cit).
The payment by the widow, after her husband's death, of the mortgage debt due to Dr.
Pasco, the assignee of the original mortgagee, Dr. Nicanor Jacinto, does not result in increasing
her share in the property in question but in creating a lien in her favor over the undivided share of
the conjugal partnership, for the repayment of the amount she has advanced, should it be
ultimately shown that the money thus delivered to the creditor was exclusively owned by her.
It follows from the foregoing that, as the fishpond was undivided property of the widow
and the conjugal partnership with her late husband, the heirs of the latter, appellants herein, were
entitled to ask for partition thereof and liquidation of its proceeds. The ultimate interest of each
party must be resolved after due hearing, taking into account (a) the widow's one-sixth direct
share; (b) her half of the community property; (c) her successional rights to a part of the
husband's share pursuant to the governing law of succession when the husband died; and (d) the
widow's right to reimbursement for any amounts advanced by her in paying the mortgage debt as
aforesaid. All these details must be settled after proper trial. cdpr
WHEREFORE, the dismissal of the original complaint is hereby revoked and set aside,
and the records are ordered remanded to the court of origin for further proceedings conformable
to this opinion.
Bengzon, C. J., Bautista Angelo, Concepcion, Barrera, Paredes, Regala  and Makalintal,
JJ., concur.
Padilla, Labrador  andDizon, JJ.,  took no part.
 
|||  (Castillo, Jr. v. Pasco, G.R. No. L-16857, [May 29, 1964], 120 PHIL 107-114)
 FIRST DIVISION

[G.R. No. 73733. December 16, 1986.]

EPIFANIA MAGALLON,  petitioner, vs. HON. ROSALINA L. MONTEJO, in her

Official Capacity as Presiding Judge of Regional Trial Court of Davao del Sur,
Branch XXI, CONCEPCION LACERNA, ELECERIA LACERNA and PURITA
LACERNA,  respondents.

Latasa, Cagas and Aranune Law & Surveying Office for petitioner.

Alberto Lumakang for private respondents.

SYLLABUS

1. CIVIL LAW; OBLIGATIONS AND CONTRACT; IMPLIED TRUST; SHOWN FROM

FACTS FOUND BY THE LOWER COURT. — The fact found by the lower court which, in view of
the finality of the later's decision, are binding upon this Court and can no longer be controverted,
as well as the pertinent allegations of the petition, leave no doubt that the land in question, which
rightfully pertained to the conjugal partnership of Martin Lacerna and Eustaquia Pichan, the
plaintiffs' mother, and should have been titled in the names of said spouses, was, through fraud or
mistake, registered in the names of Martin Lacerna and petitioner herein, Epifania Magallon. In
such a situation, the property should be regarded as impressed with an implied, or a constructive,
trust for the party rightfully entitled thereto.
2. ID.; ID.; ID.; DEFINED. — The provision restates one of the principles upon which the
general law of trust is founded, expressed in equity jurisprudence thus: A constructive trust is a
creature of equity, defined as a remedial device by which the holder of legal title is held to be a
trustee for the benefit of another who in good conscience is entitled to the beneficial interest. So,
the doctrine of constructive trust is an instrument of equity for the maintenance of justice, good
faith, and good conscience, resting on a sound public policy requiring that the law should not
become the instrument of designing persons to be used for the purpose of fraud. In this respect
constructive trusts have been said to arise through the application of the doctrine of equitable
estoppel, or under the broad doctrine that equity regards and treats as done what in good
conscience ought to be done.
 3. ID.; ID.; ID.; ID.; TRUSTEE OBLIGED TO CONVEY PROPERTY TO RIGHTFUL
OWNER. — In Bueno vs. Reyes, 27 SCRA 1179 where property belonging to an ancestor of
whom plaintiffs' parents were the intestate heirs was, through mistake or in bad faith, registered in
cadastral proceedings in the name of other parties who had no right thereto, this Court reaffirmed
the principles already cited, holding that: If any trust can be deduced at all from the foregoing
facts it was an implied one, arising by operation of law not from any presumed intention of the
parties but to satisfy the demands of justice and equity and as a protection against unfair dealing
or downright fraud. Indeed, in this kind of implied trust, commonly denominated constructive, as
distinguished from resulting, trust, there exists a certain antagonism between the cestui que trust
and the trustee. Thus, for instance, under Article 1456 of the Civil Code, 'if property is acquired
through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an
implied trust for the benefit of the person from whom the property comes.' In a number of cases
this Court has held that registration of property by one person in his name, whether by mistake or
fraud, the real owner being another person, impresses upon the title so acquired the character of
a constructive trust for the real owner, which would justify an action for reconveyance. Clearly,
therefore the petitioner herein, as the trustee of a constructive trust, has an obligation to convey to
the private respondents that part of the land in question to which she now claims an ostensible
title, said portion rightfully pertaining to the respondents' deceased mother as her share in the
conjugal partnership with Martin Lacerna.
4. ID.; SUCCESSION; SURVIVING SPOUSE CONCURRED WITH CHILDREN; CASE
AT BAR. — Both the Trial Court, in rendering the judgment in question, and the Intermediate
Appellate Court, in affirming the same, appear to have overlooked the fact that the surviving
spouse is the legal and compulsory heir of the deceased husband or wife; other wise, consistent
with the finding that the half portion of the land sued for pertained to the late Eustaquia Pichan as
her share in the conjugal partnership with Martin Lacerna, they should have ruled that Martin
Lacerna concurred with the three private respondents in the succession to said portion, each of
them taking an equal share. Unfortunately, said error is beyond review because Martin Lacerna
allowed the judgment to become final and executory without raising that point of law, even on
appeal.
5. REMEDIAL LAW; JUDGMENT; EXECUTION OF; WRIT MAY BE ENFORCED
AGAINST PETITIONER WHO WAS NOT IMPLEADED IN THE ACTION. — The question is
whether that obligation may be enforced by execution in the action at bar, which was brought and
prosecuted to judgment against Martin Lacernas only, without impleading the petitioner. Stated
otherwise, is petitioner bound by final judgment rendered in an action to which she was not made
a party? There are no clear precedents on the matter in our law. Reference to American law for
any persuasive ruling shows that even there the question seems to be an open one. In the
particular circumstances obtaining here, here, the Court can — as it does — in good conscience
and without doing violence to doctrine, adopt the affirmative view and hold the petitioner bound by
the judgment against Martin Lacerna, despite her not having in fact been impleaded in the action
against the latter. This ruling presumes that petitioner is, as she claims, the legal wife of Lacerna
though, as observed by the Intermediate Appellate Court, no marriage contract was presented by
Lacerna to prove his marriage to the petitioner either before or after the death of Eustaquia
Pichan. Indeed, it is clear land that the petitioner cannot assert any claim to the land other than by
virtue of her supposed marriage to Lacerna. As a mere mistress, she cannot pretend to any right
thereto. But whether the petitioner, is a lawful wife or a mere "live-in" partner, the Court simply
cannot believe that she never became aware of the litigation concerning the land until presented
with the writ of execution. What is far more probable and credible is that she has known of the
lawsuit since 1956 when Martin Lacerna "married" her. Her silence and inaction since then and
until barely a year ago bespeak, more than anything else, a confession that she had and has no
right to the land and no defense to offer to the action, either on her part or on the part of Martin
Lacerna. Had she even the semblance of a right, there is no doubt she would have lost no time
asserting it.
6. ID.; ID.; ID.; WRIT CANNOT VARY TERMS THEREFORE. — The writ of execution,
however, must be set aside, though not for the reasons urged in the petition. The judgment of the
respondent Trial Court which was affirmed by the Intermediate Appellate Court merely declared
the private respondent, entitled to one-half of the land in question, without specifically ordering
partition an delivery to them of said half portion. A writ of execution cannot vary the terms of the
judgment it is issued to satisfy, or afford relief different from, or not clearly included in, what is
awarded by said judgment. Even if the judgment in question is construable as authorizing or
 directing a partition of the land, the mechanics of an actual partition should follow the procedure
laid down in Rule 69 of the Rules of Court which does not contemplate or provide for the
intervention of the sheriff in the manner prescribed in the writ complained of.
7. CIVIL CODE; CONJUGAL PARTNERSHIP; PROPERTY NOT PRESUMED TO
BELONG TO CONJUGAL PARTNERSHIP; PHRASE "MARRIED TO EPIFANIA MAGALLON"
MERELY DESCRIPTIVE OF STATUS OF OWNER. — From the averments of the petition, it is
evident that the petitioner relies mainly, if not solely, on the facts that the certificate of title to the
land carries her name as the "wife" of the owner named therein, Martin Lacerna. As already
observed, such entry on the certificate of title has been established by evidence no longer
disputable as resulting from a mistake if, indeed, it was not procured through fraud. Moreover, on
the authority of Litam vs. Rivera and Stuart vs. Yatco, the phrase "married to Epifania Magallon"
written after the name of Martin Lacerna in said certificate of title is merely descriptive of the civil
status of Martin Lacerna, the registered owner, and does not necessarily prove that the land is,
"conjugal" property of Lacerna and petitioner herein. Neither can petitioner invoke the
presumption established in Article 160 of the Civil Code that property acquired during the
marriage belongs to the conjugal partnership, there being no proof of her alleged marriage to
Martin Lacerna except that which arises by implication from the aforestated entry in the certificate
of title and for the far more compelling reason that the homestead claim on the land was shown to
have been perfected during Martin Lacerna's marriage to Eustaqui Pichan, mother of the private
respondents. The ruling in Maramba vs. Lazano that the presumption does not operate where
there is no showing as to when property alleged to be conjugal was acquired applies with even
greater force here.

DECISION

NARVASA, J p:

The petition before this Court seeks the annulment of a writ of execution issued by the
respondent Judge in Civil Case No. 727 of her court (RTC Davao del Sur). Said case was
instituted by the plaintiffs (private respondents herein) against Martin Lacerna to compel partition
of parcel of land located in Barrio Kasuga, Municipality of Magsaysay, Davao del Sur, to which
said defendant had perfected a claim by homestead. The plaintiffs, claiming to be the common
children of Martin Lacerna and his wife, Eustaquia Pichan, who died in 1953, asserted a right to
one-half of the land as their mother's share in her conjugal partnership with Martin. While said
defendant denied having contracted marriage with Eustaquia Pichan — although he admitted
living with her without benefit of marriage until she allegedly abandoned him — as well as
paternity of two of the plaintiffs who, he claimed, were fathered by other men, the Trial Court gave
his denials no credence. Said Court, on the basis of the evidence presented to it, found that
Martin had in fact been married to Eustaquia, and that the plaintiffs were his children with her. The
Trial Court further found that Martin had begun working the homestead, and his right to a patent
to the land accrued, during his coverture with Eustaquia. On the basis of these findings, the
plaintiffs were declared entitled to the half of the land claimed by them. 1
 
Martin Lacerna appealed to the Intermediate Appellate Court (AC-G.R. No. 59900-R).
That Court affirmed, in a Decision promulgated on August 31, 1984 which has since become
final. 2
It appears that at the time the case was brought, and while it was being heard in the Trial
Court, no certificate of title to the land had yet been issued to Martin Lacerna, although he had
already complied with all the conditions necessary to a grant thereof. Original Certificate of Title
No. P-11568 (issued on the basis of Homestead Patent No. 148869) was issued only on
November 22, 1978, while Lacerna's appeal was pending in the Intermediate Appellate Court.
While it is not disputed that said certificate of title refers to the same land homesteaded by
Lacerna during his coverture with Eustaquia Pichan, for reasons to which the record before the
Court offers no clear clue, it states on its face that it is issued in the name of " . . . MARTIN
LACERNA, Filipino, of legal age, married to Epifania Magallon . . .," the latter being the present
petitioner. 3
It appears further that on November 26, 1985, after the confirmative Decision of the
Intermediate Appellate Court had become final and executory, the respondent Judge, on motion
of the plaintiffs issued an alias writ of execution commanding the Provincial Sheriff:
". . . to order the defendant Martin Lacerna to divide and partition the
property located at Casuga, Magsaysay, Davao del Sur, consisting of 10 hectares
designated as Lot No. 5098 Cad. No. 275 covered by H.A. No. 20-13378 (E-20-
12748), 1/2 of which is the share of Eustaquia Pichan in the conjugal property, and
plaintiffs being Pichan's children are also entitled thereto; and deliver portion of 5
hectares of the aforedescribed lot to the plaintiffs as their share to satisfy the said
judgment and your fees thereon." 4
Apparently, said writ was served on both Martin Lacerna and petitioner herein, for on
December 17, 1985, the latter filed with the Trial Court a "Motion for Intervention and to Stay
Execution" alleging that the land subject of the writ was conjugal property of herself and Martin
Lacerna under a certificate of title (OCT No. P-11568)" . . . issued way back 1978 (sic) without
legal impediments, and . . . now incontestable," as well as " . . . valid, binding and legal unless
declared otherwise in an independent proceedings, . . ." and praying that". . . the property of
herein intervenor be excluded from the enforcement of the writ of execution." 5 Said motion was
denied, as also was a motion for reconsideration of the order of denial. Hence, the present
petition.
The facts found by the lower courts which, in view of the finality of the latter's decisions,
are binding upon this Court and can no longer be controverted, as well as the pertinent
allegations of the petition, leave no doubt that the land in question, which rightfully pertained to
the conjugal partnership of Martin Lacerna and Eustaquia Pichan, the plaintiff's mother, and
should have been titled in the names of said spouses, was, through fraud or mistaken, registered
in the names of Martin Lacerna and petitioner herein, Epifania Magallon. In such a situation, the
property should be regarded as impressed with an implied, or a constructive, trust for the party
rightfully entitled thereto.
The Civil Code provides that:
"If property is acquired through mistake or fraud, the person obtaining it is,
by force of law, considered a trustee of an implied trust for the benefit of the person
from whom the property comes." 6
The provision restates one of the principles upon which the general law of trust is
founded, expressed in equity jurisprudence thus:
"A constructive trust is a creature of equity, defined supra (sec. 15) as a
remedial device by which the holder of legal title is held to be a trustee for the
benefit of another who in good conscience is entitled to the beneficial interest. So,
the doctrine of constructive trust is an instrument of equity for the maintenance of
justice, good faith, and good conscience, resting on a sound public policy requiring
that the law should not become the instrument of designing persons to be used for
the purpose of fraud. In this respect constructive trusts have been said to arise
through the application of the doctrine of equitable estoppel or under the broad
doctrine that equity regards and treats as done what in good conscience ought to
be done.
"xxx xxx xxx
"Where, through a mistake of fact, title to, and apparent ownership of,
property rightfully belonging to one person is obtained by another, a constructive
trust ordinarily arises in favor of the rightful owner of such property . . .
xxx xxx xxx
"It is a general principle that one who acquires land or other property by
fraud, misrepresentation, imposition, or concealment, or under any such other
circumstances as to render it inequitable for him to retain the property, is in equity
 to be regarded as a trustee ex maleficio thereof for a person who suffers by reason
of the fraud or other wrong, and is equitably entitled to the property, even though
such beneficiary may never have any legal estate therein. It is to be observed,
however, that in the absence of equitable considerations or a fiduciary relationship,
fraud alone, either actual or constructive, will not give rise to a trust, since, as has
been pointed out, if it were otherwise all persons claiming property under defective
titles would be trustee for the 'true' owners. 7
xxx xxx xxx"
"Under proper circumstances, mistake, although unconnected with fraud,
will warrant relief under the Code providing that one who gains a thing by fraud,
accident, mistake, undue influence, the violation of a trust, or other wrongful act is,
unless he has come better title thereto, an involuntary trustee of the thing gained,
for the benefit of the person who would otherwise have had it." 8
"As stated by Justice Cardozo, a constructive trust is the formula through
which the conscience of equity funds expression, and when property has been
acquired in such circumstances that the holder of the legal title may not in good
conscience retain the beneficial interest; equity converts him into a trustee." 9
In an early case in this jurisdiction, land of the plaintiff had, by mistake, been included in
the title of an adjoining owner who was afterwards sued by his creditors, the latter obtaining writs
of execution and procuring their annotation on said title. In an action by the plaintiff to enjoin the
sale of his property, annul the levies thereon and secure a new title without those encumbrances,
this Court affirmed judgment of the lower court in the plaintiff's favor, despite the fact that he had
done nothing to protect his interests in the land during a period of almost six years following the
issuance of the decree of registration in favor of the adjoining owner. The Court, noting that the
titular (ostensible) owner had never laid claim to the property mistakenly registered in his name
and that he had in fact acquiesced to judgment in a separate action declaring the plaintiff the real
owner of the property, refused to apply the one-year limitation period for disputing the title and
held that in the circumstances, the former merely held title to the property in trust for the
plaintiff. 10
In Bueno vs. Reyes, 11 where property belonging to an ancestor of whom plaintiffs'
parents were the intestate heirs was, though mistake or in bad faith, registered in cadastral
proceedings in the name of other parties who had no right thereto, this Court reaffirmed the
principles already cited, holding that:
"If any trust can be deduced at all from the foregoing facts it was an implied
one, arising by operation of law not from any presumed intention of the parties but
to satisfy the demands of justice and equity and as a protection against unfair
dealing or downright fraud. Indeed, in this kind of implied trust, commonly
denominated constructive, as distinguished from resulting, trust, there exists a
certain antagonism between the cestui que trust and the trustee. Thus, for instance,
under Article 1456 of the Civil Code, 'if property is acquired through mistake or
fraud, the person obtaining it is, by force of law, considered a trustee of an implied
trust for the benefit of the person from whom the property comes.' In a number of
cases this Court has held that registration of property by one person in his name,
whether by mistake or fraud, the real owner being another person, impresses upon
the title so acquired the character of a constructive trust for the real owner, which
would justify an action for reconveyance." 12
Clearly, therefore, the petitioner herein, as the trustee of a constructive trust, has an
obligation to convey to the private respondents that part of the land in question to which she now
claims an ostensible title, said portion rightfully pertaining to the respondents' deceased mother as
her share in the conjugal partnership with Martin Lacerna.
The question is whether that obligation may be enforced by execution in the action at bar,
which was brought and prosecuted to judgment against Martin Lacerna only, without impleading
the petitioner. 13 Stated otherwise, is petitioner bound by final judgment rendered in an action to
which she was not made a party?
 There are no clear precedents on the matter in our law. Reference to American law for
any persuasive ruling shows that even there the question seems to be an open one.
"The authorities are in conflict as to whether a wife, not a party to an action
is bound by a judgment therein for or against her husband with respect to
community or homestead property or property held as an estate in entirety.
xxx xxx xxx
Community property. It has been held that a judgment against the husband
in an action involving community property, is conclusive on the wife even if she is
not a party, but it has also been held a judgment against either husband or wife with
respect to community property in an action to which the other spouse is not a party
does not prevent the other spouse from subsequently having his or her day in court,
although, of course, a judgment against both husband and wife is binding on both.
xxx xxx xxx
Estate by entirety. It has been both affirmed and denied that a wife is in
such privity with her husband in respect of property held by them as an estate in
entirety that a judgment for or against him respecting such property in a suit to
which she is not a party is binding on her.
Homestead. A judgment affecting a homestead is, according to some
authorities, not binding on a spouse who is not a party to the action in which it is
rendered, unless the homestead is community property or the homestead claim or
interest would not defeat the action; but, according to other authorities, where the
husband sets up and litigates a claim for the homestead, an adjudication for or
against him is binding on the wife." 14
"As to her community interest in real property, a wife is in privity with her
husband and is represented by him in an action as fully as though she had
expressly been made a party thereto. Cutting vs. Bryan, 274 P. 326, 206 Cal. 254,
certiorari denied 50 S. Ct. 16, 280 U.S. 556, 74 L. Ed. 611." 15
In the particular circumstances obtaining here, the Court can — as it does — in good
conscience and without doing violence to doctrine, adopt the affirmative view and hold the
petitioner bound by the judgment against Martin Lacerna, despite her not having in fact been
impleaded in the action against the latter. This ruling presumes that petitioner is, as she claims,
the legal wife of Lacerna though, as observed by the Intermediate Appellate Court, no marriage
contract was presented by Lacerna to prove his marriage to the petitioner either before or after
the death of Eustaquia Pichan. Indeed, it is clear that the petitioner cannot assert any claim to the
land other than by virtue of her supposed marriage to Lacerna. As a mere mistress, she cannot
pretend to any right thereto.
But whether the petitioner is a lawful wife or a mere "live-in" partner, the Court simply
cannot believe that she never became aware of the litigation concerning the land until presented
with the writ of execution. What is far more probable and credible is that she has known of the
lawsuit since 1956 when Martin Lacerna "married" her. 16 Her silence and inaction since then and
until barely a year ago bespeak, more than anything else, a confession that she had and has no
right to the land and no defense to offer to the action, either on her part or on the part of Martin
Lacerna. Had she even the semblance of a right, there is no doubt she would have lost no time
asserting it.
From the averments of the petition, it is evident that the petitioner relies mainly, if not
solely, on the fact that the certificate of title to the land carries her name as the "wife" of the owner
named therein, Martin Lacerna. As a]ready observed, such entry on the certificate of title has
been established by evidence no longer disputable as resulting from a mistake if, indeed, it was
not procured through fraud. Moreover, on the authority of Litam vs. Rivera 17 and Stuart vs.
Yatco, 18 the phrase "married to Epifania Magallon" written after the name of Martin Lacerna in
said certificate of title is merely, descriptive of the civil status of Martin Lacerna, the registered
owner, and does not necessarily prove that the land is "conjugal" property of Lacerna and
petitioner herein. Neither can petitioner invoke the presumption established in Article 160 of the
Civil Code that property acquired during the marriage belongs to the conjugal partnership, there
 being no proof of her alleged marriage to Martin Lacerna except that which arises by implication
from the aforestated entry in the certificate of title and for the far more compelling reason that the
homestead claim on the land was shown to have been perfected during Martin Lacerna's
marriage to Eustaquia Pichan, mother of the private respondents. The ruling in Maramba vs.
Lozano 19 that the presumption does not operate where there is no showing as to when property
alleged to be conjugal was acquired applies with even greater force here.
The writ of execution, however, must be set aside, though not for the reasons urged in the
petition. The judgment of the respondent Trial Court which was affirmed by the Intermediate
Appellate Court merely declared the private respondents entitled to one-half of the land in
question, without specifically ordering partition and delivery to them of said half portion. A writ of
execution cannot vary the terms of the judgment it is issued to satisfy, or afford relief different
from, or not clearly included in, what is awarded by said judgment. Even if the judgment in
question is construable as authorizing or directing a partition of the land, the mechanics of an
actual partition should follow the procedure laid down in Rule 69 of the Rules of Court which does
not contemplate or provide for the intervention of the sheriff in the manner prescribed in the writ
complained of.
Both the Trial Court, in rendering the judgment in question, and the Intermediate
Appellate Court, in affirming the same, appear to have overlooked the fact that the surviving
spouse is the legal and compulsory heir of the deceased husband or wife; otherwise, consistent
with the finding that the half portion of the land sued for pertained to the late Eustaquia Pichan as
her share in the conjugal partnership with Martin Lacerna, they should have ruled that Martin
Lacerna concurred with the three private respondents in the succession to said portion, each of
them taking an equal share. 20 Unfortunately, said error is beyond review because Martin
Lacerna allowed the judgment to become final and executory without raising that point of law,
even on appeal.
WHEREFORE, the writ of execution complained of is set aside and annulled. Instead of
enforcing said writ, the respondent Trial Court is ordered to effect the partition of the land in
question in accordance with the terms of its now final and executory decision and the provisions
of Rule 69 of the Rules of Court. No pronouncement as to costs in this instance.
SO ORDERED.
Yap, Melencio-Herrera, Cruz and Feliciano, JJ ., concur.

 
 
 
|||  (Magallon v. Montejo, G.R. No. 73733, [December 16, 1986], 230 PHIL 366-379)
 FIRST DIVISION

[G.R. No. 48137. October 4, 1943.]

In re testate estate of NARCISO A. PADILLA. CONCEPCION

PATERNO VDA. DE PADILLA,  widow-appellee, vs. ISABEL
BIBBY  VDA. DE  PADILLA, executrix-appellant.

SYLLABUS

1. CONJUGAL PARTNERSHIP, LIQUIDATION OF; TORRENS TITLE ISSUED IN THE

NAMES OF BOTH SPOUSES. — There is nothing sacrosanct and definitive in the certificate of
title when the conjugal partnership is liquidated. The true and real owner may be shown —
whether it be the husband, or the wife, or both.
2. ID.; ID. — An exception should in no wise be made when the property is registered in
the names of both spouses. In such instances, the property may be shown to be really of either
spouse, though recorded in the names of both. The underlying reason is the same in all cases,
which is the confidential relation between husband and wife. Because of the feelings of trust
existing between the spouses, certificates of title are often secured in the name of both, or of
either, regardless of the true ownership of the property, and regardless of the source of the
purchase money. It is thus but fair that on liquidation of the partnership, the trust should be
recognized and enforced, so that the real ownership of the property may be established. The
principle that a trustee who takes a Torrens title in his name cannot repudiate the trust by relying
on the registration, is one of the well-known limitations upon the finality of a decree of title. (See
Severino vs. Severino, 44 Phil., 343.) It is because a certificate of title under the Torrens system
should not be turned into an instrument for deprivation of ownership. The Torrens plan, created to
protect dominion, is not a Frankenstein that destroys this very dominion. A trust, deriving its
strength from confidence, which runs through with the woof and warp of the social fabric, does not
lose that character on the plea that a Torrens certificate of title is conclusive. It is meet and
seemly that this should be so, for any rule that permits the violation of a fiduciary duty would be a
reproach to any legal system. These observations apply with peculiar force to the relations
between husband and wife. In a normal marriage, the spouses trust each other so implicitly that
they attach little or no importance to what appears in legal documents, fully and unreservedly
believing that no technicality would be availed of to claim what in very truth pertains to one or the
other. Things would indeed come to a sorry pass if the jurisprudence of this country should harbor
any theory which would impair this intimate reliance, this unquestioning loyalty, this befitting faith
between husband and wife.
3. ID.; ID.; EVIDENCE OF NATURE OF ANY PROPERTY AS PARAPHERNAL
ALLOWED. — The manager of the conjugal partnership is the husband. He may, without let or
hindrance, deal with and dispose of any property appearing in the names of both spouses, even if
the property should really be paraphernal. In the course of years, any such property may have
been sold, transformed or substituted. Upon liquidation of the conjugal partnership, to forbid an
investigation of the true source of the purchase price of the original property, after many years of
marriage, would make liquidation a mockery, for it would be well nigh impossible to trace and
identify the paraphernal property. The law positively ordains that the wife's property (dowry and
paraphernal) should be returned, even before the payment of the debts of the conjugal
partnership (arts. 1421 and 1422, Civil Code). But how can this mandate of the law be complied
with when the means to that end are withheld and forbidden?
 4. ID.; ID.; VALUE OF PARAPHERNAL LAND TO BE REIMBURSED AT
CONSTRUCTION OF BUILDING OR LIQUIDATION, ARTICLE 1404, PARAGRAPH 2, CIVIL
CODE, INTERPRETED. — The ownership of the land is retained by the wife until she is paid the
value of the lot, as a result of the liquidation of the conjugal partnership. The mere construction of
a building from common funds does not automatically convey the ownership of the wife's land to
the conjugal partnership. Such a mode of using the land, namely, by erecting a building thereon,
is simply an exercise of the right of usufruct pertaining to the conjugal partnership over the wife's
land. As Manresa says, "la sociedad de gananciales es realmente la usufructuaria de los bienes
privativos de cada conyuge." (Comment on art. 1404.) In consequence of this usufructuary right,
the conjugal partnership is not bound to pay any rent during the occupation of the wife's land
because if the lot were leased to a third person, instead of being occupied by the new
construction from partnership funds, the rent from the third person would belong to the conjugal
partnership. Therefore, before payment of the value of the land is made from common funds,
inasmuch as the owner of the land is the wife, all the increase or decrease in its value must be for
her benefit or loss. And when may she demand payment? Not until the liquidation of the conjugal
partnership because up to that time, it is neither necessary nor appropriate to transfer to the
partnership the dominion over the land, which is lawfully held in usufruct by the conjugal
partnership during the marriage.
5. ID.; ID.; REIMBURSEMENT OF VALUE OF PARAPHERNAL BUILDING
DEMOLISHED FOR CONSTRUCTION OF NEW ONES. — The conjugal partnership derived a
positive advantage from the demolition, which made it possible to erect new constructions for the
partnership. It is but just, therefore, that the value of the old buildings at the time they were torn
down should be paid to the wife.
6. ID.; PERSONAL OBLIGATIONS OF HUSBAND. — When practically all of the conjugal
partnership assets have been derived from the fruits of the wife's exclusive property, the personal
obligations of the husband should be charged against him and not against the fruits of the
paraphernal property, unless it is proved that such expenses redounded to the benefit of the
family.

DECISION

BOCOBO,  J p:

This case is an incident of the settlement of the testate estate of the late Narciso
A. Padilla. In order that his property may be divided according to his last will and testament, it is
necessary first to liquidate the conjugal partnership. It was in connection with such liquidation that
the widow, Concepcion Paterno Vda. de Padilla, commenced the instant proceedings by filing a
petition wherein she prayed, inter alia, that her paraphernal property be segregated from the
inventoried estate and delivered to her together with the corresponding reimbursements and
indemnities; that she be given one- half of the conjugal partnership property; and that her
usufructuary right over one-half of the portion pertaining to the heir instituted in the will be
recognized. The Court of First Instance of Manila rendered judgment declaring certain pieces of
real estate and jewelry as well as certain sums of money to be paraphernal, and ordering the
same to be delivered to the widow (appellee herein). The trial court's judgment, as amended,
reads:
"En vista de los hechos y consideraciones que preceden, el Juzgado dicta
sentencia y declara:
"(a) Que todos los bienes que constan en el inventario, y sobre los cuales
no se ha suscitado controversia por las partes, son bienes gananciales;
"(b) Que se nombran tres (3) Comisionados, uno a recomendacion de la
heredera instituida en el testamento, otro a recomendacion de Da. Concepcion
Paterno Vda. de Padilla, y el tercero por el Juzgado, para que se hagan
cargo de avaluar las fincas o partes de fincas que se deben
justipreciar de conformidad con las conclusiones sentadas en esta decision hagan
 las computaciones correspondientes a fin de determinar el remanente liquido de la
sociedad de gananciales, tomando por base los precios calculados y avaluados
sobre dichos bienes, y dividan por mitad el remanente liquido entre Da.
Concepcion Paterno Vda. de Padilla, y la heredera testamentaria Da. Isabel
Bibby Vda. de Padilla, especificando los bienes que a cada una debe
corresponder;
"(c) Que pagadas todas las deudas de la sociedad de gananciales, dichos
comisionados procederan a dividir en tres partes los bienes que deben
corresponder al difunto, a fin de que las dos terceras partes sean adjudicadas a la
heredera testamentaria en pleno dominio, y la otra tercera parte en nuda propiedad
a la misma heredera testamentaria y en usufructo a la viuda Concepcion Paterno
mientras ella viva.
"(d) Que los gastos en que incurra esta Testamentaria por los
servicios de los Comisionados se paguen por ambas partes, por mitad."
From the foregoing judgment the testator's mother and instituted heir, Isabel
Bibby Vda. de Padilla, appeals.
I
The value in controversy being over P50,000, we have reviewed the evidence. After a
careful examination of the oral and documentary proof, we find no error in the findings of fact
made by the trial court. From the evidence it appears that Narciso A. Padilla and Concepcion
Paterno were married on December 12, 1912. The husband, who was a medical student,
contributed a small capital to the conjugal partnership at the time of the marriage. The wife, on the
other hand, brought to the marriage considerable property in real estate, jewelry and cash.
Practically all of the conjugal partnership property came from the fruits of the paraphernal
property. The conjugal partnership lasted twenty-one years, the husband having died on February
12, 1934. (The wife also died recently, during the pendency of this appeal, but in this decision she
is referred to as if still living.) The common fortune, consisting of real and personal property, is
fairly large. The husband, who left no children, executed a will giving his whole estate to his
mother, Isabel Bibby Vda. de Padilla, appellant herein. The property included in the inventory is
appraised at P261,000. Seven pieces of real estate are in controversy in this case. The remaining
ten real properties left by the deceased husband admittedly pertain to the conjugal partnership.
A thorough study of the evidence convinces us that the trial court was right in finding that
the following properties in Manila are paraphernal: (1) the lot at 305 Arquiza Street and the
demolished improvements; (2) the lot at 1393-1409 Juan Luna Street and the improvements that
had been torn down; (3) the lot and improvements (except the building constructed during the
marriage for P4,000) at 401-407 Camba Street; (4) the lot at 613-631 and 634-636 Martin
Ocampo Street, with the original "accesorias" and a camarin which was destroyed in order that
new "accesorias" might be constructed, these new "accesorias" being of the conjugal partnership;
(5) the property at 620-A-H Callejon De la Fe; (6) one-half of the property at 631 Regidor Street;
and (7) nine twenty-ninths (9/29) of the property at 302-306 R. Hidalgo Street.
We also agree with the finding of the lower court that certain jewels, namely: two pairs of
ear-rings, a bracelet, and a gold watch, belong to the widow.
In like manner, we see no error in the following findings of the trial court: (1) that the
husband borrowed P7,000 from the wife to meet his personal obligations; and (2) that the amount
of P21,046.52 (the remainder of P66,046.52) received by the wife during the marriage was
commingled with the conjugal partnership funds.
II
Several questions of law are raised in the present appeal. We shall discuss them one by
one.
1. The first legal controversy is on a sort of no-man's land where many a legal battle has
been fought. The issue is, How far is a Torrens title conclusive and incontestable? Various
manifestations of this legal question have been decided by the courts, and while certain of its
aspects may still be doubtful, we are persuaded, however, that there can be no doubt, as will
presently be shown, that what appears in the Torrens certificates in this case is neither final nor
incontrovertible.
 Appellant contends that because certain of these real estates (on Camba, Martin Ocampo
and Regidor Streets) have been registered in the names of both spouses, Narciso Padilla and
Concepcion Paterno de Padilla, and considering the presumption in Art. 1407 of the Civil Code,
these properties must be held to be of the conjugal partnership. The trial court, however, found
that the whole purchase price of the Camba and Martin Ocampo properties, and one-half of the
purchase price of the Regidor property, were from the wife's exclusive funds, and therefore the
whole of the original Camba and Ocampo estates and one- half of the Regidor realty must be
adjudged paraphernal, in spite of the fact that the certificates of title are in the names of both
spouses.
There is nothing sacrosanct and definitive in the certificate of title when the conjugal
partnership is liquidated. The true and real owner may be shown — whether it be the husband, or
the wife, or both. Thus, in Flores vs. Flores, 48 Phil. 288, this Court held that property acquired
during the marriage but registered in the husband's name still belonged to the conjugal
partnership. A similar ruling was announced when the real estate was registered in the wife's
name. Romero vs. Sheriff, 53 Phil., 51. But the appellant maintains that the converse is not true;
and that even if evidence is admissible to alter the conjugal character of the property, such
evidence must be clear, strong and convincing (citing Art. 1407, Civil Code, and Ahern vs. Julian,
39 Phil., 607).
We are of the opinion that an exception should in no wise be made when the property is
registered in the names of both spouses. In such instances, the property may be shown to be
really of either spouse, though recorded in the names of both. The underlying reason is the same
in all cases, which is the confidential relation between husband and wife. Because of the feelings
of trust existing between the spouses, certificates of title are often secured in the name of both, or
of either, regardless of the true ownership of the property, and regardless of the source of the
purchase money. It is thus but fair that on liquidation of the partnership, the trust should be
recognized and enforced, so that the real ownership of the property may be established. The
principle that a trustee who takes a Torrens title in his name cannot repudiate the trust by relying
on the registration, is one of the well-known limitations upon the finality of a decree of title.
(See Severino vs. Severino, 44 Phil., 343). It is because a certificate of title under the Torrens
system should not be turned into an instrument for deprivation of ownership. The Torrens plan,
created to protect dominion, is not a Frankenstein that destroys this very dominion. A trust,
deriving its strength from confidence, which runs through with the woof and warp of the social
fabric, does not lose that character on the plea that a Torrens certificate of title is conclusive. It is
meet and seemly that this should be so, for any rule that permits the violation of a fiduciary duty
would be a reproach to any legal system. These observations apply with peculiar force to the
relations between husband and wife. In a normal marriage, the spouses trust each other so
implicitly that they attach little or no importance to what appears in legal documents, fully and
unreservedly believing that no technicality would be availed of to claim what in very truth pertains
to one or the other. Things would indeed come to a sorry pass if the jurisprudence of this country
should harbor any theory which would impair this intimate reliance, this unquestioning loyalty, this
befitting faith between husband and wife.
There is another reason why evidence of the nature of any property as paraphernal
should be allowed, despite the Torrens certificate. It is this: the manager of the conjugal
partnership is the husband. He may, without let or hindrance, deal with and dispose of any
property appearing in the names of both spouses, even if the property should really be
paraphernal. In the course of years, any such property may have been sold, transformed or
substituted. Upon liquidation of the conjugal partnership, to forbid an investigation of the true
source of the purchase price of the original property, after many years of marriage, would make
liquidation a mockery, for it would be well nigh impossible to trace and identify the paraphernal
property. The law positively ordains that the wife's property (dowry and paraphernal) should be
returned, even before the payment of the debts of the conjugal partnership (Arts. 1421 and 1422,
Civil Code). But how can this mandate of the law be complied with when the means to that end
are withheld and forbidden?
As for the appellant's proposition that the evidence to rebut the Torrens certificates and
the legal presumption in favor of the conjugal partnership (Art. 1407) should be clear, strong and
convincing, we find that the proof, both oral and documentary, in the record is more than sufficient
to offset and counteract the certificates of title and the presumption of law.
 2. The second legal inquiry is the interpretation of Article 1404, par. 2, Civil Code:
whether the value of the paraphernal land to be reimbursed to the wife is that obtaining at the time
of the construction of the building, or the value at the time of the liquidation of the conjugal
partnership. With conjugal funds the husband constructed buildings on the wife's lots on Arquiza,
Juan Luna, Camba and Martin Ocampo streets. The court a quo ordered that the value of the lots
occupied by these constructions, to be paid to the widow, should be that prevailing at the time of
the liquidation of the conjugal partnership.
Appellant claims such pronouncement of the trial court to be erroneous because from the
time of the construction of the buildings, the conjugal partnership became the owner of the whole
property (lot and building) in each instance, and therefore the subsequent increase in value
should accrue to the conjugal partnership, and any depreciation should be suffered by the
partnership.
Article 1404, Civil Code, provides:
"Las expensas utiles hechas en los bienes peculiares de cualquiera de los
conyuges mediante anticipanciones de la sociedad o por la industria del marido
o de la mujer, son gananciales.
"Lo seran tambien los edificios construidos durante el matrimonio en suelo
propio de uno de los conyuges, abonandose el valor del suelo al conyuge a quien
pertenezca."
Appellant's theory is untenable. The ownership of the land is retained by the wife until she
is paid the value of the lot, as a result of the liquidation of the conjugal partnership. The mere
construction of a building from common funds does not automatically convey the ownership of the
wife's land to the conjugal partnership. Such a mode of using the land, namely, by erecting a
building thereon, is simply an exercise of the right of usufruct pertaining to the conjugal
partnership over the wife's land. As Manresa says, "la sociedad de gananciales es realmente la
usufructuaria de los bienes privativos de cada conyuge." (Comment on Art. 1408.) In
consequence of this usufructuary right, the conjugal partnership is not bound to pay any rent
during the occupation of the wife's land because if the lot were leased to a third person, instead of
being occupied by the new construction from partnership funds, the rent from the third person
would belong to the conjugal partnership. Therefore, before payment of the value of the land is
made from the common funds, inasmuch as the owner of the land is the wife, all the increase or
decrease in its value must be for her benefit or loss. And when may she demand payment? Not
until the liquidation of the conjugal partnership because up to that time, it is neither necessary nor
appropriate to transfer to the partnership the dominion over the land, which is lawfully held in
usufruct by the conjugal partnership during the marriage.
The foregoing finds support, by analogy, in Article 361, Civil Code, which reads:
"Art. 361. El dueño del terreno en que se edificare, sembrare o
plantare de buena fe, tendra derecho a hacer suya la obra, siembra o
plantacion, previa la indemnizacion establecida en los arts. 453 y 454, o a obligar
al que fabrico o planto a pagarle el precio del terreno, y al que sembro, la renta
correspondiente." (Italics supplied.)
In the instant case, no reimbursement for the value of the lots was made from the
common funds during the marriage.
Moreover, Sanchez Roman declares:
"Los derechos  de la mujer en la sociedad legal de gananciales se remiten
todos a la epoca de su disolucion y liquidacion, cuando se trata de la existencia
normal de la sociedad legal de gananciales." (Italics supplied.)
And Manresa states:
"El valor fijado a los bienes debe ser el que realmente tengan el
dia de la disolucion de la sociedad, con las necesarias aclaraciones, para conocer
lo que pueda tener caracter propio o ganancial." (Italics supplied).
Furthermore, the wife should not be allowed to demand payment of the lot during the
marriage and before liquidation because this would unduly disturb the husband's management of
the conjugal partnership. The scheme of the Civil Code is that in the interest of successful
administration of the common property, the wife should not interfere with the husband's way of
directing the affairs of the partnership. Besides, such premature requirement of the value of the
land by the wife may dissuade the husband from making improvements, whereas article 1404,
par. 2, has for its purpose the encouragement of construction by the husband. (Manresa's
comment on Art. 1404.) On the other hand, if the payment for the lot is deferred till the liquidation
of the conjugal partnership, the initial outlay for the erection of the building would be less, and
consequently the construction would be facilitated.
3. The next question of law is whether the value of the paraphernal buildings which were
demolished to make possible the construction of new ones, at the expense of the conjugal
partnership, should be reimbursed to the wife. Such tearing down of buildings was done with
regard to the Arquiza, Juan Luna and Martin Ocampo properties. Appellant maintains that it is
doubtful if these buildings had any value at the time they were destroyed, and that there is no
evidence that the conjugal partnership realized any benefit therefrom. However, we are certain
these old buildings had some value, though small, and it will be the duty of the commissioners
mentioned in the judgment appealed from, to assess that value. We entertain no manner of doubt
that the conjugal partnership derived a positive advantage from the demolition, which made it
possible to erect new constructions for the partnership. It is but just, therefore, that the value of
the old buildings at the time they were torn down should be paid to the wife. We dismiss, as
without any merit whatever, the appellant's contention that because article 1404, par. 2, of the
Civil Code does not provide for the reimbursement of the value of demolished improvements, the
wife should not be indemnified. Suffice it to mention the ancient maxim of the Roman law, "Jure
naturae aequum est, meminem cum alterius detrimento et injuria fieri locupletiorem" which was
restated by the Partidas in these terms: "Ninguno non deue enriquecerse tortizeramente con
daño de otro." When the statutes are silent or ambiguous, this is one of those fundamental
principles which the courts invoke in order to arrive at a solution that would respond to the
vehement urge of conscience.
4. Then, there is the total amount of P7,000 borrowed by the husband from the wife, thus
itemized: (1) P3,000 lost in horse-races and in poker; (2) P3,000 spent for pastime ("diversion");
and (3) P1,000 to pay a personal debt of the husband. The trial court applied article 1386 of the
Civil Code, and ordered that said amount of P7,000 be deducted from the husband's share. But
appellant's theory is that articles 1408 (par. 1) and 1411 should govern, so that the amount is
chargeable against the conjugal partnership. These provisions read thus:
"Art. 1386. Las obligaciones personales del marido no podran hacerse
efectivas sobre los frutos de los bienes parafernales, a menos que se pruebe que
redundaron en provecho de la familia."
"Art. 1408. Seran de cargo de la sociedad de gananciales:
"1.o. Todas las deudas y obligaciones contraidas durante el matrimonio por
el marido, y tabien las que contrajere la mujer en los casos en que pueda
legalmente obligar a la sociedad . . ."
"Art. 1411. Lo perdido y pagado durante el matrimonio por alguno de los
conyuges en cualquier clase de juego, no disminuira su parte respectiva de los
gananciales . . ."
It is true that article 1385 ordains that the fruits of the paraphernal property form part of
the conjugal partnership and are subject to the payment of the charges against the marriage. But
as Manresa says, article 1386 contains a limitation on the first part (just cited) of article 1385.
It is likewise true that under article 1408, par. 1, all debts and obligations contracted by
the husband during the marriage are chargeable against the conjugal partnership, but article 1386
is an exception to the rule, and exempts the fruits of the paraphernal property from the payment of
the personal obligations of the husband, unless there is proof that they redounded to the benefit
of the family. It is self-evident that the amounts in question did not benefit the family. Hence, they
cannot be charged against the fruits of the paraphernal property. They should be paid from the
husband's funds. We quote from Manresa's comment on article 1386:
"No hay, desde luego, contradiccion entre los preceptos de los articulos
1408 y 1386; hay solo una regla general contenida en aquel, y una excepcion
contenida en este. El articulo 1386, como especial, modifica la regla, y
ha de aplicarse siempre que las obligaciones personales contraidas por el marido
quieren hacerse efectivas en frutos o rentas de los bienes parafernales de la mujer.
 "La frase 'obligaciones personales', se reduce a deudas u obligaciones
contraidas privativamente por el marido, deudas y obligaciones que son desde
luego propiamente personales o no reales, pues si se reclamase contra bienes o
derechos especial y legalmente efectos al cumplimiento de la obligacion, no podria
haber inconveniente para que esta se hiciese efectiva. Por lo demas, el espiritu del
precepto es que el marido no puede aprovecharse en interes proprio o para
atenciones privativas o personales suyas, de los frutos de los bienes parafernales;
que estos se destinen a las verdaderas necesidades y cargas de la sociedad
conyugal, y, por tanto, se empleen, como deben, en beneficio de la familia."
Valverde in his "Tratado de Derecho Civil Español," Vol. 4, pp. 347-348, says:
"Consecuencia natural de esta
especie de separacion de responsabilidades y de patrimonios, es que el Codigo
ordene que 'las obligaciones personales del marido no podran hacerse efectivas
sobre los frutos de los bienes parafernales, a menos que se pruebe que
redundaron en provecho de la familia'. En efecto, el marido, como
administrador de la sociedad legal, obliga a esta con sus actos, y por eso los
gananciales responden de las deudas y obligaciones contraidas por el marido
durante el matrimonio, presumiendose hechos en interes de la sociedad, a no ser
que se pruebe lo contrario, pero como caso de  excepcion, si los gananciales son
frutos de bienes parafernales, entonces, para que respondan tales frutos de las
obligaciones del marido, es preciso que pruebe este que las dichas obligaciones
redundaron en provecho de la familia, pues por el precepto del codigo, si los
frutos  de los parafernales son gananciales, cuando de  las deudas del marido se
trata, solo son responsables esos frutos en el caso que se demuestre que
redundaron en provecho de  aquella." (Italics supplied.)
Oyuelos, in his work, "Digesto: Principios, Doctrina y Jurisprudencia Referentes al Codigo
Civil Español" (Vol. 6, pp. 79- 80), has this to say:
"(c) Fundamento de  la exencion  de los frutos. — El articulo 1386 es un
complemento de los articulos 1385, 1408, 1413, 1417, 1433 y 1434, y se inspira en
los mismos principios economicos de la familia, porque si los frutos de los
parafernales forman parte de la sociedad conyugal, que subsiste mientras no se
disuelva el matrimonio o se decrete la separacion de bienes, y si a cargo de la
misma corre el sostenimiento de la familia, la educacion de los hijos y las deudas
que el marido contraiga como jefe de ella, es logico concluir, sobre todo teniendo
presente el articulo 1385, que aun prescindiendo del texto claro y terminante del
articulo 1386, las responsabilidades del marido en tanto puedan hacerse efectivas
con los productos de dichos bienes en cuanto se hubiesen contraido en
provecho de la familia; no existiendo contradiccion entre los articulos 1386 y 1408,
numero 1.0 (alegada en el concepto de que el articulo 1386 no puede aplicarse al
caso de subsistencia del matrimonio), por cuanto la esfera de actuacion del 1386
no se contrae al estado de derecho consiguiente a la separacion de bienes de los
respectivos esposos."
Is the amount under consideration, P7,000, being enforced against the fruits of the
paraphernal property? Yes, because practically all of the conjugal partnership assets have been
derived from the fruits of the wife's exclusive property.
In the case of Fidelity and Surety Co. vs. Ansaldo, 37 Off. Gaz., 1164, (promulgated
November 26, 1938), this Court held:
Article 1386 of the Civil Code provides that the personal obligations of the husband may
not be paid out of the fruits of the paraphernal property, unless it be proved that such obligations
redounded to the benefit of the family. If, as contended by the appellant, the properties levied
upon in Civil Case No. 33923 of the Court of First Instance of Manila, entitled 'Fidelity & Surety
Company of the Philippine Islands vs. Romarico Agcaoili and Angel A. Ansaldo' were acquired
with the fruits of the paraphernal properties belonging to Margarita Quintos, said properties,
although conjugal (art. 1385, par. 1 and art. 1408, Civil Code; Mirasol vs. Lim, 59 Phil., 701, 709)
are not liable for the personal obligations of the husband, unless said obligations redounded to
the benefit of the family. Paragraph 1 of article 1408 of the Civil Code makes all debts and
obligations contracted during the marriage by the husband chargeable against the conjugal
partnership, as a general rule. Article 1386, however, lays down an exception to the general rule,
that is to say, although the fruits of the paraphernal property of the wife are conjugal, they do not
respond for the personal obligations of the latter unless said obligations have redounded to the
benefit of the family."
In the sentence of January 15, 1917, of the Supreme Tribunal of Spain, the following
doctrine is enunciated:
"Considerando a mayor abundamiento que si bien en orden al regimen
familiar y conforme a la doctrina legal establecida por el Tribunal Supremo,
interpretando el art. 1385 del expresado Codigo, al marido incumbe
exclusivamente la administracion de los frutos de los bienes parafernales como
parte del haber de la sociedad conyugal, esta potestad esta condicionada y
regulada por el 1386, al prohibir al esposo el aprovechamiento de tales
rendimientos en beneficio propio o sea de sus obligaciones
personales, imponiendole por modo expreso, el deber de  aplicarlos al
levantamiento de  las cargas matrimoniales, pues  de otra forma se
desnaturalizaria la reserva y privilegio que constituye el concepto del patrimonia
parafernal, con riesgo de infringir la disposicion legal que precede invocada."
(Italics supplied.)
In the instant case, it is quite plain that if the amount of P7,000.00 under review should be
charged against the conjugal partnership property which came almost exclusively from the fruits
of the paraphernal property, the reservation and privilege established by law on behalf of the
paraphernal patrimony would be encroached upon and tempered with.
There are just and sound reasons for article 1386. The wife contributes the fruits,
interests, and rents of her paraphernal property to help bear the expenses of the family. When the
husband contracts any debt in his own name, it is chargeable against the conjugal partnership as
a general rule (article 1408, par. 1) because it is presumed that the debt is beneficial to the family.
But when such a debt is enforced against the fruits of the paraphernal property, such a
presumption no longer applies, considering article 1386. On the contrary, it must be proved that
the purpose for which the wife contributes the fruits of her paraphernal property has been
accomplished through such personal debt of the husband.
Appellant relies on article 1411 which reads:
"Lo perdido y pagado durante el matrimonio por alguno de los conyuges en
cualquier clase de juego, no disminuira su parte respectiva de los gananciales.
"Lo perdido y no pagado por alguno de los conyuges en juego licito, sera a
cargo de la sociedad de gananciales."
But this provision should be applied only when the debt is not being charged against the fruits of
the paraphernal property. If the conjugal partnership assets are derived almost entirely, if not
entirely, from the fruits of the paraphernal property, as in this case, it is neither lawful nor
equitable to apply article 1411 because by so doing, the fruits of the paraphernal property would
in reality be the only kind of property to bear the husband's gambling losses. In other words, what
the husband loses in gambling should be shouldered by him and not by the conjugal partnership if
the latter's assets come solely from the fruits of the paraphernal property. This is but just, because
gambling losses of the husband cannot by any process of reasoning be considered beneficial to
the family. By the same token, to charge the gambling losses against the conjugal partnership in
such a situation would fly in the case of the stern prohibition of article 1386, which protects the
fruits of the paraphernal property precisely against expenses of the husband that are of no help to
the family.
We are satisfied that the foregoing is by and large a fair and rational interpretation of
articles 1408 and 1411, which must be read in the light of article 1386. If such a qualification of
articles 1408 and 1411 is not made, article 1386 becomes nugatory.
5. The next question is whether interest should be paid by the widow on the amount of
P9,229.48 withdrawn by her from the Monte de Piedad savings account No. 3317 of the conjugal
partnership. There is no question that the principal should be credited to the partnership as the
appellee's counsel does not dispute this point. The withdrawal of said amount was made on April
7, 1934, about two months after the husband's death, and while the widow was a special
administratrix. There being no evidence in the record as to the purpose for which this amount was
 used, although counsel for appellee suggests the possibility that the same might have been
disbursed for funeral and similar expenses, we believe she should pay such interest, if any, as the
Monte de Piedad would have paid on the amount aforesaid, had not the same been withdrawn by
the widow.
Wherefore, with the modification that the appellee shall pay such interest, if any, on
P9,229.48 as the Monte de Piedad would have paid if the amount had not been withdrawn, the
judgment appealed from should be and is hereby affirmed, with costs against the appellant. So
ordered.
Yulo, C.J., Moran, Ozaeta, and Paras, JJ., concur.
 
|||  (Vda. de Padilla v. Vda. de Padilla, G.R. No. 48137, [October 4, 1943], 74 PHIL 377-393)

SECOND DIVISION

[G.R. No. 42551. September 4, 1935.]

ALEKO E. LILIUS, for himself and as guardian ad litem of his minor child,
Brita Marianne Lilius, and SONJA MARIA LILIUS,  plaintiffs-
appellees, vs.  MANILA RAILROAD  COMPANY, defendant. LAURA LINDLEY
SHUMAN, MANILA WINE MERCHANTS, LTD., BANK OF THE PHILIPPINE
ISLANDS AND MANILA MOTOR CO., INC., intervenors-appellants, and W. H.
WATEROUS, M. MARFORI, JOHN R. MCFIE, JR., ERLANGER & GALINGER,
INC., PHILIPPINE EDUCATION CO., INC. HAMILTON BROWN SHOE CO.,
 ESTRELLA DEL NORTE AND EASTERN & PHILIPPINE SHIPPING AGENCIES,
LTD., intervenors- appellees.

J. W. Ferrier  for intervenor-appellant Shuman.

Franco & Reinoso  for intervenor-appellant Manila Wine Merchants, Ltd.
Feria & La O for intervenor-appellant Bank of the Philippine Islands.
Gibbs & McDonough for intervenor-appellant Manila Motor Co.
Harvey & O'Brien  for plaintiffs-appellees.
John R. McFie, jr., in his behalf and  for the intervenors-appellees.

SYLLABUS

1. PREFERENCES AND PRIORITIES; FINAL JUDGMENTS AND DEBTS EVIDENCED

BY PUBLIC DOCUMENTS; SERVICES. — The fact that the trial court did not direct the
defendant Railroad Company to pay directly to the claimant L. L. S. the amount of her claim does
not modify or do away with her equitable right to the same status as that given to the two doctors
W and M. The inevitable conclusion is that the claims of those doctors have o preference over her
claim for her services as a nurse.
2. ID.; ID.; COSTS; RULE 38, REVISED RULES OF COURTS OF FIRST INSTANCE. —
Rule 38 of the Revised Rules of Courts of First Instances requires that " . . . costs shall be taxed
by the clerk on five days' written notice given by the prevailing party to the adverse party, with
which notice a statement of the items of cost claimed by the prevailing party, verified by his oath
or that of his attorney, shall be served. . . ." The proper evidence, therefore, of the costs in this
case would have been the bill of costs and the taxation of such costs by the clerk. In order to
recover such costs in a separate proceeding, such as this, evidence must be presented as to the
amount of the same. As there was no evidence offered as to the amount of said costs, the lower
court was correct of disallowing that item.
3. ID.; ID.; DAMAGES ARISING FROM AN INJURY CONSIDERED AS PARAPHERNAL
PROPERTY. — There are two distinct theories as to whether damages arising from an injury
suffered by one of the spouses should be considered conjugal or separate property of the injured
spouse. The theory holding that such damages should form part of the conjugal partnership
property is based wholly on the proposition that by the injury the earning capacity of the injured
spouse is diminished to the consequent prejudice of the conjugal partnership. Assuming the
correctness of this theory, a reading of the decision of this court in G. R. No. 39587 will show that
the sum of P10,000 was awarded to S. M. L. "by way of indemnity for patrimonial and moral
damages." It is held that the sum of P10,000 was awarded to S. M. L. "by way of indemnity for
patrimonial and moral damages." It is held that the sum of P10,000 with interest thereon awarded
to S. M. L. as damages is paraphernal property.
4. ID.; ID.; CHATTEL MORTGAGE. — Under section 5 of Act No. 1507, as amended
by Act No. 2496, a chattel mortgage does not have to be acknowledged before a notary public. As
against creditors and subsequent encumbrancers, the law does require an affidavit of good faith
appended to the mortgage and recorded with it. (See Giberson vs. A. N. Jureidini Bros., 44 Phil.,
216, and Betita vs. Ganzon, 49 Phil., 87.) A chattel mortgage may, however, be valid as between
the parties without such an affidavit of good faith.
5. ID.; ID.; ID. — In 11 Corpus Juris, page 482, the rule is expressly stated that as
between the parties and as to third persons who have no rights against the mortgagor, no affidavit
of good faith is necessary. It will thus be seen that under the law, a valid chattel mortgage may
exist between the parties without its being evidenced by a public document. This court would not
be justified, merely from the reference by the lower court to a mortgage, in assuming that its date
appears in a public document.
6. ID.; ID.; ID. — It is essential that the nature and the date of the document be
established by competent evidence before the court can allow a preference as against the other
 parties to this proceeding. Inasmuch as the claimant failed to establish its preference, based on a
public document, the lower court properly held that its claim against the said A. E. L. was based
on the final judgment in civil case No. 41159 of the Court of First Instance of Manila of May 3,
1932. That court, therefore, committed no error in holding that the claim of the Manila Motor Co.,
Inc., was inferior in preference to those of the appellees in this case.

DECISION

GODDARD,  J p:

In this case Laura Lindley Shuman, the Manila Wine Merchants, Ltd., the Bank of the
Philippine Islands and the Manila Motor Co., Inc., have appealed from an order of the Court of
First Instance of Manila fixing the degree of preference of the claimants and distributing the
proceeds of the judgment of this court in the case of Lilius vs. Manila Railroad Co. (59 Phil., 758),
the amount of which judgment in the sum of P33,525.03, including interest and costs, was
deposited by the railroad company with the clerk of the lower court in that case. After deducting
the attorneys' fees in the sum of P8,016.88, which is not questioned, the net amount in the hands
of the clerk of the lower court pertaining to each of the plaintiffs in the original action is as follows:
Aleko E. Lilius P13,181.33
Sonja Maria Lilius 8,218.54
Brita Marianne Lilius 4,109.28
There was a total of twenty-eight claimants to these funds, whose claims were presented
and decided without objection in the original case in the lower court.
The trial court in its order from which these appeals are taken, allowed:
(a) As against the sum of P8,218.54, separately awarded to the plaintiff Sonja
Maria Lilius, the following claims or portions thereof in the order stated:
One-half of the claim of Dr. W. H. Waterous by virtue of  
a written assignment of March 9, 1933, by the said Sonja  
Maria Lilius to him P1,500.00
   
One-third of the claim of the appellant Laura Lindley  
Shuman by virtue of a joint judgment obtained by her on  
August 10, 1933, in Case No. 44254 of the Court of First  
Instance of Manila, against the said Sonja Maria Lilius,  
Aleko E. Lilius and Brita Marianne Lilius P661.13
   
One-third of the claim of the St. Paul's Hospital by  
virtue of a joint written assignment of September 21, 1933,  
by the said Sonja Maria Lilius, Aleko E. Lilius and Brita  
Marianne Lilius to it P581.19
and the balance of the award was ordered paid to the said Sonja Maria Lilius.
(b) As against the sum of P4,109.28, separately awarded to the plaintiff Brita
Marianne Lilius, the following claims or portions thereof in the order stated:
One-third of the claim of Laura Lindley Shuman by  
virtue of a joint judgment obtained by her on August 10,  
1933, in Case No. 44254 of the Court of First Instance of  
Manila, against the said Brita Marianne Lilius, Sonja Ma-  
 ria Lilius and Aleko E. Lilius P661.13
   
One-third of the claim of St. Paul's Hospital by virtue  
of a joint written assignment of September 21, 1933, by the  
said Brita Marianne Lilius, Sonja Maria Lilius and Aleko  
E. Lilius P518.18
and the balance of the award was ordered paid to the said Brita Marianne Lilius, and
(c) As against the sum of P13,181.33, awarded to the plaintiff Aleko E. Lilius, the
following claims or portions thereof in the order stated:
The other half of the claim of Dr. W. H. Waterous by  
virtue of the final judgment in the original case, G. R. No.  
39587 P1,500.00.
   
The claim of Dr. M. Marfori, by virtue of the final judgment  
in the original case, G. R. No. 39587 250.00.
   
The claim of John R. McFie, jr., by virtue of a written  
assignment to him by the said Aleko E. Lilius of November  
13, 1931 500.00.
The balance of P10,931.33 of that judgment pertaining to the said Aleko
E. Lilius was allowed and distributed by the lower court proportionately among the
following claimants by virtue of their written assignment of January 27, 1932:
Erlanger & Galinger, Inc 3,374.50
Philippine Education Co., Inc 3,394.94
Hamilton Brown Shoe Co 1,878.98
Estrella del Norte 1,850.76
Eastern & Philippine Shipping Agencies, Ltd 432.15
APPEAL OF LAURA LINDLEY SHUMAN.
First assignment of error: "The lower court erred in holding that Dr. W. H. Waterous and
Dr. M. Marfori had a claim against the plaintiff, Aleko E. Lilius, superior to the claim of the
appellant, Laura Lindley Shuman, against him."
One of the contentions of this appellant under this assignment of error is that her claim,
having been made the basis of the plaintiffs' action and of the award for damages, as shown in
the original decision herein, should constitute, and does constitute a superior lien against the
funds awarded said plaintiffs, to those of any other claimants, except the two doctors, the hospital
and the other nurse, and that as to the claims of the two doctors, the hospital and the other nurse
the claim of this appellant has equal preference with their claims.
The following items were made the basis of a part of the judgment for damages awarded
to the plaintiffs in the original action against the Manila Railroad Company:
Por honorarios del Dr. Waterous (Exhibit N-2) P3,000.00
Por la primera cura hecha en el Hospital de Calauang  
  (Exhibit N-5) 250.00
Por el alquiler de la ambulancia del Hospital General  
  (Exhibit N-4) 10.00
Por la estancia en el Hospital Saint Paul  
  (Exhibit N-3) 3,355.00
Por los servicios prestados por la enfermera Laura Shuman  
   (Exhibit N-6) 2,156.00
Por los servicios prestados por la enfermera Alejandra Alcayaga  
  (Exhibit N-9) 1,450.00
Por los servicios prestados por la enfermera Carmen Villanueva  
  (Exhibit N-11) 240.00
Por la perdida de la camara fotografica, pluma fuente y lapiz  
  (Exhibit N-1) 43.00
Por trajes dañados en el choque 131.00
    —————
  Total 10,635.00
The trial court in that case directed the defendant Railroad Company to pay P3,000 to Dr.
Waterous and to pay to Dr. Marfori P250, but failed to direct the defendant to pay the
corresponding sums to the other persons and entities mentioned in the portion of the decision
copied above.
It must be admitted that the amounts due Dr. Waterous and the others mentioned is the
original decision, including the appellant Shuman, were all used as a basis for a part of the
judgment which plaintiffs secured against the defendant Railroad Company.
From the foregoing it is clear that the claim of this appellant rests upon the same ground
as those of Doctors Waterous and Marfori. She was also among those who rendered services to
plaintiffs in aid of their recovery from the injuries received by them in the accident for which
damages were awarded them in the case against the Railroad Company. The fact that the trial
court did not direct the defendant Railroad Company to pay directly to this appellant the amount of
her claim does not modify or do away with her equitable right to the same status as that given to
the two doctors mentioned above. The inevitable conclusion is that the claims of Waterous and
Marfori have no preference over her claim for her services as a nurse. This assignment of error
should be and is hereby sustained.
This appellant in her second assignment of error contends that the trial court erred in
failing to allow her claim in the sum of P61.94 as costs in the case in which judgment was
rendered in her favor against the herein plaintiffs-appellees. The record shows that the reason for
the disallowance of this item was because no proof was offered as to the amount of costs in case
No. 44254, as shown by the bill of costs, was P61.94. Rule 38 of the Revised Rules of Courts of
First Instance requires that ". . . costs shall be taxed by the clerk on five days' written notice given
by the prevailing party to the adverse party, with which notice a statement of the items of cost
claimed by the prevailing party, verified by his oath or that of his attorney, shall be served. . . ."
The proper evidence, therefore of the costs in that case would have been the bill of costs and the
taxation of such costs by the clerk. In order to recover such costs in a separate proceeding, such
as this, evidence must be presented as to the amount of the same. As there was no evidence
offered in this case as to the amount of said costs, the lower court was correct in disallowing that
item. This assignment of error is overruled.
Under her third assignment of error this appellant contends (1) that the funds separately
awarded the wife, Sonja Maria Lilius, partake of the nature of conjugal property, at least to the
extent of the sum of P800 awarded to her as interest on the principal award of P10,000 made in
her favor by the trial court, and as such should respond and (2) that even assuming that the sums
awarded separately to Sonja Maria Lilius are not conjugal property, but her own paraphernal
property, still under the provisions of the Civil code payment may be required out of said funds,
her husband being insolvent, under her liability for the medical expenses incurred by her
husband, one of the obligations imposed by law upon the wife.
The second contention under this assignment of error can be disposed of by calling
attention to the fact that there is no proof in this case that her husband is insolvent. It has not
been proved that Aleko E. Lilius had no other property outside of the sum awarded to him in the
case against the Railroad Company.
APPEAL OF THE MANILA WINE MERCHANTS, LTD., AND
THE BANK OF THE PHILIPPINE ISLANDS
 The appellants, the Manila Wine Merchants, Ltd., and the Bank of the Philippine Islands
also contend that the sum separately awarded Sonja Maria Lilius is conjugal property and
therefore liable for the payment of the private debts of her husband, Aleko E. Lilius, contracted
during her marriage.
It is contended that damages awarded for personal injury are not classified as separate
property of each of the spouse in article 1396 of the Civil Code and they should therefore be
presumed conjugal. In answer to this, article 1401 of the same Code, in enumerating the property
belonging to the conjugal partnership, does not mention damages for personal injury.
The question raised by these appellants is one of first impression in this jurisdiction and
apparently has never been passed upon by the Supreme Court of Spain. .
The following comment is found in Colin y Capitant, Vol. 6, pages 217 and 218:
"No esta resuelta expresamente en la legislacion española la cuestion de si las
indemnizaciones debidas por accidentes del trabajo tienen la consideracion de gananciales o son
bienes particulares de los conyuges.
"Inclinan a la solucion de que estas indemnizaciones deben ser consideradas como
gananciales, el hecho de que la sociedad pierde la capacidad de trabajo con el accidente, que a
ella le pertenece, puesto que de la sociedad son lost frutos de ese trabajo; en cambio, la
consideracion de que de igual manera que los bienes que sustituyen a los que cada conyuge
lleva al matrimonio como propios tienen el caracter de propios tienen el caracter de propios, hace
pensar que las indemnizaciones que vengan a suplir la capacidad de trabajo aportada por cada
conyuge a la sociedad, deben ser juridicamente reputadas como bienes propios del conyuge que
haya sufrido el accidente. Asi se llega a la misma solucion aportada por la jurisprudencia
francesa."
From the above it appears that there are two distinct theories as to whether damages
arising from an injury suffered by one of the spouses should be considered conjugal or separate
property of the injured spouse. The theory holding that such damages should form part of the
conjugal partnership property is based wholly on the proposition, also advanced by
the Manila Wine Merchants, Ltd., that by the injury the earning capacity of the injured spouse is
diminished to the consequent prejudice of the conjugal partnership. Assuming the correctness of
this theory, a reading of the decision of this court in G. R. No. 39587 will show that the sum of
P10,000 was awarded to Sonja Maria Lilius "by way of indemnity for patrimonial and moral
damages." The pertinent part of that decision on this point reads:
"Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff
Aleko E. Lilius is — in the language of the court, which saw her at the trial — 'young and beautiful
and the big scar, which she has on her forehead caused by the lacerated wound received by her
from the accident, disfigures her face and that the fracture of her left leg has caused a permanent
deformity which renders it very difficult for her to walk', and taking into further consideration her
social standing, neither is the sum of P10,000, adjudicated to her by the said trial court by way of
indemnity for patrimonial and moral damages, excessive."
It should be added that the interest on that sum is part of the damages "patrimonial and
moral" awarded to Sonja Maria Lilius.
Furthermore it appears in the decision of the trial court in G. R. No. 39587 that Aleko
E. Lilius claimed the sum of P10,000 as damages on account of the loss of the services of Sonja
Maria Lilius as secretary and translator, her particular work as a member of the conjugal
partnership. The trial court disallowed this claim and neither of the plaintiffs in that case appealed
to this court.
In view of the foregoing it is held that the sum of P10,000 with interest thereon awarded to
Sonja Maria Lilius as damages is paraphernal property.
The third assignment of error of the appellant Shuman, the second assignment of error of
the appellant Bank of the Philippine Islands and the sole assignment of error of the
appellant Manila Wine Merchants, Ltd., are overruled.
In its first assignment of error it is contended by the Bank of the Philippine Islands that by
virtue of its writ of garnishment served on the Manila Railroad Company of February 8, 1933, it
acquired a lien superior to the preference granted by article 1924 of the Civil Code to prior
judgments. This error, if at all, is however non- prejudicial as the record shows that all the
creditors declared by the court as having a right to participate in the proceeds of the judgment in
favor of Aleko E. Lilius were so held by virtue of deeds of assignment executed prior to the date of
the service of notice of the bank's writ of garnishment on the Manila Railroad Company. These
creditors are John R. McFie, jr., whose claim is based on a deed of assignment dated November
13, 1931, and Erlanger & Galinger, Philippine Education Co., Inc., Hamilton-Brown Shoe Co.,
Estrella del Norte and Eastern & Philippine Shipping Agencies, Ltd., whose claims are based on a
deed of assignment dated November 17, 1931. As the record shows that whatever was left of the
judgment in favor of Aleko E. Lilius is not sufficient to pay in full the credits of the above
mentioned creditors and furthermore, in view of the fact that strictly speaking, there was no
existing credit in favor of Aleko E. Lilius to be garnished on February 3, 1933, as it had been
assigned, before that date, to this creditors, this assignment of error, therefore, must be overruled.
APPEAL OF THE MANILA MOTOR CO., INC.
The two errors assigned by this appellant read as follows:
"I. The lower court erred in considering the date of the judgment, Exhibit
A, Manila Motor Co., Inc., instead of the date of the public document upon which it was based in
determining the preference among the several claims filed and litigated in this proceeding.
"II. The lower court erred in not holding the claim of the claimant-
appellant, Manila Motor Co., Inc., preferred over all other claims against Aleko E. Lilius evidenced
by public instruments and final judgments."
The claimant has not proven that its credit is evidenced by a public document within the
meaning of article 1924 of the Civil Code. The only evidence offered by the Manila Motor Co.,
Inc., in support of its claim of preference against the fund of Aleko E. Lilius was a certified copy of
its judgment against him in civil case No. 41159 of the Court of First Instance of Manila, together
with a certified copy of the writ of execution and the garnishment issued by virtue of said
judgment. These documents appear in the record as Exhibits A, B and C. The alleged public
document evidencing its claim was not offered in evidence and counsel of the Manila Motor Co.,
Inc., merely stated at the hearing in the lower court that its judgment was based on a public
document dated May 10, 1931. There is no explanation as to why it was not presented as
evidence along with Exhibits A, B and C. In their brief in this court, counsel for
the Manila Motor Co., Inc., merely assume that its credit is evidenced by a public document dated
May 10, 1931, because the court, in its judgment in said civil case No. 41159, refers to a
mortgage appearing in the evidence in that case as Exhibit A as the basis of its judgment, without
mentioning the date of the execution of that exhibit. This reference in said judgment to a mortgage
is not competent or satisfactory evidence as against third persons upon which to base a finding
that the Manila Motor Company's credit is evidenced by a public document within the meaning of
article 1924 of the Civil Code. This court is not authorized to make use of that judgment as a basis
for its findings of fact in this proceeding. This is shown by the decision of this court in the case of
Martinez vs. Diza (20 Phil., 498). In the syllabus of that decision it is stated:
"1. COURTS OF FIRST INSTANCE; JUDGMENT IN FORMER CIVIL ACTION AS BASIS
FOR FINDINGS OF FACT; ERROR. - A person who was not a party to a former civil action, or
who did not acquire his rights from one of the parties thereto after the entry of judgment therein, is
not bound by such judgment; nor can it be used against him as a basis for the findings of fact in a
judgment rendered in a subsequent action."
But even if the court is authorized to accept the statement in that judgment as a basis for
its finding of fact in relation to this claim, still it would not establish the claim of preference of
the Manila Motor Co., Inc. Granting that a mortgage existed between the Manila Motor Co., Inc.,
and Aleko E. Lilius, this does not warrant the conclusion that the instrument evidencing that
mortgage is a public document entitled to preference under article 1924 of the Civil Code. Under
section 5 of Act No. 1507 as amended by Act No. 2496, a chattel mortgage does not have to be
acknowledged before a notary public. As against creditors and subsequent encumbrancers, the
law does require an affidavit of good faith appended to the mortgage and recorded with it. (See
Giberson vs. A. N. Jureidini Bros., 44 Phil., 216, and Betita vs. Ganzon, 49 Phil., 87.) A chattel
mortgage may, however, be valid as between the parties without such an affidavit of good faith. In
11 Corpus Juris, 482, the rule is expressly stated that as between the parties and as to third
persons who have no rights against the mortgagor, no affidavit of good faith is necessary. It will
thus be seen that under the law, a valid mortgage may exist between the parties without its being
evidenced by a public document. This court would not be justified, merely from the reference by
 the lower court in that case to a mortgage, in assuming that its date appears in a public
document. If the Manila Motor Co., Inc., desired to rely upon a public document in the form of a
mortgage as establishing its preference in this case, it should have offered that document in
evidence, so that the court might satisfy itself as to its nature and unquestionably fix the date of its
execution. There is nothing either in the judgment relied upon or in the evidence to show the date
of said mortgage. The burden was upon the claimant to prove that it actually had a public
instrument within the meaning of article 1924 of the Civil Code. It is essential that the nature and
the date of the document be established by competent evidence before the court can allow a
preference as against the other parties to this proceeding. Inasmuch as the claimant failed to
establish its preference, based on a public document, the lower court properly held that its claim
against the said Aleko E. Lilius was based on the final judgment in civil case No. 41159 of the
Court of First Instance of Manila of May 3, 1932. That court, therefore, committed no error in
holding that the claim of the Manila Motor Co., Inc., was inferior in preference to those of the
appellees in this case.
This appellant's assignments of error are overruled.
In view of the foregoing the following portion of the dispositive part of the decision of the
trial court is affirmed.
"Por estas consideraciones, se ordena y se decreta (a) que del saldo de P8,218.54, que
pertenece a Sonja Maria Lilius y que se halla depositado en la Escribania del Juzgado, se pague
por el Escribano al Dr. W. H. Waterous la suma de mil quinientos pesos (P1,500), a Laura L.
Shuman, seiscientos sesenta y un pesos con trece centavos (P661.13), y al St. Paul's Hospital,
quinientos diez y ocho pesos con diez y ocho centavos (P518.18), y el remanente de cinco mil
cuatrocientos setenta y siete pesos con veinticuatro centavos (P5,477.24), a Sonja Maria Lilius, o
su apolderado; (b) que del saldo de P4,109.28 que pertenece a Brita Marianne Lilius y que se
halla depositado en la Escribania del Juzgado, se pague por el Escribano a Laura Shuman, la
suma de seiscientos sesenta y un pesos con trece centavos (P661.13); y al St. Paul's Hospital,
quinientos diez y ocho pesos con diez y ocho centavos (P518.18), y el saldo de dos mil
ochocientos sesenta y siete pesos con noventa y siete centavos (P2,867.97), a Brita
Marianne Lilius, por conducto de su tutor;"
The remaining portion of the dispositive part of the decision of the trial court is modified as
follows:
"That from the sum of P13,181.33 pertaining to Aleko E. Lilius, which is deposited with
the clerk of the trial court, the following claims shall first be paid:
Dr. W. H. Waterous P1,500.00
Dr. M. Marfori 250.00
Laura Lindley Shuman 661.13
John R. McFie, jr 500.00.
and the balance of the sum pertaining to Aleko E. Lilius shall be divided among the
following entities in proportion to their respective claims:
  Amount of
  claim
   
Erlanger & Galinger, Inc P3,672.76
Philippine Education Co., Inc 3,695.20
Hamilton-Brown Shoe Co 2,045.17
Estrella del Norte 2,014.45
Eastern and Philippine Shipping Agencies, Ltd 470.38"
So ordered without special pronouncement as to costs.
Malcolm, Villa-Real, Imperial, and Butte, JJ., concur.
 
|||  (Lilius v. Manila Railroad Co., G.R. No. 42551, [September 4, 1935], 62 PHIL 56-69)
 FIRST DIVISION

[G.R. No. 74577. December 4, 1990.]

CONSOLACION VILLANUEVA, petitioner, vs. THE INTERMEDIATE

APPELLATE COURT, JESUS BERNAS and REMEDIOS Q.
BERNAS, respondents.

Geomer C. Delfin for petitioner.

Roger B. Patricio for private respondents.

DECISION

NARVASA, J p:

The spouses Graciano Aranas and Nicolasa Bunsa were the owners in fee simple of a parcel of land
identified as Lot 13, their ownership being evidenced by Original Certificate of Title No. 0-3239 issued
by the Register of Deeds of Capiz on June 19, 1924. After they died, their surviving children, Modesto
Aranas and Federico Aranas, adjudicated the land to themselves under a deed of extrajudicial
partition executed on May 2, 1952. The southern portion, described as Lot 13-C, was thereby
assigned to Modesto; the northern, to Federico. 1
On March 21, 1953, Modesto Aranas obtained a Torrens title in his name from the Capiz Registry of
Property, numbered T-1346. He died on April 20, 1973, at the age of 81 years. His wife, Victoria
Comorro, predeceased him dying at age 70 on July 16, 1971. They had no children. 2
Now, it appears that Modesto was survived by two (2) illegitimate children named Dorothea Aranas
Ado and Teodoro C. Aranas. These two borrowed P18,000.00 from Jesus Bernas. As security
therefor they mortgaged to Bernas their father's property, Lot 13-C. In the "Loan Agreement with Real
Estate Mortgage" executed between them and Bernas on October 30, 1975, they described
themselves as the absolute co-owners of Lot 13-C. A relative, Raymundo Aranas, signed the
agreement as a witness. 3
Dorothea and Teodoro failed to pay their loan. As a result, Bernas caused the extrajudicial foreclosure
of the mortgage over Lot 13-C on June 29, 1977 and acquired the land at the auction sale as the
highest bidder. 4 After the foreclosure sale, Dorothea and Teodoro executed a deed of Extrajudicial
Partition dated June 21, 1978, in which they adjudicated the same Lot 13-C unto themselves in equal
shares  pro-indiviso. cdll
On October 25, 1978 Bernas consolidated his ownership over Lot 13-C, the mortgagors having failed
to redeem the same within the reglementary period, and had the latter's title (No. T-1346 in the name
of Modesto Aranas) cancelled and another issued in his name, TCT No. T-15121. 5
About a month later, or on November 24, 1978, Consolacion Villanueva and Raymundo Aranas —
who, as aforestated, was an instrumental witness in the deed of mortgage executed by Dorothea and
Teodoro Aranas on October 30, 1975 — filed a complaint with the Regional Trial Court at Roxas City
against Jesus Bernas and his spouse, Remedios Bernas. The case was docketed as Civil Case No.
V-4188, and assigned to Branch 14. In their complaint, the plaintiffs prayed that the latter's title over
Lot 13-C, TCT No. T-15121, be cancelled and they be declared co-owners of the land. They grounded
their cause of action upon their alleged discovery on or about November 20, 1978 of two (2) wills, one
executed on February 11, 1958 by Modesto Aranas, and the other, executed on October 29, 1957 by
his wife, Victoria Comorro. Victoria Comorro's will allegedly bequeathed to Consolacion and
Raymundo, and to Dorothea and Teodoro Aranas, in equal shares pro indiviso, all of said Victoria
Comorro's "interests, rights and properties, real and personal . . . as her net share from (the) conjugal
partnership property with her husband, Modesto Aranas . . ." Modesto Aranas' will, on the other hand,
bequeathed to Dorothea and Teodoro Aranas (his illegitimate children) all his interests in his conjugal
partnership with Victoria "as well as his own capital property brought by him to (his) marriage with his
said wife." 6
At the pre-trial, the parties stipulated on certain facts, including the following:
1) that the property in question was registered before the mortgage in the name of the late Modesto
Aranas, married to Victoria Comorro, (covered by) TCT No. 1346, issued on March 21, 1953;
2) that the wills above described were probated only after the filing of the case (No. V-4188);
3) that Consolacion Villanueva and Raymundo Aranas are not children of either Modesto Aranas or
Victoria Comorro;
4) that the lot in question is not expressly mentioned in the will; and
5) that TCT No. 15121 exists, and was issued in favor of defendant spouses Jesus Bernas and
Remedios Bernas. Cdpr
Trial ensued after which judgment was rendered adversely to the plaintiffs, Consolacion Villanueva
and Raymundo Aranas. 7 The dispositive part of the judgment reads as follows: 8
WHEREFORE, IN VIEW OF THE FOREGOING, judgment is hereby rendered in
favor of the defendants and against the plaintiffs as follows:
The plaintiffs' complaint is hereby dismissed and ordering the plaintiffs, jointly and
severally, to pay the defendants the following:
1) THREE THOUSAND FIVE HUNDRED PESOS (P3,500.00) as
attorney's fees;
2) FIVE HUNDRED PESOS (P500.00) as actual damages;
 3) TEN THOUSAND PESOS (P10,000.00) as moral damages;
4) Declaring the defendants spouses Jesus Bernas and Remedios
O. Bernas as legal owners of Lot No. 13-C and including all the
improvements thereon;
5) Declaring the loan agreement with real estate mortgage (Exh.
'2') entered into by Dorothea Aranas Ado married to Reynaldo F. Ado and
Teodoro C. Aranas and Jesus Bernas married to Remedios O. Bernas,
over the lot in question executed on October 30, 1975 before Notary Public
Roland D. Abalajon and the corresponding Certificate of Title No. T-15121
registered in the name of Jesus Bernas (defendants spouses) as having
been executed and issued in accordance with law, are declared legal and
valid;
6) For failure to prove all other counter-claim and damages, the
same are hereby dismissed.
7) To pay costs of this suit.
SO ORDERED."
The plaintiffs appealed to the Intermediate Appellate Court, where they succeeded only in having the
award of actual and moral damages deleted, the judgment of the Regional Trial Court having been
otherwise affirmed in toto.
From this judgment of the Appellate Court, 9 Consolacion Villanueva appealed to this Court. Her co-
plaintiff, Raymundo Aranas, did not.
The only question is, what right was acquired by Consolacion Villanueva over Lot 13-C and the
improvements thereon standing by virtue of Victoria Camorro's last will and testament giving to her all
of said Victoria's "interests, rights and properties, real and personal . . . as her net share from (the)
conjugal partnership property with her husband, Modesto Aranas . . ." She is admittedly, not named
an heiress in Modesto Aranas' will. cdll
Certain it is that the land itself, Lot 13-C, was not "conjugal partnership property" of Victoria Comorro
and her husband, Modesto Aranas. It was the latter's exclusive, private property, which he had
inherited from his parents — Graciano Aranas and Nicolasa Bunsa, the original owners of the
property — registered solely in his name, under TCT T-1346. Whether Modesto succeeded to the
property prior or subsequent to his marriage to Victoria Comorro — the record being unfortunately
none too clear on the point — is inconsequential. The property should be regarded as his own
exclusively, as a matter of law. This is what Article 148 of the Civil Code clearly decrees: that to be
considered as "the exclusive property of each spouse" is inter alia, "that which is brought to the
marriage as his or her own," or "that which each acquires, during the marriage, by lucrative title."
Thus, even if it be assumed that Modesto's acquisition by succession of Lot 13-C took place during
his marriage to Victoria Comorro, the lot would nonetheless be his "exclusive property" because
acquired by him, "during the marriage, by lucrative title."
Moreover, Victoria Comorro died on July 16, 1971, about two (2) years ahead of her husband,
Modesto Aranas, exclusive owner of Lot 13-C, who passed away on April 20, 1973. Victoria never
therefore inherited any part of Lot 13-C and hence, had nothing of Lot 13-C to bequeath by will or
otherwise to Consolacion Villanueva or anybody else.
It would seem, however, that there are improvements standing on Lot 13-C, and it is to these
improvements that Consolacion Villanueva's claims are directed. The question then is, whether or not
the improvements are conjugal property, so that Victoria Comorro may be said to have acquired a
right over them by succession, as voluntary heir of Victoria Comorro.
The Civil Code says that improvements, "whether for utility or adornment, made on the separate
property of the spouses through advancements from the partnership or through the industry of either
the husband or the wife, belong to the conjugal partnership," and buildings "constructed, at the
expense of the partnership, during the marriage on land belonging to one of the spouses, also pertain
to the partnership, but the value of the land shall be reimbursed to the spouse who owns the
same." 10 Proof, therefore, is needful of the time of the making or construction of the improvements
and the source of the funds used therefor, in order to determine the character of the improvements as
belonging to the conjugal partnership or to one spouse separately. No such proof was presented or
proferred by Consolacion Villanueva or any one else. What is certain is that the land on which the
improvements stand was the exclusive property of Modesto Aranas and that where, as here, property
is registered in the name of one spouse only and there is no showing of when precisely the property
was acquired, the presumption is that it belongs exclusively to said spouse. 11 It is not therefore
possible to declare the improvements to be conjugal in character.
Yet another consideration precludes relief to Consolacion Villanueva and that is, that when Lot 13-C
was mortgaged to Jesus Bernas, the title was free of any lien, encumbrance or adverse claim
presented by or for Consolacion Villanueva or anybody else, and that when Bernas subsequently
consolidated his ownership over Lot 13-C and obtained title in his name, the Registry of Deeds
contained no record of any lien, encumbrance or adverse claim affecting the property. Furthermore,
Bernas' mode of acquisition of ownership over the property, i.e., by a mortgage sale, appears in all
respects to be regular, untainted by any defect whatsoever. Bernas must therefore be deemed to
have acquired indefeasible and clear title to Lot 13-C which cannot be defeated or negated by claims
subsequently arising and of which he had no knowledge or means of knowing prior to their assertion
and ventilation. cdphil
 
Finally, it bears stressing that the conclusion of the Intermediate Appellate Court that the evidence
establishes that the property in question was the exclusive property of one spouse, not conjugal, is a
factual one which, absent any satisfactory showing of palpable error or grave abuse of discretion on
the part of the Appellate Court in reaching it, is not reviewable by this Court.
WHEREFORE, the judgment of the Intermediate Appellate Court subject of this appeal, being in
accord with the evidence and applicable law and jurisprudence, is AFFIRMED, with costs against the
petitioner. LLpr
SO ORDERED.
Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
Footnotes
1.Rollo, p. 41.
2.Idem.
3.Id., pp. 7-10.
4.Id., pp. 11-12.
5.Id., p. 39.
6.Id., pp. 39-40.
7.Rendered on February 29, 1984 by Hon. Enrique P. Suplico, presiding over Branch XIV of the
RTC at Roxas City.
8.Id., pp. 37-38.
9.Rendered on Feb. 12, 1986 by the Second Civil Cases Division, Camilon, J., ponente, with
Pascual, Campos and Jurado, JJ., concurring (Rollo, pp. 39 et seq.)
10.ART. 158.
11.PNB vs. CA., 153 SCRA 435 (1987).
 
|||  (Villanueva v. Intermediate Appellate Court, G.R. No. 74577, [December 4, 1990], 270 PHIL 120-
128)
 THIRD DIVISION

[G.R. No. 61464. May 28, 1988.]

BA FINANCE CORPORATION,  petitioner, vs. THE HONORABLE COURT OF

APPEALS, AUGUSTO YULO, LILY YULO (doing business under the name and style
of A & L INDUSTRIES),  respondents.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; AUTHENTICATION AND PROOF OF DOCUMENTS;

GENUINENESS OF STANDARD, HOW ESTABLISHED. — In the case of Plymouth Saving &
Loan Ass'n. No. 2 v. Kassing (125 N.E. 488, 494): "We believe the true rule deduced from the
authorities to be that the genuineness of a 'standard' writing may be established (1) by the
admission of the person sought to be charged with the disputed writing made at or for the
purposes of the trial or by his testimony; (2) by witnesses who saw the standards written or to
whom or in whose hearing the person sought to be charged acknowledged the writing thereof; (3)
by evidence showing that the reputed writer of the standard has acquiesced in or recognized the
same, or that it has been adopted and acted upon by him his business transactions or other
concerns . . ."
2. ID.; ID.; ID.; ID.; CASE AT BAR. — The records show that the signatures which were
used as "standards" for comparison with the alleged signature of the private respondent in the
Special Power of Attorney were those from the latter's residence certificates in the years 1973,
1974 and 1975, her income tax returns for the years 1973 and 1975 and from a document on long
bond paper dated May 18, 1977. Not only were the signatures in the foregoing documents
admitted by the private respondent as hers but most of the said documents were used by the
private respondent in her transactions with the government.
3. CIVIL LAW; ADMINISTRATION OF CONJUGAL PARTNERSHIP; OBLIGATIONS
CONTRACTED BY THE HUSBAND TO BE CHARGEABLE AGAINST THE CONJUGAL
PARTNERSHIP MUST REDOUND TO ITS BENEFIT. — There is no dispute that A & L Industries
was established during the marriage of Augusto and Lily Yulo and therefore the same is
presumed conjugal and the fact that it was registered in the name of only one of the spouses
does not destroy its conjugal nature (See Mendoza v. Reyes, 124 SCRA 161, 165). However, for
the said property to be held liable, the obligation contracted by the husband must have redounded
to the benefit of the conjugal partnership under Article 161 of the Civil Code.
4. ID.; ID.; ID.; ID.; CASE AT BAR NOT A CASE OF. — In the present case, the
obligation which the petitioner is seeking to enforce against the conjugal property managed by the
private respondent Lily Yulo was undoubtedly contracted by Augusto Yulo for his own benefit
because at the time he incurred the obligation he had already abandoned his family and had left
their conjugal home. Worse, he made it appear that he was duly authorized by his wife in behalf
of A & L Industries, to procure such loan from the petitioner. Clearly, to make A & L Industries
liable now for the said loan would be unjust and contrary to the express provision of the Civil
Code.
5. REMEDIAL LAW; PROVISIONAL REMEDIES; ATTACHMENT, WHEN IMPROPER. —
"An attachment may be said to be wrongful when, for instance, the plaintiff has no cause of
action, or that there is no true ground therefor, or that the plaintiff has a sufficient security other
than the property attached, which is tantamount to saying that the plaintiff is not entitled to
 attachment because the requirements of entitling him to the writ are wanting. (7 C.J.S., 664)" (p.
48, Section 4, Rule 57, Francisco, Revised Rules of Court)
6. CIVIL LAW; DAMAGES; UNREALIZED PROFIT; AWARD NOT PROPER WHERE
CLAIM IS SPECULATIVE & CONJECTURAL. — We cannot, however, sustain the award of
P500,000.00 representing unrealized profits because this amount was not proved or justified
before the trial court. The basis of the alleged unearned profits is too speculative and conjectural
to show actual damages for a future period. The private respondent failed to present reports on
the average actual profits earned by her business and other evidence of profitability which are
necessary to prove her claim for the said amount (See G. A. Machineries, Inc. v. Yaptinchay, 126
SCRA 78, 88).

DECISION

GUTIERREZ, JR., J  p:

This is a petition for review seeking to set aside the decision of the Court of Appeals
which affirmed the decision of the then Court of First Instance of Manila, dismissing the complaint
instituted by the petitioner and ordering it to pay damages on the basis of the private respondent's
counterclaim.
On July 1, 1975, private respondent Augusto Yulo secured a loan from the petitioner in
the amount of P591,003.59 as evidenced by a promissory note he signed in his own behalf and
as representative of the A & L Industries. Respondent Yulo presented an alleged special power of
attorney executed by his wife, respondent Lily Yulo, who manages A & L Industries and under
whose name the said business is registered, purportedly authorizing Augusto Yulo to procure the
loan and sign the promissory note. About two months prior to the loan, however, Augusto Yulo
had already left Lily Yulo and their children and had abandoned their conjugal home. When the
obligation became due and demandable, Augusto Yulo failed to pay the same.
On October 7, 1975, the petitioner filed its amended complaint against the spouses
Augusto and Lily Yulo on the basis of the promissory note. It also prayed for the issuance of a writ
of attachment alleging that the said spouses were guilty of fraud in contracting the debt upon
which the action was brought and that the fraud consisted of the spouses' inducing the petitioner
to enter into a contract with them by executing a Deed of Assignment in favor of the petitioner,
assigning all their rights, titles and interests over a construction contract executed by and between
the spouses and A. Soriano Corporation on June 19, 1974 for a consideration of P615,732.50
when, in truth, the spouses did not have any intention of remitting the proceeds of the said
construction contract to the petitioner because despite the provisions in the Deed of Assignment
that the spouses shall, without compensation or costs, collect and receive in trust for the petitioner
all payments made upon the construction contract and shall remit to the petitioner all collections
therefrom, the said spouses failed and refused to remit the collections and instead,
misappropriated the proceeds for their own use and benefit, without the knowledge or consent of
the petitioner.
The trial court issued the writ of attachment prayed for thereby enabling the petitioner to
attach the properties of A & L Industries. Apparently not contented with the order, the petitioner
filed another motion for the examination of attachment debtor, alleging that the properties
attached by the sheriff were not sufficient to secure the satisfaction of any judgment that may be
recovered by it in the case. This was likewise granted by the court.
Private respondent Lily Yulo filed her answer with counterclaim, alleging that although
Augusto Yulo and she are husband and wife, the former had abandoned her and their children
five (5) months before the filing of the complaint; that they were already separated when the
promissory note was executed; that her signature in the special power of attorney was forged
because she had never authorized Augusto Yulo in any capacity to transact any business for and
in behalf of A & L Industries, which is owned by her as a single proprietor, that she never got a
single centavo from the proceeds of the loan mentioned in the promissory note; and that as a
result of the illegal attachment of her properties, which constituted the assets of the A & L
Industries, the latter closed its business and was taken over by the new owner.
After hearing, the trial court rendered judgment dismissing the petitioner's complaint
against the private respondent Lily Yulo and A & L Industries and ordering the petitioner to pay
the respondent Lily Yulo P660,000.00 as actual damages; P500,000.00 as unrealized profits;
P300,000.00 as exemplary damages; P30,000.00 as and for attorney's fees; and to pay the costs.
The petitioner appealed. The Court of Appeals affirmed the trial court's decision except
for the exemplary damages which it reduced from P300,000.00 to P150,000.00 and the attorney's
fees which were reduced from P30,000.00 to P20,000.00.
In resolving the question of whether or not the trial court erred in holding that the
signature of respondent Lily Yulo in the special power of attorney was forged, the Court of
Appeals said:
"The crucial issue to be determined is whether or not the signatures of the
appellee Lily Yulo in Exhibits B and B-1 are forged. Atty. Crispin Ordoña, the Notary
Public, admitted in open court that the parties in the subject documents did not sign
their signatures in his presence. The same were already signed by the supposed
parties and their supposed witnesses at the time they were brought to him for
ratification. We quote from the records the pertinent testimony of Atty. Ordoña,
thus:
"Q This document marked as Exhibit B-1, when this was presented to you by
that common friend, June Enriquez, it was already typewritten, it was
already accomplished, all typewritten?
"A Yes, sir.
"Q And the parties had already affixed their signatures in this document?
"A Yes, sir.
"Q In this document marked as Exhibit B although it appears here that this is
an acknowledgment, you have not stated here that the principal
actually acknowledged this document to be her voluntary act and
deed?
"A This is one of those things that escaped my attention. Actually I have not
gone over the second page. I believed it was in order I signed it.
(TSN., pp. 13-14, Hearing of Nov. 26, 1976).
"The glaring admission by the Notary Public that he failed to state in the
acknowledgment portion of Exhibit B-1 that the appellee Lily Yulo acknowledged
the said document to be her own voluntary act and deed, is a very strong and
commanding circumstance to show that she did not appear personally before the
said Notary Public and did not sign the document.
"Additionally, the Notary Public admitted that, while June Enriquez is
admittedly a mutual friend of his and the defendant Augusto Yulo, and who is also
an instrumental witness in said Exhibit B-1, he could not recognize or tell which of
the two signatures appearing therein, was the signature of this June Enriquez.
"Furthermore, as the issue is one of credibility of a witness, the findings and
conclusions of the trial court before whom said witness, Atty. Crispin Ordoña, the
Notary Public before whom the questioned document was supposedly ratified and
acknowledged, deserve great respect and are seldom disturbed on appeal by
appellate tribunals, since it is in the best and peculiar advantage of determining and
observing the conduct, demeanor and deportment of a particular witness while he is
testifying in court, an opportunity not enjoyed by the appellate courts who merely
have to rely on the recorded proceedings which transpired in the court below, and
the records are bare of any circumstance of weight, which the trial court had
overlooked and which, if duly considered, may radically affect the outcome of the
case.
 "On the other hand, the appellee Lily Yulo, to back up her claim of forgery
of her signature in Exhibit B-1, presented in court a handwriting expert witness in
the person of Police Captain Yakal Giron of the Integrated National Police Training
Command, and who is also a Document Examiner of the same Command's Crime
Laboratory at Fort Bonifacio, Metro Manila. His experience as an examiner of
questioned and disputed documents, in our mind, is quite impressive. To qualify
him as a handwriting expert, he declared that he underwent extensive and actual
studies and examination of disputed or questioned document, both at the National
Bureau of Investigation Academy and National Bureau of Investigation Questioned
Document Laboratory, respectively, from July 1964, up to his appointment as
Document Examiner in June, 1975, and, to further his experience along this line, he
attended the 297th Annual Conference of the American Society of Questioned
Document Examiners held at Seattle, Washington, in August 1971, as a
representative of the Philippines, and likewise conducted an observation of the
present and modern trends of crime laboratories in the West Coast, U.S.A., in
1971; that he likewise had conducted actual tests and examination of about
100,000 documents, as requested by the different courts, administrative, and
governmental agencies of the Government, substantial portions of which relate to
actual court cases.
"In concluding that the signatures of the appellee Lily Yulo, in the disputed
document in question (Exh. B-1), were all forgeries, and not her genuine
signatures, the expert witness categorically recited and specified in open court what
he observed to be about twelve (12) glaring and material significant differences, in
his comparison of the signatures appearing in the genuine specimen signatures of
the said appellee and with those appearing in the questioned document (Exhibit B-
1). Indeed, we have likewise seen the supposed notable differences, found in the
standard or genuine signatures of the appellee which were lifted and obtained in
the official files of the government, such as the Bureau of Internal Revenue on her
income tax returns, as compared to the pretended signature of the appellee
appearing in Exhibits B, B-1. It is also noteworthy to mention that the appellant did
not even bother to conduct a cross-examination of the handwriting expert witness,
Capt. Giron, neither did the appellant present another handwriting expert, at least to
counter-act or balance the appellee's handwriting expert.
"Prescinding from the foregoing facts, we subscribe fully to the lower
court's observations that the signatures of the appellee Lily Yulo in the questioned
document (Exh. B-1) were forged. Hence, we find no factual basis to disagree." (pp.
28-30, Rollo)
As to the petitioner's contention that even if the signature of Lily Yulo was forged or even
if the attached properties were her exclusive property, the same can be made answerable to the
obligation because the said properties form part of the conjugal partnership of the spouses Yulo,
the appellate court held that these contentions are without merit because there is strong
preponderant evidence to show that A & L Industries belongs exclusively to respondent Lily Yulo,
namely: a) The Certificate of Registration of A & L Industries, issued by the Bureau of Commerce,
showing that said business is a single proprietorship, and that the registered owner thereof is only
Lily Yulo; b) The Mayor's Permit issued in favor of A & L Industries, by the Caloocan City Mayor's
Office showing compliance by said single proprietorship company with the City Ordinance
governing business establishments; and c) The Special Power of Attorney itself, assuming but
without admitting its due execution, is tangible proof that Augusto Yulo has no interest whatsoever
in the A & L Industries, otherwise, there would have been no necessity for the Special Power of
Attorney if he is a part owner of said single proprietorship.
With regard to the award of damages, the Court of Appeals affirmed the findings of the
trial court that there was bad faith on the part of the petitioner as to entitle the private respondent
to damages as shown not only by the fact that the petitioner did not present the Deed of
Assignment or the construction agreement or any evidence whatsoever to support its claim of
fraud on the part of the private respondent and to justify the issuance of a preliminary attachment,
but also by the following findings:
 "Continuing and elaborating further on the appellant's mala fide actuations
in securing the writ of attachment, the lower court stated as follows:
"'Plaintiff not satisfied with the instant case where an order for
attachment has already been issued and enforced, on the strength of the
same Promissory Note (Exhibit 'A'), utilizing the Deed of Chattel Mortgage
(Exhibit '4'), filed a foreclosure proceedings before the Office of the Sheriff
of Caloocan (Exhibit '6') foreclosing the remaining properties found inside
the premises formerly occupied by the A & L Industries. A minute
examination of Exhibit '4' will show that the contracting parties thereto, as
appearing in par. 1 thereof, are Augusto Yulo, doing business under the
style of A & L Industries (should be A & L Glass Industries Corporation), as
mortgagor and BA Finance Corporation as mortgagee, thus the
enforcement of the Chattel Mortgage against the property of A & L
Industries exclusively owned by Lily T. Yulo appears to be without any
factual or legal basis whatsoever. The chattel mortgage, Exhibit '4' and the
Promissory Note, Exhibit 'A,' are based on one and the same obligation.
Plaintiff tried to enforce as it did enforce its claim into two different modes a
single obligation.
"'Aware that defendant Lily Yulo, filed a Motion to Suspend
Proceedings by virtue of a complaint she filed with the Court of First
Instance of Caloocan, seeking annulment of the Promissory Note, the very
basis of the plaintiff in filing this complaint, immediately after the day it filed
a Motion for the Issuance of an Alias Writ of Preliminary Attachment . . .
Yet, inspite of the knowledge and the filing of this Motion to Suspend
Proceedings, the Plaintiff still filed a Motion for the Issuance of a Writ of
Attachment dated February 6, 1976 before this court. To add insult to
injury, plaintiff even filed a Motion for Examination of the Attachment
Debtor, although aware that Lily Yulo had already denied participation in
the execution of Exhibits "A" and "B." These incidents and actions taken by
plaintiff, to the thinking of the court, are sufficient to prove and establish the
element of bad faith and malice on the part of plaintiff which may warrant
the award of damages in favor of defendant of Lily Yulo. (Ibid., pp. 102-
103).'
"Indeed, the existence of evident bad faith on the appellant's part in
proceeding against the appellee Lily Yulo in the present case, may likewise be
buttressed on the fact that its officer Mr. Abraham Co, did not even bother to
demand the production of at least the duplicate original of the Special Power of
Attorney (Exhibit B) and merely contended himself with a mere xerox copy thereof,
neither did he require a more specific authority from the A & L Industries to contract
the loan in question, since from the very content and recitals of the disputed
document, no authority, express or implied, has been delegated or granted to
August Yulo to contract a loan, especially with the appellant." (pp. 33-34, Rollo)
Concerning the actual damages, the appellate court ruled that the petitioner should have
presented evidence to disprove or rebut the private respondent's claim but it remained quiet and
chose not to disturb the testimony and the evidence presented by the private respondent to prove
her claim. LibLex
In this petition for certiorari, the petitioner raises three issues. The first issue deals with
the appellate court's affirmance of the trial court's findings that the signature of the private
respondent on the Special Power of Attorney was forged. According to the petitioner, the Court of
Appeals disregarded the direct mandate of Section 23, Rule 132 of the Rules of Court which
states in part that evidence of handwriting by comparison may be made "with writings admitted or
treated as genuine by the party against whom the evidence is offered, or proved to be genuine to
the satisfaction of the judge," and that there is no evidence on record which proves or tends to
prove the genuineness of the standards used.
There is no merit in this contention.
 The records show that the signatures which were used as "standards" for comparison
with the alleged signature of the private respondent in the Special Power of Attorney were those
from the latter's residence certificates in the years 1973, 1974 and 1975, her income tax returns
for the years 1973 and 1975 and from a document on long bond paper dated May 18, 1977. Not
only were the signatures in the foregoing documents admitted by the private respondent as hers
but most of the said documents were used by the private respondent in her transactions with the
government. As was held in the case of Plymouth Saving & Loan Ass'n. No. 2 v. Kassing (125
N.E. 488, 494):
"We believe the true rule deduced from the authorities to be that the
genuineness of a 'standard' writing may be established (1) by the admission of the
person sought to be charged with the disputed writing made at or for the purposes
of the trial or by his testimony; (2) by witnesses who saw the standards written or to
whom or in whose hearing the person sought to be charged acknowledged the
writing thereof; (3) by evidence showing that the reputed writer of the standard has
acquiesced in or recognized the same, or that it has been adopted and acted upon
by him in his business transactions or other concerns . . ."
Furthermore, the judge found such signatures to be sufficient as standards. In the case
of Taylor-Wharton Iron & Steel Co. v. Earnshaw (156 N.E. 855, 856), it was held:
"When a writing is offered as a standard of comparison it is for the
presiding judge to decide whether it is the handwriting of the party to be charged.
'Unless his finding is founded upon error of law, or upon evidence which is, as
matter of law, insufficient to justify the finding, this court will not revise it upon
exceptions.' (Costelo v. Crowell, 139 Mass. 588, 590, 2 N.E. 648; Nuñez v. Perry,
113 Mass, 274, 276.)"
We cannot find any error on the part of the trial judge in using the above documents as
standards and also in giving credence to the expert witness presented by the private respondent
whose testimony the petitioner failed to rebut and whose credibility it likewise failed to impeach.
But more important is the fact that the unrebutted handwriting expert's testimony noted twelve
(12) glaring and material differences in the alleged signature of the private respondent in the
Special Power of Attorney as compared with the specimen signatures, something which the
appellate court also took into account. In Cesar v. Sandiganbayan (134 SCRA 105, 132), we
ruled:
"Mr. Maniwang pointed to other significant divergences and distinctive
characteristics between the sample signatures and the signatures on the
questioned checks in his report which the court's Presiding Justice kept mentioning
during Maniwang's testimony.
"In the course of his cross-examination, NBI expert Tabayoyong admitted
that he saw the differences between the exemplars used and the questioned
signatures but he dismissed the differences because he did not consider them
fundamental. We rule that significant differences are more fundamental than a few
similarities. A forger always strives to master some similarities."
The second issue raised by the petitioner is that while it is true that A & L Industries is a
single proprietorship and the registered owner thereof is private respondent Lily Yulo, the said
proprietorship was established during the marriage and its assets were also acquired during the
same. Therefore, it is presumed that this property forms part of the conjugal partnership of the
spouses Augusto and Lily Yulo and thus, could be held liable for the obligations contracted by
Augusto Yulo, as administrator of the partnership.
There is no dispute that A & L Industries was established during the marriage of Augusto
and Lily Yulo and therefore the same is presumed conjugal and the fact that it was registered in
the name of only one of the spouses does not destroy its conjugal nature (See Mendoza v.
Reyes, 124 SCRA 161, 165). However, for the said property to be held liable, the obligation
contracted by the husband must have redounded to the benefit of the conjugal partnership under
Article 161 of the Civil Code. In the present case, the obligation which the petitioner is seeking to
enforce against the conjugal property managed by the private respondent Lily Yulo was
undoubtedly contracted by Augusto Yulo for his own benefit because at the time he incurred the
obligation he had already abandoned his family and had left their conjugal home. Worse, he made
it appear that he was duly authorized by his wife in behalf of A & L Industries, to procure such
loan from the petitioner. Clearly, to make A & L Industries liable now for the said loan would be
unjust and contrary to the express provision of the Civil Code. As we have ruled in Luzon Surety
Co., Inc. v. De Garcia (30 SCRA 111, 115-117):
"As explained in the decision now under review: 'It is true that the husband
is the administrator of the conjugal property pursuant to the provisions of Art. 163 of
the new Civil Code. However, as such administrator the only obligations incurred by
the husband that are chargeable against the conjugal property are those incurred in
the legitimate pursuit of his career, profession or business with the honest benefit
that he is doing right for the benefit of the family. This is not true in the case at bar
for we believe that the husband in acting as guarantor or surety for another in an
indemnity agreement as that involved in this case did not act for the benefit of the
conjugal partnership. Such inference is more emphatic in this case, when no proof
is presented that Vicente Garcia in acting as surety or guarantor received
consideration therefor, which may redound to the benefit of the conjugal
partnership.' (Ibid, pp. 46-47).
xxx xxx xxx
". . . In the most categorical language, a conjugal partnership under that
provision is liable only for such 'debts and obligations contracted by the husband for
the benefit of the conjugal partnership.' There must be the requisite showing then of
some advantage which clearly accrued to the welfare of the spouses. There is none
in this case . . .
xxx xxx xxx
"Moreover, it would negate the plain object of the additional requirement in
the present Civil Code that a debt contracted by the husband to bind a conjugal
partnership must redound to its benefit. That is still another provision indicative of
the solicitude and tender regard that the law manifests for the family as a unit. Its
interest is paramount; its welfare uppermost in the minds of the codifiers and
legislators."
We, therefore, rule that the petitioner cannot enforce the obligation contracted by Augusto
Yulo against his conjugal properties with respondent Lily Yulo. Thus, it follows that the writ of
attachment cannot issue against the said properties. LLpr
Finally, the third issue assails the award of actual damages. According to the petitioner,
both the lower court and the appellate court overlooked the fact that the properties referred to are
still subject to a levy on attachment. They are, therefore, still under custodia legis and thus, the
assailed decision should have included a declaration as to who is entitled to the attached
properties and that assuming arguendo that the attachment was erroneous, the lower court
should have ordered the sheriff to return to the private respondent the attached properties instead
of condemning the petitioner to pay the value thereof by way of actual damages.
In the case of Lazatin v. Twaño (2 SCRA 842, 847), we ruled:
xxx xxx xxx
". . . It should be observed that Sec. 4 of Rule 59, does not prescribe
the remedies available to the attachment defendant in case of a wrongful
attachment, but merely provides an action for recovery upon the bond, based
on the undertaking therein made and not upon the liability arising from a
tortious act, like the malicious suing out of an attachment. Under the first,
where malice is not essential, the attachment defendant, is entitled to recover
only the actual damages sustained by him by reason of the attachment.
Under the second, where the attachment is maliciously sued out, the
damages recoverable may include a compensation for every injury to his
credit, business or feelings (Tyler v. Mahoney, 168 NC 237, 84 SE 362;
Pittsburg etc. 5 Wakefield, etc., 135 NC 73, 47 SE 234) . . ."
 The question before us, therefore, is whether the attachment of the properties of A & L
Industries was wrongful so as to entitle the petitioner to actual damages only or whether the said
attachment was made in bad faith and with malice to warrant the award of other kinds of
damages. Moreover, if the private respondent is entitled only to actual damages, was the court
justified in ordering the petitioner to pay for the value of the attached properties instead of
ordering the return of the said properties to the private respondent Lily Yulo?
Both the trial and appellate courts found that there was bad faith on the part of the
petitioner in securing the writ of attachment. We do not think so. "An attachment may be said to
be wrongful when, for instance, the plaintiff has no cause of action, or that there is no true ground
therefor, or that the plaintiff has a sufficient security other than the property attached, which is
tantamount to saying that the plaintiff is not entitled to attachment because the requirements of
entitling him to the writ are wanting. (7 C.J.S., 664)" (p. 48, Section 4, Rule 57, Francisco,
Revised Rules of Court)
Although the petitioner failed to prove the ground relied upon for the issuance of the writ
of attachment, this failure cannot be equated with bad faith or malicious intent. The steps which
were taken by the petitioner to ensure the security of its claim were premised on the firm belief
that the properties involved could be made answerable for the unpaid obligation due it. There is
no question that a loan in the amount of P591,003.59 was borrowed from the bank. prLL
We, thus, find that the petitioner is liable only for actual damages and not for exemplary
damages and attorney's fees. Respondent Lily Yulo has manifested before this Court that she no
longer desires the return of the attached properties since the said attachment caused her to close
down the business. From that time she has become a mere employee of the new owner of the
premises. She has grave doubts as to the running condition of the attached machineries and
equipments considering that the attachment was effected way back in 1975. She states as a
matter of fact that the petitioner has already caused the sale of the machineries for fear that they
might be destroyed due to prolonged litigation. We, therefore, deem it just and equitable to allow
private respondent Lily Yulo to recover actual damages based on the value of the attached
properties as proven in the trial court, in the amount of P660,000.00. In turn, if there are any
remaining attached properties, they should be permanently released to herein petitioner.
We cannot, however, sustain the award of P500,000.00 representing unrealized profits
because this amount was not proved or justified before the trial court. The basis of the alleged
unearned profits is too speculative and conjectural to show actual damages for a future period.
The private respondent failed to present reports on the average actual profits earned by her
business and other evidence of profitability which are necessary to prove her claim for the said
amount (See G. A. Machineries, Inc. v. Yaptinchay, 126 SCRA 78, 88).
The judgment is therefore set aside insofar as it holds the petitioner liable for
P500,000.00 actual damages representing unrealized profits, P150,000.00 for exemplary
damages and P20,000.00 for attorney's fees. As stated earlier, the attached properties, should be
released in favor of the petitioner.
WHEREFORE, the decision of the Court of Appeals is hereby SET ASIDE and the
petitioner is ordered to pay the private respondent Lily Yulo the amount of SIX HUNDRED SIXTY
THOUSAND PESOS (P660,000.00) as actual damages. The remaining properties subject of the
attachment are ordered released in favor of the petitioner.
SO ORDERED.
Fernan, Feliciano, Bidin and Cortes. JJ., concur.
 
|||  (BA Finance Corp. v. Court of Appeals, G.R. No. 61464, [May 28, 1988], 244 PHIL 625-639)
 SECOND DIVISION

[G.R. No. 143382. November 29, 2006.]

SECURITY BANK and TRUST COMPANY, petitioner, vs. MAR TIERRA

CORPORATION, WILFRIDO C. MARTINEZ, MIGUEL J. LACSON and RICARDO
A. LOPA, respondents.

DECISION

CORONA, J  p:

May the conjugal partnership be held liable for an indemnity agreement entered into by
the husband to accommodate a third party?
This issue confronts us in this petition for review on certiorari assailing the November 9,
1999 decision 1 of the Court of Appeals (CA) in CA-G.R. CV No. 48107.
On May 7, 1980, respondent Mar Tierra Corporation, through its president, Wilfrido C.
Martinez, applied for a P12,000,000 credit accommodation with petitioner Security Bank and Trust
Company. Petitioner approved the application and entered into a credit line agreement with
respondent corporation. It was secured by an indemnity agreement executed by individual
respondents Wilfrido C. Martinez, Miguel J. Lacson and Ricardo A. Lopa who bound themselves
jointly and severally with respondent corporation for the payment of the loan.
On July 2, 1980, the credit line agreement was amended and increased to P14,000,000.
Individual respondents correspondingly executed a new indemnity agreement in favor of the bank
to secure the increased credit line.
 On September 25, 1981, respondent corporation availed of its credit line and received the
sum of P9,952,000 which it undertook to pay on or before November 30, 1981. It was able to pay
P4,648,000 for the principal loan and P2,729,195.56 for the interest and other charges. However,
respondent corporation was not able to pay the balance as it suffered business reversals,
eventually ceasing operations in 1984.
Unable to collect the balance of the loan, petitioner filed a complaint for a sum of money
with a prayer for preliminary attachment against respondent corporation and individual
respondents in the Regional Trial Court (RTC) of Makati, Branch 66. It was docketed as Civil
Case No. 3947.
Subsequently, however, petitioner had the case dismissed with respect to individual
respondents Lacson and Lopa, 2 leaving Martinez as the remaining individual
respondent. HcTEaA
On August 10, 1982, the RTC issued a writ of attachment on all real and personal
properties of respondent corporation and individual respondent Martinez. As a consequence, the
conjugal house and lot of the spouses Wilfrido and Josefina Martinez in Barrio Calaanan,
Caloocan City covered by Transfer Certificate of Title (TCT) No. 49158 was levied on.
The RTC rendered its decision 3 on June 20, 1994. It held respondent corporation and
individual respondent Martinez jointly and severally liable to petitioner for P5,304,000 plus 12%
interest per annum and 5% penalty commencing on June 21, 1982 until fully paid, plus P10,000
as attorney's fees. It, however, found that the obligation contracted by individual respondent
Martinez did not redound to the benefit of his family, hence, it ordered the lifting of the attachment
on the conjugal house and lot of the spouses Martinez.
Dissatisfied with the RTC decision, petitioner appealed to the CA but the appellate court
affirmed the trial court's decision in toto. Petitioner sought reconsideration but it was denied.
Hence, this petition.
Petitioner makes two basic assertions: (1) the RTC and CA erred in finding that
respondent corporation availed of P9,952,000 only from its credit line and not the entire
P14,000,000 and (2) the RTC and CA were wrong in ruling that the conjugal partnership of the
Martinez spouses could not be held liable for the obligation incurred by individual respondent
Martinez.
We uphold the CA.
Factual findings of the CA, affirming those of the trial court, will not be disturbed on
appeal but must be accorded great weight. 4 These findings are conclusive not only on the parties
but on this Court as well. 5
The CA affirmed the finding of the RTC that the amount availed of by respondent
corporation from its credit line with petitioner was only P9,952,000. Both courts correctly pointed
out that petitioner itself admitted this amount when it alleged in paragraph seven of its complaint
that respondent corporation "borrowed and received the principal sum of
P9,952,000." 6 Petitioner was therefore bound by the factual finding of the appellate and trial
courts, as well as by its own judicial admission, on this particular point.
At any rate, the issue of the amount actually availed of by respondent corporation is
factual. It is not within the ambit of this Court's discretionary power of judicial review under Rule
45 of the Rules of Court which is concerned solely with questions of law. 7
We now move on to the principal issue in this case.
Under Article 161(1) of the Civil Code, 8 the conjugal partnership is liable for "all debts
and obligations contracted by the husband for the benefit of the conjugal partnership." But when
are debts and obligations contracted by the husband alone considered  for the benefit of and
therefore chargeable against the conjugal partnership? Is a surety agreement or an
accommodation contract entered into by the husband in favor of his employer within the
contemplation of the said provision?
We ruled as early as 1969 in Luzon Surety Co., Inc. v. de Garcia 9 that, in acting as a
guarantor or surety for another, the husband does not act for the benefit of the conjugal
partnership as the benefit is clearly intended for a third party. acCDSH
 In Ayala Investment and Development Corporation v. Court of Appeals, 10 we ruled that,
if the husband himself is the principal obligor in the contract, i.e., the direct recipient of the money
and services to be used in or for his own business or profession, the transaction falls within the
term "obligations for the benefit of the conjugal partnership." In other words, where the husband
contracts an obligation on behalf of the family business, there is a legal presumption that such
obligation redounds to the benefit of the conjugal partnership. 11
On the other hand, if the money or services are given to another person or entity and the
husband acted only as a surety or guarantor, the transaction cannot by itself be deemed an
obligation for the benefit of the conjugal partnership. 12 It is for the benefit of the principal debtor
and not for the surety or his family. No presumption is raised that, when a husband enters into a
contract of surety or accommodation agreement, it is for the benefit of the conjugal partnership.
Proof must be presented to establish the benefit redounding to the conjugal partnership. 13 In the
absence of any showing of benefit received by it, the conjugal partnership cannot be held liable
on an indemnity agreement executed by the husband to accommodate a third party. 14
In this case, the principal contract, the credit line agreement between petitioner and
respondent corporation, was solely for the benefit of the latter. The accessory contract (the
indemnity agreement) under which individual respondent Martinez assumed the obligation of a
surety for respondent corporation was similarly for the latter's benefit. Petitioner had the burden of
proving that the conjugal partnership of the spouses Martinez benefited from the transaction. It
failed to discharge that burden.
To hold the conjugal partnership liable for an obligation pertaining to the husband alone
defeats the objective of the Civil Code to protect the solidarity and well being of the family as a
unit. 15 The underlying concern of the law is the conservation of the conjugal
partnership. 16 Hence, it limits the liability of the conjugal partnership only to debts and
obligations contracted by the husband for the benefit of the conjugal partnership.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
Puno, Sandoval-Gutierrez, Azcuna and Garcia, JJ., concur.

Footnotes

1.Penned by Associate Justice Conrado M. Vasquez, Jr. and concurred in by Associate Justices
Salome A. Montoya (retired) and Teodoro P. Regino (retired) of the Second Division of the
Court of Appeals; rollo, pp. 34-42.
2.Petition for Review, p. 5; id., p. 15. The reason for the dismissal, however, was not mentioned.
3.Penned by Judge Eriberto Rosario.
4.Aboitiz Shipping Corporation v. New India Assurance Company, Ltd ., G.R. No. 156978, 02 May
2006.
5.Id.
6.CA Records, p. 3; rollo, p. 39.
7.Philippine National Bank v. Campos, G.R. No. 167270, 30 June 2006.
8.Now Article 121(2) of the Family Code.
9.140 Phil. 509 (1969).
10.349 Phil. 942 (1998).
11.Id.
12.Id.
 13.Id.
14.Luzon Surety Co., Inc. v. de Garcia, supra.
15.Ching v. Court of Appeals, G.R. No. 124642, 23 February 2004, 423 SCRA 356.
16.Ayala Investment and Development Corporation v. Court of Appeals, supra.
|||  (Security Bank and Trust Co. v. Mar Tierra Corporation, G.R. No. 143382, [November 29, 2006],
538 PHIL 269-276)

FIRST DIVISION

[G.R. No. 160347. November 29, 2006.]

ARCADIO and MARIA LUISA CARANDANG,  petitioners, vs. HEIRS OF

QUIRINO A. DE GUZMAN, namely: MILAGROS DE GUZMAN, VICTOR DE
GUZMAN, REYNALDO DE GUZMAN, CYNTHIA G. RAGASA and QUIRINO DE
GUZMAN, JR.,  respondents.

DECISION

CHICO-NAZARIO,  J p:

This is a Petition for Review on Certiorari assailing the Court of Appeals Decision 1 and

Resolution affirming the Regional Trial Court (RTC) Decision rendering herein petitioners Arcadio
and Luisa Carandang [hereinafter referred to as spouses Carandang] jointly and severally liable
for their loan to Quirino A. de Guzman.
The Court of Appeals summarized the facts as follows:
[Quirino de Guzman] and [the Spouses Carandang] are stockholders as
well as corporate officers of Mabuhay Broadcasting System (MBS for brevity), with
equities at fifty four percent (54%) and forty six percent (46%) respectively.
On November 26, 1983, the capital stock of MBS was increased, from
P500,000 to P1.5 million and P345,000 of this increase was subscribed by [the
spouses Carandang]. Thereafter, on March 3, 1989, MBS again increased its
capital stock, from P1.5 million to P3 million, [the spouses Carandang] yet again
subscribed to the increase. They subscribed to P93,750 worth of newly issued
capital stock.
[De Guzman] claims that, part of the payment for these subscriptions were
paid by him, P293,250 for the November 26, 1983 capital stock increase and
P43,125 for the March 3, 1989 Capital Stock increase or a total of P336,375. Thus,
on March 31, 1992, [de Guzman] sent a demand letter to [the spouses Carandang]
for the payment of said total amount.
 [The spouses Carandang] refused to pay the amount, contending that a
pre-incorporation agreement was executed between [Arcadio Carandang] and [de
Guzman], whereby the latter promised to pay for the stock subscriptions of the
former without cost, in consideration for [Arcadio Carandang's] technical expertise,
his newly purchased equipment, and his skill in repairing and upgrading
radio/communication equipment therefore, there is no indebtedness on their part
[sic].
On June 5, 1992, [de Guzman] filed his complaint, seeking to recover the
P336,375 together with damages. After trial on the merits, the trial court disposed of
the case in this wise:
"WHEREFORE, premises considered, judgment is hereby
rendered in favor of [de Guzman]. Accordingly, [the spouses Carandang]
are ordered to jointly and severally pay [de Guzman], to wit:
(1) P336,375.00 representing [the spouses Carandang's] loan to de
Guzman;
(2) interest on the preceding amount at the rate of twelve percent
(12%) per annum from June 5, 1992 when this complaint was filed until the
principal amount shall have been fully paid;
(3) P20,000.00 as attorney's fees;
(4) Costs of suit. DTcASE
The spouses Carandang appealed the RTC Decision to the Court of Appeals, which
affirmed the same in the 22 April 2003 assailed Decision:
WHEREFORE, in view of all the foregoing the assailed Decision is hereby
AFFIRMED. No costs. 2
The Motion for Reconsideration filed by the spouses Carandang was similarly denied by
the Court of Appeals in the 6 October 2003 assailed Resolution:
WHEREFORE, in view thereof, the motion for reconsideration is hereby
DENIED and our Decision of April 22, 2003, which is based on applicable law and
jurisprudence on the matter is hereby AFFIRMED and REITERATED. 3
The spouses Carandang then filed before this Court the instant Petition for Review
on Certiorari, bringing forth the following issues:
I.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED
MANIFEST ERROR IN FAILING TO STRICTLY COMPLY WITH SECTION 16,
RULE 3 OF THE 1997 RULES OF CIVIL PROCEDURE.
II.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY
ERRED IN ITS FINDING THAT THERE IS AN ALLEGED LOAN FOR WHICH
PETITIONERS ARE LIABLE, CONTRARY TO EXPRESS PROVISIONS OF BOOK
IV, TITLE XI, OF THE NEW CIVIL CODE PERTAINING TO LOANS.
III.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY
ERRED IN FINDING THAT THE RESPONDENTS WERE ABLE TO DISCHARGE
THEIR BURDEN OF PROOF, IN COMPLETE DISREGARD OF THE REVISED
RULES ON EVIDENCE.
IV.
 WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR WHEN IT FAILED TO APPLY SECTIONS 2 AND 7, RULE
3 OF THE 1997 RULES OF CIVIL PROCEDURE.
V.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY
ERRED IN FINDING THAT THE PURPORTED LIABILITY OF PETITIONERS ARE
JOINT AND SOLIDARY, IN VIOLATION OF ARTICLE 1207 OF THE NEW CIVIL
CODE. 4
Whether or not the RTC Decision is void
for failing to comply with Section 16, Rule
3 of the Rules of Court
The spouses Carandang claims that the Decision of the RTC, having been rendered after
the death of Quirino de Guzman, is void for failing to comply with Section 16, Rule 3 of the  Rules
of Court, which provides:
SEC. 16. Death of party; duty of counsel. — Whenever a party to a pending
action dies, and the claim is not thereby extinguished, it shall be the duty of his
counsel to inform the court within thirty (30) days after such death of the fact
thereof, and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with this duty shall be a ground for
disciplinary action.
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or administrator and
the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order the legal representative or representatives to
appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party,
or if the one so named shall fail to appear within the specified period, the court may
order the opposing party, within a specified time, to procure the appointment of an
executor or administrator for the estate of the deceased and the latter shall
immediately appear for and on behalf of the deceased. The court charges in
procuring such appointment, if defrayed by the opposing party, may be recovered
as costs.
The spouses Carandang posits that such failure to comply with the above rule renders
void the decision of the RTC, in adherence to the following pronouncements in Vda. de Haberer
v. Court of Appeals 5 and Ferreria v. Vda. de Gonzales 6 :
Thus, it has been held that when a party dies in an action that survives and
no order is issued by the court for the appearance of the legal representative or of
the heirs of the deceased in substitution of the deceased, and as a matter of fact no
substitution has ever been effected, the trial held by the court without such legal
representatives or heirs and the judgment rendered after such trial are null and void
because the court acquired no jurisdiction over the persons of the legal
representatives or of the heirs upon whom the trial and judgment would be
binding. 7
In the present case, there had been no court order for the legal
representative of the deceased to appear, nor had any such legal representative
appeared in court to be substituted for the deceased; neither had the complainant
ever procured the appointment of such legal representative of the deceased,
including appellant, ever asked to be substituted for the deceased. As a result, no
valid substitution was effected, consequently, the court never acquired jurisdiction
over appellant for the purpose of making her a party to the case and making the
decision binding upon her, either personally or as a representative of the estate of
her deceased mother. 8
 However, unlike jurisdiction over the subject matter which is conferred by law and is not
subject to the discretion of the parties, 9 jurisdiction over the person of the parties to the case may
be waived either expressly or impliedly. 10 Implied waiver comes in the form of either voluntary
appearance or a failure to object. 11
In the cases cited by the spouses Carandang, we held that there had been no valid
substitution by the heirs of the deceased party, and therefore the judgment cannot be made
binding upon them. In the case at bar, not only do the heirs of de Guzman interpose no objection
to the jurisdiction of the court over their persons; they are actually claiming and embracing such
jurisdiction. In doing so, their waiver is not even merely implied (by their participation in the appeal
of said Decision), but express (by their explicit espousal of such view in both the Court of Appeals
and in this Court). The heirs of de Guzman had no objection to being bound by the Decision of the
RTC. DaScHC
Thus, lack of jurisdiction over the person, being subject to waiver, is a personal defense
which can only be asserted by the party who can thereby waive it by silence.
It also pays to look into the spirit behind the general rule requiring a formal substitution of
heirs. The underlying principle therefor is not really because substitution of heirs is a jurisdictional
requirement, but because non-compliance therewith results in the undeniable violation of the right
to due process of those who, though not duly notified of the proceedings, are substantially
affected by the decision rendered therein. 12 Such violation of due process can only be asserted
by the persons whose rights are claimed to have been violated, namely the heirs to whom the
adverse judgment is sought to be enforced.
Care should, however, be taken in applying the foregoing conclusions. In People v.
Florendo, 13 where we likewise held that the proceedings that took place after the death of the
party are void, we gave another reason for such nullity: "the attorneys for the offended party
ceased to be the attorneys for the deceased upon the death of the latter, the principal . . . ."
Nevertheless, the case at bar had already been submitted for decision before the RTC on 4 June
1998, several months before the passing away of de Guzman on 19 February 1999. Hence, no
further proceedings requiring the appearance of de Guzman's counsel were conducted before the
promulgation of the RTC Decision. Consequently, de Guzman's counsel cannot be said to have
no authority to appear in trial, as trial had already ceased upon the death of de Guzman.
In sum, the RTC Decision is valid despite the failure to comply with Section 16, Rule 3 of
the Rules of Court, because of the express waiver of the heirs to the jurisdiction over their
persons, and because there had been, before the promulgation of the RTC Decision, no further
proceedings requiring the appearance of de Guzman's counsel.
Before proceeding with the substantive aspects of the case, however, there is still one
more procedural issue to tackle, the fourth issue presented by the spouses Carandang on the
non-inclusion in the complaint of an indispensable party.
Whether or not the RTC should have
dismissed the case for failure to state a
cause of action, considering that Milagros
de Guzman, allegedly an indispensable
party, was not included as a party-
plaintiff
The spouses Carandang claim that, since three of the four checks used to pay their stock
subscriptions were issued in the name of Milagros de Guzman, the latter should be considered an
indispensable party. Being such, the spouses Carandang claim, the failure to join Mrs. de
Guzman as a party-plaintiff should cause the dismissal of the action because "(i)f a suit is not
brought in the name of or against the real party in interest, a motion to dismiss may be filed on the
ground that the complaint states no cause of action." 14
The Court of Appeals held:
We disagree. The joint account of spouses Quirino A de Guzman and
Milagros de Guzman from which the four (4) checks were drawn is part of their
conjugal property and under both the Civil Code and the Family Code the husband
alone may institute an action for the recovery or protection of the spouses' conjugal
property.
 Thus, in Docena v. Lapesura [355 SCRA 658], the Supreme Court held
that ". . . Under the New Civil Code, the husband is the administrator of the conjugal
partnership. In fact, he is the sole administrator, and the wife is not entitled as a
matter of right to join him in this endeavor. The husband may defend the conjugal
partnership in a suit or action without being joined by the wife. . . . Under the Family
Code, the administration of the conjugal property belongs to the husband and the
wife jointly. However, unlike an act of alienation or encumbrance where the consent
of both spouses is required, joint management or administration does not require
that the husband and wife always act together. Each spouse may validly exercise
full power of management alone, subject to the intervention of the court in proper
cases as provided under Article 124 of the Family Code. . . . ."
The Court of Appeals is correct. Petitioners erroneously interchange the terms "real party
in interest" and "indispensable party." A real party in interest is the party who stands to be
benefited or injured by the judgment of the suit, or the party entitled to the avails of the suit.  15 On
the other hand, an indispensable party is a party in interest without whom no final determination
can be had of an action, 16 in contrast to a necessary party, which is one who is not
indispensable but who ought to be joined as a party if complete relief is to be accorded as to
those already parties, or for a complete determination or settlement of the claim subject of the
action. 17
The spouses Carandang are indeed correct that "(i)f a suit is not brought in the name of
or against the real party in interest, a motion to dismiss may be filed on the ground that the
complaint states no cause of action." 18 However, what dismissal on this ground entails is an
examination of whether the parties presently pleaded are interested in the outcome of the
litigation, and not whether all persons interested in such outcome are actually pleaded. The latter
query is relevant in discussions concerning indispensable and necessary parties, but not in
discussions concerning real parties in interest. Both indispensable and necessary parties are
considered as real parties in interest, since both classes of parties stand to be benefited or injured
by the judgment of the suit.
Quirino and Milagros de Guzman were married before the effectivity of the Family
Code on 3 August 1988. As they did not execute any marriage settlement, the regime of conjugal
partnership of gains govern their property relations. 19
All property acquired during the marriage, whether the acquisition appears to have been
made, contracted or registered in the name of one or both spouses, is presumed to be conjugal
unless the contrary is proved. 20 Credits are personal properties, 21 acquired during the time the
loan or other credit transaction was executed. Therefore, credits loaned during the time of the
marriage are presumed to be conjugal property. DTIACH
Consequently, assuming that the four checks created a debt for which the spouses
Carandang are liable, such credits are presumed to be conjugal property. There being no
evidence to the contrary, such presumption subsists. As such, Quirino de Guzman, being a co-
owner of specific partnership property, 22 is certainly a real party in interest. Dismissal on the
ground of failure to state a cause of action, by reason that the suit was allegedly not brought by a
real party in interest, is therefore unwarranted.
So now we come to the discussion concerning indispensable and necessary parties.
When an indispensable party is not before the court, the action should likewise be
dismissed. 23 The absence of an indispensable party renders all subsequent actuations of the
court void, for want of authority to act, not only as to the absent parties but even as to those
present. 24 On the other hand, the non-joinder of necessary parties do not result in the dismissal
of the case. Instead, Section 9, Rule 3 of the Rules of Court provides for the consequences of
such non-joinder:
Sec. 9. Non-joinder of necessary parties to be pleaded. — Whenever in
any pleading in which a claim is asserted a necessary party is not joined, the
pleader shall set forth his name, if known, and shall state why he is omitted. Should
the court find the reason for the omission unmeritorious, it may order the inclusion
of the omitted necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable
cause, shall be deemed a waiver of the claim against such party.
 The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such necessary party.
Non-compliance with the order for the inclusion of a necessary party would not warrant
the dismissal of the complaint. This is an exception to Section 3, Rule 17 which allows the
dismissal of the complaint for failure to comply with an order of the court, as Section 9, Rule 3
specifically provides for the effect of such non-inclusion: it shall not prevent the court from
proceeding in the action, and the judgment rendered therein shall be without prejudice to the
rights of such necessary party. Section 11, Rule 3 likewise provides that the non-joinder of parties
is not a ground for the dismissal of the action.
Other than the indispensable and necessary parties, there is a third set of parties:
the  pro-forma parties, which are those who are required to be joined as co-parties in suits by or
against another party as may be provided by the applicable substantive law or procedural
rule. 25 An example is provided by Section 4, Rule 3 of the Rules of Court:
Sec. 4. Spouses as parties. — Husband and wife shall sue or be sued
jointly, except as provided by law.
Pro-forma parties can either be indispensable, necessary or neither indispensable nor
necessary. The third case occurs if, for example, a husband files an action to recover a property
which he claims to be part of his exclusive property. The wife may have no legal interest in such
property, but the rules nevertheless require that she be joined as a party.
In cases of pro-forma parties who are neither indispensable nor necessary, the general
rule under Section 11, Rule 3 must be followed: such non-joinder is not a ground for dismissal.
Hence, in a case concerning an action to recover a sum of money, we held that the failure to join
the spouse in that case was not a jurisdictional defect. 26 The non-joinder of a spouse does not
warrant dismissal as it is merely a formal requirement which may be cured by amendment. 27
Conversely, in the instances that the pro-forma parties are also indispensable or
necessary parties, the rules concerning indispensable or necessary parties, as the case may be,
should be applied. Thus, dismissal is warranted only if the pro-forma party not joined in the
complaint is an indispensable party.
Milagros de Guzman, being presumed to be a co-owner of the credits allegedly extended
to the spouses Carandang, seems to be either an indispensable or a necessary party. If she is an
indispensable party, dismissal would be proper. If she is merely a necessary party, dismissal is
not warranted, whether or not there was an order for her inclusion in the complaint pursuant to
Section 9, Rule 3.
Article 108 of the Family Code provides:
Art. 108. The conjugal partnership shall be governed by the rules on the
contract of partnership in all that is not in conflict with what is expressly determined
in this Chapter or by the spouses in their marriage settlements.
This provision is practically the same as the Civil Code provision it superceded:
Art. 147. The conjugal partnership shall be governed by the rules on the
contract of partnership in all that is not in conflict with what is expressly determined
in this Chapter.
In this connection, Article 1811 of the Civil Code provides that "[a] partner is a co-owner
with the other partners of specific partnership property." Taken with the presumption of the
conjugal nature of the funds used to finance the four checks used to pay for petitioners' stock
subscriptions, and with the presumption that the credits themselves are part of conjugal funds,
Article 1811 makes Quirino and Milagros de Guzman co-owners of the alleged credit. ECTSDa
Being co-owners of the alleged credit, Quirino and Milagros de Guzman may separately
bring an action for the recovery thereof. In the fairly recent cases of Baloloy v.
Hular 28 and  Adlawan v. Adlawan, 29 we held that, in a co-ownership, co-owners may bring
actions for the recovery of co-owned property without the necessity of joining all the other co-
owners as co-plaintiffs because the suit is presumed to have been filed for the benefit of his co-
owners. In the latter case and in that of De Guia v. Court of Appeals, 30 we also held that Article
487 of the Civil Code, which provides that any of the co-owners may bring an action for ejectment,
covers all kinds of action for the recovery of possession. 31
In sum, in suits to recover properties, all co-owners are real parties in interest. However,
pursuant to Article 487 of the Civil Code and relevant jurisprudence, any one of them may bring
an action, any kind of action, for the recovery of co-owned properties. Therefore, only one of the
co-owners, namely the co-owner who filed the suit for the recovery of the co-owned property, is
an indispensable party thereto. The other co-owners are not indispensable parties. They are not
even necessary parties, for a complete relief can be accorded in the suit even without their
participation, since the suit is presumed to have been filed for the benefit of all co-owners. 32
We therefore hold that Milagros de Guzman is not an indispensable party in the action for
the recovery of the allegedly loaned money to the spouses Carandang. As such, she need not
have been impleaded in said suit, and dismissal of the suit is not warranted by her not being a
party thereto.
Whether or not respondents were able
to prove the loan sought to be collected from
petitioners
In the second and third issues presented by the spouses Carandang, they claim that the
de Guzmans failed to prove the alleged loan for which the spouses Carandang were held liable.
As previously stated, spouses Quirino and Milagros de Guzman paid for the stock subscriptions of
the spouses Carandang, amounting to P336,375.00. The de Guzmans claim that these payments
were in the form of loans and/or advances and it was agreed upon between the late Quirino de
Guzman, Sr. and the spouses Carandang that the latter would repay him. Petitioners, on the other
hand, argue that there was an oral pre-incorporation agreement wherein it was agreed that
Arcardio Carandang would always maintain his 46% equity participation in the corporation even if
the capital structures were increased, and that Quirino de Guzman would personally pay the
equity shares/stock subscriptions of Arcardio Carandang with no cost to the latter.
On this main issue, the Court of Appeals held:
[The spouses Carandang] aver in its ninth assigned error that [the de
Guzmans] failed to prove by preponderance of evidence, either the existence of the
purported loan or the non-payment thereof.
Simply put, preponderance of evidence means that the evidence as a
whole adduced by one side is superior to that of the other. The concept of
preponderance of evidence refers to evidence that is of greater weight, or more
convincing, than that which is offered in opposition to it; it means probability of truth.
[The spouses Carandang] admitted that it was indeed [the de Guzmans]
who paid their stock subscriptions and their reason for not reimbursing the latter is
the alleged pre-incorporation agreement, to which they offer no clear proof as to its
existence.
It is a basic rule in evidence that each party must prove his affirmative
allegation. Thus, the plaintiff or complainant has to prove his affirmative allegations
in the complaints and the defendant or respondent has to prove the affirmative
allegations in his affirmative defenses and counterclaims. 33
The spouses Carandang, however, insist that the de Guzmans have not proven the loan
itself, having presented evidence only of the payment in favor of the Carandangs. They claim:
It is an undeniable fact that payment is not equivalent to a loan. For
instance, if Mr. "A" decides to pay for Mr. "B's" obligation, that payment by Mr. "A"
cannot, by any stretch of imagination, possibly mean that there is now a loan by Mr.
"B" to Mr. "A". There is a possibility that such payment by Mr. "A" is purely out of
generosity or that there is a mutual agreement between them. As applied to the
instant case, that mutual agreement is the pre-incorporation agreement (supra)
existing between Mr. de Guzman and the petitioners — to the effect that the former
shall be responsible for paying stock subscriptions of the latter. Thus, when Mr. de
Guzman paid for the stock subscriptions of the petitioners, there was no loan to
speak of, but only a compliance with the pre-incorporation agreement. 34
 The spouses Carandang are mistaken. If indeed a Mr. "A" decides to pay for a Mr. "B's"
obligation, the presumption is that Mr. "B" is indebted to Mr. "A" for such amount that has been
paid. This is pursuant to Articles 1236 and 1237 of the Civil Code, which provide:
Art. 1236. The creditor is not bound to accept payment or performance by a
third person who has no interest in the fulfillment of the obligation, unless there is a
stipulation to the contrary.
Whoever pays for another may demand from the debtor what he has
paid, except that if he paid without the knowledge or against the will of the debtor,
he can recover only insofar as the payment has been beneficial to the debtor.
Art. 1237. Whoever pays on behalf of the debtor without the knowledge or
against the will of the latter, cannot compel the creditor to subrogate him in his
rights, such as those arising from a mortgage, guarantee, or penalty. SaHcAC
Articles 1236 and 1237 are clear that, even in cases where the debtor has no knowledge
of payment by a third person, and even in cases where the third person paid against the will of the
debtor, such payment would produce a debt in favor of the paying third person. In fact, the only
consequences for the failure to inform or get the consent of the debtor are the following: (1) the
third person can recover only insofar as the payment has been beneficial to the debtor; and (2)
the third person is not subrogated to the rights of the creditor, such as those arising from a
mortgage, guarantee or penalty. 35
We say, however, that this is merely a presumption. By virtue of the parties' freedom to
contract, the parties could stipulate otherwise and thus, as suggested by the spouses Carandang,
there is indeed a possibility that such payment by Mr. "A" was purely out of generosity or that
there was a mutual agreement between them. But such mutual agreement, being an exception to
presumed course of events as laid down by Articles 1236 and 1237, must be adequately proven.
The de Guzmans have successfully proven their payment of the spouses Carandang's
stock subscriptions. These payments were, in fact, admitted by the spouses Carandang.
Consequently, it is now up to the spouses Carandang to prove the existence of the pre-
incorporation agreement that was their defense to the purported loan.
Unfortunately for the spouses Carandang, the only testimony which touched on the
existence and substance of the pre-incorporation agreement, that of petitioner Arcardio
Carandang, was stricken off the record because he did not submit himself to a cross-examination
of the opposing party. On the other hand, the testimonies of Romeo Saavedra, 36 Roberto S.
Carandang, 37 Gertrudes Z. Esteban, 38 Ceferino Basilio, 39 and Ma. Luisa
Carandang 40 touched on matters other than the existence and substance of the pre-
incorporation agreement. So aside from the fact that these witnesses had no personal knowledge
as to the alleged existence of the pre-incorporation agreement, the testimonies of these witnesses
did not even mention the existence of a pre-incorporation agreement.
Worse, the testimonies of petitioners Arcadio Carandang and Ma. Luisa Carandang even
contradicted the existence of a pre-incorporation agreement because when they were asked by
their counsel regarding the matter of the check payments made by the late Quirino A. de
Guzman, Sr. in their behalf, they said that they had already paid for it thereby negating their own
defense that there was a pre-incorporation agreement excusing themselves from paying Mr. de
Guzman the amounts he advanced or loaned to them. This basic and irrefutable fact can be
gleaned from their testimonies which the private respondents are quoting for easy reference:
a. With respect to the testimony of Ma. Luisa Carandang
Q: Now, can you tell this Honorable Court how do you feel with respect to the
Complaint of the plaintiff in this case charging you that you paid for this
year and asking enough to paid (sic) your tax?
A: We have paid already, so, we are not liable for anything payment (sic). 41
b. With respect to the testimony of Arcadio Carandang
"Q: How much?
A: P40,000.00 to P50,000.00 per month.
 Q: The plaintiff also claimed thru witness Edgar Ragasa, that there were receipts
issued for the payment of your shares; which receipts were marked as
Exhibits "G" to "L" (Plaintiff).
I'm showing to you these receipts so marked by the plaintiff as their exhibits
which were issued in the name of Ma. Luisa Carandang, your wife; and
also, Arcadio M. Carandang. Will you please go over this Official Receipt
and state for the records, who made for the payment stated in these
receipts in your name?
A: I paid for those shares." 42
There being no testimony or documentary evidence proving the existence of the pre-
incorporation agreement, the spouses Carandang are forced to rely upon an alleged admission by
the original plaintiff of the existence of the pre-incorporation agreement.
Petitioners claim that the late Quirino A. de Guzman, Sr. had admitted the existence of
the pre-incorporation agreement by virtue of paragraphs 13 and 14 of their Answer and paragraph
4 of private respondents' Reply.
Paragraphs 13 and 14 of petitioners' Answer dated 7 July 1992 state in full:
13. Sometime in November, 1973 or thereabout, herein plaintiff invited defendant
Arcadio M. Carandang to a joint venture by pooling together their technical
expertise, equipments, financial resources and franchise. Plaintiff proposed
to defendant and mutually agreed on the following:
1. That they would organize a corporation known as Mabuhay Broadcasting
Systems, Inc. ASCTac
2. Considering the technical expertise and talent of defendant Arcadio M.
Carandang and his new equipments he bought, and his skill in
repairing and modifying radio/communication equipments into high
proficiency, said defendant would have an equity participation in
the corporation of 46%, and plaintiff 54% because of his financial
resources and franchise.
3. That defendant would always maintain his 46% equity participation in the
corporation even if the capital structures are increased, and that
plaintiff would personally pay the equity shares/stock subscriptions
of defendant with no cost to the latter.
4. That because of defendant's expertise in the trade including the
marketing aspects, he would be the President and General
Manager, and plaintiff the Chairman of the Board.
5. That considering their past and trustworthy relations, they would
maintain such relations in the joint venture without any mental
reservation for their common benefit and success of the business.
14. Having mutually agreed on the above arrangements, the single proprietorship of
plaintiff was immediately spun-off into a corporation now known as
Mabuhay Broadcasting System, Inc. The incorporators are plaintiff and his
family members/nominees controlling jointly 54% of the stocks and
defendant Arcadio M. Carandang controlling singly 46% as previously
agreed. 43
Meanwhile, paragraphs 3 and 4 of private respondents' Reply dated 29 July 1992 state in
full:
3. Plaintiffs admits the allegation in paragraph 13.1 of the Answer only
insofar the plaintiff and defendant Arcadio M. Carandang organized a corporation
known as Mabuhay Broadcasting Systems, Inc. Plaintiff specifically denies the
other allegations in paragraph 13 of the Answer, the same being devoid of any legal
or factual bases. The truth of the matter is that defendant Arcadio M. Carandang
was not able to pay plaintiff the agreed amount of the lease for a number of months
 forcing the plaintiff to terminate lease. Additionally, the records would show that it
was the defendant Arcadio M. Carandang who proposed a joint venture with the
plaintiff.
It appears that plaintiff agreed to the formation of the corporation principally
because of a directive of then President Marcos indicating the need to broaden the
ownership of radio broadcasting stations. The plaintiff owned the franchise, the
radio transmitter, the antenna tower, the building containing the radio transmitter
and other equipment. Verily, he would be placed in a great disadvantage if he
would still have to personally pay for the shares of defendant Arcadio M.
Carandang.
4. Plaintiff admits the allegations in paragraph 14 of the Answer. 44
In effect, the spouses Carandang are relying on the fact that Quirino de Guzman stated
that he admitted paragraph 14 of the Answer, which incidentally contained the opening clause
"(h)aving mutually agreed on the above arrangements, . . . ."
Admissions, however, should be clear and unambiguous. This purported admission by
Quirino de Guzman reeks of ambiguity, as the clause "(h)aving mutually agreed on the above
arrangements," seems to be a mere introduction to the statement that the single proprietorship of
Quirino de Guzman had been converted into a corporation. If Quirino de Guzman had meant to
admit paragraph 13.3, he could have easily said so, as he did the other paragraphs he
categorically admitted. Instead, Quirino de Guzman expressly stated the opposite: that "(p)laintiff
specifically denies the other allegations of paragraph 13 of the Answer." 45 The Reply
furthermore states that the only portion of paragraph 13 which Quirino de Guzman had admitted
is paragraph 13.1, and only insofar as it said that Quirino de Guzman and Arcardio Carandang
organized Mabuhay Broadcasting Systems, Inc. 46
All the foregoing considered, we hold that Quirino de Guzman had not admitted the
alleged pre-incorporation agreement. As there was no admission, and as the testimony of
Arcardio Carandang was stricken off the record, we are constrained to rule that there was no pre-
incorporation agreement rendering Quirino de Guzman liable for the spouses Carandang's stock
subscription. The payment by the spouses de Guzman of the stock subscriptions of the spouses
Carandang are therefore by way of loan which the spouses Carandang are liable to pay.
Whether or not the liability of the spouses
Carandang is joint and solidary
Finally, the Court of Appeals also upheld the RTC Decision insofar as it decreed a
solidary liability. According to the Court of Appeals:
With regards (sic) the tenth assigned error, [the spouses Carandang]
contend that:
"There is absolutely no evidence, testimonial or documentary, showing that
the purported obligation of [the spouses Carandang] is joint and solidary. . . .
"Furthermore, the purported obligation of [the spouses Carandang] does
not at all qualify as one of the obligations required by law to be solidary . . . ."
It is apparent from the facts of the case that [the spouses Carandang] were
married way before the effectivity of the Family Code hence; their property regime
is conjugal partnership under the Civil Code.
It must be noted that for marriages governed by the rules of conjugal
partnership of gains, an obligation entered into by the husband and wife is
chargeable against their conjugal partnership and it is the partnership, which is
primarily bound for its repayment. Thus, when the spouses are sued for the
enforcement of the obligation entered into by them, they are being impleaded in
their capacity as representatives of the conjugal partnership and not as
independent debtors, such that the concept of joint and solidary liability, as between
them, does not apply. 47
 The Court of Appeals is correct insofar as it held that when the spouses are sued for the
enforcement of the obligation entered into by them, they are being impleaded in their capacity as
representatives of the conjugal partnership and not as independent debtors. Hence, either of
them may be sued for the whole amount, similar to that of a solidary liability, although the amount
is chargeable against their conjugal partnership property. Thus, in the case cited by the Court of
Appeals,  Alipio v. Court of Appeals, 48 the two sets of defendant-spouses therein were held liable
for P25,300.00 each, chargeable to their respective conjugal partnerships. ECDAcS
WHEREFORE, the Decision of the Court of Appeals, affirming the judgment rendered
against the spouses Carandang, is hereby AFFIRMED with the following MODIFICATION: The
spouses Carandang are ORDERED to pay the following amounts from their conjugal partnership
properties:
(1) P336,375.00 representing the spouses Carandang's loan to Quirino de
Guzman; and
(2) Interest on the preceding amount at the rate of twelve percent (12%) per annum
from 5 June 1992 when the complaint was filed until the principal amount
can be fully paid; and
(3) P20,000.00 as attorney's fees.
No costs.
SO ORDERED.
Panganiban, C.J., Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ., concur.
|||  (Carandang v. Heirs of de Guzman, G.R. No. 160347, [November 29, 2006], 538 PHIL 319-347)

FIRST DIVISION

[G.R. No. 160762. May 3, 2006.]

Spouses JOSEPHINE MENDOZA GO & HENRY GO, petitioners, vs.

LEONARDO YAMANE, respondent.
 DECISION

PANGANIBAN,  C.J p:

Property purchased by spouses during the existence of their marriage is presumed to be

conjugal in nature. This presumption stands, absent any clear, categorical, and convincing evidence
that the property is paraphernal. Conjugal property cannot be held liable for the personal obligation
contracted by one spouse, unless some advantage or benefit is shown to have accrued to the
conjugal partnership.
The Case
Before the Court is a Petition for Review 1 under Rule 45 of the Rules of Court, challenging
the November 22, 2002 Decision 2 and the September 17, 2003 Resolution 3 of the Court of Appeals
(CA) in CA-G.R. CV No. 60939. The assailed Decision disposed as follows:
"WHEREFORE, premises considered, the Decision appealed from is
hereby REVERSED and SET ASIDE. The Sheriff's Certificate of Sale dated August
12, 1981 and the Final Sheriff's Certificate of Sale dated August 26, 1982 are
declared NULL and VOID." 4
The CA denied reconsideration in its September 17, 2003 Resolution.
The Facts
The undisputed factual findings of the CA are as follows:
"Involved in the suit is a 750 square meters (sic) parcel of lot located at
Res. Sec. 'K', Baguio City, registered in the name of Muriel Pucay Yamane, wife of
Leonardo Yamane, [respondent] herein, under Transfer Certificate of Title No.
12491.
"As a result of a motion for execution of a charging lien filed by Atty.
Guillermo F. De Guzman in Civil Case No. 1841, entitled 'Florence Pucay De
Gomez, Elsie Pucay Kiwas and Muriel Pucay Yamane v. Cypress Corporation,'
which said counsel handled for the plaintiffs therein, hereinafter collectively referred
to as the Pucay sisters, the subject property was levied to satisfy the lien for
attorney's fees in the amount of P10,000. The said property was scheduled to be
sold at public auction on August 11, 1981. aHTcDA
"Four days prior to the auction sale, [respondent] filed a Third-Party
Claim with the Office of the Provincial Sheriff to stop the public auction on the
ground that the subject property is conjugal property and, therefore, should not be
held answerable for the personal obligation of the Pucay sisters. However, the
Sheriff proceeded with the auction sale despite [respondent's] protest. The subject
property was sold to spouses Josephine [and] Henry Go (or [petitioners]) as highest
bidder. No redemption having been made during the one-year period, a Final
Sheriff's Certificate of Sale was eventually issued on August 26, 1982 conveying
and transferring the said property to [petitioners].
"On September 4, 1984, [respondent] filed a Complaint with the Regional
Trial Court of Baguio City, docketed as Civil Case No. 417-R, against [petitioners]
and Sheriff Melgar for annulment and cancellation of auction sale upon the same
ground stated in the abovementioned third-party claim. Citing the Order of the
Regional Trial Court of Baguio City, Branch V in LRC Case No. 2288, which
ordered the cancellation of TCT No. 12491 and directed the Register of Deeds to
issue new title in the name of Josephine Go . . ., [petitioners] moved to dismiss the
complaint on the ground of res judicata. In the Order dated November 28, 1984, the
motion was denied by the trial court.
"In their Answer filed on December 10, 1984, [petitioners] denied the
material allegations of the complaint and interposed the following special affirmative
defenses: that the cause of action was barred by prior judgment; that [respondent]
 has not pursued any lawful remedy to annul the execution proceeding; that there is
no flaw or irregularity in the auction sale; and that since the execution sale was
made in accordance with Section 21, Rule 39 of the Revised Rules of Court, it is
deemed final and any irregularity committed in the course thereof will not vitiate its
validity.
"On December 28, 1984, Muriel likewise lodged a Complaint for Damages,
docketed as Civil Case No. 505-R, against [petitioners] and Atty. Guillermo De
Guzman alleging, in gist, fraud, misrepresentation, manipulation and unlawful acts
of the defendants in causing the levy of the subject property with an estimated
commercial value of P200,000 as against a charging lien in the amount of P10,000.
"In its May 27, 1985 Order, the trial court ordered the joint hearing of Civil
Cases Nos. 417-R and 505-R. On August 30, 1985, Muriel was declared non-suited
for failure to appear in the hearing despite due notice. As a consequence, Civil
Case No. 505-R was dismissed on October 15, 1985." 5
In its Decision 6 dated March 25, 1998, the Regional Trial Court (RTC) of Baguio City, Branch
4, held that the subject parcel of land was the paraphernal property of the late Muriel Pucay Yamane
— spouse of respondent — and was not their conjugal property. The appearance of his name on the
Transfer Certificate of Title (TCT) was deemed to be merely descriptive of the civil status of the
registered owner, his late wife. Hence, finding that he had no legal standing to question the auction
sale or to pray for its annulment or cancellation, the RTC dismissed the case for lack of merit. TCcIaA
Upon receipt of the RTC Decision on April 8, 1998, respondent filed a Motion,  7 in which he
prayed that he be allowed to file his Motion for Reconsideration of the Decision, on or before May 30,
1998. The trial court granted 8 his Motion; received the Motion for Reconsideration, 9 which was filed
on May 28, 1998; and eventually denied it in its Order dated June 5, 1998. 10 He then elevated the
matter to the CA on June 15, 1998.
Ruling of the Court of Appeals
The CA reversed the RTC's Decision. The Sheriff's Certificate of Sale dated August 12, 1981,
and the Final Sheriff's Certificate of Sale dated August 26, 1982, were declared null and void.
According to the appellate court, property acquired during marriage is presumed to be
conjugal, unless the exclusive funds of one spouse are shown to have been used for the purpose.
That the land was acquired during the spouses' coverture was sufficiently established by the TCT and
the Deed of Absolute Sale, both indicating that Muriel Pucay Yamane was "married to Leonardo
Yamane"; and by the undisputed testimony of the previous owner, Eugene Pucay. Because of
petitioners' failure to establish that the land in question had been acquired by Muriel using her
exclusive funds, the CA concluded that the contested land was conjugal property.
The appellate court further held thus:
". . . [T]he disputed property being a conjugal property of [respondent] and
his wife, and absent any showing of some advantage or benefit that accrued to their
conjugal partnership from the transaction between the Pucay sisters and Atty. De
Guzman, the public auction sale of the subject property in favor of [petitioners] is
null and void." 11
Hence, this Petition. 12
Issues
Petitioners submit the following issues for our consideration:
"I. The Court of Appeals gravely erred in taking cognizance of the appeal and in not
dismissing the same, despite the fact that the respondent failed to perfect
his appeal within the 15-day reglementary period set by the Rules of Court.
"II. The Court of Appeals gravely erred in declaring the subject property as conjugal
property, despite the existence of clear evidence showing that the subject
property is the exclusive paraphernal property of Muriel who, even during
her lifetime, always claimed the said property as her own exclusive
 paraphernal property and not as property co-owned with her husband, the
respondent herein.
"III. The Court of Appeals, assuming, ex grati argumenti, that the subject property is
conjugal property between respondent and Muriel, gravely erred in ruling
that the same cannot answer for the charging lien of Atty. Guillermo de
Guzman in Civil Case No. 1841." 13
In the main, they posit two issues. They raise, first, the procedural question of whether the CA
erred in giving due course to respondent's lapsed appeal; and, second, the substantive issue of
whether the subject property is conjugal or paraphernal.
The Court's Ruling
The Petition has no merit.
Procedural Issue:
Whether Respondent's Appeal
Should Be Given Due Course
Petitioners contend that the CA erred in giving due course to the appeal filed by respondent
beyond the 15-day reglementary period. DcIHSa
Concededly, he received a copy of the RTC Decision on April 8, 1998. He had, therefore, until
April 23, 1998, within which to file an appeal. Prior to the latter date, however, he moved that his new
counsel be allowed to file a motion for reconsideration on May 30, 1998. It was eventually filed on
May 28, 1998, but was denied. Respondent subsequently filed a Notice of Appeal on June 15, 1998.
By this time, the original period to appeal had expired. It should be clear that the Rules prohibit an
extension to file a motion for reconsideration. 14
The perfection of an appeal in the manner and within the period prescribed by the Rules of
Civil Procedure is not only mandatory, but also jurisdictional; and the lapse of the appeal period of
fifteen days deprives a court of the jurisdiction to alter a final judgment. 15
There have been exceptions, however, in which the Court dispensed with technical infirmities
and gave due course to tardy appeals. In some of those instances, the presence of any justifying
circumstance recognized by law — such as fraud, accident, mistake or excusable negligence —
properly vested the judge with discretion to approve or admit an appeal filed out of time.  16 In other
instances, lapsed appeals were allowed in order to serve substantial justice, upon consideration of a)
matters of life, liberty, honor or property; b) the existence of special or compelling circumstances; c)
the merits of the case; d) causes not entirely attributable to the fault or negligence of the party that
would be favored by the suspension of the rules; e) the failure to show that the review being sought
was merely frivolous and dilatory; and f) the fact that the other party would not be unjustly
prejudiced. 17
 
Indeed, in some exceptional cases, the Court has allowed the relaxation of the rules
regulating the reglementary periods of appeal. These exceptions were cited in Manila Memorial Park
Cemetery v. CA, 18 from which we quote:
"In Ramos vs. Bagasao, the Court excused the delay of four days in the
filing of the notice of appeal because the questioned decision of the trial court had
been served upon appellant Ramos at a time when her counsel of record was
already dead. The new counsel could only file the appeal four days after the
prescribed reglementary period was over. In Republic vs. Court of Appeals, the
Court allowed the perfection of an appeal by the Republic despite the delay of six
days to prevent a gross miscarriage of justice since the Republic stood to lose
hundreds of hectares of land already titled in its name and had since then been
devoted for public purposes. In Olacao vs. National Labor Relations Commission, a
tardy appeal was accepted considering that the subject matter in issue had
theretofore been judicially settled with finality in another case, and a dismissal of
the appeal would have had the effect of the appellant being ordered twice to make
the same reparation to the appellee." 19
 We believe that a suspension of the Rules is similarly warranted in the present controversy.
We have carefully studied the merits of the case and noted that the review being sought has not been
shown to be merely frivolous and dilatory. The Court has come to the conclusion that the Decision of
the RTC, Branch 4 (in Civil Case No. 417-R), must be set aside. It would be far better and more
prudent to attain the ends of justice, rather than to dispose of the case on technicality and cause
grave injustice in the process. Thus, we would rather excuse a technical lapse and afford respondent
a review of the case on appeal.
Substantive Issue:
Paraphernal or Conjugal?
The purchase of the property had been concluded in 1967, before the Family Code took effect
on August 3, 1988. 20 Accordingly, the transaction was aptly covered by the then governing
provisions of the New Civil Code. On the latter basis, therefore, we shall resolve the issue of the
nature of the contested property.
Article 160 of the New Civil Code provides that "all property of the marriage is presumed to
belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to
the wife." 21 As a conditio sine qua non for the operation of this article in favor of the conjugal
partnership, 22 the party who invokes the presumption must first prove that the property was acquired
during the marriage. 23
In other words, the presumption in favor of conjugality does not operate if there is no showing
of when the property alleged to be conjugal was acquired. 24 Moreover, the presumption may be
rebutted only with strong, clear, categorical and convincing evidence. 25 There must be strict proof of
the exclusive ownership of one of the spouses, 26 and the burden of proof rests upon the party
asserting it. 27
The CA committed no error in declaring that the parcel of land belonged to the conjugal
partnership of Spouses Muriel and Leonardo Yamane. They acquired it from Eugene Pucay on
February 27, 1967, 28 or specifically during the marriage. 29 We then follow the rule that proof of the
acquisition of the subject property during a marriage suffices to render the statutory presumption
operative. It is clear enough that the presently disputed piece of land pertains to the conjugal
partnership. EHaDIC
Petitioners concede that the property was acquired during the subsistence of the marriage of
Muriel to respondent. 30 Nonetheless, they insist that it belonged exclusively to her for the following
reasons:
First. Respondent never denied nor opposed her claim in Civil Case No. 505-R, which she
had filed during her lifetime; or in AG-GR Sp. No. 01616 (entitled "Muriel Pucay Yamane v. Josephine
Go"), that the disputed parcel of land was her exclusive paraphernal property. They allege that his
failure to file a denial or opposition in those cases is tantamount to a judicial admission that militates
against his belated claim.
Second. The Deed of Absolute Sale of the property is in the sole name of Muriel. Petitioners
posit that, had the spouses jointly purchased this piece of land, the document should have indicated
this fact or carried the name of respondent as buyer.
Third. The failure of respondent to redeem the parcel of land within the redemption period
after the auction sale indicated that he was not its co-owner.
We will discuss the three arguments seriatim.
Unilateral Declaration
Respondent's interest cannot be prejudiced by the claim of Muriel in her Complaint in Civil
Case No. 505-R that the subject parcel of land was her paraphernal property. Significantly, the nature
of a property — whether conjugal or paraphernal — is determined by law and not by the will of one of
the spouses. 31 Thus, no unilateral declaration by one spouse can change the character of a conjugal
property. 32
Besides, the issue presented in Civil Case No. 505-R was not the nature of the subject piece
of land being levied upon, but whether Atty. Guillermo de Guzman was entitled to a charging lien. In
that case, Muriel claimed that she had not officially retained him as counsel, and that no lawyer-client
relationship had been established between them. 33
Deed and Title in the
Name of One Spouse
Further, the mere registration of a property in the name of one spouse does not destroy its
conjugal nature. 34 Hence, it cannot be contended in the present case that, simply because the title
and the Deed of Sale covering the parcel of land were in the name of Muriel alone, it was therefore
her personal and exclusive property. In concluding that it was paraphernal, the trial court's reliance
on Stuart v. Yatco 35 was clearly erroneous. cDIHES
As stated earlier, to rebut the presumption of the conjugal nature of the property, petitioners
must present clear and convincing evidence. We affirm and quote below, for easy reference, the
relevant dispositions of the CA:
". . . . We are unable to go along with [petitioners'] contention that the
subject property was acquired by Muriel with her exclusive funds. Mere registration
of the contested property in the name of the wife is not sufficient to establish the
paraphernal nature of the property. This reminds Us of the teaching in the recent
case of Diancin v. Court of Appeals, that all the property acquired by the spouses,
regardless of in whose name the same is registered, during the marriage is
presumed to belong to the conjugal partnership of gains, unless it is proved that it
pertains exclusively to the husband or to the wife. To quote:
"As a general rule, all property acquired by the spouses, regardless
of in whose name the same is registered, during the marriage is presumed
to belong to the conjugal partnership of gains, unless it is proved that it
pertains exclusively to the husband or to the wife. In the case at bar, the
fishpond lease right is not paraphernal having been acquired during the
coverture of the marriage between Matilde and Tiburcio, which was on April
9, 1940. The fact that the grant was solely in the name of Matilde did not
make the property paraphernal property. What was material was the time
the fishpond lease right was acquired by the grantee, and that was during
the lawful existence of Matilde's marriage to Tiburcio.
". . . [T]his presumption is rebuttable, but only with strong, clear and
convincing evidence. The burden of proving that the property belongs
exclusively to the wife rests upon the party asserting it. Mere assertion of
the property's paraphernal nature is not sufficient."
"The record as well as the foregoing established jurisprudence lead us to
conclude that the contested property was indeed acquired during the marriage of
herein [respondent] and Muriel. To prove that it is nonetheless paraphernal
property, it is incumbent upon [petitioners] to adduce strong, clear and convincing
evidence that Muriel bought the same with her exclusive funds. [Petitioners] failed
to discharge the burden. Nowhere in the evidence presented by them do We find
any indication that the land in question was acquired by Muriel with her exclusive
funds. The presumption not having been overthrown, the conclusion is that the
contested land is conjugal property." 36
Non-Redemption
After the Auction Sale
The non-redemption of the property by respondent within the period prescribed by law did not,
in any way, indicate the absence of his right or title to it. Contrary to petitioners' allegation, the fact is
that he filed a Third-Party Claim 37 with the sheriff, upon learning of the levy and impending auction
sale. This fact was specifically admitted by petitioners. 38 Respondent claimed that the parcel of land
was conjugal, and that he could not answer for the separate obligation of his wife and her
sisters. 39 Notwithstanding his claim, the disputed piece of land was sold at a public auction on
August 11, 1981. Consequently issued were a Sheriff's Certificate of Sale dated August 12, 1981, and
a Final Sheriff's Certificate of Sale dated August 26, 1982. 40
 Likewise, in his Opposition (Answer) to the Petition in LRC File Adm. Case No.
2288, 41 respondent raised the issue of the conjugal nature of the property and reserved his right to
file an independent action to annul the auction sale. In its March 30, 1983 Order, 42 however, Branch
5 of the RTC of Baguio City did not rule on either the actual ownership or the nature of the parcel of
land. Rather, it granted the Petition to issue a new certificate of title in favor of Petitioner Josephine
Mendoza Go. It found that, under Section 75 of Presidential Decree 1529, respondent had no legal
standing to question the auction sale, because he was not the registered owner of the property.
Instead, his right to prove his claim in a separate and independent action was upheld. 43 Thus, he
instituted the present case for annulment and cancellation of the auction sale.
 
The foregoing points clearly explain the failure of respondent to redeem the property.
Misplaced is petitioners' emphasis on his failure to do so within the period required by law, because
redemption in this case would have been inconsistent with his claim that the sale was
invalid. 44 Redemption would have served as an implied admission of the regularity of the sale and
estopped him from later impugning its validity on that ground. 45
Since petitioners have failed to present convincing evidence that the property is paraphernal,
the presumption that it is conjugal therefore stands. The next question before us is, whether the
charging lien of Atty. de Guzman may be properly enforced against the piece of land in question.
Charging Lien Not Chargeable
Against Conjugal Property
It is indisputable that the services of Atty. de Guzman were acquired during the marriage of
respondent and Muriel. The lawyer's legal services were engaged to recover from Cypress
Corporation (in Civil Case No. 1841) the balance of the purchase price of the sale of the exclusive
property of Muriel and her sisters. 46 The recovery was done during the marriage. 47
The CA elucidated on this matter as follows:
". . . . The contract or transaction between Atty. De Guzman and the Pucay
sisters appears to have been incurred for the exclusive interest of the latter. Muriel
was acting privately for her exclusive interest when she joined her two sisters in
hiring the services of Atty. De Guzman to handle a case for them. Accordingly,
whatever expenses were incurred by Muriel in the litigation for her and her sisters'
private and exclusive interests, are her exclusive responsibility and certainly cannot
be charged against the contested conjugal property. HAICET
"Even on the remote assumption that the conjugal property could be held
liable, levy on execution of the same property should still be denied in accordance
with the ruling in Luzon Surety Co., Inc. v. De Garcia that before a conjugal
property could be held liable for the obligation contracted by a spouse, there must
be a showing of some advantage or benefit that accrued to the conjugal
partnership. Concededly, the burden is on the [petitioners] to prove that the
services rendered by Atty. De Guzman in handling Civil Case No. 1841 for the
Pucay sisters had, somehow, redounded to the benefit of the conjugal partnership
of herein [respondent] and Muriel. This onus, [petitioners], however, failed to
discharge." 48
We find no reason to deviate from the CA's findings, which are amply supported by evidence.
The expenses incurred by Muriel for the recovery of the balance of the purchase price of her
paraphernal property are her exclusive responsibility. 49 This piece of land may not be used to pay for
her indebtedness, because her obligation has not been shown to be one of the charges against the
conjugal partnership. 50 Moreover, her rights to the property are merely inchoate prior to the
liquidation of the conjugal partnership.
Under the New Civil Code, a wife may bind the conjugal partnership only when she purchases
things necessary for the support of the family, or when she borrows money for that purpose upon her
husband's failure to deliver the needed sum; 51 when administration of the conjugal partnership is
transferred to the wife by the courts 52 or by the husband; 53 or when the wife gives moderate
donations for charity. 54 Failure to establish any of these circumstances in the present case means
that the conjugal asset may not be bound to answer for Muriel's personal obligation.
 The power of the court in executing judgments extends only to properties unquestionably
belonging to the judgment debtor alone. 55 In this case, therefore, the property — being conjugal in
nature — cannot be levied upon. 56
WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution
AFFIRMED. Costs against petitioners.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur.

 |||  (Spouses Go v. Yamane, G.R. No. 160762, [May 3, 2006], 522 PHIL 653-670)

SECOND DIVISION

[G.R. No. 124642. February 23, 2004.]

ALFREDO CHING and ENCARNACION CHING,  petitioners, vs. THE HON.

COURT OF APPEALS and ALLIED BANKING CORPORATION,  respondents.

DECISION

CALLEJO, SR.,  J p:

This petition for review, under Rule 45 of the Revised Rules of Court, assails the Decision 1 of
the Court of Appeals (CA) dated November 27, 1995 in CA-G.R. SP No. 33585, as well as the
Resolution 2 on April 2, 1996 denying the petitioners' motion for reconsideration. The impugned
decision granted the private respondent's petition for certiorari and set aside the Orders of the trial
court dated December 15, 1993 3 and February 17, 1994 4 nullifying the attachment of 100,000
shares of stocks of the Citycorp Investment Philippines under the name of petitioner Alfredo Ching.
The following facts are undisputed:
On September 26, 1978, the Philippine Blooming Mills Company, Inc. (PBMCI) obtained a
loan of P9,000,000.00 from the Allied Banking Corporation (ABC). By virtue of this loan, the PBMCI,
through its Executive Vice-President Alfredo Ching, executed a promissory note for the said amount
promising to pay on December 22, 1978 at an interest rate of 14%per annum. 5 As added security for
the said loan, on September 28, 1978, Alfredo Ching, together with Emilio Tañedo and Chung Kiat
Hua, executed a continuing guaranty with the ABC binding themselves to jointly and severally
guarantee the payment of all the PBMCI obligations owing the ABC to the extent of
P38,000,000.00. 6 The loan was subsequently renewed on various dates, the last renewal having
been made on December 4, 1980. 7
Earlier, on December 28, 1979, the ABC extended another loan to the PBMCI in the amount
of P13,000,000.00 payable in eighteen months at 16% interest per annum. As in the previous loan,
the PBMCI, through Alfredo Ching, executed a promissory note to evidence the loan maturing on
June 29, 1981. 8 This was renewed once for a period of one month. 9
The PBMCI defaulted in the payment of all its loans. Hence, on August 21, 1981, the ABC
filed a complaint for sum of money with prayer for a writ of preliminary attachment against the PBMCI
to collect the P12,612,972.88 exclusive of interests, penalties and other bank charges. Impleaded as
co-defendants in the complaint were Alfredo Ching, Emilio Tañedo and Chung Kiat Hua in their
capacity as sureties of the PBMCI.
The case was docketed as Civil Case No. 142729 in the Regional Trial Court of Manila,
Branch XVIII. 10 In its application for a writ of preliminary attachment, the ABC averred that the
"defendants are guilty of fraud in incurring the obligations upon which the present action is
brought 11 in that they falsely represented themselves to be in a financial position to pay their
obligation upon maturity thereof." 12 Its supporting affidavit stated, inter alia, that the "[d]efendants
have removed or disposed of their properties, or [are] ABOUT to do so, with intent to defraud their
creditors." 13
On August 26, 1981, after an ex-parte hearing, the trial court issued an Order denying the
ABC's application for a writ of preliminary attachment. The trial court decreed that the grounds alleged
in the application and that of its supporting affidavit "are all conclusions of fact and of law" which do
not warrant the issuance of the writ prayed for. 14 On motion for reconsideration, however, the trial
court, in an Order dated September 14, 1981, reconsidered its previous order and granted the ABC's
application for a writ of preliminary attachment on a bond of P12,700,000. The order, in relevant part,
stated:
With respect to the second ground relied upon for the grant of the writ of
preliminary attachment ex-parte, which is the alleged disposal of properties by the
defendants with intent to defraud creditors as provided in Sec. 1(e) of Rule 57 of
the Rules of Court, the affidavits can only barely justify the issuance of said writ as
against the defendant Alfredo Ching who has allegedly bound himself jointly and
severally to pay plaintiff the defendant corporation's obligation to the plaintiff as a
surety thereof.
WHEREFORE, let a writ of preliminary attachment issue as against the
defendant Alfredo Ching requiring the sheriff of this Court to attach all the
properties of said Alfredo Ching not exceeding P12,612,972.82 in value, which are
within the jurisdiction of this Court and not exempt from execution upon, the filing by
plaintiff of a bond duly approved by this Court in the sum of Twelve Million Seven
Hundred Thousand Pesos (P12,700,000.00) executed in favor of the defendant
Alfredo Ching to secure the payment by plaintiff to him of all the costs which may
be adjudged in his favor and all damages he may sustain by reason of the
attachment if the court shall finally adjudge that the plaintiff was not entitled thereto.
SO ORDERED. 15
Upon the ABC's posting of the requisite bond, the trial court issued a writ of preliminary
attachment. Subsequently, summonses were served on the defendants, 16 save Chung Kiat Hua who
could not be found.
Meanwhile, on April 1, 1982, the PBMCI and Alfredo Ching jointly filed a petition for
suspension of payments with the Securities and Exchange Commission (SEC), docketed as SEC
Case No. 2250, at the same time seeking the PBMCI's rehabilitation. 17
On July 9, 1982, the SEC issued an Order placing the PBMCI's business, including its assets
and liabilities, under rehabilitation receivership, and ordered that "all actions for claims listed in
Schedule "A" of the petition pending before any court or tribunal are hereby suspended in whatever
stage the same may be until further orders from the Commission." 18 The ABC was among the
PBMCI's creditors named in the said schedule.
Subsequently, on January 31, 1983, the PBMCI and Alfredo Ching jointly filed a Motion to
Dismiss and/or motion to suspend the proceedings in Civil Case No. 142729 invoking the PBMCI's
pending application for suspension of payments (which Ching co-signed) and over which the SEC had
already assumed jurisdiction. 19 On February 4, 1983, the ABC filed its Opposition thereto. 20
In the meantime, on July 26, 1983, the deputy sheriff of the trial court levied on attachment
the 100,000 common shares of Citycorp stocks in the name of Alfredo Ching. 21
Thereafter, in an Order dated September 16, 1983, the trial court partially granted the
aforementioned motion by suspending the proceedings only with respect to the PBMCI. It denied
Ching's motion to dismiss the complaint/or suspend the proceedings and pointed out that P.D. No.
1758 only concerns the activities of corporations, partnerships and associations and was never
intended to regulate and/or control activities of individuals. Thus, it directed the individual defendants
to file their answers. 22
 Instead of filing an answer, Ching filed on January 14, 1984 a Motion to Suspend
Proceedings on the same ground of the pendency of SEC Case No. 2250. This motion met the
opposition from the ABC. 23
On January 20, 1984, Tañedo filed his Answer with counterclaim and cross-claim. 24 Ching
eventually filed his Answer on July 12, 1984. 25
On October 25, 1984, long after submitting their answers, Ching filed an Omnibus
Motion, 26 again praying for the dismissal of the complaint or suspension of the proceedings on the
ground of the July 9, 1982 Injunctive Order issued in SEC Case No. 2250. He averred that as a surety
of the PBMCI, he must also necessarily benefit from the defenses of his principal. The ABC opposed
Ching's omnibus motion.
Emilio Y. Tañedo, thereafter, filed his own Omnibus Motion 27 praying for the dismissal of the
complaint, arguing that the ABC had "abandoned and waived" its right to proceed against the
continuing guaranty by its act of resorting to preliminary attachment.
On December 17, 1986, the ABC filed a Motion to Reduce the amount of his preliminary
attachment bond from P12,700,000 to P6,350,000. 28 Alfredo Ching opposed the motion, 29 but on
April 2, 1987, the court issued an Order setting the incident for further hearing on May 28, 1987 at
8:30 a.m. for the parties to adduce evidence on the actual value of the properties of Alfredo Ching
levied on by the sheriff. 30
On March 2, 1988, the trial court issued an Order granting the motion of the ABC and
rendered the attachment bond of P6,350,000. 31
On November 16, 1993, Encarnacion T. Ching, assisted by her husband Alfredo Ching, filed a
Motion to Set Aside the levy on attachment. She alleged inter alia  that the 100,000 shares of stocks
levied on by the sheriff were acquired by her and her husband during their marriage out of conjugal
funds after the Citycorp Investment Philippines was established in 1974. Furthermore, the
indebtedness covered by the continuing guaranty/comprehensive suretyship contract executed by
petitioner Alfredo Ching for the account of PBMCI did not redound to the benefit of the conjugal
partnership. She, likewise, alleged that being the wife of Alfredo Ching, she was a third-party claimant
entitled to file a motion for the release of the properties. 32 She attached therewith a copy of her
marriage contract with Alfredo Ching. 33
The ABC filed a comment on the motion to quash preliminary attachment and/or motion to
expunge records, contending that:
2.1 The supposed movant, Encarnacion T. Ching, is not a party to this
present case; thus, she has no personality to file any motion before this
Honorable Court;
2.2 Said supposed movant did not file any Motion for Intervention pursuant
to Section 2, Rule 12 of the Rules of Court;
2.3 Said Motion cannot even be construed to be in the nature of a Third-
Party Claim conformably with Sec. 14, Rule 57 of the Rules of Court.
3. Furthermore, assuming in gratia argumenti that the supposed movant
has the required personality, her Motion cannot be acted upon by this Honorable
Court as the above-entitled case is still in the archives and the proceedings thereon
still remains suspended. And there is no previous Motion to revive the same. 34
 
The ABC also alleged that the motion was barred by prescription or by laches because the
shares of stocks were in custodia legis.
During the hearing of the motion, Encarnacion T. Ching adduced in evidence her marriage
contract to Alfredo Ching to prove that they were married on January 8, 1960;  35 the articles of
incorporation of Citycorp Investment Philippines dated May 14, 1979; 36 and, the General Information
Sheet of the corporation showing that petitioner Alfredo Ching was a member of the Board of
Directors of the said corporation and was one of its top twenty stockholders.
 On December 10, 1993, the Spouses Ching filed their Reply/Opposition to the motion to
expunge records.
Acting on the aforementioned motion, the trial court issued on December 15, 1993 an
Order 37 lifting the writ of preliminary attachment on the shares of stocks and ordering the sheriff to
return the said stocks to the petitioners. The dispositive portion reads:
WHEREFORE, the instant Motion to Quash Preliminary Attachment, dated
November 9, 1993, is hereby granted. Let the writ of preliminary attachment subject
matter of said motion, be quashed and lifted with respect to the attached 100,000
common shares of stock of Citycorp Investment Philippines in the name of the
defendant Alfredo Ching, the said shares of stock to be returned to him and his
movant-spouse by Deputy Sheriff Apolonio A. Golfo who effected the levy thereon
on July 26, 1983, or by whoever may be presently in possession thereof.
SO ORDERED. 38
The plaintiff Allied Banking Corporation filed a motion for the reconsideration of the order but
denied the same on February 17, 1994. The petitioner bank forthwith filed a petition for  certiorari with
the CA, docketed as CA-G.R. SP No. 33585, for the nullification of the said order of the court,
contending that:
1. The respondent Judge exceeded his authority thereby acted without jurisdiction
in taking cognizance of, and granting a "Motion" filed by a complete
stranger to the case.
2. The respondent Judge committed a grave abuse of discretion in lifting the writ of
preliminary attachment without any basis in fact and in law, and contrary to
established jurisprudence on the matter. 39
On November 27, 1995, the CA rendered judgment granting the petition and setting aside the
assailed orders of the trial court, thus:
WHEREFORE, premises considered, the petition is GRANTED, hereby
setting aside the questioned orders (dated December 15, 1993 and February 17,
1994) for being null and void.
SO ORDERED. 40
The CA sustained the contention of the private respondent and set aside the assailed orders.
According to the CA, the RTC deprived the private respondent of its right to file a bond under  Section
14, Rule 57 of the Rules of Court. The petitioner Encarnacion T. Ching was not a party in the trial
court; hence, she had no right of action to have the levy annulled with a motion for that purpose. Her
remedy in such case was to file a separate action against the private respondent to nullify the levy on
the 100,000 Citycorp shares of stocks. The court stated that even assuming that Encarnacion T.
Ching had the right to file the said motion, the same was barred by laches.
Citing Wong v. Intermediate Appellate Court, 41 the CA ruled that the presumption in Article
160 of the New Civil Code shall not apply where, as in this case, the petitioner-spouses failed to prove
the source of the money used to acquire the shares of stock. It held that the levied shares of stocks
belonged to Alfredo Ching, as evidenced by the fact that the said shares were registered in the
corporate books of Citycorp solely under his name. Thus, according to the appellate court, the RTC
committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the
assailed orders. The petitioners' motion for reconsideration was denied by the CA in a Resolution
dated April 2, 1996.
The petitioner-spouses filed the instant petition for review on certiorari, asserting that the RTC
did not commit any grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the
assailed orders in their favor; hence, the CA erred in reversing the same. They aver that the source of
funds in the acquisition of the levied shares of stocks is not the controlling factor when invoking the
presumption of the conjugal nature of stocks under Art. 160, 42 and that such presumption subsists
even if the property is registered only in the name of one of the spouses, in this case, petitioner
Alfredo Ching. 43 According to the petitioners, the suretyship obligation was not contracted in the
pursuit of the petitioner-husband's profession or business. 44 And, contrary to the ruling of the CA,
where conjugal assets are attached in a collection suit on an obligation contracted by the husband,
the wife should exhaust her motion to quash in the main case and not file a separate
suit. 45 Furthermore, the petitioners contend that under Art. 125 of the Family Code, the petitioner-
husband's gratuitous suretyship, is null and void ab initio, 46 and that the share of one of the spouses
in the conjugal partnership remains inchoate until the dissolution and liquidation of the partnership. 47
In its comment on the petition, the private respondent asserts that the CA correctly granted its
petition for certiorari nullifying the assailed order. It contends that the CA correctly relied on the ruling
of this Court in Wong v. Intermediate Appellate Court. Citing Cobb-Perez v. Lantin  and G-Tractors,
Inc. v. Court of Appeals, the private respondent alleges that the continuing guaranty and suretyship
executed by petitioner Alfredo Ching in pursuit of his profession or business. Furthermore, according
to the private respondent, the right of the petitioner-wife to a share in the conjugal partnership
property is merely inchoate before the dissolution of the partnership; as such, she had no right to file
the said motion to quash the levy on attachment of the shares of stocks. HSTCcD
The issues for resolution are as follows: (a) whether the petitioner-wife has the right to file the
motion to quash the levy on attachment on the 100,000 shares of stocks in the Citycorp Investment
Philippines; (b) whether or not the RTC committed a grave abuse of its discretion amounting to
excess or lack of jurisdiction in issuing the assailed orders.
On the first issue, we agree with the petitioners that the petitioner-wife had the right to file the
said motion, although she was not a party in Civil Case No. 142729. 48
In Ong v. Tating, 49 we held that the sheriff may attach only those properties of the defendant
against whom a writ of attachment has been issued by the court. When the sheriff erroneously levies
on attachment and seizes the property of a third person in which the said defendant holds no right or
interest, the superior authority of the court which has authorized the execution may be invoked by the
aggrieved third person in the same case. Upon application of the third person, the court shall order a
summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the
performance of his duties in the execution of the writ of attachment, more specifically if he has indeed
levied on attachment and taken hold of property not belonging to the plaintiff. If so, the court may then
order the sheriff to release the property from the erroneous levy and to return the same to the third
person. In resolving the motion of the third party, the court does not and cannot pass upon the
question of the title to the property with any character of finality. It can treat the matter only insofar as
may be necessary to decide if the sheriff has acted correctly or not. If the claimant's proof does not
persuade the court of the validity of the title, or right of possession thereto, the claim will be denied by
the court. The aggrieved third party may also avail himself of the remedy of "terceria" by executing an
affidavit of his title or right of possession over the property levied on attachment and serving the same
to the office making the levy and the adverse party. Such party may also file an action to nullify the
levy with damages resulting from the unlawful levy and seizure, which should be a totally separate
and distinct action from the former case. The abovementioned remedies are cumulative and any one
of them may be resorted to by one third-party claimant without availing of the other remedies. 50
In this case, the petitioner-wife filed her motion to set aside the levy on attachment of the
100,000 shares of stocks in the name of petitioner-husband claiming that the said shares of stocks
were conjugal in nature; hence, not liable for the account of her husband under his continuing
guaranty and suretyship agreement with the PBMCI. The petitioner-wife had the right to file the motion
for said relief.
On the second issue, we find and so hold that the CA erred in setting aside and reversing the
orders of the RTC. The private respondent, the petitioner in the CA, was burdened to prove that the
RTC committed a grave abuse of its discretion amounting to excess or lack of jurisdiction. The tribunal
acts without jurisdiction if it does not have the legal purpose to determine the case; there is excess of
jurisdiction where the tribunal, being clothed with the power to determine the case, oversteps its
authority as determined by law, There is grave abuse of discretion where the tribunal acts in a
capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment and is equivalent to
lack of jurisdiction. 51
It was incumbent upon the private respondent to adduce a sufficiently strong demonstration
that the RTC acted whimsically in total disregard of evidence material to, and even decide of, the
controversy before certiorari will lie. A special civil action for certiorari is a remedy designed for the
correction of errors of jurisdiction and not errors of judgment. When a court exercises its jurisdiction,
an error committed while so engaged does not deprive it of its jurisdiction being exercised when the
error is committed. 52
 
After a comprehensive review of the records of the RTC and of the CA, we find and so hold
that the RTC did not commit any grave abuse of its discretion amounting to excess or lack of
jurisdiction in issuing the assailed orders.
Article 160 of the New Civil Code provides that all the properties acquired during the marriage
are presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to
the husband, or to the wife. In Tan v. Court of Appeals, 53 we held that it is not even necessary to
prove that the properties were acquired with funds of the partnership. As long as the properties were
acquired by the parties during the marriage, they are presumed to be conjugal in nature. In fact, even
when the manner in which the properties were acquired does not appear, the presumption will still
apply, and the properties will still be considered conjugal. The presumption of the conjugal nature of
the properties acquired during the marriage subsists in the absence of clear, satisfactory and
convincing evidence to overcome the same. 54
In this case, the evidence adduced by the petitioners in the RTC is that the 100,000 shares of
stocks in the Citycorp Investment Philippines were issued to and registered in its corporate books in
the name of the petitioner-husband when the said corporation was incorporated on May 14, 1979.
This was done during the subsistence of the marriage of the petitioner-spouses. The shares of stocks
are, thus, presumed to be the conjugal partnership property of the petitioners. The private respondent
failed to adduce evidence that the petitioner-husband acquired the stocks with his exclusive
money. 55 The barefaced fact that the shares of stocks were registered in the corporate books of
Citycorp Investment Philippines solely in the name of the petitioner-husband does not constitute proof
that the petitioner-husband, not the conjugal partnership, owned the same. 56 The private
respondent's reliance on the rulings of this Court in Maramba v. Lozano 57 and Associated Insurance
& Surety Co., Inc. v. Banzon, 58  is misplaced. In the Maramba  case, we held that where there is no
showing as to when the property was acquired, the fact that the title is in the wife's name alone is
determinative of the ownership of the property. The principle was reiterated in the Associated
Insurance case where the uncontroverted evidence showed that the shares of stocks were acquired
during the marriage of the petitioners.
Instead of fortifying the contention of the respondents, the ruling of this Court in Wong v.
Intermediate Appellate Court 59 buttresses the case for the petitioners. In that case, we ruled that he
who claims that property acquired by the spouses during their marriage is not conjugal partnership
property but belongs to one of them as his personal property is burdened to prove the source of the
money utilized to purchase the same. In this case, the private respondent claimed that the petitioner-
husband acquired the shares of stocks from the Citycorp Investment Philippines in his own name as
the owner thereof. It was, thus, the burden of the private respondent to prove that the source of the
money utilized in the acquisition of the shares of stocks was that of the petitioner-husband alone. As
held by the trial court, the private respondent failed to adduce evidence to prove this assertion.
The CA, likewise, erred in holding that by executing a continuing guaranty and suretyship
agreement with the private respondent for the payment of the PBMCI loans, the petitioner-husband
was in the exercise of his profession, pursuing a legitimate business. The appellate court erred in
concluding that the conjugal partnership is liable for the said account of PBMCI under Article 161(1) of
the New Civil Code.
Article 161(1) of the New Civil Code (now Article 121[2 and 3] 60 of the Family Code of the
Philippines) provides:
Art. 161. The conjugal partnership shall be liable for:
(1) All debts and obligations contracted by the husband for the benefit of
the conjugal partnership, and those contracted by the wife, also for
the same purpose, in the cases where she may legally bind the
partnership.
The petitioner-husband signed the continuing guaranty and suretyship agreement as security
for the payment of the loan obtained by the PBMCI from the private respondent in the amount of
P38,000,000. In Ayala Investment and Development Corp. v. Court of Appeals, 61 this Court ruled
"that the signing as surety is certainly not an exercise of an industry or profession. It is not embarking
in a business. No matter how often an executive acted on or was persuaded to act as surety for his
own employer, this should not be taken to mean that he thereby embarked in the business of
suretyship or guaranty."
For the conjugal partnership to be liable for a liability that should appertain to the husband
alone, there must be a showing that some advantages accrued to the spouses. Certainly, to make a
conjugal partnership responsible for a liability that should appertain alone to one of the spouses is to
frustrate the objective of the New Civil Code to show the utmost concern for the solidarity and well
being of the family as a unit. The husband, therefore, is denied the power to assume unnecessary and
unwarranted risks to the financial stability of the conjugal partnership. 62
In this case, the private respondent failed to prove that the conjugal partnership of the
petitioners was benefited by the petitioner-husband's act of executing a continuing guaranty and
suretyship agreement with the private respondent for and in behalf of PBMCI. The contract of loan
was between the private respondent and the PBMCI, solely for the benefit of the latter. No
presumption can be inferred from the fact that when the petitioner-husband entered into an
accommodation agreement or a contract of surety, the conjugal partnership would thereby be
benefited. The private respondent was burdened to establish that such benefit redounded to the
conjugal partnership. 63
It could be argued that the petitioner-husband was a member of the Board of Directors of
PBMCI and was one of its top twenty stockholders, and that the shares of stocks of the petitioner-
husband and his family would appreciate if the PBMCI could be rehabilitated through the loans
obtained; that the petitioner-husband's career would be enhanced should PBMCI survive because of
the infusion of fresh capital. However, these are not the benefits contemplated by Article 161 of
the New Civil Code. The benefits must be those directly resulting from the loan. They cannot merely
be a by-product or a spin-off of the loan itself. 64
This is different from the situation where the husband borrows money or receives services to
be used for his own business or profession. In the Ayala case, we ruled that it is such a contract that
is one within the term "obligation for the benefit of the conjugal partnership." Thus:
(A) If the husband himself is the principal obligor in the contract, i.e., he
directly received the money and services to be used in or for his own business or
his own profession, that contract falls within the term ". . . obligations for the benefit
of the conjugal partnership." Here, no actual benefit may be proved. It is enough
that the benefit to the family is apparent at the time of the signing of the contract.
From the very nature of the contract of loan or services, the family stands to benefit
from the loan facility or services to be rendered to the business or profession of the
husband. It is immaterial, if in the end, his business or profession fails or does not
succeed. Simply stated, where the husband contracts obligations on behalf of the
family business, the law presumes, and rightly so, that such obligation will redound
to the benefit of the conjugal partnership. 65
The Court held in the same case that the rulings of the Court in Cobb-Perez and G-Tractors,
Inc. are not controlling because the husband, in those cases, contracted the obligation for his own
business. In this case, the petitioner-husband acted merely as a surety for the loan contracted by the
PBMCI from the private respondent.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision and
Resolution of the Court of Appeals are SET ASIDE AND REVERSED. The assailed orders of the RTC
are AFFIRMED.
SO ORDERED.
Puno, Quisumbing, Austria-Martinez and Tinga, JJ., concur.
 

SPECIAL THIRD DIVISION

 [G.R. No. 217617. April 5, 2017.]

CARMELITA T. BORLONGAN, petitioner, vs. BANCO DE ORO (formerly

EQUITABLE PCI BANK), respondent.

[G.R. No. 218540. April 5, 2017.]

ELISEO C. BORLONGAN, JR., petitioner, vs. BDO UNIBANK, INC. (formerly

EQUITABLE PCI BANK), respondent.

RESOLUTION

VELASCO, JR., J  p:

Nature of the Case

Before the Court are two consolidated petitions invariably assailing the foreclosure sale of
a property without properly serving the summons upon its owners.
Factual Antecedents
Sometime in 1976, Eliseo Borlongan, Jr. (Eliseo) and his wife Carmelita, acquired a real
property located at No. 111, Sampaguita St., Valle Verde II, Pasig City covered by Transfer
Certificate of Title (TCT) No. 0421 (the subject property). In 2012, they went to the Registry of
Deeds of Pasig City to obtain a copy of the TCT in preparation for a prospective sale of the
subject property. To their surprise, the title contained an annotation that the property covered
thereby was the subject of an execution sale in Civil Case (CC) No. 03-0713 pending before
Branch 134 of the Regional Trial Court of Makati City (Makati RTC).
Petitioner immediately procured a copy of the records of CC No. 03-0713 and found out
that respondent Banco de Oro (BDO), formerly Equitable PCI Bank, filed a complaint for sum of
money against Tancho Corporation, the principal debtor of loan obligations obtained from the
bank. Likewise impleaded were several persons, including Carmelita, who supposedly signed four
(4) security agreements totaling P13,500,000 to guarantee the obligations of Tancho Corporation.
It appears from the records of CC No. 03-0713 that on July 2, 2003, the Makati RTC
issued an Order directing the service of summons to all the defendants at the business address of
Tancho Corporation provided by BDO: Fumakilla Compound, Amang Rodriguez Avenue, Brgy.
Dela Paz, Pasig City (Fumakilla Compound). CAIHTE
Parenthetically, the records of CC No. 03-0713 show that respondent BDO already
foreclosed the Fumakilla Compound as early as August 21, 2000, following Tancho Corporation's
failure to pay its obligation, and BDO already consolidated its ownership of the property on
November 16, 2001.
Understandably, on July 31, 2003, the process server filed an Officer's Return stating that
summons remained unserved as the "defendants are no longer holding office at [Fumakilla
Compound]."
On October 27, 2003, after the single attempt at personal service on Carmelita and her
co-defendants, BDO moved for leave to serve the summons by publication. On October 28, 2003,
the RTC granted the motion.
On August 10, 2004, BDO filed an ex-parte Motion for the Issuance of a Writ of
Attachment against the defendants, including Carmelita. During the hearing on the motion, BDO
submitted a copy of the title of the subject property. The Makati RTC thereafter granted BDO's
motion and a Writ of Attachment was issued against the defendants in CC No. 03-0713,
effectively attaching the subject property on behalf of BDO.
 On December 20, 2005, BDO filed an ex-parte motion praying, among others, that the
summons and the complaint be served against Carmelita at the subject property. The Makati RTC
granted the motion. On February 9, 2006, the Sheriff filed a return stating that no actual personal
service was made as Carmelita "is no longer residing at the given address and the said address is
for 'rent,' as per information gathered from the security guard on duty."
On May 30, 2006, however, BDO filed a manifestation stating that it had complied with
the October 28, 2003 Order of the Makati RTC having caused the publication of the alias
summons and the complaint in People's Taliba on May 15, 2006.
Thereafter, upon BDO's motion, the Makati RTC declared the defendants in CC No. 03-
0713, including Carmelita, in default. BDO soon after proceeded to present its evidence ex-parte.
On November 29, 2007, the Makati RTC rendered a Decision holding the defendants in
CC No. 03-0713 liable to pay BDO P32,543,856.33 plus 12% interest per annum from the time of
the filing of the complaint until fully paid and attorney's fees. The Makati RTC decision was
published on June 9, 2008.
On August 20, 2008, the Makati RTC issued a Writ of Execution upon BDO's motion. The
Order states that in the event that the judgment obligors cannot pay all or part of the obligation,
the sheriff shall levy upon the properties of the defendants to satisfy the award.
On October 28, 2008, the Makati RTC's sheriff filed a Report stating that he tried to serve
the Writ of Execution upon the defendants at Fumakilla Compound but he was not able to do so
since the defendants were no longer holding office thereat. The Sheriff also reported that, on the
same day, he went to the subject property to serve the execution but likewise failed in his attempt
since Carmelita was no longer residing at the said address.
On November 11, 2008, BDO filed a Motion to Conduct Auction of the subject property.
The motion was granted by the Makati RTC on May 5, 2009 so that the subject property was sold
to BDO, as the highest bidder, on October 6, 2009.
Following the discovery of the sale of their property, Eliseo executed an affidavit of
adverse claim and, on January 21, 2013, filed a Complaint for Annulment of Surety Agreements,
Notice of Levy on Attachment, Auction Sale and Other Documents, docketed as CC No. 73761,
with the Regional Trial Court of Pasig City (Pasig RTC). 1
He alleged in his Complaint that the subject property is a family home that belongs to the
conjugal partnership of gains he established with his wife. He further averred that the alleged
surety agreements upon which the attachment of the property was anchored were signed by his
wife without his consent and did not redound to benefit their family. Thus, he prayed that the
surety agreements and all other documents and processes, including the ensuing attachment,
levy and execution sale, based thereon be nullified.
BDO filed a Motion to Dismiss the Complaint, asserting that the Pasig RTC has no
jurisdiction to hear Eliseo's Complaint, the case was barred by res judicata given the Decision and
orders of the Makati RTC, and, finally, the Complaint failed to state a cause of action.
In an Order dated May 31, 2013, the Pasig RTC dismissed the case citing lack of
jurisdiction. The RTC held that it could not pass upon matters already brought before the RTC
Makati and, citing Spouses Ching v. Court of Appeals, 2 the husband of a judgment debtor is not
a stranger to a case who can file a separate and independent action to determine the validity of
the levy and sale of a property.
On a motion for reconsideration filed by Eliseo, the Pasig RTC reinstated the case with
qualification. Relying on Buado v. Court of Appeals, 3 the Pasig RTC held that since majority of
Eliseo's causes of action were premised on a claim that the obligation contracted by his wife has
not redounded to their family, and, thus, the levy on their property was illegal, his filing of a
separate action is not an encroachment on the jurisdiction of the Makati RTC, which ordered the
attachment and execution in the first place.
The Pasig RTC clarified, however, that it cannot annul the surety agreements supposedly
signed by Carmelita since Eliseo was not a party to those agreements and the validity and
efficacy of these contracts had already been decided by the Makati RTC.
Both Eliseo and BDO referred the Pasig RTC's Decision to the Court of Appeals (CA).
 In its petition, docketed as CA-G.R. SP No. 133994, BDO contended that it was an error
for the Pasig RTC to apply Buado as it does not apply squarely to the circumstances of the case
and has not superseded Ching. BDO maintained that by reinstating the complaint, Pasig RTC has
violated the rule prohibiting non-interference by one court with the orders of a co-equal court.
In its January 20, 2015 Decision, 4 the appellate court granted BDO's petition and
ordered the Pasig RTC to cease from hearing CC No. 73761 commenced by Eliseo. In so ruling,
the CA held that Eliseo is not a stranger who can initiate an action independent from the case
where the attachment and execution sale were ordered. Thus, the CA concluded that in opting to
review the validity of the levy and execution sale of the subject property pursuant to the judgment
of the Makati RTC, the Pasig RTC acted without jurisdiction.
Eliseo moved for, but was denied, reconsideration by the appellate court. Hence, he
came to this Court via a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
docketed as G.R. No. 218540.
On August 19, 2015, the Court issued a Resolution denying Eliseo's petition. Eliseo begs
to differ and takes exception from the said holding in his motion for reconsideration dated October
5, 2015, which is presently for Resolution by this Court.
Meanwhile, on an ex-parte omnibus motion filed by BDO, the Makati RTC ordered the
issuance of a Writ of Possession and the issuance of a new TCT covering the subject property in
favor of the respondent bank.
Arguing that the Makati RTC had not acquired jurisdiction over her person as the service
of the summons and the other processes of the court was defective, Carmelita filed a Petition for
Annulment of Judgment (With Urgent Prayer for Issuance of Temporary Restraining Order and/or
Writ of Preliminary Injunction) with the CA, docketed as CA-G.R. SP No. 134664.
Before the CA can act on the Petition for Annulment, the Borlongans found posted on the
subject property a Writ of Possession dated August 1, 2014 and a Notice to Vacate dated August
29, 2014.
In its Resolution dated November 12, 2014, 5 the appellate court denied Carmelita's
prayer for the issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction (WPI). HEITAD
Aggrieved, Carmelita interposed a motion for the reconsideration of the CA's November
12, 2014 Resolution. On March 23, 2015, however, the appellate court denied her motion for
reconsideration, holding that "upon the expiration of the redemption period, the right of the
purchaser to the possession of the foreclosed property becomes absolute."
Thus, on April 27, 2015, Carmelita filed a Petition for Review, docketed as G.R.
No. 217617, before this Court, ascribing to the appellate court the commission of serious
reversible errors. The Court denied the petition on June 22, 2015. Hence, on September 1,
2015, Carmelita interposed a Motion for Reconsideration urging the Court to take a second
hard look at the facts of the case and reconsider its stance.
Considering that both cases originated from the same facts and involved interrelated
issues, on January 25, 2016, the Court resolved to consolidate G.R. No. 218540 with G.R.
No. 217617.
Issues
The question posed in G.R. No. 217617 is whether or not the CA erred in refusing to
issue a TRO and/or WPI stopping the consolidation of BDO's ownership over the subject property.
On the other hand, the issue in G.R. No. 218540 revolves around whether the Pasig RTC has
jurisdiction to hear and decide a case filed by the non-debtor husband to annul the levy and
execution sale of the subject property ordered by the Makati RTC against his wife.
Our Ruling
A reexamination of the antecedents and arguments in G.R. Nos. 217617 and 218540
compels the reversal of the appellate court's resolutions in both cases.
G.R. No. 217617
The Issuance of a TRO/WPI is not
a prejudgment of the main case
On the propriety of CA's refusal to issue a TRO/WPI, it is worthy to note that Section 3,
Rule 58 of the Rules of Court provides the grounds for the issuance of a preliminary
injunction, viz.:
Section 3. Grounds for issuance of preliminary injunction. — A
preliminary injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or
part of such relief consists in restraining the commission or continuance of the act
or acts complained of, or in requiring the performance of an act or acts either for
a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or
acts complained of during the litigation would probably work injustice to the
applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is
attempting to do, or is procuring or suffering to be done some act or acts probably
in violation of the rights of the applicant respecting the subject of the action or
proceeding, and tending to render the judgment ineffectual.
From the foregoing provision, it is clear that a writ of preliminary injunction is warranted
where there is a showing that there exists a right to be protected and that the acts against which
the writ is to be directed violate an established right. Otherwise stated, for a court to decide on the
propriety of issuing a TRO and/or a WPI, it must only inquire into the existence of two things: (1) a
clear and unmistakable right that must be protected; and (2) an urgent and paramount necessity
for the writ to prevent serious damage.
In Levi Strauss (Phils.), Inc. v. Vogue Traders Clothing Company, 6 the Court already
explained that the issuance of a TRO is not conclusive of the outcome of the case as it requires
but a sampling of the evidence, viz.:
Indeed, a writ of preliminary injunction is generally based solely on initial
and incomplete evidence adduced by the applicant (herein petitioner). The
evidence submitted during the hearing of the incident is not conclusive, for
only a "sampling" is needed to give the trial court an idea of the
justification for its issuance pending the decision of the case on the
merits. As such, the findings of fact and opinion of a court when issuing the writ
of preliminary injunction are interlocutory in nature. Moreover, the sole object of
a preliminary injunction is to preserve the status quo until the merits of the
case can be heard. Since Section 4 of Rule 58 of the Rules of Civil
Procedure gives the trial courts sufficient discretion to evaluate the conflicting
claims in an application for a provisional writ which often involves a factual
determination, the appellate courts generally will not interfere in the absence of
manifest abuse of such discretion. A writ of preliminary injunction would
become a prejudgment of a case only when it grants the main prayer in the
complaint or responsive pleading, so much so that there is nothing left for the
trial court to try except merely incidental matters. (emphasis supplied)
Notably, the primary prayer of the Petition for Annulment before the appellate court is the
declaration of the nullity of the proceedings in the RTC and its Decision dated November 29,
2007; it is not merely confined to the prevention of the issuance of the writ of possession and the
consolidation of the ownership of the subject property in BDO's name — the concerns of the
prayer for the TRO and/or WPI.
Indeed, the petitioner's prayer for the issuance of a TRO and/or WPI was intended to
preserve the status quo ante, 7 and not to pre-empt the appellate court's decision on the merits of
her petition for annulment. Thus, it was a grievous error on the part of the CA to deny her of this
provisional remedy.
The appellate court's error is readily apparent given the stark existence of the grounds for
the issuance of a writ of preliminary injunction.
 On the first ground, petitioner has a clear and unmistakable right that must be protected.
This right is not just her proprietary rights over the subject property but her constitutionally
protected right to due process before she can be deprived of her property. No less than
Section 1 of the Bill of Rights of the 1987 Constitution mandates that:
No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
(emphasis supplied)
In its classic formulation, due process means that any person with interest to the thing in
litigation must be notified and given an opportunity to defend that interest. 8 Thus, as the
essence of due process lies in the reasonable opportunity to be heard and to submit any evidence
the defendant may have in support of her defense, she must be properly served the summons
of the court. In other words, the service of summons is a vital and indispensable ingredient of
due process 9 and compliance with the rules regarding the service of the summons is as much an
issue of due process as it is of jurisdiction. 10 Unfortunately, as will be discussed, it would seem
that the Constitutional right of the petitioner to be properly served the summons and be notified
has been disregarded by the officers of the trial court.
At this very juncture, the existence of the second ground for the issuance of a TRO and/or
WPI is self-evident. Without a TRO and/or WPI enjoining the respondent bank from continuing in
the possession and consolidating the ownership of the subject property, petitioner's right to be
afforded due process will unceasingly be violated.
It need not be stressed that a continuous violation of constitutional rights is by itself a
grave and irreparable injury that this or any court cannot plausibly tolerate.
Without a doubt, the appellate court should have acted intrepidly and issued the TRO
and/or WPI posthaste to protect the constitutional rights of petitioner, as it is duty-bound to do.
The performance of official
duty was not regular
Regrettably, the appellate court fell short in the fulfillment of its mandate and instead
relied on the disputable presumption that "official duty has been regularly performed." The Court
cannot subscribe to the position taken by the appellate court.
As a rule, summons should be personally served on a defendant. When summons
cannot be served personally within a reasonable period of time, substituted service may be
resorted to. Service of summons by publication can be resorted to only if the defendant's
"whereabouts are unknown and cannot be ascertained by diligent inquiry." The relevant sections
of Rule 14 of the Rules of Court provide, thus:
SEC. 6. Service in person on defendant. — Whenever practicable, the
summons shall be served by handing a copy thereof to the defendant in person,
or, if he refuses to receive and sign for it, by tendering it to him.
SEC. 7. Substituted service. — If, for justifiable causes, the defendant
cannot be served within a reasonable time as provided in the preceding section,
service may be effected (a) by leaving copies of the summons at the defendant's
residence with some person of suitable age and discretion then residing therein,
or (b) by leaving the copies at defendant's office or regular place of business with
some competent person in charge thereof.
xxx xxx xxx
SEC. 14. Service upon defendant whose identity or whereabouts are
unknown. — In any action where the defendant is designated as an unknown
owner, or the like, or whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry, service may, by leave of court, be effected upon
him by publication in a newspaper of general circulation and in such places and
for such time as the court may order.
It is, therefore, proper to state that the hierarchy and rules in the service of summons are
as follows:
(1) Personal service;
 (2) Substituted service, if for justifiable causes the defendant cannot be served within a
reasonable time; and
(3) Service by publication, whenever the defendant's whereabouts are unknown and
cannot be ascertained by diligent inquiry.
Simply put, personal service of summons is the preferred mode. And, the rules on the
service of summons other than by personal service may be used only as prescribed
and only in the circumstances authorized by statute. Thus, the impossibility of prompt
personal service must be shown by stating that efforts have been made to find the defendant
personally and that such efforts have failed before substituted service may be
availed. 11 Furthermore, their rules must be followed strictly, faithfully and fully as they are
extraordinary in character and considered in derogation of the usual method of service.
In Manotoc v. Court of Appeals, 12 the Court enumerated and explained the
requirements to effect a valid service of summons other than by personal service, viz.:
(1) Impossibility of Prompt Personal Service TIADCc
xxx xxx xxx
Sheriffs are asked to discharge their duties on the service of summons with due
care, utmost diligence, and reasonable promptness and speed so as not to
prejudice the expeditious dispensation of justice. Thus, they are enjoined to try
their best efforts to accomplish personal service on defendant. On the other hand,
since the defendant is expected to try to avoid and evade service of summons,
the sheriff must be resourceful, persevering, canny, and diligent in serving the
process on the defendant. For substituted service of summons to be
available, there must be several attempts by the sheriff to personally serve
the summons within a reasonable period [of one month] which eventually
resulted in failure to prove impossibility of prompt service. "Several
attempts" means at least three (3) tries, preferably on at least two different
dates. In addition, the sheriff must cite why such efforts were unsuccessful.
It is only then that impossibility of service can be confirmed or accepted.
(2) Specific Details in the Return
The sheriff must describe in the Return of Summons the facts and
circumstances surrounding the attempted personal service. The efforts
made to find the defendant and the reasons behind the failure must be
clearly narrated in detail in the Return. The date and time of the attempts on
personal service, the inquiries made to locate the defendant, the name/s of the
occupants of the alleged residence or house of defendant and all other acts done,
though futile, to serve the summons on defendant must be specified in the Return
to justify substituted service. The form on Sheriff's Return of Summons on
Substituted Service prescribed in the Handbook for Sheriffs published by the
Philippine Judicial Academy requires a narration of the efforts made to find the
defendant personally and the fact of failure. Supreme Court Administrative
Circular No. 5 dated November 9, 1989 requires that "impossibility of prompt
service should be shown by stating the efforts made to find the defendant
personally and the failure of such efforts," which should be made in the
proof of service.
In the case now before Us, the summons was served on the petitioner by publication.
Yet, the circumstances surrounding the case do not justify the resort.
Consider: in July 2003, the sheriff attempted to serve the summons on the defendants,
including petitioner Carmelita, at Fumakilla Compound, i.e., at the property already foreclosed,
acquired, and possessed by the respondent bank as early as August 2001. Immediately after
this single attempt at personal service in July 2003, the respondent bank moved in October 2003
for leave to serve the summons by publication (and not even substituted service), which motion
the RTC granted.
Clearly, there was no diligent effort made to find the petitioner and properly serve her
the summons before the service by publication was allowed. Neither was it impossible to locate
the residence of petitioner and her whereabouts.
 It should be noted that the principal obligor in CC No. 03-0713 was Tancho Corporation
and petitioner Carmelita was impleaded only because she supposedly signed a surety agreement
as a director. As a juridical person, Tancho Corporation is required to file mandatory corporate
papers with the Securities and Exchange Commission (SEC), such as its General Information
Sheet (GIS). In 1997 and 2000, the GIS filed by Tancho Corporation with the SEC provided the
names of its directors and their addresses. One of these directors included petitioner Carmelita
with her address listed at 41 Chicago St., Quezon City. The GIS of Tancho Corporation was
readily available to the public including the RTC's process server and respondent bank. cSEDTC
Patently, it cannot be plausibly argued that it was impossible to find the petitioner and
personally serve her with summons. In like manner, it can hardly be stated that the process server
regularly performed his duty.
The subject property was not
foreclosed by the respondent
bank; right of BDO to the
possession of the subject
property is questionable
Still unwilling to issue the TRO and/or WPI fervently prayed for by petitioner, the appellate
court held that "upon the expiration of the redemption period, the right of the purchaser to the
possession of the foreclosed property becomes absolute." This Court cannot affirm the appellate
court's ruling.
At the outset, it must be pointed out that the subject property was never mortgaged to,
much less foreclosed by, the respondent bank. Thus, it was error for the CA to refer to the subject
property as "foreclosed property."
Rather, as disclosed by the records, the possession of the subject property was acquired
by BDO through attachment and later by execution sale. However, it is presumptive to state that
the right of BDO over the possession of the subject property is now absolute considering that
there is an action that questions the validity of the bank's acquisition over the same property.
In Cometa v. Intermediate Appellate Court, 13 we explained that the expiration of the
redemption period does not automatically vest in the auction purchaser an absolute possessory
right over the property, viz.:
From the foregoing discussion, it can be seen that the writ of possession
may issue in favor of a purchaser in an execution sale when the deed of
conveyance has been executed and delivered to him after the period of
redemption has expired and no redemption has been made by the judgment
debtor.
A writ of possession is complementary to a writ of execution (see Vda. de
Bogacki v. Inserto, 111 SCRA 356, 363), and in an execution sale, it is a
consequence of a writ of execution, a public auction sale, and the fulfillment of
several other conditions for conveyance set by law. The issuance of a writ of
possession is dependent on the valid execution of the procedural stages
preceding it. Any flaw afflicting any of its stages, therefore, could affect the
validity of its issuance.
In the case at bar, the validity of the levy and sale of the properties is
directly put in issue in another case by the petitioners. This Court finds it an
issue which requires pre-emptive resolution. For if the respondent acquired no
interest in the property by virtue of the levy and sale, then, he is not entitled
to its possession.
The respondent appellate court's emphasis on the failure of the petitioner
to redeem the properties within the period required by law is misplaced
because redemption, in this case, is inconsistent with the petitioner's claim
of invalidity of levy and sale. Redemption is an implied admission of the
regularity of the sale and would estop the petitioner from later impugning
its validity on that ground. (emphasis supplied)
 Thus, even given the expiration of the redemption period, a TRO and/or WPI is still
obtainable and warranted where the validity of the acquisition of the possession is afflicted by
Constitutional and procedural infirmities.
G.R. No. 218540
Eliseo can file an independent action
for the annulment of the attachment
of their conjugal property
As to the question of the Pasig RTC's jurisdiction to hear Eliseo's complaint, we cannot
subscribe to BDO's contention that Eliseo cannot file a separate and independent action for the
annulment of the levy on their conjugal property.
Section 16, Rule 39 of the Rules of Court allows third-party claimants of properties under
execution to vindicate their claims to the property in a separate action with another court. It states,
thus:
SECTION 16. Proceedings Where Property Claimed by Third Person. —
If the property levied on is claimed by any person other than the judgment obligor
or his agent, and such person makes an affidavit of his title thereto or right to the
possession thereof, stating the grounds of such right or title, and serves the same
upon the officer making the levy and a copy thereof upon the judgment obligee,
the officer shall not be bound to keep the property, unless such judgment obligee,
on demand of the officer, files a bond approved by the court to indemnify the
third-party claimant in a sum not less than the value of the property levied on. In
case of disagreement as to such value, the same shall be determined by the
court issuing the writ of execution. No claim for damages for the taking or keeping
of the property may be enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date of the filing of the
bond. SDAaTC
The officer shall not be liable for damages for the taking or keeping of the
property, to any third-party claimant if such bond is filed. Nothing herein
contained shall prevent such claimant or any third person from vindicating
his claim to the property in a separate action, or prevent the judgment obligee
from claiming damages in the same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious claim. (emphasis supplied)
Clearly, the availability of the remedy provided under the foregoing provision requires only
that that the claim is a third-party or a "stranger" to the case. The poser then is this: is the
husband, who was not a party to the suit but whose conjugal property was executed on account
of the other spouse's debt, a "stranger" to the suit? In Buado v. Court of Appeals, 14 this Court
had the opportunity to clarify that, to resolve the issue, it must first be determined whether the
debt had redounded to the benefit of the conjugal partnership or not. In the negative, the spouse
is a stranger to the suit who can file an independent separate action, distinct from the action in
which the writ was issued. We held, thus:
A third-party claim must be filed [by] a person other than the judgment
debtor or his agent. In other words, only a stranger to the case may file a third-
party claim.
This leads us to the question: Is the husband, who was not a party to the
suit but whose conjugal property is being executed on account of the other
spouse being the judgment obligor, considered a "stranger?"
xxx xxx xxx
Pursuant to Mariano however, it must further be settled whether the
obligation of the judgment debtor redounded to the benefit of the conjugal
partnership or not.
Petitioners argue that the obligation of the wife arising from her criminal
liability is chargeable to the conjugal partnership. We do not agree.
 There is no dispute that contested property is conjugal in nature. Article
122 of the Family Code explicitly provides that payment of personal debts
contracted by the husband or the wife before or during the marriage shall not be
charged to the conjugal partnership except insofar as they redounded to the
benefit of the family.
xxx xxx xxx
Parenthetically, by no stretch of imagination can it be concluded that the
civil obligation arising from the crime of slander committed by Erlinda redounded
to the benefit of the conjugal partnership.
To reiterate, conjugal property cannot be held liable for the personal
obligation contracted by one spouse, unless some advantage or benefit is
shown to have accrued to the conjugal partnership.
xxx xxx xxx
Hence, the filing of a separate action by respondent is proper and
jurisdiction is thus vested on Branch 21. (emphasis supplied)
In the present case, it is not disputed that the conjugal property was attached on the basis
of a surety agreement allegedly signed by Carmelita for and in behalf of Tancho Corporation. In
our 2004 Decision in Spouses Ching v. Court of Appeals, 15 we elucidated that there is no
presumption that the conjugal partnership is benefited when a spouse enters into a
contract of surety, holding thusly:
In this case, the private respondent failed to prove that the conjugal
partnership of the petitioners was benefited by the petitioner-husband's act of
executing a continuing guaranty and suretyship agreement with the private
respondent for and in behalf of PBMCI. The contract of loan was between the
private respondent and the PBMCI, solely for the benefit of the latter. No
presumption can be inferred from the fact that when the petitioner-husband
entered into an accommodation agreement or a contract of surety, the
conjugal partnership would thereby be benefited. The private respondent
was burdened to establish that such benefit redounded to the conjugal
partnership.
It could be argued that the petitioner-husband was a member of the
Board of Directors of PBMCI and was one of its top twenty stockholders, and that
the shares of stocks of the petitioner-husband and his family would appreciate if
the PBMCI could be rehabilitated through the loans obtained; that the petitioner-
husband's career would be enhanced should PBMCI survive because of the
infusion of fresh capital. However, these are not the benefits contemplated by
Article 161 of the New Civil Code. The benefits must be those directly
resulting from the loan. They cannot merely be a by-product or a spin-off of
the loan itself.
This is different from the situation where the husband borrows money or
receives services to be used for his own business or profession. In the Ayala
case, we ruled that it is such a contract that is one within the term "obligation for
the benefit of the conjugal partnership." Thus:
xxx xxx xxx
The Court held in the same case that the rulings of the Court in Cobb-
Perez and G-Tractors, Inc. are not controlling because the husband, in those
cases, contracted the obligation for his own business. In this case, the petitioner-
husband acted merely as a surety for the loan contracted by the PBMCI from the
private respondent. (emphasis supplied)
Furthermore, it is not apparent from the records of this case that BDO had established the
benefit to the conjugal partnership flowing from the surety agreement allegedly signed by
Carmelita. Thus, Eliseo's claim over the subject property lodged with the RTC Pasig is proper,
with the latter correctly exercising jurisdiction thereon. acEHCD
 Besides, BDO's reliance on Spouses Ching v. Court of Appeals 16 (2003) is improper. In
the present case, Eliseo and his wife discovered the attachment of their conjugal property only
after the finality of the decision by the RTC Makati. There was, therefore, no opportunity for Eliseo
to intervene in the case before the RTC Makati which attached the conjugal property, as a motion
to intervene can only be filed "at any time before rendition of judgment by the trial court."  17 This
spells the whale of difference between the case at bar and the earlier Spouses Ching. Unlike in
the present case, the debtor in the case cited by BDO was properly informed of the collection suit
and his spouse had the opportunity to question the attachment of their conjugal property before
the court that issued the levy on attachment, but simply refused to do so. Thus, to now deny
Eliseo the opportunity to question the attachment made by the RTC Makati in a separate and
independent action will be to, again, refuse him the due process of law before their property is
taken. As this Court is duty-bound to protect and enforce Constitutional rights, this we cannot
allow.
WHEREFORE, the petitions are GRANTED.
(1) The January 20, 2015 Decision and May 26, 2015 Resolution of the Court of Appeals
in CA-G.R. SP No. 133994 are hereby REVERSED and SET ASIDE. The Regional Trial Court of
Pasig, Branch 155 is ordered to continue with the proceedings and decide Civil Case No. 73761
with reasonable dispatch.
(2) The November 12, 2014 and March 23, 2015 Resolutions of the appellate court in CA-
G.R. SP No. 134664 are REVERSED and SET ASIDE.
Accordingly, let a Temporary Restraining Order (TRO) be issued enjoining, prohibiting,
and preventing respondent Banco De Oro, its assigns, transferees, successors, or any and all
other persons acting on its behalf from possessing, selling, transferring, encumbering or
otherwise exercising acts of ownership over the property subject of the controversy. Said TRO
shall remain valid and effective until such time as the rights and interests of the parties in CA-G.R.
SP No. 134664 shall have been determined and finally resolved.
SO ORDERED.
Peralta, Reyes, Jardeleza and  Tijam, JJ., concur.

EN BANC

[G.R. No. L-19346. May 31, 1965.]

SOLEDAD L. LACSON, ET AL., plaintiffs-appellees, vs. ABELARDO G.

DIAZ, defendant-appellant.

Agustin Locsin  for plaintiffs-appellees.

Abelardo G. Diaz in his own behalf as defendant-appellant.

SYLLABUS

1. HUSBAND AND WIFE; WHEN OBLIGATIONS CONTRACTED BY ONE SPOUSE

BEFORE MARRIAGE CHARGEABLE AGAINST CONJUGAL ASSETS. — As a general rule,
debts contracted by the husband or wife before the marriage, as well as fines and pecuniary
indemnities imposed thereon, are not chargeable to the conjugal partnership. However, such
obligations may be enforced against the conjugal assets if the responsibilities enumerated in
Article 161 of the New Civil Code have already been covered, and that the obligor has no
exclusive property or the same is insufficient.
2. ID.; ID.; BURDEN OF PROOF ON CREDITOR TO SHOW REQUISITES FOR
EXCEPTION OBTAIN. — Considering that the enforceability of the personal obligation of the
 husband or wife, against the conjugal assets, forms the exception to the general rule, it is
incumbent upon the one who invokes this provision or the creditor to show that the requisites for
its applicability are obtaining.

DECISION

BARRERA, J  p:

The facts of this case are not disputed:

In connection with a final decision rendered by the Court of First Instance of Negros
Occidental in Civil Case No. 5790 (Soledad L. Lacson, et al. vs. Abelardo G. Diaz), sentencing
therein defendant to pay the plaintiffs the sum of P97,532.93 with legal interest thereon from July
1, 1960 until fully paid, plus a sum equivalent to 25% of the total amount as attorney's fees, the
court issued a writ of execution on August 1, 1961. On August 7, 1961, the Provincial Sheriff of
Negros Occidental sent to the manager of Talisay-Silay Milling Company, wherein defendant Diaz
was employed, a notice to garnish one- third of his monthly salary and of any other personal
properties belonging to said defendant, to cover the total amount of P132,718.30.
Diaz filed with the court a motion to quash the writ of execution and to lift the notice of
garnishment (of his salary), on the ground that the same are not enforceable against his present
family. It was claimed that since the money-judgment arose out of a contract entered into by him
during his first marriage, said judgment cannot be enforced against his salaries which form part of
the conjugal properties of the second marriage. Plaintiffs opposed this motion, for the reason that
re-marriage is not a cause for extinction of obligations. As his aforesaid motion, after hearing, was
denied by the court for lack of merit, the defendant instituted the present appeal.
Appellant does not dispute the existence of the money judgment against him in the
amount above-stated, which decision was rendered in 1947 and affirmed by the appellate court in
1950. It appears, however, that appellant, who became a widower in 1951, remarried in 1960.
The writ of execution and notice of garnishment in this case were issued and implemented in
1961. It is now contended that, as the conjugal partnership resulting of the second marriage is
different from that of the first marriage, during which existence the obligation arose, such
obligation, as far as the second conjugal partnership is concerned, is personal to the husband and
cannot be charged against the properties of the second union. And, since his salaries form part of
the conjugal assets, the same cannot be garnished to satisfy his personal obligations. In support
of this proposition, appellant cites Article 163 of the new Civil Code and the ruling of this Court
that the right of the husband to one-half of the assets of the conjugal partnership does not vest
until the dissolution of the marriage. 1
Article 163 of the new Civil Code relied upon by appellant provides:
"ART. 163. The payment of debts contracted by the husband or the wife
before the marriage shall not be charged to the conjugal partnership.
"Neither shall the fines and pecuniary indemnities imposed upon them be
charged to the partnership.
"However, the payment of debts contracted by the husband or the wife
before the marriage, and that of fines and indemnities imposed upon them, may be
enforced against the partnership assets after the responsibilities enumerated in
article 161 have been covered, if the spouse who is bound should have no
exclusive property or if it should be insufficient; but at the time of the liquidation of
the partnership such spouse shall be charged for what has been paid for the
purposes above-mentioned."
As a general rule, therefore, debts contracted by the husband or wife before the
marriage, 2 as well as fines and pecuniary indemnities imposed thereon, are not chargeable to
the conjugal partnership. However, such obligations may be enforced against the conjugal assets
 if the responsibilities enumerated in Article 161 3 of the new Civil Code have already been
covered, and that the obligor has no exclusive property or the same is insufficient. Considering
that the enforceability of the personal obligation of the husband or wife, against the conjugal
assets, forms the exception to the general rule, it is incumbent upon the one who invokes this
provision or the creditor to show that the requisites for its applicability are obtaining.
In the instant case, although it is not controverted that there is due and owing the
plaintiffs-appellees a certain sum of money from the appellant debtor — a personal obligation —
yet, it has not been established that the latter does not have properties of his own or that the
same are not adequate to satisfy appellees' claim. Furthermore, there is no showing that the
responsibilities named in Article 161 of the new Civil Code have already been covered in order
that the personal obligation of the husband may be made chargeable against the properties of the
second marriage.
IN VIEW OF THE FOREGOING CONSIDERATIONS, this case is hereby remanded to
the court of origin for further proceedings, in accordance with the aforestated observation. No
costs. So ordered.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Paredes, Makalintal, Bengzon,
J.P. and Zaldivar, JJ., concur.
Concepcion, Dizon and Regala, JJ., took no part.

|||  (Lacson v. Diaz, G.R. No. L-19346, [May 31, 1965], 121 PHIL 988-992)

THIRD DIVISION

[G.R. No. 164201. December 10, 2012.]

EFREN PANA,  petitioner, vs. HEIRS OF JOSE JUANITE, SR. and JOSE

JUANITE, JR.,  respondents.
 DECISION

ABAD,  J p:

This case is about the propriety of levy and execution on conjugal properties where one of the
spouses has been found guilty of a crime and ordered to pay civil indemnities to the victims' heirs.
The Facts and the Case
The prosecution accused petitioner Efren Pana (Efren), his wife Melecia, and others of
murder before the Regional Trial Court (RTC) of Surigao City in Criminal Cases 4232 and 4233. 1
On July 9, 1997 the RTC rendered a consolidated decision 2 acquitting Efren of the charge
for insufficiency of evidence but finding Melecia and another person guilty as charged and sentenced
them to the penalty of death. The RTC ordered those found guilty to pay each of the heirs of the
victims, jointly and severally, P50,000.00 as civil indemnity, P50,000.00 each as moral damages, and
P150,000.00 actual damages.
On appeal to this Court, it affirmed on May 24, 2001 the conviction of both accused but
modified the penalty to reclusion perpetua. With respect to the monetary awards, the Court also
affirmed the award of civil indemnity and moral damages but deleted the award for actual damages for
lack of evidentiary basis. In its place, however, the Court made an award of P15,000.00 each by way
of temperate damages. In addition, the Court awarded P50,000.00 exemplary damages per victim to
be paid solidarily by them. 3 The decision became final and executory on October 1, 2001. 4 TSacAE
Upon motion for execution by the heirs of the deceased, on March 12, 2002 the RTC ordered
the issuance of the writ, 5 resulting in the levy of real properties registered in the names of Efren and
Melecia. 6 Subsequently, a notice of levy 7 and a notice of sale on execution 8 were issued.
On April 3, 2002, petitioner Efren and his wife Melecia filed a motion to quash the writ of
execution, claiming that the levied properties were conjugal assets, not paraphernal assets of
Melecia. 9 On September 16, 2002 the RTC denied the motion. 10 The spouses moved for
reconsideration but the RTC denied the same on March 6, 2003. 11
Claiming that the RTC gravely abused its discretion in issuing the challenged orders, Efren
filed a petition for certiorari before the Court of Appeals (CA). On January 29, 2004 the CA dismissed
the petition for failure to sufficiently show that the RTC gravely abused its discretion in issuing its
assailed orders. 12 It also denied Efren's motion for reconsideration, 13 prompting him to file the
present petition for review on certiorari.
The Issue Presented
The sole issue presented in this case is whether or not the CA erred in holding that the
conjugal properties of spouses Efren and Melecia can be levied and executed upon for the
satisfaction of Melecia's civil liability in the murder case.
Ruling of the Court
To determine whether the obligation of the wife arising from her criminal liability is chargeable
against the properties of the marriage, the Court has first to identify the spouses' property relations.
Efren claims that his marriage with Melecia falls under the regime of conjugal partnership of
gains, given that they were married prior to the enactment of the Family Code and that they did not
execute any prenuptial agreement. 14 Although the heirs of the deceased victims do not dispute that it
was the Civil Code, not the Family Code, which governed the marriage, they insist that it was the
system of absolute community of property that applied to Efren and Melecia. The reasoning
goes: TADCSE
Admittedly, the spouses were married before the effectivity of the Family
Code. But that fact does not prevent the application of [A]rt. 94, last paragraph, of
the Family Code because their property regime is precisely governed by the law on
absolute community. This finds support in Art. 256 of the Family Code which states:
 "This code shall have retroactive effect in so far as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other
laws."
None of the spouses is dead. Therefore, no vested rights have been
acquired by each over the properties of the community. Hence, the liabilities
imposed on the accused-spouse may properly be charged against the community
as heretofore discussed. 15
The RTC applied the same reasoning as above. 16 Efren and Melecia's property relation was
admittedly conjugal under the Civil Code but, since the transitory provision of the Family Code gave
its provisions retroactive effect if no vested or acquired rights are impaired, that property relation
between the couple was changed when the Family Code took effect in 1988. The latter code now
prescribes in Article 75 absolute community of property for all marriages unless the parties entered
into a prenuptial agreement. As it happens, Efren and Melecia had no prenuptial agreement. The CA
agreed with this position. 17
Both the RTC and the CA are in error on this point. While it is true that the personal stakes of
each spouse in their conjugal assets are inchoate or unclear prior to the liquidation of the conjugal
partnership of gains and, therefore, none of them can be said to have acquired vested rights in
specific assets, it is evident that Article 256 of the Family Code does not intend to reach back and
automatically convert into absolute community of property relation all conjugal partnerships of gains
that existed before 1988 excepting only those with prenuptial agreements. CETIDH
The Family Code itself provides in Article 76 that marriage settlements cannot be modified
except prior to marriage.
Art. 76. In order that any modification in the marriage settlements may be
valid, it must be made before the celebration of the marriage, subject to the
provisions of Articles 66, 67, 128, 135 and 136.
Clearly, therefore, the conjugal partnership of gains that governed the marriage between
Efren and Melecia who were married prior to 1988 cannot be modified except before the celebration
of that marriage.
Post-marriage modification of such settlements can take place only where: (a) the absolute
community or conjugal partnership was dissolved and liquidated upon a decree of legal
separation; 18 (b) the spouses who were legally separated reconciled and agreed to revive their
former property regime; 19 (c) judicial separation of property had been had on the ground that a
spouse abandons the other without just cause or fails to comply with his obligations to the
family; 20 (d) there was judicial separation of property under Article 135; (e) the spouses jointly filed a
petition for the voluntary dissolution of their absolute community or conjugal partnership of
gains. 21 None of these circumstances exists in the case of Efren and Melecia.
What is more, under the conjugal partnership of gains established by Article 142 of the Civil
Code, the husband and the wife place only the fruits of their separate property and incomes from their
work or industry in the common fund. Thus:
Art. 142. By means of the conjugal partnership of gains the husband and
wife place in a common fund the fruits of their separate property and the income
from their work or industry, and divide equally, upon the dissolution of the marriage
or of the partnership, the net gains or benefits obtained indiscriminately by either
spouse during the marriage.
This means that they continue under such property regime to enjoy rights of ownership over
their separate properties. Consequently, to automatically change the marriage settlements of couples
who got married under the Civil Code into absolute community of property in 1988 when the Family
Code took effect would be to impair their acquired or vested rights to such separate
properties. ICHAaT
The RTC cannot take advantage of the spouses' loose admission that absolute community of
property governed their property relation since the record shows that they had been insistent that their
property regime is one of conjugal partnership of gains. 22 No evidence of a prenuptial agreement
between them has been presented.
 What is clear is that Efren and Melecia were married when the Civil Code was still the
operative law on marriages. The presumption, absent any evidence to the contrary, is that they were
married under the regime of the conjugal partnership of gains. Article 119 of the  Civil Code thus
provides:
Art. 119. The future spouses may in the marriage settlements agree upon
absolute or relative community of property, or upon complete separation of
property, or upon any other regime. In the absence of marriage settlements, or
when the same are void, the system of relative community or conjugal partnership
of gains as established in this Code, shall govern the property relations between
husband and wife.
Of course, the Family Code contains terms governing conjugal partnership of gains that
supersede the terms of the conjugal partnership of gains under the Civil Code. Article 105 of
the Family Code states:
"xxx xxx xxx
The provisions of this Chapter [on the Conjugal Partnership of Gains] shall
also apply to conjugal partnerships of gains already established between spouses
before the effectivity of this Code, without prejudice to vested rights already
acquired in accordance with the Civil Code or other laws, as provided in Article
256." 23
Consequently, the Court must refer to the Family Code provisions in deciding whether or not
the conjugal properties of Efren and Melecia may be held to answer for the civil liabilities imposed on
Melecia in the murder case. Its Article 122 provides:
Art. 122. The payment of personal debts contracted by the husband or the
wife before or during the marriage shall not be charged to the conjugal properties
partnership except insofar as they redounded to the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon them be
charged to the partnership. IDASHa
However, the payment of personal debts contracted by either spouse
before the marriage, that of fines and indemnities imposed upon them, as well as
the support of illegitimate children of either spouse, may be enforced against the
partnership assets after the responsibilities enumerated in the preceding Article
have been covered, if the spouse who is bound should have no exclusive property
or if it should be insufficient; but at the time of the liquidation of the partnership,
such spouse shall be charged for what has been paid for the purpose above-
mentioned.
Since Efren does not dispute the RTC's finding that Melecia has no exclusive property of her
own, 24 the above applies. The civil indemnity that the decision in the murder case imposed on her
may be enforced against their conjugal assets after the responsibilities enumerated in Article 121 of
the Family Code have been covered. 25 Those responsibilities are as follows:
Art. 121. The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the legitimate
children of either spouse; however, the support of illegitimate children shall be
governed by the provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the conjugal partnership of gains,
or by both spouses or by one of them with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent
of the other to the extent that the family may have benefited;
(4) All taxes, liens, charges, and expenses, including major or minor repairs
upon the conjugal partnership property;
 (5) All taxes and expenses for mere preservation made during the marriage
upon the separate property of either spouse; SHTcDE
(6) Expenses to enable either spouse to commence or complete a
professional, vocational, or other activity for self-improvement;
(7) Antenuptial debts of either spouse insofar as they have redounded to
the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of
their common legitimate children for the exclusive purpose of commencing or
completing a professional or vocational course or other activity for self-
improvement; and
(9) Expenses of litigation between the spouses unless the suit is found to
be groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities,
the spouses shall be solidarily liable for the unpaid balance with their separate
properties.
Contrary to Efren's contention, Article 121 above allows payment of the criminal indemnities
imposed on his wife, Melecia, out of the partnership assets even before these are liquidated. Indeed,
it states that such indemnities "may be enforced against the partnership assets after the
responsibilities enumerated in the preceding article have been covered." 26 No prior liquidation of
those assets is required. This is not altogether unfair since Article 122 states that "at the time of
liquidation of the partnership, such [offending] spouse shall be charged for what has been paid for the
purposes above-mentioned."
WHEREFORE, the Court AFFIRMS with MODIFICATION the Resolutions of the Court of
Appeals in CA-G.R. SP 77198 dated January 29, 2004 and May 14, 2004. The Regional Trial Court of
Surigao City, Branch 30, shall first ascertain that, in enforcing the writ of execution on the conjugal
properties of spouses Efren and Melecia Pana for the satisfaction of the indemnities imposed by final
judgment on the latter accused in Criminal Cases 4232 and 4233, the responsibilities enumerated in
Article 121 of the Family Code have been covered.
SO ORDERED.
Peralta, *  Bersamin, **  Mendoza and Leonen, JJ., concur.

|||  (Pana v. Heirs of Juanite, Sr., G.R. No. 164201, [December 10, 2012], 700 PHIL 525-534)
 THIRD DIVISION

[G.R. No. 70082. August 19, 1991.]

SPOUSES RICKY WONG and ANITA CHAN, LEONARDO JOSON, JUANITO

SANTOS, EMERITO SICAT and CONRADO LAGMAN,  petitioners, vs. HON.
INTERMEDIATE APPELLATE COURT and ROMARICO HENSON,  respondents.

Feliciano C. Tumale for petitioners.

Benjamin Dadios and Bausa, Ampil, Suarez, Paredes & Bausa for private respondent.

SYLLABUS

1. CIVIL LAW; LACHES; NOT AVAILABLE WHEN A PARTY WAS NOT GIVEN OPPORTUNITY TO
DEFEND HIMSELF; CASE AT BAR. — Laches may not be charged against Romarico because, aside
from the fact that he had no knowledge of the transactions of his estranged wife, he was also not
afforded an opportunity to defend himself in Civil Case No. 2224. There is no laches or even finality of
decision to speak of with respect to Romarico since the decision in Civil Case No. 2224 is null and
void for having been rendered without jurisdiction for failure to observe the notice requirements
prescribed by law. Failure to notify Romarico may not be attributed to the fact that the plaintiffs in Civil
Case No. 2224 acted on the presumption that the Hensons were still happily married because the
complaint itself shows that they did not consider Romarico as a party to the transaction which Katrina
undertook with Anita Wong. In all likelihood, the plaintiffs merely impleaded Romarico as a nominal
party in the case pursuant to the provisions of Rule 3, Section 4 of the Rules of Court.
2. ID.; PERSONS AND FAMILY RELATIONS; CONJUGAL PROPERTIES; PRESUMED WHEN
PROPERTIES ARE ACQUIRED DURING THE MARRIAGE. — Having been acquired during the
marriage, the properties are still presumed to belong to the conjugal partnership even though
Romarico and Katrina had been living separately. The presumption of the conjugal nature of the
properties subsists in the absence of clear, satisfactory and convincing evidence to overcome said
presumption or to prove that the properties are exclusively owned by Romarico. While there is proof
that Romarico acquired the properties with money he had borrowed from an officemate, it is unclear
where he obtained the money to repay the loan. If he had paid it out of his salaries, then the money is
part of the conjugal assets and not exclusively his. Proof on this matter is of paramount importance
considering that in the determination of the nature of a property acquired by a person during
coverture, the controlling factor is the source of the money utilized in the purchase.
3. ID.; ID.; ID.; NOT BOUND TO ANSWER FOR PERSONAL OBLIGATIONS OF A SPOUSE; CASE
AT BAR. — The conjugal nature of the properties notwithstanding, Katrina's indebtedness may not be
paid for with them her obligation not having been shown by the petitioners to be one of the charges
against the conjugal partnership. In addition to the fact that her rights over the properties are merely
inchoate prior to the liquidation of the conjugal partnership, the consent of her husband and her
authority to incur such indebtedness had not been alleged in the complaint and proven at the trial.
Furthermore, under the Civil Code (before the effectivity of the Family Code on August 3, 1988), a
wife may bind the conjugal partnership only when she purchases things necessary for the support of
the family or when she borrows money for the purpose of purchasing things necessary for the support
of the family if the husband fails to deliver the proper sum; when the administration of the conjugal
partnership is transferred to the wife by the courts or by the husband, and when the wife gives
moderate donations for charity. Having failed to establish that any of these circumstances occurred,
the Wongs may not bind the conjugal assets to answer for Katrina's personal obligation to them.
4. REMEDIAL LAW; CIVIL PROCEDURE; EXECUTION OF JUDGMENT; EXTENDS ONLY OVER
PROPERTIES UNQUESTIONABLY BELONGING TO JUDGMENT DEBTOR. — The power of the
court in the execution of judgments extends only over properties unquestionably belonging to the
judgment debtor. Petitioners' contention that the rights of Santos and Joson as innocent buyers at the
public auction sale may not be prejudiced, is, to a certain extent, valid. After all, in the absence of
proof that irregularities attended the sale, the same must be presumed to have been conducted in
accordance with law. There is, however, a peculiar factual circumstance that goes against the grain of
that general presumption — the properties levied upon and sold at the public auction do not
exclusively belong to the judgment debtor. Thus, the guiding jurisprudence is as follows: "The rule in
execution sales is that an execution creditor acquires no higher or better right than what the execution
debtor has in the property levied upon. The purchaser of property on sale under execution and levy
takes as assignee only, as the judicial seller possesses no title other than that which would pass by
an assignment by the owner. 'An execution purchaser generally acquires such estate or interest as
was vested in the execution debtor at the time of the seizure on execution, and only such interest,
taking merely a quit-claim of the execution debtor's title, without warranty on the part of either the
execution officer or of the parties, whether the property is realty or personalty. This rule prevails even
if a larger interest in the property was intended to be sold. Accordingly, if the judgment debtor had no
interest in the property, the execution purchaser acquires no interest therein.'" (Pacheco vs. Court of
Appeals, L-48689, August 31, 1987, 153 SCRA 382, 388-389 quoting Laureano vs. Stevenson, 45
Phil 252)

DECISION

FERNAN, C.J p:

Submitted for adjudication in the instant petition for review on certiorari is the issue of whether or not
the execution of a decision in an action for collection of a sum of money may be nullified on the
ground that the real properties levied upon and sold at public auction are the alleged exclusive
properties of a husband who did not participate in his wife's business transaction from which said
action stemmed.
Private respondent Romarico Henson married Katrina Pineda on January 6, 1964. 1 They have three
children but even during the early years of their marriage, Romarico and Katrina had been most of the
time living separately. The former stayed in Angeles City while the latter lived in Manila. During the
marriage or on January 6, 1971, Romarico bought a 1,787 square-meter parcel of land in Angeles
City for P11,492 from his father, Dr. Celestino L. Henson 2 with money borrowed from an officemate.
His father needed the amount for investments in Angeles City and Palawan. 3
Meanwhile, in Hongkong sometime in June 1972, Katrina entered into an agreement with Anita Chan
whereby the latter consigned to Katrina pieces of jewelry for sale valued at 199,895 Hongkong dollars
or P321,830.95. 4 When Katrina failed to return the pieces of jewelry within the 20-day period agreed
upon, Anita Chan demanded payment of their value.
On September 18, 1972, Katrina issued in favor of Anita Chan a check for P55,000 which, however,
was dishonored for lack of funds. Hence, Katrina was charged with estafa before the then Court of
First Instance of Pampanga and Angeles City, Branch IV. 5 After trial, the lower court rendered a
decision dismissing the case on the ground that Katrina's liability was not criminal but civil in nature as
no estafa was committed by the issuance of the check in payment of a pre-existing obligation. 6
In view of said decision, Anita Chan and her husband Ricky Wong filed against Katrina and her
husband Romarico Henson, an action for collection of a sum of money also in the same branch of the
aforesaid court. 7 The records of the case show that Atty. Gregorio Albino, Jr. filed an answer with
counterclaim but only in behalf of Katrina. When the case was called for pretrial, Atty. Albino once
again appeared as counsel for Katrina only. While it is true that during subsequent hearings, Atty.
Expedito Yumul, who collaborated with Atty. Albino, appeared for the defendants, it is not shown on
record that said counsel also represented Romarico. In fact, a power of attorney which Atty. Albino
produced during the trial, showed that the same was executed solely by Katrina. 8
After trial, the court promulgated a decision 9 in favor of the Wongs. It ordered Katrina and Romarico
Henson to pay the Wongs HK$199,895.00 or P321,830.95 with legal interest from May 27, 1975, the
date of filing of the complaint, until fully paid; P20,000 as expenses for litigation; P15,000 as attorney's
fees, and the costs of the suit.
A writ of execution was thereafter issued. Levied upon were four lots in Angeles City covered by
Transfer Certificates of Title Nos. 30950, 30951, 30952 and 30953 all in the name of "Romarico
Henson . . . married to Katrina Henson." 10
The public auction sale was first set for October 30, 1977 but since said date was declared a public
holiday, Deputy Sheriff Emerito Sicat reset the sale to November 11, 1977. On said date, the following
properties registered in the name of Romarico Henson "married to Katrina Henson" were sold at
public auction: (a) two parcels of land covered by Transfer Certificates of Title Nos. 30950 and 30951
with respective areas of 293 and 289 square meters at P145,000 each to Juanito L. Santos, 11 and
(b) two parcels of land covered by Transfer Certificates of Title Nos. 30952 and 30953 with respective
areas of 289 and 916 square meters in the amount of P119,000.00 to Leonardo B. Joson. 12
After the inscription on Transfer Certificate of Title No. 30951 of the levy on execution of the judgment
in Civil Case No. 2224, the property covered by said title was extrajudicially foreclosed by the Rural
Bank of Porac, Pampanga on account of the mortgage loan of P8,000 which Romarico and Katrina
had obtained from said bank. The property was sold by the sheriff to the highest bidder for P57,000
on September 9, 1977. On September 14, 1978, Juanito Santos, who had earlier bought the same
property at public auction on November 11, 1977, redeemed it by paying the sum of P57,000 plus the
legal interest of P6,840.00 or a total amount of P63,840.00. 13
 
About a month before such redemption or on August 8, 1978, Romarico filed an action for the
annulment of the decision in Civil Case No. 2224 as well as the writ of execution, levy on execution
and the auction sale therein in the same Court of First Instance. 14 Romarico alleged that he was "not
given his day in court" because he was not represented by counsel as Attys. Albino and Yumul
appeared solely for Katrina; that although he did not file an answer to the complaint he was not
declared in default in the case, that while Atty. Albino received a copy of the decision, he and his wife
were never personally served a copy thereof; that he had nothing to do with the business transactions
of Katrina as he did not authorize her to enter into such transactions; and that the properties levied on
execution and sold at public auction by the sheriff were his capital properties and therefore, as to him,
all the proceedings had in the case were null and void. prLL
On November 10, 1978, the lower court issued an order restraining the Register of Deeds of Angeles
City from issuing the final bill of sale of Transfer Certificates of Title Nos. 30950 and 30951 in favor of
Juanito Santos and Transfer Certificates of Title Nos. 30952 and 30953 in favor of Leonardo Joson
until further orders of the court. 15 On January 22, 1979, upon motion of Romarico, the court issued a
writ of preliminary injunction enjoining the sheriff from approving the final bill of sale of the land
covered by the aforementioned certificates of title and the Register of Deeds of Angeles City from
registering said certificates of title in the names of Santos and Joson until the final outcome of the
case subject to Romarico's posting of a bond in the amount of P321,831.00. 16
After trial on the merits, the lower court 17 rendered a decision holding that Romarico was indeed not
given his day in court as he was not represented by counsel nor was he notified of the hearings
therein although he was never declared in default. Noting that the complaint in Civil Case No. 2224 as
well as the testimonial and documentary evidence adduced at the trial in said case do not show that
Romarico had anything to do with the transactions between Katrina and Anita Chan, the court ruled
that the judgment in Civil Case No. 2224 "is devoid of legal or factual basis which is not even
supported by a finding of fact or ratio decidendi in the body of the decision, and may be declared null
and void . . . pursuant to a doctrine laid down by the Supreme Court to the effect that 'the Court of
First Instance or a branch thereof has authority and jurisdiction to try and decide an action for
annulment of a final and executory judgment or order rendered by another court of first instance or of
a branch thereof' (Gianan vs. Imperial, 55 SCRA 755)." 18
On whether or not the properties levied upon and sold at public auction may be reconveyed to
Romarico, the court, finding that there was no basis for holding the conjugal partnership liable for the
personal indebtedness of Katrina, ruled in favor of reconveyance in view of the jurisprudence that the
interest of the wife in the conjugal partnership property being inchoate and therefore merely an
expectancy, the same may not be sold or disposed of for value until after the liquidation and
settlement of the community assets. The dispositive portion of the decision reads:
"WHEREFORE, and in view of the foregoing, judgment is hereby rendered in favor
of the plaintiff and against all the defendants, as follows:
"(a) The Decision of the Court of First Instance of Pampanga and Angeles City,
Branch IV, rendered in Civil Case No. 2224, entitled "RICKY WONG, ET AL. vs.
KATRINA PINEDA HENSON and ROMARICO HENSON", is hereby declared null
and void, only as far as it affects plaintiff herein Romarico Henson;
"(b) The Writ of Execution, levy in execution and auction sale of the conjugal
property of the spouses Romarico Henson and Katrina Pineda Henson which were
sold at public auction on November 11, 1977, without notice to plaintiff herein, by
Deputy Sheriff Emerito Sicat, are likewise declared null and void and of no force
and effect;
"(c) Defendants Emerito Sicat and Conrado Lagman, in their official capacity as
Sheriff and Register of Deeds, respectively, are enjoined permanently from issuing
and or registering the corresponding deeds of sale affecting the property; llcd
"(d) The aforementioned buyers are directed to reconvey the property they have
thus purchased at public auction to plaintiff Romarico Henson;
"(e) As far as the claim for reimbursement filed by Juanito Santos concerning the
redemption of the property covered by Transfer Certificate of Title No. 30951 from
the Rural Bank of Porac, which foreclosed the same extrajudicially, is concerned,
plaintiff Romarico Henson may redeem the same within the period and in the
manner prescribed by law, after the corresponding deed of redemption shall have
been registered in the Office of the Registry of Deeds for Angeles City;
"(f) Defendants Spouses Ricky Wong and Anita Chan are, with the exception of the
defendants Juanito Santos, Leonardo Joson, Sheriff and Register of Deeds, are
ordered jointly and severally, to pay the plaintiff Romarico Henson the sum of
P10,000.00, corresponding to the expenses of litigation, with legal interest thereon
from the time this suit was filed up to the time the same shall have been paid, plus
P5,000.00 for and as attorney's fees, and the costs of suit; and
"(g) The counterclaims respectively filed on behalf of all the defendants in the
above-entitled case are hereby DISMISSED.
"SO ORDERED."
The defendants appealed to the then Intermediate Appellate Court. In its decision of January 22,
1985 19 the said court affirmed in toto the decision of the lower court. It added that as to Romarico,
the judgment in Civil Case No. 2224 had not attained finality as the decision therein was not served
on him and that he was not represented by counsel. Therefore, estoppel may not be applied against
him as, not having been served with the decision, Romarico did not know anything about it.
Corollarily, there can be no valid writ of execution inasmuch as the decision had not become final as
far as Romarico is concerned.
On whether the properties may be levied upon as conjugal properties, the appellate court ruled in the
negative. It noted that the properties are Romarico's exclusive capital having been bought by him with
his own funds. But granting that the properties are conjugal, they cannot answer for Katrina's
obligations as the latter were exclusively hers because they were incurred without the consent of her
husband, they were not for the daily expenses of the family and they did not redound to the benefit of
the family. The court underscored the fact that no evidence has been submitted that the
administration of the conjugal partnership had been transferred to Katrina either by Romarico or by
the court before said obligations were incurred.
The appellants filed a motion for reconsideration of the decision of the appellate court but the same
was denied for lack of merit on February 6, 1985. 20
Hence, the instant petition for review on certiorari. Petitioners contend that, inasmuch as the Henson
spouses were duly represented by Atty. Albino as shown by their affidavit of August 25, 1977 wherein
they admitted that they were represented by said counsel until Atty. Yumul took over the actual
management and conduct of the case and that Atty. Albino had not withdrawn as their counsel, the
lower court "did not commit an error" in serving a copy of the decision in Civil Case No. 2224 only on
Atty. Albino. Moreover, during the 2-year period between the filing of the complaint in Civil Case No.
2224 and the public auction sale on November 11, 1977, Romarico remained silent thereby making
him in estoppel and guilty of laches. Cdpr
Petitioners further aver that there being sufficient evidence that the auction sale was conducted in
accordance with law, the acts of the sheriffs concerned are presumed to be regular and valid. But
granting that an irregularity consisting of the non-notification of Romarico attended the conduct of the
auction sale, the rights of Santos and Joson who were "mere strangers who participated as the
highest bidders" therein, may not be prejudiced. Santos and Joson bought the properties sincerely
believing that the sheriff was regularly performing his duties and no evidence was presented to the
effect that they acted with fraud or that they connived with the sheriff. However, should the auction
sale be nullified, petitioners assert that Romarico should not be unduly enriched at the expense of
Santos and Joson.
The petitioners' theory is that Romarico Henson was guilty of laches and may not now belatedly
assert his rights over the properties because he and Katrina were represented by counsel in Civil
Case No. 2224. Said theory is allegedly founded on the perception that the Henson's were like any
other ordinary couple wherein a spouse knows or should know the transactions of the other spouse
which necessarily must be in interest of the family. The factual background of this case, however,
takes it out of said ideal situation.
Romarico and Katrina had in fact been separated when Katrina entered into a business deal with
Anita Wong. Thus, when that business transaction eventually resulted in the filing of Civil Case No.
2224, Romarico acted, or, as charged by petitioners, failed to act, in the belief that he was not
involved in the personal dealings of his estranged wife. That belief was buttressed by the fact that the
complaint itself did not mention or implicate him other than as the husband of Katrina. On whether
Romarico was also represented by Atty. Albino, Katrina's counsel, the courts below found that:
". . . Atty. Albino filed an Answer with Counterclaims dated July 25, 1975 solely on
behalf of defendant Katrina Henson. The salutary statement in that Answer
categorically reads: '. . . COMES NOW THE DEFENDANT KATRINA HENSON by
and through undersigned counsel, in answer to plaintiffs' complaint respectfully
alleges: . . .'
 
"That Answer was signed by GREGORIO ALBINO, JR., over the phrase
'COUNSEL FOR DEFENDANT KATRINA HENSON.'
"Again, when Civil Case No. 2224 was called for pre-trial on November 27, 1975,
before then Presiding Judge Bienvenido Ejercito, it is clearly stated on page 2 of
the days stenographic notes, under 'APPEARANCES' that Atty. Albino, Jr.
appeared as 'COUNSEL FOR DEFENDANT KATRINA HENSON.' And when the
case was called, Atty. Jose Baltazar, Sr. appeared for the plaintiffs while Atty.
Albino categorically appeared 'FOR DEFENDANT KATRINA HENSON.'
"It might be true that in subsequent hearings, Atty. Expedito Yumul 'appeared as
counsel for the defendants', but the whole trouble is that he never expressly
manifested to the Court that he was likewise actually representing defendant
'ROMARICO HENSON', for it cannot be disputed that Atty. Yumul only entered his
appearance in collaboration with Atty. Albino (see p. 2 tsn, January 26, 1976,
 Espinosa), who in turn entered his initial appearance during the pre-trial, and
through the filing of an Answer, for defendant KATRINA HENSON. As a matter of
fact the Power of Attorney which Atty. Albino produced during the pre-trial was
executed solely by defendant KATRINA HENSON. Accordingly, as collaborating
counsel, Atty. Yumul cannot, by any stretch of the imagination, be considered as
duly authorized to formally appear likewise on behalf of defendant ROMARICO
HENSON for whom principal counsel of record Atty. Gregorio Albino, Jr. never
made any formal appearance. On this score, it is not amiss to state that 'A spring
cannot rise higher than its source.'
"Now, what about that statement in the aforementioned joint affidavit of the spouses
KATRINA HENSON and ROMARICO HENSON, to the effect that 'our first lawyer in
said case was Atty. Gregorio Albino, Jr., and sometime later Atty. Expedito B.
Yumul took over . . .
"That statement which plaintiff ROMARICO HENSON was made to sign by Atty.
Yumul on August 25, 1977, after the filing of this case, allegedly for the purpose of
dissolving the writ of execution, as claimed in paragraph XIV of the complaint
herein, and is satisfactorily explained by both plaintiff herein and his wife, while on
cross-examination by Atty. Baltazar, Sr., and We quote:
'Q So, the summons directed your filing of your Answer for both of you, your wife
and your good self?
'A Yes, sir but may I add, I received the summons but I did not file an answer
because my wife took a lawyer and that lawyer I think will protect her
interest and my interest being so I did not have nothing to do in the
transaction which is attached to the complaint.' (TSN, Jan. 14, 1980, pp.
52-53).
"That plaintiff never appeared in Civil Case No. 2224, nor was he therein
represented by counsel was impliedly admitted by defendants' counsel of
records thru a question he propounded on cross, and the answer given by
Katrina Pineda, to wit:
'Q How about your husband, do you remember if he physically appeared in that
Civil Case No. 2224, will you tell us if he was represented by counsel as a
party defendant?
'A No, sir, he did not appear.
'Q You are husband and wife, please tell us the reason why you have your own
counsel in that case whereas Romarico Henson did not appear nor a
counsel did not appear in that proceedings?' (TSN, Feb. 25, 1980, pp. 6-7).
xxx xxx xxx
'A Because that case is my exclusive and personal case, he has nothing to do with
that, sir.' (TSN, Feb. 25, 1980, p. 9)." (Rollo, pp. 17-20)
Hence, laches may not be charged against Romarico because, aside from the fact that he had no
knowledge of the transactions of his estranged wife, he was also not afforded an opportunity to
defend himself in Civil Case No. 2224. 21 There is no laches or even finality of decision to speak of
with respect to Romarico since the decision in Civil Case No. 2224 is null and void for having been
rendered without jurisdiction for failure to observe the notice requirements prescribed by
law. 22 Failure to notify Romarico may not be attributed to the fact that the plaintiffs in Civil Case No.
2224 acted on the presumption that the Hensons were still happily married because the complaint
itself shows that they did not consider Romarico as a party to the transaction which Katrina undertook
with Anita Wong. In all likelihood, the plaintiffs merely impleaded Romarico as a nominal party in the
case pursuant to the provisions of Rule 3, Section 4 of the Rules of Court. llcd
Consequently, the writ of execution cannot be issued against Romarico as he has not yet had his day
in court 23 and, necessarily, the public auction sale is null and void. 24 Moreover, the power of the
court in the execution of judgments extends only over properties unquestionably belonging to the
judgment debtor. 25
On the matter of ownership of the properties involved, however, the Court disagrees with the
appellate court that the said properties are exclusively owned by Romarico. Having been acquired
during the marriage, they are still presumed to belong to the conjugal partnership 26 even though
Romarico and Katrina had been living separately. 27
The presumption of the conjugal nature of the properties subsists in the absence of clear, satisfactory
and convincing evidence to overcome said presumption or to prove that the properties are exclusively
owned by Romarico. 28 While there is proof that Romarico acquired the properties with money he had
borrowed from an officemate, it is unclear where he obtained the money to repay the loan. If he paid it
out of his salaries, then the money is part of the conjugal assets 29 and not exclusively his. Proof on
this matter is of paramount importance considering that in the determination of the nature of a
property acquired by a person during coverture, the controlling factor is the source of the money
utilized in the purchase.
The conjugal nature of the properties notwithstanding, Katrina's indebtedness may not be paid for with
them her obligation not having been shown by the petitioners to be one of the charges against the
conjugal partnership. 30 In addition to the fact that her rights over the properties are merely inchoate
prior to the liquidation of the conjugal partnership, the consent of her husband and her authority to
incur such indebtedness had not been alleged in the complaint and proven at the
trial. 31 Furthermore, under the Civil Code (before the effectivity of the Family Code on August 3,
1988), a wife may bind the conjugal partnership only when she purchases things necessary for the
support of the family or when she borrows money for the purpose of purchasing things necessary for
the support of the family if the husband fails to deliver the proper sum; 32 when the administration of
the conjugal partnership is transferred to the wife by the courts 33 or by the husband, 34 and when
the wife gives moderate donations for charity. 35 Having failed to establish that any of these
circumstances occurred, the Wongs may not bind the conjugal assets to answer for Katrina's personal
obligation to them.
Petitioners' contention that the rights of Santos and Joson as innocent buyers at the public auction
sale may not be prejudiced, is, to a certain extent, valid. After all, in the absence of proof that
irregularities attended the sale, the same must be presumed to have been conducted in accordance
with law. There is, however, a peculiar factual circumstance that goes against the grain of that general
presumption — the properties levied upon and sold at the public auction do not exclusively belong to
the judgment debtor. Thus, the guiding jurisprudence is as follows:
"The rule in execution sales is that an execution creditor acquires no higher or
better right than what the execution debtor has in the property levied upon. The
purchaser of property on sale under execution and levy takes as assignee only, as
the judicial seller possesses no title other than that which would pass by an
assignment by the owner. 'An execution purchaser generally acquires such estate
or interest as was vested in the execution debtor at the time of the seizure on
execution and only such interest, taking merely a quit-claim of the execution
debtor's title, without warranty on the part of either the execution officer or of the
parties, whether the property is realty or personalty. This rule prevails even if a
larger interest in the property was intended to be sold. Accordingly, if the judgment
debtor had no interest in the property, the execution purchaser acquires no interest
therein.'" (Pacheco vs. Court of Appeals, L-48689, August 31, 1987, 153 SCRA
382, 388-389 quoting Laureano vs. Stevenson, 45 Phil. 252; Cabuhat vs. Ansery,
42 Phil 170; Fore v. Manove, 18 Cal. 436 and 21 Am. Jur., 140-141. ) prLL
Applying this jurisprudence, execution purchasers Santos and Joson possess no rights which may
rise above judgment debtor Katrina's inchoate proprietary rights over the properties sold at public
auction. After all, a person can sell only what he owns or is authorized to sell and the buyer can, as a
consequence, acquire no more than what the seller can legally transfer. 36 But, inasmuch as the
decision in Civil Case No. 2224 is void only as far as Romarico and the conjugal properties are
concerned, the same may still be executed by the Spouses Wong against Katrina Henson personally
and exclusively. The Spouses Wong must return to Juanito Santos and Leonardo Joson the purchase
prices of P145,000 and P119,000 respectively, received by said spouses from the public auction sale.
The redemption made by Santos in the foreclosure proceeding against Romarico and Katrina Henson
filed by the Rural Bank of Porac should, however, be respected unless Romarico exercises his right of
redemption over the property covered by Transfer Certificate of Title No. 30951 in accordance with
law.
 
WHEREFORE, the decisions of the appellate court and the lower court in Civil Case No. 2859 are
hereby AFFIRMED subject to the modifications above-stated. No costs.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and  Davide, Jr., JJ  ., concur.
 

|||  (Spouses Wong v. Intermediate Appellate Court, G.R. No. 70082, [August 19, 1991], 277 PHIL
882-898)

SECOND DIVISION

[G.R. No. 141323. June 8, 2005.]

DAVID V. PELAYO and LORENZA * B. PELAYO,  petitioner, vs. MELKI E.

PEREZ, respondent.

DECISION

AUSTRIA-MARTINEZ, J  p:

This resolves the petition for review on certiorari seeking the reversal of the Decision 1 of the
Court of Appeals (CA) promulgated on April 20, 1999 which reversed the Decision of the Regional
Trial Court (RTC) of Panabo, Davao, Branch 34, in Civil Case No. 91-46; and the CA Resolution
dated December 17, 1999 denying petitioners' motion for reconsideration.
The antecedent facts as aptly narrated by the CA are as follows:
David Pelayo (Pelayo), by a Deed of Absolute Sale executed on January
11, 1988, conveyed to Melki Perez (Perez) two parcels of agricultural land (the lots)
situated in Panabo, Davao which are portions of Lot 4192, Cad. 276 covered by
OCT P-16873.
Loreza Pelayo (Loreza), wife of Pelayo, and another one whose signature
is illegible witnessed the execution of the deed.
 Loreza, however, signed only on the third page in the space provided for
witnesses on account of which Perez' application for registration of the deed with
the Office of the Register of Deeds in Tagum, Davao was denied.
Perez thereupon asked Loreza to sign on the first and second pages of the
deed but she refused, hence, he instituted on August 8, 1991 the instant complaint
for specific performance against her and her husband Pelayo
(defendants). CcADHI
The defendants moved to dismiss the complaint on the ground that it stated
no cause of action, citing Section 6 of RA 6657 otherwise known as
the Comprehensive Agrarian Reform Law which took effect on June 10, 1988 and
which provides that contracts executed prior thereto shall "be valid only when
registered with the Register of Deeds within a period of three (3) months after the
effectivity of this Act."
The questioned deed having been executed on January 10, 1988, the
defendants claimed that Perez had at least up to September 10, 1988 within which
to register the same, but as they failed to, it is not valid and, therefore,
unenforceable.
The trial court thus dismissed the complaint. On appeal to this Court, the
dismissal was set aside and the case was remanded to the lower court for further
proceedings.
In their Answer, the defendants claimed that as the lots were occupied
illegally by some persons against whom they filed an ejectment case, they and
Perez who is their friend and known at the time as an activist/leftist, hence feared
by many, just made it appear in the deed that the lots were sold to him in order to
frighten said illegal occupants, with the intentional omission of Loreza's signature
so that the deed could not be registered; and that the deed being simulated and
bereft of consideration is void/inexistent.
Perez countered that the lots were given to him by defendant Pelayo in
consideration of his services as his attorney-in-fact to make the necessary
representation and negotiation with the illegal occupants-defendants in the
ejectment suit; and that after his relationship with defendant Pelayo became sour,
the latter sent a letter to the Register of Deeds of Tagum requesting him not to
entertain any transaction concerning the lots title to which was entrusted to Perez
who misplaced and could [not] locate it.
Defendant Pelayo claimed in any event, in his Pre-trial brief filed on March
19, 1996, that the deed was without his wife Loreza's consent, hence, in light of Art.
166 of the Civil Code which provides:
Article 166. Unless the wife has been declared a non compos
mentis or a spendthrift, or is under civil interdiction or is confined in a
leprosarium, the husband cannot alienate or encumber any real property of
the conjugal partnership without the wife's consent . . .
it is null and void. HTAIcD
The trial court, finding, among others, that Perez did not possess, nor pay
the taxes on the lots, that defendant Pelayo was indebted to Perez for services
rendered and, therefore, the deed could only be considered as evidence of debt,
and that in any event, there was no marital consent to nor actual consideration for
the deed, held that the deed was null and void and accordingly rendered judgment
the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered ordering and directing
the defendants to pay plaintiff Melki Perez the sum of TEN THOUSAND
(P10,000.00) Pesos as principal with 12% interest per annum starting from
the date of filing of the complaint on August 1, 1991 until plaintiff is fully
paid.
 The defendants shall likewise pay to plaintiff the sum of THREE
THOUSAND (P3,000.00) as attorney's fees.
The court further orders that the Deed of Absolute Sale, (Annex 'A')
of the complaint and (Annex 'C') of the plaintiff's Motion for Summary
Judgment is declared null and void and without force and it is likewise
removed as a cloud over defendants' title and property in suit. . . ." 2
The RTC Decision was appealed by herein respondent Perez to the CA. Petitioners failed to
file their appellees' brief. The CA then promulgated its Decision on April 20, 1999 whereby it ruled that
by Lorenza's signing as witness to the execution of the deed, she had knowledge of the transaction
and is deemed to have given her consent to the same; that herein petitioners failed to adduce
sufficient proof to overthrow the presumption that there was consideration for the deed, and that
petitioner David Pelayo, being a lawyer, is presumed to have acted with due care and to have signed
the deed with full knowledge of its contents and import. The CA reversed and set aside the RTC
Decision, declaring as valid and enforceable the questioned deed of sale and ordering herein
petitioner Lorenza Pelayo to affix her signature on all pages of said document.
Petitioners moved for reconsideration of the decision but the same was denied per Resolution
dated December 17, 1999. The CA found said motion to have been filed out of time and ruled that
even putting aside technicality, petitioners failed to present any ground bearing on the merits of the
case to justify a reversal or setting aside of the decision.
Hence, this petition for review on certiorari on the following grounds:
1. The CA erred in ignoring the specific provision of Section 6, in relation to Section 4 of  R.A.
No. 6657 otherwise known as the Comprehensive Agrarian Reform Law of 1988  which took effect on
June 15, 1988 and which provides that contracts executed prior thereto shall "be valid only when
registered with the Register of Deeds within a period of three (3) months after the effectivity of this
Act."
2. The CA erred in holding that the deed of sale was valid and considering the P10,000.00
adjudged by the trial court as Perez's remuneration as the consideration for the deed of sale, instead
of declaring the same as null and void for being fictitious or simulated and on the basis of Art. 491,
Par. 2 of the New Civil Code which prohibits agents from acquiring by purchase properties from his
principal under his charge.
3. The CA made a novel ruling that there was implied marital consent of the wife of petitioner
David Pelayo.
4. Petitioners should have been allowed to file their appellees' brief to ventilate their side,
considering the existence of peculiar circumstances which prevented petitioners from filing said
brief. cTIESD
On the other hand, respondent points out that the CA, in resolving the first appeal docketed
as CA-G.R. SP No. 38700 3 brought by respondent assailing the RTC Order granting herein
petitioners' motion to dismiss, already ruled that under R.A. No. 6657, the sale or transfer of private
agricultural land is allowed only when the area of the land being conveyed constitutes or is a part of,
the landowner-seller retained area and when the total landholding of the purchaser-transferee,
including the property sold, does not exceed five (5) hectares; that in this case, the land in dispute is
only 1.3 hectares and there is no proof that the transferee's (herein respondent) total landholding
inclusive of the subject land will exceed 5 hectares, the landholding ceiling prescribed by R.A. No.
6657; that the failure of respondent to register the instrument was not due to his fault or negligence
but can be attributed to Lorenza's unjustified refusal to sign two pages of the deed despite several
requests of respondent; and that therefore, the CA ruled that the deed of sale subject of this case is
valid under R.A. No. 6657.
Respondent further maintains that the CA correctly held in its assailed Decision that there
was consideration for the contract and that Lorenza is deemed to have given her consent to the deed
of sale.
Respondent likewise opines that the CA was right in denying petitioners' motion for
reconsideration where they prayed that they be allowed to file their appellees' brief as their counsel
failed to file the same on account of said counsel's failing health due to cancer of the liver.
Respondent emphasized that in petitioners' motion for reconsideration, they did not even cite any
errors made by the CA in its Decision.
The issues boil down to the question of whether or not the deed of sale was null and void on
the following grounds: (a) for not complying with the provision in R.A. No. 6657 that such document
must be registered with the Register of Deeds within three months after the effectivity of said law; (b)
for lack of marital consent; (c) for being prohibited under Article 1491 (2) of the  Civil Code; and (d) for
lack of consideration.
We rule against petitioners.
The issue of whether or not the deed of sale is null and void under R.A. No. 6657, for
respondent's failure to register said document with the Register of Deeds within three months after the
effectivity of R.A. No. 6657, had been resolved with finality by the CA in its Decision dated November
24, 1994 in CA-G.R. SP No. 38700. 4 Herein petitioners no longer elevated said CA Decision to this
Court and the same became final and executory on January 7, 1995. 5
In said decision, the CA interpreted Section 4, in relation to Section 70 of R.A. No. 6657, to
mean thus:
. . . the proper interpretation of both sections is that under R.A. No. 6657,
the sale or transfer of a private agricultural land is allowed only when said land area
constitutes or is a part of the landowner-seller retained area and only when the total
landholdings of the purchaser-transferee, including the property sold does not
exceed five (5) hectares.
Aside from declaring that the failure of respondent to register the deed was not of his own fault or
negligence, the CA ruled that respondent's failure to register the deed of sale within three months
after effectivity of The Comprehensive Agrarian Reform Law did not invalidate the deed of sale as
"the transaction over said property is not proscribed by R.A. No. 6657." ACaDTH
Thus, under the principle of law of the case, said ruling of the CA is now binding on
petitioners. Such principle was elucidated in Cucueco vs. Court of Appeals, 6 to wit:
Law of the case has been defined as the opinion delivered on a former
appeal. It is a term applied to an established rule that when an appellate court
passes on a question and remands the case to the lower court for further
proceedings, the question there settled becomes the law of the case upon
subsequent appeal. It means that whatever is once irrevocably established as the
controlling legal rule or decision between the same parties in the same case
continues to be the law of the case, whether correct on general principles or not, so
long as the facts on which such decision was predicated continue to be the facts of
the case before the court.
Petitioners not having questioned the Decision of the CA dated November 24, 1994 which then
attained finality, the ruling that the deed of sale subject of this case is not among the transactions
deemed as invalid under R.A. No. 6657, is now immutable.
We agree with the CA ruling that petitioner Lorenza, by affixing her signature to the Deed of
Sale on the space provided for witnesses, is deemed to have given her implied consent to the
contract of sale.
Sale is a consensual contract that is perfected by mere consent, which may either be express
or implied. 7 A wife's consent to the husband's disposition of conjugal property does not always have
to be explicit or set forth in any particular document, so long as it is shown by acts of the wife that
such consent or approval was indeed given. 8 In the present case, although it appears on the face of
the deed of sale that Lorenza signed only as an instrumental witness, circumstances leading to the
execution of said document point to the fact that Lorenza was fully aware of the sale of their conjugal
property and consented to the sale.
In their Pre-Trial Brief, 9 petitioners admitted that even prior to 1988, they have been having
serious problems, including threats to the life of petitioner David Pelayo, due to conflicts with the
illegal occupants of the property in question, so that respondent, whom many feared for being a
leftist/activist, offered his help in driving out said illegal occupants.
 Human experience tells us that a wife would surely be aware of serious problems such as
threats to her husband's life and the reasons for such threats. As they themselves stated, petitioners'
problems over the subject property had been going on for quite some time, so it is highly improbable
for Lorenza not to be aware of what her husband was doing to remedy such problems. Petitioners do
not deny that Lorenza Pelayo was present during the execution of the deed of sale as her signature
appears thereon. Neither do they claim that Lorenza Pelayo had no knowledge whatsoever about the
contents of the subject document. Thus, it is quite certain that she knew of the sale of their conjugal
property between her husband and respondent.
Under the rules of evidence, it is presumed that a person takes ordinary care of his
concerns. 10 Petitioners did not even attempt to overcome the aforementioned presumption as no
evidence was ever presented to show that Lorenza was in any way lacking in her mental faculties
and, hence, could not have fully understood the ramifications of signing the deed of sale. Neither did
petitioners present any evidence that Lorenza had been defrauded, forced, intimidated or threatened
either by her own husband or by respondent into affixing her signature on the subject document. If
Lorenza had any objections over the conveyance of the disputed property, she could have totally
refrained from having any part in the execution of the deed of sale. Instead, Lorenza even affixed her
signature thereto. AHCaED
Moreover, under Article 173, in relation to Article 166, both of the New Civil Code, which was
still in effect on January 11, 1988 when the deed in question was executed, the lack of marital consent
to the disposition of conjugal property does not make the contract void ab initio but merely voidable.
Said provisions of law provide:
Art. 166. Unless the wife has been declared a non compos mentis or a
spendthrift, or is under civil interdiction or is confined in a leprosarium, the husband
cannot alienate or encumber any real property of the conjugal property without the
wife's consent. If she refuses unreasonably to give her consent, the court may
compel her to grant the same.
xxx xxx xxx
Art. 173. The wife may, during the marriage, and within ten years from the
transaction questioned, ask the courts for the annulment of any contract of the
husband entered into without her consent, when such consent is required, or any
act or contract of the husband which tends to defraud her or impair her interest in
the conjugal partnership property. Should the wife fail to exercise this right, she or
her heirs, after the dissolution of the marriage, may demand the value of property
fraudulently alienated by the husband.
Hence, it has been held that the contract is valid until the court annuls the same and only
upon an action brought by the wife whose consent was not obtained. 11 In the present case, despite
respondent's repeated demands for Lorenza to affix her signature on all the pages of the deed of sale,
showing respondent's insistence on enforcing said contract, Lorenza still did not file a case for
annulment of the deed of sale. It was only when respondent filed a complaint for specific performance
on August 8, 1991 when petitioners brought up Lorenza's alleged lack of consent as an affirmative
defense. Thus, if the transaction was indeed entered into without Lorenza's consent, we find it quite
puzzling why for more than three and a half years, Lorenza did absolutely nothing to seek the
nullification of the assailed contract.
The foregoing circumstances lead the Court to believe that Lorenza knew of the full import of
the transaction between respondent and her husband; and, by affixing her signature on the deed of
sale, she, in effect, signified her consent to the disposition of their conjugal property.
With regard to petitioners' asseveration that the deed of sale is invalid under Article 1491,
paragraph 2 of the New Civil Code, we find such argument unmeritorious. Article 1491 (2) provides:
Art. 1491. The following persons cannot acquire by purchase, even at a
public or judicial auction, either in person or through the mediation of another:
xxx xxx xxx
(2) Agents, the property whose administration or sale may have been
entrusted to them, unless the consent of the principal has been given; TAacCE
 xxx xxx xxx
In Distajo vs. Court of Appeals, 12 a landowner, Iluminada Abiertas, designated one of her
sons as the administrator of several parcels of her land. The landowner subsequently executed a
Deed of Certification of Sale of Unregistered Land, conveying some of said land to her
son/administrator. Therein, we held that:
Under paragraph (2) of the above article, the prohibition against agents
purchasing property in their hands for sale or management is not absolute. It does
not apply if the principal consents to the sale of the property in the hands of the
agent or administrator. In this case, the deeds of sale signed by Iluminada Abiertas
shows that she gave consent to the sale of the properties in favor of her son, Rufo,
who was the administrator of the properties. Thus, the consent of the principal
Iluminada Abiertas removes the transaction out of the prohibition contained in
Article 1491(2). 13
The above-quoted ruling is exactly in point with this case before us. Petitioners, by signing the
Deed of Sale in favor of respondent, are also deemed to have given their consent to the sale of the
subject property in favor of respondent, thereby making the transaction an exception to the general
rule that agents are prohibited from purchasing the property of their principals.
Petitioners also argue that the CA erred in ruling that there was consideration for the sale. We
find no error in said appellate court's ruling. The element of consideration for the sale is indeed
present. Petitioners, in adopting the trial court's narration of antecedent facts in their
petition, 14 thereby admitted that they authorized respondent to represent them in negotiations with
the "squatters" occupying the disputed property and, in consideration of respondent's services, they
executed the subject deed of sale. Aside from such services rendered by respondent, petitioners also
acknowledged in the deed of sale that they received in full the amount of Ten Thousand Pesos.
Evidently, the consideration for the sale is respondent's services plus the aforementioned cash
money.
Petitioners contend that the consideration stated in the deed of sale is excessively
inadequate, indicating that the deed of sale was merely simulated. We are not persuaded. Our ruling
in Buenaventura vs. Court of Appeals 15 is pertinent, to wit:
 
. . . Indeed, there is no requirement that the price be equal to the exact
value of the subject matter of sale. . . . As we stated in Vales vs. Villa:
Courts cannot follow one every step of his life and extricate him
from bad bargains, protect him from unwise investments, relieve him from
one-sided contracts, or annul the effects of foolish acts. Courts cannot
constitute themselves guardians of persons who are not legally
incompetent. Courts operate not because one person has been defeated or
overcome by another, but because he has been defeated or
overcome illegally. Men may do foolish things, make ridiculous contracts,
use miserable judgment, and lose money by them — indeed, all they have
in the world; but not for that alone can the law intervene and restore. There
must be, in addition, a violation of the law, the commission of what the law
knows as an actionable wrong, before the courts are authorized to lay hold
of the situation and remedy it. 16
Verily, in the present case, petitioners have not presented proof that there has been fraud,
mistake or undue influence exercised upon them by respondent. It is highly unlikely and contrary
to human experience that a layman like respondent would be able to defraud, exert undue
influence, or in any way vitiate the consent of a lawyer like petitioner David Pelayo who is
expected to be more knowledgeable in the ways of drafting contracts and other legal
transactions. HDaACI
Furthermore, in their Reply to Respondent's Memorandum, 17 petitioners adopted the CA's
narration of fact that petitioners stated in a letter they sent to the Register of Deeds of Tagum that
they have entrusted the titles over subject lots to herein respondent. Such act is a clear indication that
they intended to convey the subject property to herein respondent and the deed of sale was not
merely simulated or fictitious.
Lastly, petitioners claim that they were not able to fully ventilate their defense before the CA
as their lawyer, who was then suffering from cancer of the liver, failed to file their appellees' brief.
Thus, in their motion for reconsideration of the CA Decision, they prayed that they be allowed to
submit such appellees' brief. The CA, in its Resolution dated December 17, 1999, stated thus:
By movant-defendant-appellee's own information, his counsel received a
copy of the decision on May 5, 1999. He, therefore, had fifteen (15) days from said
date or up to May 20, 1999 to file the motion. The motion, however, was sent
through a private courier and, therefore, considered to have been filed on the date
of actual receipt on June 17, 1999 by the addressee — Court of Appeals, was filed
beyond the reglementary period.
Technicality aside, movant has not proffered any ground bearing on the
merits of the case why the decision should be set aside.
Petitioners never denied the CA finding that their motion for reconsideration was filed beyond
the fifteen-day reglementary period. On that point alone, the CA is correct in denying due course to
said motion. The motion having been belatedly filed, the CA Decision had then attained finality. Thus,
in Abalos vs. Philex Mining Corporation, 18 we held that:
. . . Nothing is more settled in law than that once a judgment attains finality
it thereby becomes immutable and unalterable. It may no longer be modified in any
respect, even if the modification is meant to correct what is perceived to be an
erroneous conclusion of fact or law, and regardless of whether the modification is
attempted to be made by the court rendering it or by the highest court of the land.
Moreover, it is pointed out by the CA that said motion did not present any defense or
argument on the merits of the case that could have convinced the CA to reverse or modify its
Decision.
We have consistently held that a petitioner's right to due process is not violated where he was
able to move for reconsideration of the order or decision in question.  19 In this case, petitioners had
the opportunity to fully expound on their defenses through a motion for reconsideration. Petitioners did
file such motion but they wasted such opportunity by failing to present therein whatever errors they
believed the CA had committed in its Decision. Definitely, therefore, the denial of petitioners' motion
for reconsideration, praying that they be allowed to file appellees' brief, did not infringe petitioners'
right to due process as any issue that petitioners wanted to raise could and should have been
contained in said motion for reconsideration. CaDSHE
IN VIEW OF THE FOREGOING, the petition is DENIED and the Decision of the Court of
Appeals dated April 20, 1999 and its Resolution dated December 17, 1999 are hereby AFFIRMED.
SO ORDERED.
Callejo, Sr., Tinga and Chico-Nazario, JJ., concur.
Puno, J., is on official leave.

SECOND DIVISION

[G.R. No. 153802. March 11, 2005.]

HOMEOWNERS SAVINGS & LOAN BANK, petitioner, vs. MIGUELA C.

DAILO,  respondent.
 DECISION

TINGA,  J p:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court,

assailing the Decision 1 of the Court of Appeals in CA-G.R. CV No. 59986 rendered on June 3, 2002,
which affirmed with modification the October 18, 1997 Decision 2 of the Regional Trial Court, Branch
29, San Pablo City, Laguna in Civil Case No. SP-4748 (97).
The following factual antecedents are undisputed.
Respondent Miguela C. Dailo and Marcelino Dailo, Jr. were married on August 8, 1967.
During their marriage, the spouses purchased a house and lot situated at Barangay San Francisco,
San Pablo City from a certain Sandra Dalida. The subject property was declared for tax assessment
purposes under Assessment of Real Property No. 94-051-2802. The Deed of Absolute Sale, however,
was executed only in favor of the late Marcelino Dailo, Jr. as vendee thereof to the exclusion of his
wife. 3
On December 1, 1993, Marcelino Dailo, Jr. executed a Special Power of Attorney (SPA) in
favor of one Lilibeth Gesmundo, authorizing the latter to obtain a loan from petitioner Homeowners
Savings and Loan Bank to be secured by the spouses Dailo's house and lot in San Pablo City.
Pursuant to the SPA, Gesmundo obtained a loan in the amount of P300,000.00 from petitioner. As
security therefor, Gesmundo executed on the same day a Real Estate Mortgage constituted on the
subject property in favor of petitioner. The abovementioned transactions, including the execution of
the SPA in favor of Gesmundo, took place without the knowledge and consent of respondent. 4
Upon maturity, the loan remained outstanding. As a result, petitioner instituted extrajudicial
foreclosure proceedings on the mortgaged property. After the extrajudicial sale thereof, a Certificate of
Sale was issued in favor of petitioner as the highest bidder. After the lapse of one year without the
property being redeemed, petitioner, through its vice-president, consolidated the ownership thereof by
executing on June 6, 1996 an Affidavit of Consolidation of Ownership and a Deed of Absolute Sale. 5
In the meantime, Marcelino Dailo, Jr. died on December 20, 1995. In one of her visits to the
subject property, respondent learned that petitioner had already employed a certain Roldan Brion to
clean its premises and that her car, a Ford sedan, was razed because Brion allowed a boy to play
with fire within the premises. HTIEaS
Claiming that she had no knowledge of the mortgage constituted on the subject property,
which was conjugal in nature, respondent instituted with the Regional Trial Court, Branch 29, San
Pablo City, Civil Case No. SP-2222 (97) for Nullity of Real Estate Mortgage and Certificate of Sale,
Affidavit of Consolidation of Ownership, Deed of Sale, Reconveyance with Prayer for Preliminary
Injunction and Damages against petitioner. In the latter's Answer with Counterclaim, petitioner prayed
for the dismissal of the complaint on the ground that the property in question was the exclusive
property of the late Marcelino Dailo, Jr.
After trial on the merits, the trial court rendered a Decision on October 18, 1997. The
dispositive portion thereof reads as follows:
WHEREFORE, the plaintiff having proved by the preponderance of
evidence the allegations of the Complaint, the Court finds for the plaintiff and
hereby orders:
ON THE FIRST CAUSE OF ACTION:
1. The declaration of the following documents as null and void:
(a) The Deed of Real Estate Mortgage dated December 1, 1993 executed
before Notary Public Romulo Urrea and his notarial register
entered as Doc. No. 212; Page No. 44, Book No. XXI, Series of
1993.
(b) The Certificate of Sale executed by Notary Public Reynaldo Alcantara
on April 20, 1995.
 (c) The Affidavit of Consolidation of Ownership executed by the defendant
(c) The Affidavit of Consolidation of Ownership executed by the defendant
over the residential lot located at Brgy. San Francisco, San Pablo
City, covered by ARP No. 95-091-1236 entered as Doc. No. 406;
Page No. 83, Book No. III, Series of 1996 of Notary Public Octavio
M. Zayas.
(d) The assessment of real property No. 95-051-1236.
2. The defendant is ordered to reconvey the property subject of this complaint to
the plaintiff.
ON THE SECOND CAUSE OF ACTION
1. The defendant to pay the plaintiff the sum of P40,000.00 representing the value
of the car which was burned.
ON BOTH CAUSES OF ACTION
1. The defendant to pay the plaintiff the sum of P25,000.00 as attorney's fees;
2. The defendant to pay plaintiff P25,000.00 as moral damages;
3. The defendant to pay the plaintiff the sum of P10,000.00 as exemplary damages;
4. To pay the cost of the suit.
The counterclaim is dismissed. jur2005cda
SO ORDERED. 6
Upon elevation of the case to the Court of Appeals, the appellate court affirmed the trial
court's finding that the subject property was conjugal in nature, in the absence of clear and convincing
evidence to rebut the presumption that the subject property acquired during the marriage of spouses
Dailo belongs to their conjugal partnership. 7 The appellate court declared as void the mortgage on
the subject property because it was constituted without the knowledge and consent of respondent, in
accordance with Article 124 of the Family Code. Thus, it upheld the trial court's order to reconvey the
subject property to respondent. 8 With respect to the damage to respondent's car, the appellate court
found petitioner to be liable therefor because it is responsible for the consequences of the acts or
omissions of the person it hired to accomplish the assigned task. 9 All told, the appellate court
affirmed the trial court's Decision, but deleted the award for damages and attorney's fees for lack of
basis. 10
Hence, this petition, raising the following issues for this Court's consideration:
1. WHETHER OR NOT THE MORTGAGE CONSTITUTED BY THE LATE
MARCELINO DAILO, JR. ON THE SUBJECT PROPERTY AS CO-OWNER
THEREOF IS VALID AS TO HIS UNDIVIDED SHARE. ESHcTD
2. WHETHER OR NOT THE CONJUGAL PARTNERSHIP IS LIABLE FOR
THE PAYMENT OF THE LOAN OBTAINED BY THE LATE MARCELINO DAILO,
JR. THE SAME HAVING REDOUNDED TO THE BENEFIT OF THE FAMILY. 11
First, petitioner takes issue with the legal provision applicable to the factual milieu of this
case. It contends that Article 124 of the Family Code should be construed in relation to Article 493 of
the Civil Code, which states:
ART. 493. Each co-owner shall have the full ownership of his part and of
the fruits and benefits pertaining thereto, and he may therefore alienate, assign or
mortgage it, and even substitute another person in its enjoyment, except when
personal rights are involved. But the effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the portion which may be allotted to
him in the division upon the termination of the co-ownership.
Article 124 of the Family Code provides in part:
 ART. 124. The administration and enjoyment of the conjugal partnership
property shall belong to both spouses jointly. . . .
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the conjugal properties, the other spouse may
assume sole powers of administration. These powers do not include the powers of
disposition or encumbrance which must have the authority of the court or the
written consent of the other spouse. In the absence of such authority or consent,
the disposition or encumbrance shall be void. . . .
Petitioner argues that although Article 124 of the Family Code requires the consent of the
other spouse to the mortgage of conjugal properties, the framers of the law could not have intended to
curtail the right of a spouse from exercising full ownership over the portion of the conjugal property
pertaining to him under the concept of co-ownership. 12 Thus, petitioner would have this Court uphold
the validity of the mortgage to the extent of the late Marcelino Dailo, Jr.'s share in the conjugal
partnership.
In Guiang v. Court of Appeals, 13 it was held that the sale of a conjugal property requires the
consent of both the husband and wife. 14 In applying Article 124 of the Family Code, this Court
declared that the absence of the consent of one renders the entire sale null and void, including the
portion of the conjugal property pertaining to the husband who contracted the sale. The same
principle in Guiang squarely applies to the instant case. As shall be discussed next, there is no legal
basis to construe Article 493 of the Civil Code as an exception to Article 124 of the Family Code.
Respondent and the late Marcelino Dailo, Jr. were married on August 8, 1967. In the absence
of a marriage settlement, the system of relative community or conjugal partnership of gains governed
the property relations between respondent and her late husband. 15 With the effectivity of the Family
Code on August 3, 1988, Chapter 4 on Conjugal Partnership of Gains in the Family Code was made
applicable to conjugal partnership of gains already established before its effectivity unless vested
rights have already been acquired under the Civil Code or other laws. 16
The rules on co-ownership do not even apply to the property relations of respondent and the
late Marcelino Dailo, Jr. even in a suppletory manner. The regime of conjugal partnership of gains is a
special type of partnership, where the husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and those acquired by either or both
spouses through their efforts or by chance. 17 Unlike the absolute community of property wherein
the rules on co-ownership apply in a suppletory manner, 18 the conjugal partnership shall be
governed by the rules on contract of partnership in all that is not in conflict with what is expressly
determined in the chapter (on conjugal partnership of gains) or by the spouses in their marriage
settlements. 19 Thus, the property relations of respondent and her late husband shall be governed,
foremost, by Chapter 4 on Conjugal Partnership of Gains of the Family Code and, suppletorily, by
the rules on partnership under the Civil Code. In case of conflict, the former prevails because the Civil
Code provisions on partnership apply only when the Family Code is silent on the matter. THCASc
 
The basic and established fact is that during his lifetime, without the knowledge and consent
of his wife, Marcelino Dailo, Jr. constituted a real estate mortgage on the subject property, which
formed part of their conjugal partnership. By express provision of Article 124 of the Family Code, in
the absence of (court) authority or written consent of the other spouse, any disposition or
encumbrance of the conjugal property shall be void.
The aforequoted provision does not qualify with respect to the share of the spouse who
makes the disposition or encumbrance in the same manner that the rule on co-ownership under
Article 493 of the Civil Code does. Where the law does not distinguish, courts should not
distinguish. 20 Thus, both the trial court and the appellate court are correct in declaring the nullity of
the real estate mortgage on the subject property for lack of respondent's consent.
Second, petitioner imposes the liability for the payment of the principal obligation obtained by
the late Marcelino Dailo, Jr. on the conjugal partnership to the extent that it redounded to the benefit
of the family. 21
Under Article 121 of the Family Code, "[T]he conjugal partnership shall be liable for: . . . (3)
Debts and obligations contracted by either spouse without the consent of the other to the extent that
the family may have been benefited; . . . ." For the subject property to be held liable, the obligation
contracted by the late Marcelino Dailo, Jr. must have redounded to the benefit of the conjugal
partnership. There must be the requisite showing then of some advantage which clearly accrued to
the welfare of the spouses. Certainly, to make a conjugal partnership respond for a liability that should
appertain to the husband alone is to defeat and frustrate the avowed objective of the new Civil
Code to show the utmost concern for the solidarity and well-being of the family as a unit. 22
The burden of proof that the debt was contracted for the benefit of the conjugal partnership of
gains lies with the creditor-party litigant claiming as such. 23 Ei incumbit probatio qui dicit, non qui
negat (he who asserts, not he who denies, must prove). 24 Petitioner's sweeping conclusion that the
loan obtained by the late Marcelino Dailo, Jr. to finance the construction of housing units without a
doubt redounded to the benefit of his family, without adducing adequate proof, does not persuade this
Court. Other than petitioner's bare allegation, there is nothing from the records of the case to compel
a finding that, indeed, the loan obtained by the late Marcelino Dailo, Jr. redounded to the benefit of the
family. Consequently, the conjugal partnership cannot be held liable for the payment of the principal
obligation.
In addition, a perusal of the records of the case reveals that during the trial, petitioner
vigorously asserted that the subject property was the exclusive property of the late Marcelino Dailo,
Jr. Nowhere in the answer filed with the trial court was it alleged that the proceeds of the loan
redounded to the benefit of the family. Even on appeal, petitioner never claimed that the family
benefited from the proceeds of the loan. When a party adopts a certain theory in the court below, he
will not be permitted to change his theory on appeal, for to permit him to do so would not only be
unfair to the other party but it would also be offensive to the basic rules of fair play, justice and due
process. 25 A party may change his legal theory on appeal only when the factual bases thereof would
not require presentation of any further evidence by the adverse party in order to enable it to properly
meet the issue raised in the new theory. 26
WHEREFORE, the petition is DENIED. Costs against petitioner. TICDSc
SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur.

).
 

|||  (Homeowners Savings & Loan Bank v. Dailo, G.R. No. 153802, [March 11, 2005], 493 PHIL 436-
445)
 FIRST DIVISION

[G.R. No. 109557. November 29, 2000.]

JOSE UY and his Spouse GLENDA J. UY and GILDA L.

JARDELEZA,  petitioners, vs. COURT OF APPEALS and TEODORO L.
JARDELEZA,  respondents.

Jiz Jiz Andrada Gellada & Associates  for petitioners.

Roco Biñag Kapunan & Migallos  for private respondent.

SYNOPSIS

Petitioner Gilda L. Jardeleza instituted before the Regional Trial Court of Iloilo a petition to
declare her husband Ernesto Jardeleza, Sr. incapacitated, in view his comatose condition, and to
authorize her to assume sole powers of administration of their conjugal properties and to dispose the
same, with the approval of the court, to their daughter and son-in-law, her co-petitioners herein, to
defray the mounting expenses for treatment and hospitalization of her incapacitated husband. After
hearing, the RTC granted the petition and made a pronouncement that the petition filed by petitioner
was pursuant to Article 124 of the Family Code, and that the proceedings thereon are governed by the
rules on summary proceedings sanctioned under Article 253 of the same Code. Private respondent,
son of Ernesto Jardeleza, Sr. moved for reconsideration contending, among others, that the rules
governing special proceedings in the Revised Rules of Court should be followed. The trial court
denied the motion. On appeal, the Court of Appeals reversed the decision of the trial court and
declared void the special proceedings instituted therein by petitioners ruling that the proper remedy
was the appointment of a judicial guardian of the person or estate or both of such incompetent, under
Rule 93, Section 1, 1964 Revised Rules of Court.
In regular manner, the rules on summary judicial proceedings under the Family Code govern
the proceedings under Article 124 of the Family Code. The situation contemplated is one where the
spouse is absent, or separated in fact or has abandoned the other or consent is withheld or cannot be
obtained. Such rules do not apply to cases where the non-consenting spouse is incapacitated or
incompetent to give consent. In this case, the trial court found that the subject spouse "is an
incompetent" who was in comatose or semi-comatose condition, a victim of stroke, cerebrovascular
accident, without motor and mental faculties, and with a diagnosis of brain stem infarct. In such case,
the proper remedy is a judicial guardianship proceedings under Rule 93 of the 1964 Revised Rules of
Court.
Even assuming that the rules of summary judicial proceedings under the Family Code may
apply to the wife's administration of the conjugal property, the law provides that the wife who assumes
sole powers of administration has the same powers and duties as a guardian under the Rules of
Court. Consequently, a spouse who desires to sell real property as such administrator of the conjugal
property must observe the procedure for the sale of the ward's estate required of judicial guardians
under Rule 95 of the 1964 Revised Rules of Court, not the summary judicial proceedings under
the Family Code.

SYLLABUS

1. FAMILY CODE; ADMINISTRATION OF CONJUGAL PARTNERSHIP PROPERTY; RULES

ON SUMMARY PROCEEDINGS UNDER THE FAMILY CODE NOT APPLICABLE TO CASES
WHERE THE NON-CONSENTING SPOUSE IS INCAPACITATED OR INCOMPETENT TO GIVE
CONSENT; PROPER REMEDY IS JUDICIAL GUARDIANSHIP PROCEEDINGS. — In regular
manner, the rules on summary judicial proceedings under the Family Code govern the proceedings
under Article 124 of the Family Code. The situation contemplated is one where the spouse is absent,
or separated in fact or has abandoned the other or consent is withheld or cannot be obtained. Such
rules do not apply to cases where the non-consenting spouse is incapacitated or incompetent to give
consent. In this case, the trial court found that the subject spouse "is an incompetent" who was in
comatose or semi-comatose condition, a victim of stroke, cerebrovascular accident, without motor and
mental faculties, and with a diagnosis of brain stem infarct. In such case, the proper remedy is a
judicial guardianship proceedings under Rule 93 of the 1964 Revised Rules of Court.
2. REMEDIAL LAW; SPECIAL PROCEEDINGS; GUARDIANSHIP; PROCEDURE FOR THE
SALE OF WARD'S ESTATE REQUIRED OF JUDICIAL GUARDIANS MUST BE OBSERVED BY A
SPOUSE WHO DESIRES TO DISPOSE OF THEIR CONJUGAL PROPERTY AS SOLE
ADMINISTRATOR THEREOF. — Even assuming that the rules of summary judicial proceedings
under the Family Code may apply to the wife's administration of the conjugal property, the law
provides that the wife who assumes sole powers of administration has the same powers and duties as
a guardian under the Rules of Court. Consequently, a spouse who desires to sell real property as
such administrator of the conjugal property must observe the procedure for the sale of the ward's
estate required of judicial guardians under Rule 95, 1964 Revised Rules of Court, not the summary
judicial proceedings under the Family Code. SHCaDA
3. ID.; JUDGMENT RENDERED WITHOUT DUE PROCESS IS VOID AB INITIO AND MAY
BE ATTACKED DIRECTLY OR COLLATERALLY. — In the case at bar, the trial court did not comply
with the procedure under the Revised Rules of Court. Indeed, the trial court did not even observe the
requirements of the summary judicial proceedings under the Family Code. Thus, the trial court did not
serve notice of the petition to the incapacitated spouse; it did not require him to show cause why the
petition should not be granted. Hence, we agree with the Court of Appeals that absent an opportunity
to be heard, the decision rendered by the trial court is void for lack of due process. The doctrine
consistently adhered to by this Court is that a denial of due process suffices to cast on the official act
taken by whatever branch of the government the impress of nullity. A decision rendered without due
process is void ab initio and may be attacked directly or collaterally. "A decision is void for lack of due
process if, as a result, a party is deprived of the opportunity of being heard." "A void decision may be
assailed or impugned at any time either directly or collaterally, by means of a separate action, or by
resisting such decision in any action or proceeding where it is invoked."

DECISION

PARDO,  J p:

The case is an appeal via certiorari from the decision 1 of the Court of Appeals and its
resolution denying reconsideration 2 reversing that of the Regional Trial Court, Iloilo, Branch 32 3 and
declaring void the special proceedings instituted therein by petitioners to authorize petitioner Gilda L.
Jardeleza, in view of the comatose condition of her husband, Ernesto Jardeleza, Sr., with the approval
of the court, to dispose of their conjugal property in favor of co-petitioners, their daughter and son-in-
law, for the ostensible purpose of "financial need in the personal, business and medical expenses of
her 'incapacitated' husband."
The facts, as found by the Court of Appeals, are as follows:
"This case is a dispute between Teodoro L. Jardeleza (herein respondent)
on the one hand, against his mother Gilda L. Jardeleza, and sister and brother-in-
law, the spouses Jose Uy and Glenda Jardeleza (herein petitioners) on the other
hand. The controversy came about as a result of Dr. Ernesto Jardeleza, Sr.'s
suffering of a stroke on March 25, 1991, which left him comatose and bereft of any
motor or mental faculties. Said Ernesto Jardeleza, Sr. is the father of herein
respondent Teodoro Jardeleza and husband of herein private respondent Gilda
Jardeleza.
 "Upon learning that one piece of real property belonging to the senior
Jardeleza spouses was about to be sold, petitioner Teodoro Jardeleza, on June 6,
1991, filed a petition (Annex "A") before the R.T.C. of Iloilo City, Branch 25, where it
was docketed as Special Proceeding No. 4689, in the matter of the guardianship of
Dr. Ernesto Jardeleza, Sr. The petitioner averred therein that the present physical
and mental incapacity of Dr. Ernesto Jardeleza, Sr. prevent him from competently
administering his properties, and in order to prevent the loss and dissipation of the
Jardelezas' real and personal assets, there was a need for a court-appointed
guardian to administer said properties. It was prayed therein that Letters of
Guardianship be issued in favor of herein private respondent Gilda Ledesma
Jardeleza, wife of Dr. Ernesto Jardeleza, Sr. It was further prayed that in the
meantime, no property of Dr. Ernesto Jardeleza, Sr. be negotiated, mortgaged or
otherwise alienated to third persons, particularly Lot No. 4291 and all the
improvements thereon, located along Bonifacio Drive, Iloilo City, and covered by
T.C.T. No. 47337.
"A few days later, or on June 13, 1991, respondent Gilda L. Jardeleza
herself filed a petition docketed as Special Proceeding NO. 4691, before Branch 32
of the R.T.C. of Iloilo City, regarding the declaration of incapacity of Ernesto
Jardeleza, Sr., assumption of sole powers of administration of conjugal properties,
and authorization to sell the same (Annex "B"). Therein, the petitioner Gilda L.
Jardeleza averred the physical and mental incapacity of her husband, who was
then confined for intensive medical care and treatment at the Iloilo Doctor's
Hospital. She signified to the court her desire to assume sole powers of
administration of their conjugal properties. She also alleged that her husband's
medical treatment and hospitalization expenses were piling up, accumulating to
several hundred thousands of pesos already. For this, she urgently needed to sell
one piece of real property, specifically Lot No. 4291 and its improvements. Thus,
she prayed for authorization from the court to sell said property. caIETS
"The following day, June 14, 1991, Branch 32 of the R.T.C. of Iloilo City
issued an Order (Annex "C") finding the petition in Spec. Proc. No. 4691 to be
sufficient in form and substance, and setting the hearing thereof for June 20, 1991.
The scheduled hearing of the petition proceeded, attended by therein petitioner
Gilda Jardeleza, her counsel, her two children, namely Ernesto Jardeleza, Jr., and
Glenda Jardeleza Uy, and Dr. Rolando Padilla, one of Ernesto Jardeleza, Sr.'s
attending physicians.
"On that same day, June 20, 1991, Branch 32 of the RTC of Iloilo City
rendered its Decision (Annex "D"), finding that it was convinced that Ernesto
Jardeleza, Sr. was truly incapacitated to participate in the administration of the
conjugal properties, and that the sale of Lot No. 4291 and the improvements
thereon was necessary to defray the mounting expenses for treatment and
Hospitalization. The said court also made the pronouncement that the petition filed
by Gilda L. Jardeleza was "pursuant to Article 124 of the Family Code, and that the
proceedings thereon are governed by the rules on summary proceedings
sanctioned under Article 253 of the same Code . . . .
"The said court then disposed as follows:
"WHEREFORE, there being factual and legal bases to the petition
dated June 13, 1991, the Court hereby renders judgment as follows:
"1) declaring Ernesto Jardeleza, Sr., petitioner's husband, to be
incapacitated and unable to participate in the administration of conjugal
properties;
"2) authorizing petitioner Gilda L. Jardeleza to assume sole powers
of administration of their conjugal properties; and
"3) authorizing aforesaid petitioner to sell Lot No. 4291 of the
Cadastral Survey of Iloilo, situated in Iloilo City and covered by TCT No.
 47337 issued in the names of Ernesto Jardeleza, Sr. and Gilda L.
Jardeleza and the buildings standing thereof.
"SO ORDERED.
"On June 24, 1991, herein petitioner Teodoro Jardeleza filed his Opposition
to the proceedings before Branch 32 in Spec. Proc. Case No. 4691, said petitioner
being unaware and not knowing that a decision has already been rendered on the
case by public respondent.
"On July 3, 1991, herein petitioner Teodoro Jardeleza filed a motion for
reconsideration of the judgment in Spec. Proc. No. 4691 and a motion for
consolidation of the two cases (Annex "F"). He propounded the argument that the
petition for declaration of incapacity, assumption of sole powers of administration,
and authority to sell the conjugal properties was essentially a petition for
guardianship of the person and properties of Ernesto Jardeleza, Sr. As such, it
cannot be prosecuted in accordance with the provisions on summary proceedings
set out in Article 253 of the Family Code. It should follow the rules governing
special proceedings in the Revised Rules of Court which require procedural due
process, particularly the need for notice and a hearing on the merits. On the other
hand, even if Gilda Jardeleza's petition can be prosecuted by summary
proceedings, there was still a failure to comply with the basic requirements thereof,
making the decision in Spec. Proc. No. 4691 a defective one. He further alleged
that under the New Civil Code, Ernesto Jardeleza, Sr. had acquired vested rights
as a conjugal partner, and that these rights cannot be impaired or prejudiced
without his consent. Neither can he be deprived of his share in the conjugal
properties through mere summary proceedings. He then restated his position that
Spec. Proc. No. 4691 should be consolidated with Spec. Proc. No. 4689 which was
filed earlier and pending before Branch 25.
"Teodoro Jardeleza also questioned the propriety of the sale of Lot No.
4291 and the improvements thereon supposedly to pay the accumulated financial
obligations arising from Ernesto Jardeleza, Sr.'s hospitalization. He alleged that the
market value of the property would be around Twelve to Fifteen Million Pesos, but
that he had been informed that it would be sold for much less. He also pointed out
that the building thereon which houses the Jardeleza Clinic is a monument to
Ernesto Jardeleza, Sr.'s industry, labor and service to his fellowmen. Hence, the
said property has a lot of sentimental value to his family. Besides, argued Teodoro
Jardeleza, then conjugal partnership had other liquid assets to pay off all financial
obligations. He mentioned that apart from sufficient cash, Jardeleza, Sr. owned
stocks of Iloilo Doctors' Hospital which can be off-set against the cost of medical
and hospital bills. Furthermore, Ernesto Jardeleza, Sr. enjoys certain privileges at
the said hospital which allows him to pay on installment basis. Moreover, two of
Ernesto Jardeleza, Sr.'s attending physicians are his own sons who do not charge
anything for their professional services.
"On July 4, 1991, Teodoro Jardeleza filed in Spec. Proc. No. 4691 a
supplement to his motion for reconsideration (Annex "G"). He reiterated his
contention that summary proceedings was irregularly applied. He also noted that
the provisions on summary proceedings found in Chapter 2 of the Family
Code comes under the heading on "Separation in Fact Between Husband and
Wife" which contemplates of a situation where both spouses are of disposing mind.
Thus, he argued that were one spouse is "comatose without motor and mental
faculties," the said provisions cannot be made to apply.
"While the motion for reconsideration was pending, Gilda Jardeleza
disposed by absolute sale Lot No. 4291 and all its improvements to her daughter,
Ma. Glenda Jardeleza Uy, for Eight Million Pesos (P8,000,000.00), as evidenced by
a Deed Absolute Sale dated July 8, 1991 executed between them (p. 111, Rollo).
Under date of July 23, 1991, Gilda Jardeleza filed an urgent ex-parte motion for
approval of the deed of absolute sale.
 "On August 12, 1991 Teodoro Jardeleza filed his Opposition to the motion
for approval of the deed of sale on the grounds that: (1) the motion was prematurely
filed and should be held in abeyance until the final resolution of the petition; (2) the
motion does not allege nor prove the justifications for the sale; and (3) the motion
does not allege that had Ernesto Jardeleza, Sr. been competent, he would have
given his consent to the sale.
"Judge Amelita K. del Rosario-Benedicto of Branch 32 of the respondent
Court, who had penned the decision in Spec. Proc. No. 4691 had in the meantime
formally inhibited herself from further acting in this case (Annex "I"). The case was
then reraffled to Branch 28 of the said court.
"On December 19, 1991, the said court issued an Order (Annex "M")
denying herein petitioner's motion for reconsideration and approving respondent
Jardeleza's motion for approval of the deed of absolute sale. The said court ruled
that:
"After a careful and thorough perusal of the decision, dated June
20, 1991, the Motion for Reconsideration, as well as its supplements filed
by "oppositor", Teodoro L. Jardeleza, through counsel, and the opposition
to the Motion for Reconsideration, including its supplements, filed by
petitioner, through counsel, this Court is of the opinion and so holds, that
her Honor, Amelita K. del Rosario-Benedicto, Presiding Judge of Branch
32, of this Court, has properly observed the procedure embodied under
Article 253, in relation to Article 124, of the Family Code, in rendering her
decision dated June 20, 1991.
"Also, as correctly stated by petitioner, through counsel, that
"oppositor" Teodoro L. Jardeleza does not have the personality to oppose
the instant petition considering that the property or properties, subject of
the petition, belongs to the conjugal partnership of the spouses Ernesto
and Gilda Jardeleza, who are both still alive.
"In view thereof, the Motion for Reconsideration of "oppositor"
Teodoro L. Jardeleza, is hereby denied for lack of merit.
"Considering the validity of the decision dated June 20, 1991,
which among others, authorized Gilda L. Jardeleza to sell Lot No. 4291 of
the Cadastral Survey of Iloilo, covered by Transfer Certificate of Title No.
47337 issued in the names of Ernesto Jardeleza, Sr., and Gilda L.
Jardeleza and the building standing thereon, the Urgent Ex-Parte Motion
for Approval of Deed of Absolute Sale dated July 23, 1991, filed by
petitioner, through counsel, is hereby granted and the deed of absolute
sale, executed and notarized on July 8, 1991, by and between Gilda L.
Jardeleza, as vendor, and Ma. Glenda Jardeleza, as vendee, is hereby
approved, and the Register of Deeds of Iloilo City, is directed to register the
sale and issue the corresponding transfer certificate of title to the vendee.
"SO ORDERED." 4
On December 9, 1992, the Court of Appeals promulgated its decision reversing the appealed
decision and ordering the trial court to dismiss the special proceedings to approve the deed of sale,
which was also declared void. 5
On December 29, 1992, petitioners filed a motion for reconsideration, 6 however, on March
29, 1993, the Court of Appeals denied the motion, finding no cogent and compelling reason to disturb
the decision. 7
Hence, this appeal. 8
The issue raised is whether petitioner Gilda L. Jardeleza as the wife of Ernesto Jardeleza, Sr.
who suffered a stroke, a cerebrovascular accident, rendering him comatose, without motor and mental
faculties, and could not manage their conjugal partnership property may assume sole powers of
administration of the conjugal property under Article 124 of the Family Code and dispose of a parcel
of land with its improvements, worth more than twelve million pesos, with the approval of the court in a
summary proceedings, to her co-petitioners, her own daughter and son-in-law, for the amount of eight
million pesos. CcSEIH
The Court of Appeals ruled that in the condition of Dr. Ernesto Jardeleza, Sr., the procedural
rules on summary proceedings in relation to Article 124 of the Family Code are not
applicable. Because Dr. Jardeleza, Sr. was unable to take care of himself and manage the conjugal
property due to illness that had rendered him comatose, the proper remedy was the appointment of a
judicial guardian of the person or estate or both of such incompetent, under Rule 93, Section 1, 1964
Revised Rules of Court. Indeed, petitioner earlier had filed such a petition for judicial guardianship.
Article 124 of the Family Code provides as follows:
"ART. 124. The administration and enjoyment of the conjugal partnership
property shall belong to both spouses jointly. In case of disagreement, the
husband's decision shall prevail, subject to recourse to the court by the wife for a
proper remedy which must be availed of within five years from the date of the
contract implementing such decision.
"In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the conjugal properties, the other spouse may
assume sole powers of administration. These powers do not include the powers of
disposition or encumbrance which must have the authority of the court or the
written consent of the other spouse. In the absence of such authority or consent,
the disposition or encumbrance shall be void. However, the transaction shall be
construed as a continuing offer on the part of the consenting spouse and the third
person, and may be perfected as a binding contract upon the acceptance by the
other spouse or authorization by the court before the offer is withdrawn by either or
both offerors. (165a)."
In regular manner, the rules on summary judicial proceedings under the Family Code govern
the proceedings under Article 124 of the Family Code. The situation contemplated is one where the
spouse is absent, or separated in fact or has abandoned the other or consent is withheld or cannot be
obtained. Such rules do not apply to cases where the non-consenting spouse is incapacitated or
incompetent to give consent. In this case, the trial court found that the subject spouse "is an
incompetent" who was in comatose or semi-comatose condition, a victim of stroke, cerebrovascular
accident, without motor and mental faculties, and with a diagnosis of brain stem infarct. 9 In such
case, the proper remedy is a judicial guardianship proceedings under Rule 93 of the  1964 Revised
Rules of Court.
Even assuming that the rules of summary judicial proceedings under the Family Code may
apply to the wife's administration of the conjugal property, the law provides that the wife who assumes
sole powers of administration has the same powers and duties as a guardian under the Rules of
Court. 10
Consequently, a spouse who desires to sell real property as such administrator of the
conjugal property must observe the procedure for the sale of the ward's estate required of judicial
guardians under Rule 95, 1964 Revised Rules of Court, not the summary judicial proceedings under
the Family Code.
In the case at bar, the trial court did not comply with the procedure under the  Revised Rules
of Court. Indeed, the trial court did not even observe the requirements of the summary judicial
proceedings under the Family Code. Thus, the trial court did not serve notice of the petition to the
incapacitated spouse; it did not require him to show cause why the petition should not be granted.
Hence, we agree with the Court of Appeals that absent an opportunity to be heard, the
decision rendered by the trial court is void for lack of due process. The doctrine consistently adhered
to by this Court is that a denial of due process suffices to cast on the official act taken by whatever
branch of the government the impress of nullity. 11 A decision rendered without due process is
void ab initio and may be attacked directly or collaterally. 12 "A decision is void for lack of due
process if, as a result, a party is deprived of the opportunity of being heard."  13 "A void decision may
be assailed or impugned at any time either directly or collaterally, by means of a separate action, or
by resisting such decision in any action or proceeding where it is invoked." 14
 WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals in CA-G.R. SP No.
26936, in toto.
Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan, and Ynares-Santiago, JJ., concur.

|||  (Spouses Uy v. Court of Appeals, G.R. No. 109557, [November 29, 2000], 400 PHIL 25-36)

FIRST DIVISION

[G.R. No. 147978. January 23, 2002.]

THELMA A. JADER-MANALO, petitioner, vs. NORMA FERNANDEZ C.

CAMAISA and EDILBERTO CAMAISA, respondents.

Thelma A. Jader-Manalo for petitioner.

Jose R. Ebro, Jr. for private respondents.

SYNOPSIS

Petitioner herein responded to an advertisement in the newspaper for the sale of a ten-
door apartment owned by herein respondents spouses. After the purchase price and the term of
payments were agreed upon by the petitioner and the respondent husband, a contract to sell was
prepared. The husband signed the contract, but unfortunately the wife changed her mind as she
did not agree with the term of payments by the petitioner. Hence, petitioner herein filed a
complaint for specific performance against the spouses to compel the wife to sign the contract to
sell. The respondent wife filed a motion for summary judgment. The trial court rendered a
summary judgment dismissing the complaint. Petitioner elevated the case to the Court of
Appeals. The Court of Appeals affirmed the dismissal of the case by the trial court. Hence, this
 appeal. The issue raised in this case is whether or not the husband may validly dispose a
conjugal property without the wife's written consent. aHECST
The Supreme Court affirmed the decision of the Court of Appeals. The Court agreed with
the trial court that summary judgment was applicable to this case as there was no genuine
controversy as to the facts involved herein. According to the Court, the properties subject of the
contract in this case were conjugal; hence, for the contract to sell to be effective, the consent of
both the husband and wife must concur. In the absence of proof that the wife was incapacitated to
give her consent to the contract, a court authorization cannot be sought in this case.

SYLLABUS

1. REMEDIAL LAW; ACTIONS; SUMMARY JUDGMENT; DEFINED. — A summary judgment

is one granted by the court upon motion by a party for an expeditious settlement of a case, there
appearing from the pleadings, depositions, admissions and affidavits that there are no important
questions or issues of fact involved, and that therefore the moving party is entitled to judgment as a
matter of law.
2. CIVIL LAW; FAMILY CODE; CONJUGAL PROPERTY; DISPOSITION BY THE HUSBAND
REQUIRES WRITTEN CONSENT OF THE WIFE; APPLICATION IN CASE AT BAR. — The law
requires that the disposition of a conjugal property by the husband as administrator in appropriate
cases requires the written consent of the wife, otherwise, the disposition is void. The properties
subject of the contracts in this case were conjugal; hence, for the contracts to sell to be effective, the
consent of both husband and wife must concur.
3. ID.; ID.; ID.; ID.; EXCEPTION; NOT PRESENT IN CASE AT BAR. — Petitioner is correct
insofar as she alleges that if the written consent of the other spouse cannot be obtained or is being
withheld, the matter may be brought to court which will give such authority if the same is warranted by
the circumstances. However, it should be stressed that court authorization under Art. 124 is only
resorted to in cases where the spouse who does not give consent is incapacitated. In this case,
petitioner failed to allege and prove that respondent Norma was incapacitated to give her consent to
the contracts. In the absence of such showing of the wife's incapacity, court authorization cannot be
sought.

DECISION

KAPUNAN,  J p:

The issue raised in this case is whether or not the husband may validly dispose of a conjugal
property without the wife's written consent.
The present controversy had its beginning when petitioner Thelma A. Jader-Manalo allegedly
came across an advertisement placed by respondents, the Spouses Norma Fernandez C. Camaisa
and Edilberto Camaisa, in the Classified Ads Section of the newspaper BULLETIN TODAY in its April,
1992 issue, for the sale of their ten-door apartment in Makati, as well as that in Taytay, Rizal.
As narrated by petitioner in her complaint filed with the Regional Trial Court of Makati, Metro
Manila, she was interested in buying the two properties so she negotiated for the purchase through a
real estate broker, Mr. Proceso Ereno, authorized by respondent spouses. 1 Petitioner made a visual
inspection of the said lots with the real estate broker and was shown the tax declarations, real
property tax payment receipts, location plans, and vicinity maps relating to the
properties. 2 Thereafter, petitioner met with the vendors who turned out to be respondent spouses.
She made a definite offer to buy the properties to respondent Edilberto Camaisa with the knowledge
and conformity of his wife, respondent Norma Camaisa in the presence of the real estate
broker. 3 After some bargaining, petitioner and Edilberto agreed upon the purchase price of
P1,500,000.00 for the Taytay property and P2,100,000.00 for the Makati property  4 to be paid on
installment basis with downpayments of P100,000.00 and P200,000.00, respectively, on April 15,
1992. The balance thereof was to be paid as follows: 5
  Taytay Property Makati Property
6th month P200,000.00 P300,000.00
12th month 700,000.00 1,600,000.00
18th month 500,000.00  
This agreement was handwritten by petitioner and signed by Edilberto. 6 When petitioner
pointed out the conjugal nature of the properties, Edilberto assured her of his wife's conformity and
consent to the sale. 7 The formal typewritten Contracts to Sell were thereafter prepared by petitioner.
The following day, petitioner, the real estate broker and Edilberto met in the latter's office for the
formal signing of the typewritten Contracts to Sell. 8 After Edilberto signed the contracts, petitioner
delivered to him two checks, namely, UCPB Check No. 62807 dated April 15, 1992 for P200,000.00
and UCPB Check No. 62808 also dated April 15, 1992 for P100,000.00 in the presence of the real
estate broker and an employee in Edilberto's office. 9 The contracts were given to Edilberto for the
formal affixing of his wife's signature. aATHIE
The following day, petitioner received a call from respondent Norma, requesting a meeting to
clarify some provisions of the contracts. 10 To accommodate her queries, petitioner, accompanied by
her lawyer, met with Edilberto and Norma and the real estate broker at Cafe Rizal in
Makati. 11 During the meeting, handwritten notations were made on the contracts to sell, so they
arranged to incorporate the notations and to meet again for the formal signing of the contracts. 12
When petitioner met again with respondent spouses and the real estate broker at Edilberto's
office for the formal affixing of Norma's signature, she was surprised when respondent spouses
informed her that they were backing out of the agreement because they needed "spot cash" for the
full amount of the consideration. 13 Petitioner reminded respondent spouses that the contracts to sell
had already been duly perfected and Norma's refusal to sign the same would unduly prejudice
petitioner. Still, Norma refused to sign the contracts prompting petitioner to file a complaint for specific
performance and damages against respondent spouses before the Regional Trial Court of Makati,
Branch 136 on April 29, 1992, to compel respondent Norma Camaisa to sign the contracts to sell.
A Motion to Dismiss 14 was filed by respondents which was denied by the trial court in its
Resolution of July 21, 1992. 15
Respondents then filed their Answer with Compulsory Counterclaim, alleging that it was an
agreement between herein petitioner and respondent Edilberto Camaisa that the sale of the subject
properties was still subject to the approval and conformity of his wife Norma Camaisa. 16 Thereafter,
when Norma refused to give her consent to the sale, her refusal was duly communicated by Edilberto
to petitioner. 17 The check issued by petitioner were returned to her by Edilberto and she accepted
the same without any objection. 18 Respondent further claimed that the acceptance of the checks
returned to petitioner signified her assent to the cancellation of the sale of the subject
properties. 19 Respondent Norma denied that she ever participated in the negotiations for the sale of
the subject properties and that she gave her consent and conformity to the same. 20
On October 20, 1992, respondent Norma F. Camaisa filed a Motion for Summary
Judgment 21 asserting that there is no genuine issue as to any material fact on the basis of the
pleadings and admission of the parties considering that the wife's written consent was not obtained in
the contract to sell, the subject conjugal properties belonging to respondents; hence, the contract was
null and void.
On April 14, 1993, the trial court rendered a summary judgment dismissing the complaint on
the ground that under Art. 124 of the Family Code, the court cannot intervene to authorize the
transaction in the absence of the consent of the wife since said wife who refused to give consent had
not been shown to be incapacitated. The dispositive portion of the trial court's decision reads: HTIEaS
WHEREFORE, considering these premises, judgment is hereby rendered:
1. Dismissing the complaint and ordering the cancellation of the Notice
of Lis Pendens by reason of its filing on TCT Nos. (464860) S-8724 and (464861)
S-8725 of the Registry of Deeds at Makati and on TCT Nos. 295976 and 295971 of
the Registry of Rizal.
 2. Ordering plaintiff Thelma A. Jader to pay defendant spouses Norma and
Edilberto Camaisa, FIFTY THOUSAND (P50,000.00) as Moral Damages and
FIFTY THOUSAND (P50,000.00) as Attorney's Fees.
Costs against plaintiff. 22
Petitioner, thus, elevated the case to the Court of Appeals. On November 29, 2000, the Court
of Appeals affirmed the dismissal by the trial court but deleted the award of P50,000.00 as damages
and P50,000.00 as attorney's fees.
The Court of Appeals explained that the properties subject of the contracts were conjugal
properties and as such, the consent of both spouses is necessary to give effect to the sale. Since
private respondent Norma Camaisa refused to sign the contracts, the sale was never perfected. In
fact, the downpayment was returned by respondent spouses and was accepted by petitioner. The
Court of Appeals also stressed that the authority of the court to allow sale or encumbrance of a
conjugal property without the consent of the other spouse is applicable only in cases where the said
spouse is incapacitated or otherwise unable to participate in the administration of the conjugal
property.
Hence, the present recourse assigning the following errors:
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED IN
RENDERING SUMMARY JUDGMENT IN DISMISSING THE COMPLAINT
ENTIRELY AND ORDERING THE CANCELLATION OF NOTICE OF  LIS
PENDENS ON THE TITLES OF THE SUBJECT REAL PROPERTIES;
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED IN
FAILING TO CONSIDER THAT THE SALE OF REAL PROPERTIES BY
RESPONDENTS TO PETITIONER HAVE ALREADY BEEN PERFECTED, FOR
AFTER THE LATTER PAID P300,000.00 DOWNPAYMENT, RESPONDENT MRS.
CAMAISA NEVER OBJECTED TO STIPULATIONS WITH RESPECT TO PRICE,
OBJECT AND TERMS OF PAYMENT IN THE CONTRACT TO SELL ALREADY
SIGNED BY THE PETITIONER, RESPONDENT MR. CAMAISA AND WITNESSES
MARKED AS ANNEX "G" IN THE COMPLAINT EXCEPT, FOR MINOR
PROVISIONS ALREADY IMPLIED BY LAW, LIKE EJECTMENT OF TENANTS,
SUBDIVISION OF TITLE AND RESCISSION IN CASE OF NONPAYMENT,
WHICH PETITIONER READILY AGREED AND ACCEDED TO THEIR
INCLUSION;
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED WHEN
IT FAILED TO CONSIDER THAT CONTRACT OF SALE IS CONSENSUAL AND
IT IS PERFECTED BY THE MERE CONSENT OF THE PARTIES AND THE
APPLICABLE PROVISIONS ARE ARTICLES 1157, 1356, 1357, 1358, 1403, 1405
AND 1475 OF THE CIVIL CODE OF THE PHILIPPINES AND GOVERNED BY
THE STATUTE OF FRAUD. 23
The Court does not find error in the decisions of both the trial court and the Court of Appeals.
Petitioner alleges that the trial court erred when it entered a summary judgment in favor of
respondent spouses there being a genuine issue of fact. Petitioner maintains that the issue of whether
the contracts to sell between petitioner and respondent spouses was perfected is a question of fact
necessitating a trial on the merits.
The Court does not agree. A summary judgment is one granted by the court upon motion by a
party for an expeditious settlement of a case, there appearing from the pleadings, depositions,
admissions and affidavits that there are no important questions or issues of fact involved, and that
therefore the moving party is entitled to judgment as a matter of law. 24 A perusal of the pleadings
submitted by both parties should that there is no genuine controversy as to the facts involved therein.
Both parties admit that there were negotiations for the sale of four parcels of land between
petitioner and respondent spouses; that petitioner and respondent Edilberto Camaisa came to an
agreement as to the price and the terms of payment, and a downpayment was paid by petitioner to
the latter; and that respondent Norma refused to sign the contracts to sell. The issue thus posed for
resolution in the trial court was whether or not the contracts to sell between petitioner and respondent
spouses were already perfected such that the latter could no longer back out of the
agreement. ATcEDS
The law requires that the disposition of a conjugal property by the husband as administrator in
appropriate cases requires the written consent of the wife, otherwise, the disposition is void.
Thus, Article 124 of the Family Code provides:
Art. 124. The administration and enjoyment of the conjugal partnership
property shall belong to both spouses jointly. In case of disagreement, the
husband's decision shall prevail, subject to recourse to the court by the wife for a
proper remedy, which must be availed of within five years from the date of the
contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the conjugal properties, the other spouse may
assume sole powers of administration. These powers do not include the powers of
disposition or encumbrance which must have the authority of the court or the
written consent of the other spouse.  In the absence of such authority or consent
the disposition or encumbrance shall be void. However, the transaction shall be
construed as a continuing offer on the part of the consenting spouse and the third
person, and may be perfected as a binding contract upon the acceptance by the
other spouse or authorization by the court before the offer is withdrawn by either or
both offerors. (Italics ours.)
The properties subject of the contracts in this case were conjugal; hence, for the contracts to
sell to be effective, the consent of both husband and wife must concur.
Respondent Norma Camaisa admittedly did not give her written consent to the sale. Even
granting that respondent Norma actively participated in negotiating for the sale of the subject
properties, which she denied, her written consent to the sale is required by law for its validity.
Significantly, petitioner herself admits that Norma refused to sign the contracts to sell. Respondent
Norma may have been aware of the negotiations for the sale of their conjugal properties. However,
being merely aware of a transaction is not consent. 25
Finally, petitioner argues that since respondent Norma unjustly refuses to affix her signatures
to the contracts to sell, court authorization under Article 124 of the Family Code is warranted.
The argument is bereft of merit. Petitioner is correct insofar as she alleges that if the written
consent of the other spouse cannot be obtained or is being withheld, the matter may be brought to
court which will give such authority if the same is warranted by the circumstances. However it should
be stressed that court authorization under Art. 124 is only resorted to in cases where the spouse who
does not give consent is incapacitated. 26 In this case, petitioner failed to allege and prove that
respondent Norma was incapacitated to give her consent to the contracts. In the absence of such
showing of the wife's incapacity, court authorization cannot be sought.
Under the foregoing facts, the motion for summary judgment was proper considering that
there was no genuine issue as to any material fact. The only issue to be resolved by the trial court
was whether the contract to sell involving conjugal properties was valid without the written consent of
the wife.
WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals dated
November 29, 2000 in CA-G.R. CV No. 43421 AFFIRMED. aTcESI
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.

|||  (Jader-Manalo v. Spouses Camaisa, G.R. No. 147978, [January 23, 2002], 425 PHIL 346-356)
 FIRST DIVISION

[G.R. No. 125172. June 26, 1998.]

Spouses ANTONIO and LUZVIMINDA GUIANG,  petitioners, vs. COURT OF

APPEALS and GILDA CORPUZ, respondents.

Public Attorney's Office for petitioners.

Arnold D. Cruz for private respondent.

SYNOPSIS

Private respondent Gilda Corpuz and husband Judie Corpuz sold one-half of their lot to
petitioner-spouses Antonio and Luzviminda Guiang. When Gilda was in Manila looking for work
abroad Judie sold the remaining one-half portion of the lot including the house standing thereon to the
Guiang spouses. When Gilda returned home, she gathered her children together and stayed at their
house. She then filed a complaint before the RTC for the nullification of the deed of sale executed by
her husband in favor of the petitioner spouses. The RTC rendered judgment in her favor and against
petitioners. The Court of Appeals, affirmed the trial court's ruling. Hence, this appeal.
Petitioners contend that the contract of sale was merely voidable and was ratified by private
respondent when she entered into an amicable settlement with them. Petitioners based their
arguments under Article 1390 of the Civil Code providing that contracts entered into where consent of
one party is vitiated by mistake, violence, intimidation, undue influence or fraud are voidable and are
binding, unless annulled but they are susceptible of ratification. STcADa
The Supreme Court held that the error in petitioners' contention is evident. Article 1390, par.
2, refers to contracts visited by vices of consent, i.e., contracts which were entered into by a person
whose consent was obtained and vitiated through mistake, violence, intimidation, undue influence or
fraud. In this instance, private respondent's consent to the contract of sale of their conjugal property
was totally inexistent or absent. This being the case, said contract properly falls within the ambit of
Article 124 of the Family Code, which was correctly applied by the two lower courts. Furthermore, it
must be noted that the fraud and the intimidation referred to by petitioners were perpetrated in the
execution of the document embodying the amicable settlement. Gilda Corpuz alleged during trial that
barangay authorities made her sign said document through misrepresentation and coercion. In any
event, its execution does not alter the void character of the deed of sale between the husband and the
petitioners-spouses. The fact remains that such contract was entered into without the wife's consent.

SYLLABUS

1. CIVIL LAW; OBLIGATIONS AND CONTRACTS; SALES; ELEMENTS. — In sum, the

nullity of the contract of sale is premised on the absence of private respondent's consent. To
constitute a valid contract, the Civil Code requires the concurrence of the following elements: (1)
cause, (2) object, and (3) consent, the last element being indubitably absent in the case at bar.
2. ID.; ID.; VOID CONTRACTS CANNOT BE RATIFIED. — By the specific provision of the
law [Art. 1390, Civil Code] therefore, the Deed of Transfer of Rights (Exh. 'A') cannot be ratified, even
by an amicable settlement. The participation by some barangay authorities in the amicable settlement
cannot otherwise validate an invalid act. Moreover, it cannot be denied that the amicable settlement
(Exh. 'B') entered into by plaintiff Gilda Corpuz and defendant spouses Guiang is a contract. It is a
direct offshoot of the Deed of Transfer of Rights (Exh. 'A'). By express provision of law, such a
contract is also void. Thus, the legal provision, to wit: 'Article 1422. A contract which is the direct result
of a previous illegal contract, is also void and inexistent.' (Civil Code of the Philippines). In summation
therefore, both the Deed of Transfer of Rights (Exh. 'A') and the amicable settlement (Exh. '3') are null
and void."
3. ID.; FAMILY CODE; ADMINISTRATION OF THE CONJUGAL PARTNERSHIP
PROPERTY; SETTLEMENT DOES NOT MENTION A CONTINUING OFFER TO SELL PROPERTY
OR ACCEPTANCE THEREOF; CASE AT BAR. — Neither can the "amicable settlement" be
considered a continuing offer that was accepted and perfected by the parties, following the last
sentence of Article 124. The order of the pertinent events is clear: after the sale, petitioners filed a
complaint for trespassing against private respondent, after which the barangay authorities secured an
"amicable settlement" and petitioners filed before the MTC a motion for its execution. The settlement,
however, does not mention a continuing offer. Its tenor was to the effect that private respondent would
vacate the property. By no stretch of the imagination, can the Court interpret this document as the
acceptance mentioned in Article 124. ScTCIE

DECISION

PANGANIBAN,  J p:

The sale of a conjugal property requires the consent of both the husband and the wife. The
absence of the consent of one renders the sale null, and void, while the vitiation thereof makes it
merely voidable. Only in the latter case can ratification cure the defect. LibLex
The Case
These were the principles that guided the Court in deciding this petition for review of the
Decision 1 dated January 30, 1996 and the Resolution 2 dated May 28, 1996, promulgated by the
Court of Appeals in CA-GR CV No. 41758, affirming the Decision of the lower court and denying
reconsideration, respectively.
On May 28, 1990, Private Respondent Gilda Corpuz filed an Amended Complaint 3 against
her husband Judie Corpuz and Petitioners-Spouses Antonio and Luzviminda Guiang. The said
Complaint sought the declaration of a certain deed of sale, which involved the conjugal property of
private respondent and her husband, null and void. The case was raffled to the Regional Trial Court of
Koronadal, South Cotabato, Branch 25. In due course, the trial court rendered a Decision 4 dated
September 9, 1992, disposing as follows: 5
 "ACCORDINGLY, judgment is rendered for the plaintiff and against the
defendants,
1. Declaring both the Deed of Transfer of Rights dated March 1, 1990 (Exh.
'A') and the 'amicable settlement' dated March 16, 1990 (Exh. 'B') as null and void
and of no effect;
2. Recognizing as lawful and valid the ownership and possession of plaintiff
Gilda Corpuz over the remaining one-half portion of Lot 9, Block 8, (LRC) Psd-
165409 which has been the subject of the Deed of Transfer of Rights (Exh. 'A');
3. Ordering plaintiff Gilda Corpuz to reimburse defendants Luzviminda and
Antonio Guiang the amount of NINE THOUSAND (P9,000.00) PESOS
corresponding to the payment made by defendants Guiangs to Manuel Callejo for
the unpaid balance of the account of plaintiff in favor of Manuel Callejo, and another
sum of P379.62 representing one-half of the amount of realty taxes paid by
defendants Guiangs on Lot 9, Block 8, (LRC) Psd-165409, both with legal interests
thereon computed from the finality of the decision.
No pronouncement as to costs in view of the factual circumstances of the
case."
Dissatisfied, petitioners-spouses filed an appeal with the Court of Appeals. Respondent Court,
in its challenged Decision, ruled as follows: 6
"WHEREFORE, the appealed decision of the lower court in Civil Case No.
204 is hereby AFFIRMED by this Court. No costs considering plaintiff-appellee's
failure to file her brief, despite notice."
Reconsideration was similarly denied by the same court in its assailed Resolution: 7
"Finding that the issues raised in defendants-appellants' motion for
reconsideration of Our decision in this case of January 30, 1996, to be a mere
rehash of the same issues which We have already passed upon in the said
decision, and there [being] no cogent reason to disturb the same, this
Court RESOLVES to DENY the instant motion for reconsideration for lack of merit."
The Facts
The facts of this case are simple. Over the objection of private respondent and while she was
in Manila seeking employment, her husband sold to the petitioners-spouses one half of their conjugal
property, consisting of their residence and the lot on which it stood. The circumstances of this sale are
set forth in the Decision of Respondent Court, which quoted from the Decision of the trial court. as
follows: 8
"1. Plaintiff Gilda Corpuz and defendant Judie Corpuz are legally married
spouses. They were married on December 24, 1968 in Bacolod City, before a
judge. This is admitted by defendants-spouses Antonio and Luzviminda Guiang in
their answer, and also admitted by defendant Judie Corpuz when he testified in
court (tsn. p. 3, June 9, 1992), although the latter says that they were married in
1967. The couple have three children, namely: Junie — 18 years old, Harriet — 17
years of age, and Jodie or Joji, the youngest, who was 15 years of age in August,
1990 when her mother testified in court.
Sometime on February 14, 1983, the couple Gilda and Judie Corpuz, with
plaintiff-wife Gilda Corpuz as vendee, bought a 421 sq. meter lot located in
Barangay Gen. Paulino Santos (Bo. 1), Koronadal, South Cotabato, and particularly
known as Lot 9, Block 8, (LRC) Psd-165409 from Manuel Callejo who signed as
vendor through a conditional deed of sale for a total consideration of P14,735.00.
The consideration was payable in installment, with right of cancellation in favor of
vendor should vendee fail to pay three successive installments (Exh. '2', tsn. p. 6,
February 14, 1990).
2. Sometime on April 22, 1988, the couple Gilda and Judie Corpuz sold
one-half portion of their Lot No. 9, Block 8, (LRC) Psd-165409 to the defendants-
spouses Antonio and Luzviminda Guiang. The latter have since then occupied the
one-half portion [and] built their house thereon (tsn. p. 4, May 22, 1992). They are
thus adjoining neighbors of the Corpuzes.
3. Plaintiff Gilda Corpuz left for Manila sometime in June 1989. She was
trying to look for work abroad, in [the] Middle East. Unfortunately, she became a
victim of an unscrupulous illegal recruiter. She was not able to go abroad. She
stayed for sometime in Manila however, coming back to Koronadal, South
Cotabato, . . . on March 11, 1990. Plaintiff's departure for Manila to look for work in
the Middle East was with the consent of her husband Judie Corpuz (tsn. p. 16, Aug.
12, 1990; p. 10, Sept. 6, 1991).
After his wife's departure for Manila, defendant Judie Corpuz seldom went
home to the conjugal dwelling. He stayed most of the time at his place of work at
Samahang Nayon Building, a hotel, restaurant, and a cooperative. Daughter Harriet
Corpuz went to school at King's College, Bo. 1, Koronadal, South Cotabato, but she
was at the same time working as household help of, and staying at, the house of
Mr. Panes. Her brother Junie was not working. Her younger sister Jodie (Joji) was
going to school. Her mother sometimes sent them money (tsn. p. 14, Sept. 6,
1991).
Sometime in January 1990, Harriet Corpuz learned that her father intended
to sell the remaining one-half portion including their house, of their homelot to
defendants Guiangs. She wrote a letter to her mother informing her. She [Gilda
Corpuz] replied that she was objecting to the sale. Harriet, however, did not inform
her father about this; but instead gave the letter to Mrs. Luzviminda Guiang so that
she [Guiang] would advise her father (tsn. pp. 16-17, Sept. 6, 1991).
4. However, in the absence of his wife Gilda Corpuz, defendant Judie
Corpuz pushed through the sale of the remaining one-half portion of Lot 9, Block 8,
(LRC) Psd-165409. On March 1, 1990, he sold to defendant Luzviminda Guiang
thru a document known as 'Deed of Transfer of Rights' (Exh. 'A') the remaining one-
half portion of their lot and the house standing thereon for a total consideration of
P30,000.00 of which P5,000.00 was to be paid in June, 1990. Transferor Judie
Corpuz's children Junie and Harriet signed the document as witnesses.
Four (4) days after March 1, 1990 or on March 5, 1990, obviously to cure
whatever defect in defendant Judie Corpuz's title over the lot transferred, defendant
Luzviminda Guiang as vendee executed another agreement over Lot 9, Block 8,
(LRC) Psd-165408 (Exh. '3'), this time with Manuela Jimenez Callejo, a widow of
the original registered owner from whom the couple Judie and Gilda Corpuz
originally bought the lot (Exh. '2'), who signed as vendor for a consideration of
P9,000.00. Defendant Judie Corpuz signed as a witness to the sale (Exh. '3-A').
The new sale (Exh. '3') describes the lot sold as Lot 8, Block 9, (LRC) Psd-165408
but it is obvious from the mass of evidence that the correct lot is Lot 8, Block 9,
(LRC) Psd-165409, the very lot earlier sold to the couple Gilda and Judie Corpuz.
5. Sometime on March 11, 1990, plaintiff returned home. She found her
children staying with other households. Only Junie was staying in their house.
Harriet and Joji were with Mr. Panes. Gilda gathered her children together and
stayed at their house. Her husband was nowhere to be found. She was informed by
her children that their father had a wife already.
6. For staying in their house sold by her husband, plaintiff was complained
against by defendant Luzviminda Guiang and her husband Antonio Guiang before
the Barangay authorities of Barangay General Paulino Santos (Bo. 1), Koronadal,
South Cotabato, for trespassing (tsn. p. 34, Aug. 17, 1990). The case was docketed
by the barangay authorities as Barangay Case No. 38 for 'trespassing'. On March
16, 1990, the parties thereat signed a document known as 'amicable settlement'. In
full, the settlement provides for, to wit:
'That respondent, Mrs. Gilda Corpuz and her three children,
namely: Junie, Hariet and Judie to leave voluntarily the house of Mr. and
 Mrs. Antonio Guiang, where they are presently boarding without any
charge, on or before April 7, 1990.
FAIL NOT UNDER THE PENALTY OF THE. LAW.'
Believing that she had received the shorter end of the bargain, plaintiff went
to the Barangay Captain of Barangay Paulino Santos to question her signature on
the amicable settlement. She was referred however to the Officer-in-Charge at the
time, a certain Mr. de la Cruz. The latter in turn told her that he could not do
anything on the matter (tsn. p. 31, Aug. 17, 1990).
This particular point was not rebutted. The Barangay Captain who testified
did not deny that Mrs. Gilda Corpuz. approached him for the annulment of the
settlement. He merely said he forgot whether Mrs. Corpuz had approached him
(tsn. p. 13, Sept. 26, 1990). We thus conclude that Mrs. Corpuz really approached
the Barangay Captain for the annulment of the settlement. Annulment not having
been made, plaintiff stayed put in her house and lot.
7. Defendant-spouses Guiang followed thru the amicable settlement with a
motion for the execution of the amicable settlement, filing the same with the
Municipal Trial Court of Koronadal, South Cotabato. The proceedings [are] still
pending before the said court, with the filing of the instant suit.
8. As a consequence of the sale, the spouses Guiang spent P600.00 for
the preparation of the Deed of Transfer of Rights, Exh. 'A'; P9,000.00 as the
amount they paid to Mrs. Manuela Callejo, having assumed the remaining
obligation of the Corpuzes to Mrs. Callejo (Exh. '3'); P100.00 for the preparation of
Exhibit '3'; a total of P759.62 basic tax and special educational fund on the lot;
P127.50 as the total documentary stamp tax on the various documents; P535.72 for
the capital gains tax; P22.50 as transfer tax; a standard fee of P17.00; certification
fee of P5.00. These expenses particularly the taxes and other expenses towards
the transfer of the title to the spouses Guiangs were incurred for the whole Lot 9,
Block 8, (LRC) Psd-165409." LexLib
Ruling of Respondent Court
Respondent Court found no reversible error in the trial court's ruling that any alienation or
encumbrance by the husband of the conjugal property without the consent of his wife is null and void
as provided under Article 124 of the Family Code. It also rejected petitioners' contention that the
"amicable settlement" ratified said sale, citing Article 1409 of the Code which expressly bars
ratification of the contracts specified therein, particularly those "prohibited or declared void by law."
Hence, this petition. 9
The Issues
In their Memorandum, petitioners assign to public respondent the following errors: 10
"I
Whether or not the assailed Deed of Transfer of Rights was validly executed.
II
Whether or not the Court of Appeals erred in not declaring as voidable contract
under Art. 1390 of the Civil Code the impugned Deed of Transfer of Rights which
was validly ratified thru the execution of the 'amicable settlement' by the contending
parties.
III
Whether or not the Court of Appeals erred in not setting aside the findings of the
Court a quo which recognized as lawful and valid the ownership and possession of
private respondent over the remaining one half (½) portion of the subject property."
 In a nutshell, petitioners-spouses contend that (1) the contract of sale (Deed of Transfer of
Rights) was merely voidable, and (2) such contract was ratified by private respondent when she
entered into an amicable settlement with them.
This Court's Ruling
The petition is bereft of merit.
First Issue:  Void or Voidable Contract?
Petitioners insist that the questioned Deed of Transfer of Rights was validly executed by the
parties-litigants in good faith and for valuable consideration. The absence of private respondent's
consent merely rendered the Deed voidable under Article 1390 of the Civil Code, which provides:
"ART. 1390. The following contracts are voidable or annullable, even
though there may have been no damage to the contracting parties:
xxx xxx xxx
(2) Those where the consent is vitiated by mistake, violence, intimidation,
undue influence or fraud.
These contracts are binding, unless they are annulled by a proper action in
court. They are susceptible of ratification.(n)"
The error in petitioners' contention is evident. Article 1390, par. 2, refers to contracts visited
by vices of consent, i.e., contracts which were entered into by a person whose consent was obtained
and vitiated through mistake, violence, intimidation, undue influence or fraud. In this instance, private
respondent's consent to the contract of sale of their conjugal property was totally inexistent or absent.
Gilda Corpuz, on direct examination, testified thus: 11
"Q Now, on March 1, 1990, could you still recall where you were?
A I was still in Manila during that time.
xxx xxx xxx
ATTY. FUENTES:
Q When did you come back to Koronadal, South Cotabato?
A That was on March 11, 1990, Ma'am.
Q Now, when you arrived at Koronadal, was there any problem which arose
concerning the ownership of your residential house at Callejo Subdivision?
A When I arrived here in Koronadal, there was a problem which arose regarding my
residential house and lot because it was sold by my husband without my
knowledge."
This being the case, said contract properly falls within the ambit of Article 124 of the Family
Code, which was correctly applied by the two lower courts:
"ART. 124. The administration and enjoyment of the conjugal partnership
property shall belong to both spouses jointly. In case of disagreement, the
husband's decision shall prevail, subject to recourse to the court by the wife for
proper remedy, which must be availed of within five years from the date of the
contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the conjugal properties, the other spouse may
assume sole powers of administration. These powers do not include the powers of
disposition or encumbrance which must have the authority of the court or the
written consent of the other spouse. In the absence of such authority or
consent,  the disposition or encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part of the consenting spouse and
the third person, and may be perfected as a binding contract upon the acceptance
 by the other spouse or authorization by the court before the offer is withdrawn by
either or both offerors. (165a)" (emphasis supplied)
Comparing said law with its equivalent provision in the Civil Code, the trial court adroitly
explained the amendatory effect of the above provision in this wise: 12
"The legal provision is clear. The disposition or encumbrance is void. It
becomes still clearer if we compare the same with the equivalent provision of
the Civil Code of the Philippines. Under Article 166 of the Civil Code, the husband
cannot generally alienate or encumber any real property of the conjugal partnership
without the wife's consent. The alienation or encumbrance if so made however is
not null and void. It is merely voidable. The offended wife may bring an action to
annul the said alienation or encumbrance. Thus, the provision of Article 173 of
the Civil Code of the Philippines, to wit:
'Art. 173. The wife may, during the marriage and within ten years
from the transaction questioned, ask the courts for the annulment of any
contract of the husband entered into without her consent, when such
consent is required, or any act or contract of the husband which tends to
defraud her or impair her interest in the conjugal partnership property.
Should the wife fail to exercise this right, she or her heirs after the
dissolution of the marriage, may demand the value of property fraudulently
alienated by the husband.(n)'
This particular provision giving the wife ten (10) years . . . during [the] marriage to
annul the alienation or encumbrance was not carried over to the Family Code. It is
thus clear that any alienation or encumbrance made after August 3, 1988 when
the Family Code took effect by the husband of the conjugal partnership property
without the consent of the wife is null and void."
Furthermore, it must be noted that the fraud and the intimidation referred to by petitioners
were perpetrated in the execution of the document embodying the amicable settlement. Gilda Corpuz
alleged during trial that barangay authorities made her sign said document through misrepresentation
and coercion. 13 In any event, its execution does not alter the void character of the deed of sale
between the husband and the petitioners-spouses, as will be discussed later. The fact remains that
such contract was entered into without the wife's consent.
In sum, the nullity of the contract of sale is premised on the absence of private respondent's
consent. To constitute a valid contract, the Civil Code requires the concurrence of the following
elements: (1) cause, (2) object, and (3) consent, 14 the last element being indubitably absent in the
case at bar.
Second Issue: Amicable Settlement
Insisting that the contract of sale was merely voidable, petitioners aver that it was duly ratified
by the contending parties through the "amicable settlement" they executed on March 16, 1990 in
Barangay Case No. 38.
The position is not well taken. The trial and the appellate courts have resolved this issue in
favor of the private respondent. The trial court correctly held: 15
"By the specific provision of the law [Art. 1390, Civil Code] therefore, the
Deed of Transfer of Rights (Exh. 'A') cannot be ratified, even by an 'amicable
settlement'. The participation by some barangay authorities in the 'amicable
settlement' cannot otherwise validate an invalid act. Moreover, it cannot be denied
that the 'amicable settlement' (Exh. 'B') entered into by plaintiff Gilda Corpuz and
defendant spouses Guiang is a contract. It is a direct offshoot of the Deed of
Transfer of Rights (Exh. 'A'). By express provision of law, such a contract is also
void. Thus, the legal provision, to wit:
'Art. 1422. A contract which is the direct result of a previous illegal
contract, is also void and inexistent.' (Civil Code of the Philippines).
In summation therefore, both the Deed of Transfer of Rights (Exh. 'A') and
the 'amicable settlement' (Exh. '3') are null and void."
 Doctrinally and clearly, a void contract cannot be ratified. 16
Neither can the "amicable settlement" be considered a continuing offer that was accepted and
perfected by the parties, following the last sentence of Article 124. The order of the pertinent events is
clear: after the sale, petitioners filed a complaint for trespassing against private respondent, after
which the barangay authorities secured an "amicable settlement" and petitioners filed before the MTC
a motion for its execution. The settlement, however, does not mention a continuing offer to sell the
property or an acceptance of such a continuing offer. Its tenor was to the effect that private
respondent would vacate the property. By no stretch of the imagination, can the Court interpret this
document as the acceptance mentioned in Article 124.
WHEREFORE, the Court hereby DENIES the petition and AFFIRMS the challenged Decision
and Resolution. Costs against petitioners.
SO ORDERED. cdll
Davide, Jr.,  Bellosillo,  Vitug and Quisumbing,  JJ ., concur.

|||  (Spouses Guiang v. Court of Appeals, G.R. No. 125172, [June 26, 1998], 353 PHIL 578-591)

SECOND DIVISION

[G.R. No. 176556. July 4, 2012.]

BRIGIDO B. QUIAO, petitioner, vs. RITA C. QUIAO, KITCHIE C. QUIAO, LOTIS

C. QUIAO, PETCHIE C. QUIAO, represented by their mother RITA
QUIAO,  respondents.

DECISION

REYES,  J p:

The family is the basic and the most important institution of society. It is in the family where
children are born and molded either to become useful citizens of the country or troublemakers in the
community. Thus, we are saddened when parents have to separate and fight over properties, without
regard to the message they send to their children. Notwithstanding this, we must not shirk from our
obligation to rule on this case involving legal separation escalating to questions on dissolution and
partition of properties.
The Case
This case comes before us via Petition for Review on Certiorari 1 under Rule 45 of the Rules
of Court. The petitioner seeks that we vacate and set aside the Order 2 dated January 8, 2007 of the
Regional Trial Court (RTC), Branch 1, Butuan City. In lieu of the said order, we are asked to issue a
Resolution defining the net profits subject of the forfeiture as a result of the decree of legal separation
in accordance with the provision of Article 102 (4) of the Family Code, or alternatively, in accordance
with the provisions of Article 176 of the Civil Code.
Antecedent Facts
On October 26, 2000, herein respondent Rita C. Quiao (Rita) filed a complaint for legal
separation against herein petitioner Brigido B. Quiao (Brigido). 3 Subsequently, the RTC rendered a
Decision 4 dated October 10, 2005, the dispositive portion of which provides:
WHEREFORE, viewed from the foregoing considerations, judgment is
hereby rendered declaring the legal separation of plaintiff Rita C. Quiao and
defendant-respondent Brigido B. Quiao pursuant to Article 55. HcSaTI
As such, the herein parties shall be entitled to live separately from each
other, but the marriage bond shall not be severed.
Except for Letecia C. Quiao who is of legal age, the three minor children,
namely, Kitchie, Lotis and Petchie, all surnamed Quiao shall remain under the
custody of the plaintiff who is the innocent spouse.
Further, except for the personal and real properties already foreclosed by
the RCBC, all the remaining properties, namely:
1.   coffee mill in Balongagan, Las Nieves, Agusan del Norte;
2.   coffee mill in Durian, Las Nieves, Agusan del Norte;
3.   corn mill in Casiklan, Las Nieves, Agusan del Norte;
4.   coffee mill in Esperanza, Agusan del Sur;
5.   a parcel of land with an area of 1,200 square meters located in
Tungao, Butuan City;
6.   a parcel of agricultural land with an area of 5 hectares located in
Manila de Bugabos, Butuan City;
7.   a parcel of land with an area of 84 square meters located in Tungao,
Butuan City;
8.   Bashier Bon Factory located in Tungao, Butuan City;
shall be divided equally between herein [respondents] and [petitioner]
subject to the respective legitimes of the children and the payment of the unpaid
conjugal liabilities of [P]45,740.00.
[Petitioner's] share, however, of the net profits earned by the conjugal
partnership is forfeited in favor of the common children.
He is further ordered to reimburse [respondents] the sum of [P]19,000.00
as attorney's fees and litigation expenses of [P]5,000.00[.]
SO ORDERED. 5 ESCTIA
Neither party filed a motion for reconsideration and appeal within the period provided for
under Section 17 (a) and (b) of the Rule on Legal Separation. 6
 On December 12, 2005, the respondents filed a motion for execution 7 which the trial court
granted in its Order dated December 16, 2005, the dispositive portion of which reads:
"Wherefore, finding the motion to be well taken, the same is hereby
granted. Let a writ of execution be issued for the immediate enforcement of the
Judgment.
SO ORDERED." 8
Subsequently, on February 10, 2006, the RTC issued a Writ of Execution 9 which reads as
follows:
NOW THEREFORE, that of the goods and chattels of the [petitioner]
BRIGIDO B. QUIAO you cause to be made the sums stated in the afore-quoted
DECISION [sic], together with your lawful fees in the service of this Writ, all in the
Philippine Currency.
But if sufficient personal property cannot be found whereof to satisfy this
execution and your lawful fees, then we command you that of the lands and
buildings of the said [petitioner], you make the said sums in the manner required by
law. You are enjoined to strictly observed Section 9, Rule 39, Rule [sic] of the 1997
Rules of Civil Procedure.
You are hereby ordered to make a return of the said proceedings
immediately after the judgment has been satisfied in part or in full in consonance
with Section 14, Rule 39 of the 1997 Rules of Civil Procedure, as amended. 10
On July 6, 2006, the writ was partially executed with the petitioner paying the respondents the
amount of P46,870.00, representing the following payments:
(a)   P22,870.00 — as petitioner's share of the payment of the conjugal share;
(b)   P19,000.00 — as attorney's fees; and
(c)   P5,000.00 — as litigation expenses. 11
On July 7, 2006, or after more than nine months from the promulgation of the Decision, the
petitioner filed before the RTC a Motion for Clarification, 12 asking the RTC to define the term "Net
Profits Earned."
To resolve the petitioner's Motion for Clarification, the RTC issued an Order 13 dated August
31, 2006, which held that the phrase "NET PROFIT EARNED" denotes "the remainder of the
properties of the parties after deducting the separate properties of each [of the] spouse and the
debts." 14 The Order further held that after determining the remainder of the properties, it shall be
forfeited in favor of the common children because the offending spouse does not have any right to any
share of the net profits earned, pursuant to Articles 63, No. (2) and 43, No. (2) of the  Family
Code. 15 The dispositive portion of the Order states:
WHEREFORE, there is no blatant disparity when the sheriff intends to
forfeit all the remaining properties after deducting the payments of the debts for
only separate properties of the defendant-respondent shall be delivered to him
which he has none. caAICE
The Sheriff is herein directed to proceed with the execution of the Decision.
IT IS SO ORDERED. 16
Not satisfied with the trial court's Order, the petitioner filed a Motion for Reconsideration 17 on
September 8, 2006. Consequently, the RTC issued another Order 18 dated November 8, 2006,
holding that although the Decision dated October 10, 2005 has become final and executory, it may
still consider the Motion for Clarification because the petitioner simply wanted to clarify the meaning of
"net profit earned." 19 Furthermore, the same Order held:
ALL TOLD, the Court Order dated August 31, 2006 is hereby ordered set
aside. NET PROFIT EARNED, which is subject of forfeiture in favor of [the] parties'
 common children, is ordered to be computed in accordance [with] par. 4 of Article
102 of the Family Code. 20
On November 21, 2006, the respondents filed a Motion for Reconsideration, 21 praying for
the correction and reversal of the Order dated November 8, 2006. Thereafter, on January 8,
2007, 22 the trial court had changed its ruling again and granted the respondents' Motion for
Reconsideration whereby the Order dated November 8, 2006 was set aside to reinstate the Order
dated August 31, 2006.
Not satisfied with the trial court's Order, the petitioner filed on February 27, 2007 this instant
Petition for Review under Rule 45 of the Rules of Court, raising the following:
Issues
I
IS THE DISSOLUTION AND THE CONSEQUENT LIQUIDATION OF THE
COMMON PROPERTIES OF THE HUSBAND AND WIFE BY VIRTUE OF THE
DECREE OF LEGAL SEPARATION GOVERNED BY ARTICLE 125 (SIC) OF
THE FAMILY CODE? aTCADc
II
WHAT IS THE MEANING OF THE NET PROFITS EARNED BY THE CONJUGAL
PARTNERSHIP FOR PURPOSES OF EFFECTING THE FORFEITURE
AUTHORIZED UNDER ARTICLE 63 OF THE FAMILY CODE?
III
WHAT LAW GOVERNS THE PROPERTY RELATIONS BETWEEN THE
HUSBAND AND WIFE WHO GOT MARRIED IN 1977? CAN THE FAMILY CODE
OF THE PHILIPPINES BE GIVEN RETROACTIVE EFFECT FOR PURPOSES OF
DETERMINING THE NET PROFITS SUBJECT OF FORFEITURE AS A RESULT
OF THE DECREE OF LEGAL SEPARATION WITHOUT IMPAIRING VESTED
RIGHTS ALREADY ACQUIRED UNDER THE CIVIL CODE?
IV
WHAT PROPERTIES SHALL BE INCLUDED IN THE FORFEITURE OF THE
SHARE OF THE GUILTY SPOUSE IN THE NET CONJUGAL PARTNERSHIP AS
A RESULT OF THE ISSUANCE OF THE DECREE OF LEGAL SEPARATION? 23
Our Ruling
While the petitioner has raised a number of issues on the applicability of certain laws, we are
well-aware that the respondents have called our attention to the fact that the Decision dated October
10, 2005 has attained finality when the Motion for Clarification was filed. 24 Thus, we are constrained
to resolve first the issue of the finality of the Decision dated October 10, 2005 and subsequently
discuss the matters that we can clarify.
The Decision dated October 10, 2005 has
become final and executory at the time
the Motion for Clarification was filed
on July 7, 2006.
Section 3, Rule 41 of the Rules of Court provides:
Section 3.   Period of ordinary appeal. — The appeal shall be taken within
fifteen (15) days from notice of the judgment or final order appealed from. Where a
record on appeal is required, the appellant shall file a notice of appeal and a record
on appeal within thirty (30) days from notice of the judgment or final order.
The period of appeal shall be interrupted by a timely motion for new trial or
reconsideration. No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed.
 In Neypes v. Court of Appeals, 25 we clarified that to standardize the appeal periods provided
in the Rules and to afford litigants fair opportunity to appeal their cases, we held that "it would be
practical to allow a fresh period of 15 days within which to file the notice of appeal in the RTC,
counted from receipt of the order dismissing a motion for a new trial or motion for
reconsideration." 26 SHCaDA
In Neypes, we explained that the "fresh period rule" shall also apply to Rule 40 governing
appeals from the Municipal Trial Courts to the RTCs; Rule 42 on petitions for review from the RTCs to
the Court of Appeals (CA); Rule 43 on appeals from quasi-judicial agencies to the CA and Rule 45
governing appeals by certiorari to the Supreme Court. We also said, "The new rule aims to regiment
or make the appeal period uniform, to be counted from receipt of the order denying the motion for new
trial, motion for reconsideration (whether full or partial) or any final order or resolution."  27 In other
words, a party litigant may file his notice of appeal within a fresh 15-day period from his receipt of the
trial court's decision or final order denying his motion for new trial or motion for reconsideration.
Failure to avail of the fresh 15-day period from the denial of the motion for reconsideration makes the
decision or final order in question final and executory.
In the case at bar, the trial court rendered its Decision on October 10, 2005. The petitioner
neither filed a motion for reconsideration nor a notice of appeal. On December 16, 2005, or after  67
days had lapsed, the trial court issued an order granting the respondent's motion for execution; and
on February 10, 2006, or after 123 days had lapsed, the trial court issued a writ of execution. Finally,
when the writ had already been partially executed, the petitioner, on July 7, 2006 or after  270 days
had lapsed, filed his Motion for Clarification on the definition of the "net profits earned." From the
foregoing, the petitioner had clearly slept on his right to question the RTC's Decision dated October
10, 2005. For 270 days, the petitioner never raised a single issue until the decision had already been
partially executed. Thus at the time the petitioner filed his motion for clarification, the trial court's
decision has become final and executory. A judgment becomes final and executory when the
reglementary period to appeal lapses and no appeal is perfected within such period. Consequently, no
court, not even this Court, can arrogate unto itself appellate jurisdiction to review a case or modify a
judgment that became final. 28
The petitioner argues that the decision he is questioning is a void judgment. Being such, the
petitioner's thesis is that it can still be disturbed even after 270 days had lapsed from the issuance of
the decision to the filing of the motion for clarification. He said that "a void judgment is no judgment at
all. It never attains finality and cannot be a source of any right nor any obligation." 29 But what
precisely is a void judgment in our jurisdiction? When does a judgment becomes n  void?
"A judgment is null and void when the court which rendered it had no power to grant the relief
or no jurisdiction over the subject matter or over the parties or both." 30 In other words, a court, which
does not have the power to decide a case or that has no jurisdiction over the subject matter or the
parties, will issue a void judgment or a coram non judice. 31 STIEHc
The questioned judgment does not fall within the purview of a void judgment. For sure, the
trial court has jurisdiction over a case involving legal separation. Republic Act (R.A.) No. 8369 confers
upon an RTC, designated as the Family Court of a city, the exclusive original jurisdiction to hear and
decide, among others, complaints or petitions relating to marital status and property relations of the
husband and wife or those living together. 32 The Rule on Legal Separation 33 provides that "the
petition [for legal separation] shall be filed in the Family Court of the province or city where the
petitioner or the respondent has been residing for at least six months prior to the date of filing or in the
case of a non-resident respondent, where he may be found in the Philippines, at the election of the
petitioner." 34 In the instant case, herein respondent Rita is found to reside in Tungao, Butuan City for
more than six months prior to the date of filing of the petition; thus, the RTC, clearly has jurisdiction
over the respondent's petition below. Furthermore, the RTC also acquired jurisdiction over the
persons of both parties, considering that summons and a copy of the complaint with its annexes were
served upon the herein petitioner on December 14, 2000 and that the herein petitioner filed his
Answer to the Complaint on January 9, 2001. 35 Thus, without doubt, the RTC, which has rendered
the questioned judgment, has jurisdiction over the complaint and the persons of the parties.
From the aforecited facts, the questioned October 10, 2005 judgment of the trial court is
clearly not void ab initio, since it was rendered within the ambit of the court's jurisdiction. Being such,
the same cannot anymore be disturbed, even if the modification is meant to correct what may be
considered an erroneous conclusion of fact or law. 36 In fact, we have ruled that for "[as] long as the
public respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will
amount to nothing more than an error of judgment which may be reviewed or corrected only by
appeal." 37 Granting without admitting that the RTC's judgment dated October 10, 2005 was
erroneous, the petitioner's remedy should be an appeal filed within the reglementary period.
Unfortunately, the petitioner failed to do this. He has already lost the chance to question the trial
court's decision, which has become immutable and unalterable. What we can only do is to clarify the
very question raised below and nothing more.
For our convenience, the following matters cannot anymore be disturbed since the October
10, 2005 judgment has already become immutable and unalterable, to wit:
(a)   The finding that the petitioner is the offending spouse since he cohabited with a woman
who is not his wife; 38
(b)   The trial court's grant of the petition for legal separation of respondent Rita; 39
(c)   The dissolution and liquidation of the conjugal partnership; 40
(d)   The forfeiture of the petitioner's right to any share of the net profits earned by the
conjugal partnership; 41 THaDEA
(e)   The award to the innocent spouse of the minor children's custody; 42
(f)   The disqualification of the offending spouse from inheriting from the innocent spouse by
intestate succession; 43
(g)   The revocation of provisions in favor of the offending spouse made in the will of the
innocent spouse; 44
(h)   The holding that the property relation of the parties is conjugal partnership of gains and
pursuant to Article 116 of the Family Code, all properties acquired during the marriage, whether
acquired by one or both spouses, is presumed to be conjugal unless the contrary is proved; 45
(i)   The finding that the spouses acquired their real and personal properties while they were
living together; 46
(j)   The list of properties which Rizal Commercial Banking Corporation (RCBC)
foreclosed; 47
(k)   The list of the remaining properties of the couple which must be dissolved and liquidated
and the fact that respondent Rita was the one who took charge of the administration of these
properties; 48
(l)   The holding that the conjugal partnership shall be liable to matters included under Article
121 of the Family Code and the conjugal liabilities totaling P503,862.10 shall be charged to the
income generated by these properties; 49
(m)   The fact that the trial court had no way of knowing whether the petitioner had separate
properties which can satisfy his share for the support of the family; 50
(n)   The holding that the applicable law in this case is Article 129 (7); 51
(o)   The ruling that the remaining properties not subject to any encumbrance shall therefore
be divided equally between the petitioner and the respondent without prejudice to the children's
legitime; 52 HITAEC
(p)   The holding that the petitioner's share of the net profits earned by the conjugal
partnership is forfeited in favor of the common children; 53 and
(q)   The order to the petitioner to reimburse the respondents the sum of P19,000.00 as
attorney's fees and litigation expenses of P5,000.00. 54
After discussing lengthily the immutability of the Decision dated October 10, 2005, we will
discuss the following issues for the enlightenment of the parties and the public at large.
Article 129 of the Family Code applies
to the present case since the parties'
 property relation is governed by the
system of relative community or
conjugal partnership of gains.
The petitioner claims that the court a quo is wrong when it applied Article 129 of the Family
Code, instead of Article 102. He confusingly argues that Article 102 applies because there is no other
provision under the Family Code which defines net profits earned subject of forfeiture as a result of
legal separation.
Offhand, the trial court's Decision dated October 10, 2005 held that Article 129 (7) of
the Family Code applies in this case. We agree with the trial court's holding.
First, let us determine what governs the couple's property relation. From the record, we can
deduce that the petitioner and the respondent tied the marital knot on January 6, 1977. Since at the
time of the exchange of marital vows, the operative law was the Civil Code of the Philippines (R.A.
No. 386) and since they did not agree on a marriage settlement, the property relations between the
petitioner and the respondent is the system of relative community or conjugal partnership of
gains. 55 Article 119 of the Civil Code provides:
Art. 119.   The future spouses may in the marriage settlements agree upon
absolute or relative community of property, or upon complete separation of
property, or upon any other regime. In the absence of marriage settlements, or
when the same are void, the system of relative community or conjugal partnership
of gains as established in this Code, shall govern the property relations between
husband and wife. cEATSI
Thus, from the foregoing facts and law, it is clear that what governs the property relations of
the petitioner and of the respondent is conjugal partnership of gains. And under this property relation,
"the husband and the wife place in a common fund the fruits of their separate property and the income
from their work or industry." 56 The husband and wife also own in common all the property of the
conjugal partnership of gains. 57
Second, since at the time of the dissolution of the petitioner and the respondent's marriage
the operative law is already the Family Code, the same applies in the instant case and the applicable
law in so far as the liquidation of the conjugal partnership assets and liabilities is concerned is Article
129 of the Family Code in relation to Article 63 (2) of the Family Code. The latter provision is
applicable because according to Article 256 of the Family Code "[t]his Code shall have retroactive
effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil
Code or other law." 58
Now, the petitioner asks: Was his vested right over half of the common properties of the
conjugal partnership violated when the trial court forfeited them in favor of his children pursuant to
Articles 63 (2) and 129 of the Family Code?
We respond in the negative.
Indeed, the petitioner claims that his vested rights have been impaired, arguing: "As earlier
adverted to, the petitioner acquired vested rights over half of the conjugal properties, the same being
owned in common by the spouses. If the provisions of the Family Code are to be given retroactive
application to the point of authorizing the forfeiture of the petitioner's share in the net remainder of the
conjugal partnership properties, the same impairs his rights acquired prior to the effectivity of
the Family Code." 59 In other words, the petitioner is saying that since the property relations between
the spouses is governed by the regime of Conjugal Partnership of Gains under the Civil Code, the
petitioner acquired vested rights over half of the properties of the Conjugal Partnership of Gains,
pursuant to Article 143 of the Civil Code, which provides: "All property of the conjugal partnership of
gains is owned in common by the husband and wife." 60 Thus, since he is one of the owners of the
properties covered by the conjugal partnership of gains, he has a vested right over half of the said
properties, even after the promulgation of the Family Code; and he insisted that no provision under
the Family Code may deprive him of this vested right by virtue of Article 256 of the Family Code which
prohibits retroactive application of the Family Code when it will prejudice a person's vested right.
However, the petitioner's claim of vested right is not one which is written on stone. In  Go, Jr.
v. Court of Appeals, 61 we define and explained "vested right" in the following manner: aSTcCE
 A vested right is one whose existence, effectivity and extent do not depend
upon events foreign to the will of the holder, or to the exercise of which no obstacle
exists, and which is immediate and perfect in itself and not dependent upon a
contingency. The term "vested right" expresses the concept of present fixed interest
which, in right reason and natural justice, should be protected against arbitrary
State action, or an innately just and imperative right which enlightened free society,
sensitive to inherent and irrefragable individual rights, cannot deny.
To be vested, a right must have become a title — legal or equitable — to
the present or future enjoyment of property. 62 (Citations omitted)
In our en banc Resolution dated October 18, 2005 for  ABAKADA Guro Party List Officer
Samson S. Alcantara, et al. v. The Hon. Executive Secretary Eduardo R. Ermita, 63 we also
explained:
The concept of "vested right" is a consequence of the constitutional
guaranty of due process that expresses a present fixed interest which in right
reason and natural justice is protected against arbitrary state action; it includes not
only legal or equitable title to the enforcement of a demand but also exemptions
from new obligations created after the right has become vested. Rights are
considered vested when the right to enjoyment is a present interest, absolute,
unconditional, and perfect or fixed and irrefutable. 64 (Emphasis and underscoring
supplied)
From the foregoing, it is clear that while one may not be deprived of his "vested right," he may
lose the same if there is due process and such deprivation is founded in law and jurisprudence.
In the present case, the petitioner was accorded his right to due process. First, he was well-
aware that the respondent prayed in her complaint that all of the conjugal properties be awarded to
her. 65 In fact, in his Answer, the petitioner prayed that the trial court divide the community assets
between the petitioner and the respondent as circumstances and evidence warrant after the
accounting and inventory of all the community properties of the parties. 66 Second, when the Decision
dated October 10, 2005 was promulgated, the petitioner never questioned the trial court's ruling
forfeiting what the trial court termed as "net profits," pursuant to Article 129 (7) of the  Family
Code. 67 Thus, the petitioner cannot claim being deprived of his right to due process.
Furthermore, we take note that the alleged deprivation of the petitioner's "vested right" is one
founded, not only in the provisions of the Family Code, but in Article 176 of the Civil Code.This
provision is like Articles 63 and 129 of the Family Code on the forfeiture of the guilty spouse's share in
the conjugal partnership profits. The said provision says: AcEIHC
Art. 176.   In case of legal separation, the guilty spouse shall forfeit his or
her share of the conjugal partnership profits, which shall be awarded to the children
of both, and the children of the guilty spouse had by a prior marriage. However, if
the conjugal partnership property came mostly or entirely from the work or industry,
or from the wages and salaries, or from the fruits of the separate property of the
guilty spouse, this forfeiture shall not apply.
In case there are no children, the innocent spouse shall be entitled to all
the net profits.
From the foregoing, the petitioner's claim of a vested right has no basis considering that even
under Article 176 of the Civil Code, his share of the conjugal partnership profits may be forfeited if he
is the guilty party in a legal separation case. Thus, after trial and after the petitioner was given the
chance to present his evidence, the petitioner's vested right claim may in fact be set aside under
the Civil Code since the trial court found him the guilty party.
More, in  Abalos v. Dr. Macatangay, Jr., 68 we reiterated our long-standing ruling that:
[P]rior to the liquidation of the conjugal partnership, the interest of each
spouse in the conjugal assets is inchoate, a mere expectancy, which constitutes
neither a legal nor an equitable estate, and does not ripen into title until it appears
that there are assets in the community as a result of the liquidation and settlement.
The interest of each spouse is limited to the net remainder or "remanente liquido"
 (haber ganancial) resulting from the liquidation of the affairs of the partnership after
its dissolution. Thus, the right of the husband or wife to one-half of the conjugal
assets does not vest until the dissolution and liquidation of the conjugal partnership,
or after dissolution of the marriage, when it is finally determined that, after
settlement of conjugal obligations, there are net assets left which can be divided
between the spouses or their respective heirs. 69 (Citations omitted)
Finally, as earlier discussed, the trial court has already decided in its Decision dated October
10, 2005 that the applicable law in this case is Article 129 (7) of the Family Code. 70 The petitioner
did not file a motion for reconsideration nor a notice of appeal. Thus, the petitioner is now precluded
from questioning the trial court's decision since it has become final and executory. The doctrine of
immutability and unalterability of a final judgment prevents us from disturbing the Decision dated
October 10, 2005 because final and executory decisions can no longer be reviewed nor reversed by
this Court. 71 ESIcaC
From the above discussions, Article 129 of the Family Code clearly applies to the present
case since the parties' property relation is governed by the system of relative community or conjugal
partnership of gains and since the trial court's Decision has attained finality and immutability.
The net profits of the conjugal partnership
of gains are all the fruits of the separate
properties of the spouses and the products
of their labor and industry.
The petitioner inquires from us the meaning of "net profits" earned by the conjugal partnership
for purposes of effecting the forfeiture authorized under Article 63 of the Family Code. He insists that
since there is no other provision under the Family Code, which defines "net profits" earned subject of
forfeiture as a result of legal separation, then Article 102 of the Family Code applies.
What does Article 102 of the Family Code say? Is the computation of "net profits" earned in
the conjugal partnership of gains the same with the computation of "net profits" earned in the absolute
community?
Now, we clarify.
First and foremost, we must distinguish between the applicable law as to the property
relations between the parties and the applicable law as to the definition of "net profits." As earlier
discussed, Article 129 of the Family Code applies as to the property relations of the parties. In other
words, the computation and the succession of events will follow the provisions under Article 129 of the
said Code. Moreover, as to the definition of "net profits," we cannot but refer to Article 102 (4) of
the Family Code, since it expressly provides that for purposes of computing the net profits subject to
forfeiture under Article 43, No. (2) and Article 63, No. (2), Article 102 (4) applies. In this provision, net
profits "shall be the increase in value between the market value of the community property at the time
of the celebration of the marriage and the market value at the time of its dissolution." 72 Thus, without
any iota of doubt, Article 102 (4) applies to both the dissolution of the absolute community regime
under Article 102 of the Family Code, and to the dissolution of the conjugal partnership regime under
Article 129 of the Family Code. Where lies the difference? As earlier shown, the difference lies in the
processes used under the dissolution of the absolute community regime under Article 102 of
the Family Code, and in the processes used under the dissolution of the conjugal partnership regime
under Article 129 of the Family Code.
Let us now discuss the difference in the processes between the absolute community regime
and the conjugal partnership regime.
On Absolute Community Regime:
When a couple enters into a regime of absolute community, the husband and the wife
becomes joint owners of all the properties of the marriage. Whatever property each spouse brings into
the marriage, and those acquired during the marriage (except those excluded under Article 92 of
the Family Code) form the common mass of the couple's properties. And when the couple's marriage
or community is dissolved, that common mass is divided between the spouses, or their respective
heirs, equally or in the proportion the parties have established, irrespective of the value each one may
have originally owned. 73
 Under Article 102 of the Family Code, upon dissolution of marriage, an inventory is prepared,
listing separately all the properties of the absolute community and the exclusive properties of each;
then the debts and obligations of the absolute community are paid out of the absolute community's
assets and if the community's properties are insufficient, the separate properties of each of the couple
will be solidarily liable for the unpaid balance. Whatever is left of the separate properties will be
delivered to each of them. The net remainder of the absolute community is its net assets, which shall
be divided between the husband and the wife; and for purposes of computing the net profits subject to
forfeiture, said profits shall be the increase in value between the market value of the community
property at the time of the celebration of the marriage and the market value at the time of its
dissolution. 74 TSIDaH
Applying Article 102 of the Family Code, the "net profits" requires that we first find the market
value of the properties at the time of the community's dissolution. From the totality of the market value
of all the properties, we subtract the debts and obligations of the absolute community and this result to
the net assets or net remainder of the properties of the absolute community, from which we deduct
the market value of the properties at the time of marriage, which then results to the net profits. 75
Granting without admitting that Article 102 applies to the instant case, let us see what will
happen if we apply Article 102:
(a)   According to the trial court's finding of facts, both husband and wife have no separate
properties, thus, the remaining properties in the list above are all part of the absolute community. And
its market value at the time of the dissolution of the absolute community constitutes the "market value
at dissolution."
(b)   Thus, when the petitioner and the respondent finally were legally separated, all the
properties which remained will be liable for the debts and obligations of the community. Such debts
and obligations will be subtracted from the "market value at dissolution."
(c)   What remains after the debts and obligations have been paid from the total assets of the
absolute community constitutes the net remainder or net asset. And from such net asset/remainder of
the petitioner and respondent's remaining properties, the market value at the time of marriage will be
subtracted and the resulting totality constitutes the "net profits."
(d)   Since both husband and wife have no separate properties, and nothing would be
returned to each of them, what will be divided equally between them is simply the "net profits."
However, in the Decision dated October 10, 2005, the trial court forfeited the half-share of the
petitioner in favor of his children. Thus, if we use Article 102 in the instant case (which should not be
the case), nothing is left to the petitioner since both parties entered into their marriage without bringing
with them any property.
On Conjugal Partnership Regime:
Before we go into our disquisition on the Conjugal Partnership Regime, we make it clear that
Article 102 (4) of the Family Code applies in the instant case for purposes only of defining "net
profit."As earlier explained, the definition of "net profits" in Article 102 (4) of the Family Code applies
to both the absolute community regime and conjugal partnership regime as provided for under Article
63, No. (2) of the Family Code, relative to the provisions on Legal Separation.
Now, when a couple enters into a regime of conjugal partnership of gains under Article
142 of the Civil Code, "the husband and the wife place in common fund the fruits of their separate
property and income from their work or industry, and divide equally, upon the dissolution of the
marriage or of the partnership, the net gains or benefits obtained indiscriminately by either spouse
during the marriage." 76 From the foregoing provision, each of the couple has his and her own
property and debts. The law does not intend to effect a mixture or merger of those debts or properties
between the spouses. Rather, it establishes a complete separation of capitals. 77 EAICTS
Considering that the couple's marriage has been dissolved under the Family Code, Article
129 of the same Code applies in the liquidation of the couple's properties in the event that the
conjugal partnership of gains is dissolved, to wit:
Art. 129.   Upon the dissolution of the conjugal partnership regime, the
following procedure shall apply:
 (1)   An inventory shall be prepared, listing separately all the properties of
the conjugal partnership and the exclusive properties of each spouse.
(2)   Amounts advanced by the conjugal partnership in payment of
personal debts and obligations of either spouse shall be credited to the conjugal
partnership as an asset thereof.
(3)   Each spouse shall be reimbursed for the use of his or her exclusive
funds in the acquisition of property or for the value of his or her exclusive property,
the ownership of which has been vested by law in the conjugal partnership.
(4)   The debts and obligations of the conjugal partnership shall be paid out
of the conjugal assets. In case of insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their separate properties, in accordance
with the provisions of paragraph (2) of Article 121.
(5)   Whatever remains of the exclusive properties of the spouses shall
thereafter be delivered to each of them.
(6)   Unless the owner had been indemnified from whatever source, the
loss or deterioration of movables used for the benefit of the family, belonging to
either spouse, even due to fortuitous event, shall be paid to said spouse from the
conjugal funds, if any.
(7)   The net remainder of the conjugal partnership properties shall
constitute the profits, which shall be divided equally between husband and wife,
unless a different proportion or division was agreed upon in the marriage
settlements or unless there has been a voluntary waiver or forfeiture of such share
as provided in this Code. aHESCT
(8)   The presumptive legitimes of the common children shall be delivered
upon the partition in accordance with Article 51.
(9)   In the partition of the properties, the conjugal dwelling and the lot on
which it is situated shall, unless otherwise agreed upon by the parties, be
adjudicated to the spouse with whom the majority of the common children choose
to remain. Children below the age of seven years are deemed to have chosen the
mother, unless the court has decided otherwise. In case there is no such majority,
the court shall decide, taking into consideration the best interests of said children.
In the normal course of events, the following are the steps in the liquidation of the properties
of the spouses:
(a)   An inventory of all the actual properties shall be made, separately listing the couple's
conjugal properties and their separate properties. 78 In the instant case, the trial court found that
the couple has no separate properties when they married. 79 Rather, the trial court identified the
following conjugal properties, to wit:
1.   coffee mill in Balongagan, Las Nieves, Agusan del Norte;
2.   coffee mill in Durian, Las Nieves, Agusan del Norte;
3.   corn mill in Casiklan, Las Nieves, Agusan del Norte;
4.   coffee mill in Esperanza, Agusan del Sur;
5.   a parcel of land with an area of 1,200 square meters located in Tungao, Butuan
City;
6.   a parcel of agricultural land with an area of 5 hectares located in Manila de
Bugabos, Butuan City;
7.   a parcel of land with an area of 84 square meters located in Tungao, Butuan
City;
8.   Bashier Bon Factory located in Tungao, Butuan City. 80
 (b)   Ordinarily, the benefit received by a spouse from the conjugal partnership during the
marriage is returned in equal amount to the assets of the conjugal partnership; 81 and if the
community is enriched at the expense of the separate properties of either spouse, a restitution of the
value of such properties to their respective owners shall be made. 82
(c)   Subsequently, the couple's conjugal partnership shall pay the debts of the conjugal
partnership; while the debts and obligation of each of the spouses shall be paid from their respective
separate properties. But if the conjugal partnership is not sufficient to pay all its debts and obligations,
the spouses with their separate properties shall be solidarily liable. 83
(d)   Now, what remains of the separate or exclusive properties of the husband and of the
wife shall be returned to each of them. 84 In the instant case, since it was already established by
the trial court that the spouses have no separate properties, 85 there is nothing to return to
any of them. The listed properties above are considered part of the conjugal partnership. Thus,
ordinarily, what remains in the above-listed properties should be divided equally between the spouses
and/or their respective heirs. 86 However, since the trial court found the petitioner the guilty party, his
share from the net profits of the conjugal partnership is forfeited in favor of the common children,
pursuant to Article 63 (2) of the Family Code. Again, lest we be confused, like in the absolute
community regime, nothing will be returned to the guilty party in the conjugal partnership regime,
because there is no separate property which may be accounted for in the guilty party's favor.
In the discussions above, we have seen that in both instances, the petitioner is not entitled to
any property at all. Thus, we cannot but uphold the Decision dated October 10, 2005 of the trial court.
However, we must clarify, as we already did above, the Order dated January 8, 2007.
WHEREFORE, the Decision dated October 10, 2005 of the Regional Trial Court, Branch 1 of
Butuan City is AFFIRMED. Acting on the Motion for Clarification dated July 7, 2006 in the Regional
Trial Court, the Order dated January 8, 2007 of the Regional Trial Court is hereby  CLARIFIED in
accordance with the above discussions.
SO ORDERED.
Carpio, Brion, Perez and Sereno, JJ., concur.

|||  (Quiao v. Quiao, G.R. No. 176556, [July 4, 2012], 690 PHIL 220-249)

SECOND DIVISION

[G.R. No. 200274. April 20, 2016.]

MELECIO DOMINGO, petitioner, vs. SPOUSES GENARO MOLINA and ELENA

B. MOLINA, substituted by ESTER MOLINA,  respondents.
 DECISION

BRION, J  p:
We resolve the petition for review on certiorari 1 filed by the petitioner Melecio
Domingo (Melecio) assailing the August 9, 2011 decision 2 and January 10, 2012 resolution 3 of
the Court of Appeals (CA) in CA-G.R. CV No. 94160.
THE FACTS
In June 15, 1951, the spouses Anastacio and Flora Domingo bought a property in
Camiling, Tarlac, consisting of a one-half undivided portion over an 18,164 square meter parcel of
land. The sale was annotated on the Original Certificate of Title (OCT) No. 16354 covering the
subject property.
During his lifetime, Anastacio borrowed money from the respondent spouses Genaro and
Elena Molina (spouses Molina). On September 10, 1978 or 10 years after Flora's
death, 4 Anastacio sold his interest over the land to the spouses Molina to answer for his debts.
The sale to the spouses Molina was annotated at the OCT of the subject property.  5 In 1986,
Anastacio died. 6
In May 19, 1995, the sale of Anastacio's interest was registered under Transfer Certificate
of Title (TCT) No. 272967 7 and transferred the entire one-half undivided portion of the land to the
spouses Molina.
Melecio, one of the children of Anastacio and Flora, learned of the transfer and filed
a Complaint for Annulment of Title and Recovery of Ownership (Complaint) against the spouses
Molina on May 17, 1999. 8
Melecio claims that Anastacio gave the subject property to the spouses Molina to serve
as collateral for the money that Anastacio borrowed. Anastacio could not have validly sold the
interest over the subject property without Flora's consent, as Flora was already dead at the time
of the sale.
Melecio also claims that Genaro Molina must have falsified the document transferring
Anastacio and Flora's one-half undivided interest over the land. Finally, Melecio asserts that he
occupied the subject property from the time of Anastacio's death up to the time he filed
the Complaint. 9
Melecio presented the testimonies of the Records Officer of the Register of Deeds of
Tarlac, and of Melecio's nephew, George Domingo (George). 10
The Records Officer testified that he could not locate the instrument that documents the
transfer of the subject property ownership from Anastacio to the spouses Molina. The Records
Officer also testified that the alleged sale was annotated at the time when Genaro Molina's
brother was the Register of Deeds for Camiling, Tarlac. 11
George, on the other hand, testified that he has been living on the subject property owned
by Anastacio since 1986. George testified, however, that aside from himself, there were also four
other occupants on the subject property, namely Jaime Garlitos, Linda Sicangco, Serafio
Sicangco and Manuel Ramos. 12
The spouses Molina asserted that Anastacio surrendered the title to the subject property
to answer for his debts and told the spouses Molina that they already own half of the land. The
spouses Molina have been in possession of the subject property before the title was registered
under their names and have religiously paid the property's real estate taxes.
The spouses Molina also asserted that Melecio knew of the disputed sale since he
accompanied Anastacio several times to borrow money. The last loan was even used to pay for
Melecio's wedding. Finally, the spouses Molina asserted that Melecio built his nipa hut on the
subject property only in 1999, without their knowledge and consent. 13 CAIHTE
The spouses Molina presented Jaime Garlitos (Jaime) as their sole witness and who is
one of the occupants of the subject lot.
 Jaime testified that Elena Molina permitted him to build a house on the subject property in
1993. Jaime, together with the other tenants, planted fruit bearing trees on the subject property
and gave portions of their harvest to Elena Molina without any complaint from Melecio. Jaime
further testified that Melecio never lived on the subject property and that only George Domingo,
as the caretaker of the spouses Molina, has a hut on the property.
Meanwhile, the spouses Molina died during the pendency of the case and were
substituted by their adopted son, Cornelio Molina. 14
THE RTC RULING
The Regional Trial Court (RTC) dismissed 15 the case because Melecio failed to
establish his claim that Anastacio did not sell the property to the spouses Molina.
The RTC also held that Anastacio could dispose of conjugal property without Flora's
consent since the sale was necessary to answer for conjugal liabilities.
The RTC denied Melecio's motion for reconsideration of the RTC ruling. From this ruling,
Melecio proceeded with his appeal to the CA.
THE CA RULING
In a decision dated August 9, 2011, the CA affirmed the RTC ruling in toto.
The CA held that Melecio failed to prove by preponderant evidence that there was fraud
in the conveyance of the property to the spouses Molina. The CA gave credence to the OCT
annotation of the disputed property sale.
The CA also held that Flora's death is immaterial because Anastacio only sold his rights,
excluding Flora's interest, over the lot to the spouses Molina. The CA explained that "[t]here is no
prohibition against the sale by the widower of real property formerly belonging to the conjugal
partnership of gains". 16
Finally, the CA held that Melecio's action has prescribed. According to the CA, Melecio
failed to file the action within one year after entry of the decree of registration.
Melecio filed a motion for reconsideration of the CA Decision. The CA denied Melecio's
motion for reconsideration for lack of merit. 17
THE PETITION
Melecio filed the present petition for review on certiorari to challenge the CA ruling.
Melecio principally argues that the sale of land belonging to the conjugal partnership
without the wife's consent is invalid.
Melecio also claims that fraud attended the conveyance of the subject property and the
absence of any document evidencing the alleged sale made the transfer null and void. Finally,
Melecio claims that the action has not yet prescribed.
The respondents, on the other hand, submitted and adopted their arguments in their
Appeal Brief. 18
First, Melecio's counsel admitted that Anastacio had given the lot title in payment of the
debt amounting to Php30,000.00. The delivery of the title is constructive delivery of the lot itself
based on Article 1498, paragraph 2 of the Civil Code.
Second, the constructive delivery of the title coupled with the spouses Molina's exercise
of attributes of ownership over the subject property, perfected the sale and completed the transfer
of ownership.
THE ISSUES
The core issues of the petition are as follows: (1) whether the sale of a conjugal property
to the spouses Molina without Flora's consent is valid and legal; and (2) whether fraud attended
the transfer of the subject property to the spouses Molina.
OUR RULING
We  deny the petition.
 It is well settled that when the trial court's factual findings have been affirmed by the CA,
the findings are generally conclusive and binding upon the Court and may no longer be reviewed
on Rule 45 petitions. 19 While there are exceptions 20 to this rule, the Court finds no applicable
exception with respect to the lower courts' finding that the subject property was Anastacio and
Flora's conjugal property. Records before the Court show that the parties did not dispute the
conjugal nature of the property.
Melecio argues that the sale of the disputed property to the spouses Molina is void
without Flora's consent.
We do not find Melecio's argument meritorious.
Anastacio and Flora's
conjugal partnership was
dissolved upon Flora's death.
There is no dispute that Anastacio and Flora Domingo married before the Family Code's
effectivity on August 3, 1988 and their property relation is a conjugal partnership. 21
Conjugal partnership of gains established before and after the effectivity of the Family
Code are governed by the rules found in Chapter 4 (Conjugal Partnership of Gains) of Title
IV (Property Relations Between Husband and Wife) of the Family Code. This is clear from Article
105 of the Family Code which states:
. . . The provisions of this Chapter shall also apply to conjugal partnerships of
gains already established between spouses before the effectivity of this
Code,  without prejudice to vested rights already acquired in accordance with
the  Civil Code or other laws, as provided in Article 256.
The conjugal partnership of Anastacio and Flora was dissolved when Flora died in
1968, pursuant to Article 175 (1) of the Civil Code 22 (now Article 126 (1) of the Family Code).
Article 130 of the Family Code requires the liquidation of the conjugal partnership upon
death of a spouse and prohibits any disposition or encumbrance of the conjugal property prior to
the conjugal partnership liquidation, to quote: HEITAD
Article 130. Upon the termination of the marriage by death, the conjugal
partnership property shall be liquidated in the same proceeding for the
settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving spouse shall
liquidate the conjugal partnership property either judicially or extra-judicially within
one year from the death of the deceased spouse. If upon the lapse of the six
month period no liquidation is made, any disposition or encumbrance
involving the conjugal partnership property of the terminated marriage shall
be void. . . . (emphases supplied)
While Article 130 of the Family Code provides that any disposition involving the conjugal
property without prior liquidation of the partnership shall be void, this rule does not apply since the
provisions of the Family Code shall be "without prejudice to vested rights already acquired in
accordance with the Civil Code or other laws." 23
An implied co-ownership
among Flora's heirs governed
the conjugal properties
pending liquidation and
partition. 
In the case of Taningco v. Register of Deeds of Laguna, 24 we held that the properties of
a dissolved conjugal partnership fall under the regime of co-ownership among the surviving
spouse and the heirs of the deceased spouse until final liquidation and partition. The surviving
spouse, however, has an actual and vested one-half undivided share of the properties, which
does not consist of determinate and segregated properties until liquidation and partition of the
conjugal partnership.
An implied ordinary co-ownership ensued among Flora's surviving heirs, including
Anastacio, with respect to Flora's share of the conjugal partnership until final liquidation and
partition; Anastacio, on the other hand, owns one-half of the original conjugal partnership
properties as his share, but this is an undivided interest.
Article 493 of the Civil Code on co-ownership provides:
Article 493. Each co-owner shall have the full ownership of his part and of the
fruits and benefits pertaining thereto, and he may therefore alienate, assign or
mortgage it, and even substitute another person in its enjoyment, except when
personal rights are involved. But the effect of the alienation or the
mortgage, with respect to the co-owners, shall be limited to the portion
which may be allotted to him in the division upon the termination of the co-
ownership. (399) (emphases supplied)
Thus, Anastacio, as co-owner, cannot claim title to any specific portion of the conjugal
properties without an actual partition being first done either by agreement or by judicial decree.
Nonetheless, Anastacio had the right to freely sell and dispose of his undivided interest in the
subject property.
The spouses Molina became
co-owners of the subject
property to the extent of
Anastacio's interest.
The OCT annotation of the sale to the spouses Molina reads that "[o]nly the rights,
interests and participation of Anastacio Domingo, married to Flora Dela Cruz, is hereby sold,
transferred, and conveyed unto the said vendees for the sum of ONE THOUSAND PESOS
(P1,000.00) which pertains to an undivided one-half (1/2) portion and subject to all other
conditions specified in the document . . ." 25 (emphases supplied). At the time of the sale,
Anastacio's undivided interest in the conjugal properties consisted of: (1) one-half of the entire
conjugal properties; and (2) his share as Flora's heir on the conjugal properties. ATICcS
Anastacio, as a co-owner, had the right to freely sell and dispose of his undivided interest,
but not the interest of his co-owners. Consequently, Anastacio's sale to the spouses Molina
without the consent of the other co-owners was not totally void, for Anastacio's rights or a portion
thereof were thereby effectively transferred, making the spouses Molina a co-owner of the subject
property to the extent of Anastacio's interest. This result conforms with the well-established
principle that the binding force of a contract must be recognized as far as it is legally possible to
do so (quando res non valet ut ago, valeat quantum valere potest). 26
The spouses Molina would be a trustee for the benefit of the co-heirs of Anastacio in
respect of any portion that might belong to the co-heirs after liquidation and partition. The
observations of Justice Paras cited in the case of Heirs of Protacio Go, Sr. v. Servacio 27 are
instructive:
. . . [I]f it turns out that the property alienated or mortgaged really would pertain to
the share of the surviving spouse, then said transaction is valid. If it turns out that
there really would be, after liquidation, no more conjugal assets then the whole
transaction is null and void. But if it turns out that half of the property thus
alienated or mortgaged belongs to the husband as his share in the conjugal
partnership, and half should go to the estate of the wife, then that corresponding
to the husband is valid, and that corresponding to the other is not. Since all these
can be determined only at the time the liquidation is over, it follows logically that a
disposal made by the surviving spouse is not void ab initio. Thus, it has been held
that the sale of conjugal properties cannot be made by the surviving spouse
without the legal requirements. The sale is void as to the share of the deceased
spouse (except of course as to that portion of the husband's share inherited by
her as the surviving spouse). The buyers of the property that could not be validly
sold become trustees of said portion for the benefit of the husband's other heirs,
the cestui que trust ent. Said heirs shall not be barred by prescription or by
laches. ETHIDa
Melecio's recourse as a co-owner of the conjugal properties, including the subject
property, is an action for partition under Rule 69 of the Revised Rules of Court. As held in the
case of Heirs of Protacio Go, Sr., "it is now settled that the appropriate recourse of co-owners in
 cases where their consent were not secured in a sale of the entire property as well as in a sale
merely of the undivided shares of some of the co-owners is an action for PARTITION under Rule
69 of the Revised Rules of Court." 28
The sale of the subject
property to the spouses Molina
was not attended with fraud.
On the issue of fraud, the lower courts found that there was no fraud in the sale of the
disputed property to the spouses Molina.
The issue of fraud would require the Court to inquire into the weight of evidentiary matters
to determine the merits of the petition and is essentially factual in nature. It is basic that factual
questions cannot be cannot be entertained in a Rule 45 petition, unless it falls under any of the
recognized exceptions 29 found in jurisprudence. The present petition does not show that it falls
under any of the exceptions allowing factual review.
The CA and RTC conclusion that there is no fraud in the sale is supported by the
evidence on record.
Melecio's argument that no document was executed for the sale is negated by the CA
finding that there was a notarized deed of conveyance executed between Anastacio and the
spouses Molina, as annotated on the OCT of the disputed property.
Furthermore, Melecio's belief that Anastacio could not have sold the property without his
knowledge cannot be considered as proof of fraud to invalidate the spouses Molina's registered
title over the subject property. 30
Prevailing jurisprudence uniformly holds that findings of facts of the trial court, particularly
when affirmed by the Court of Appeals, are binding upon this Court. 31
Considering these findings, we find no need to discuss the other issues raised by
Melecio.
WHEREFORE, we hereby DENY the petition for review on certiorari. The decision dated
August 9, 2011 of the Court of Appeals in CA-G.R. CV No. 94160 is AFFIRMED.
SO ORDERED.
Carpio, Del Castillo, Mendoza and Leonen, JJ., concur.

|||  (Domingo v. Spouses Molina, G.R. No. 200274, [April 20, 2016], 785 PHIL 506-519)

FIRST DIVISION

[G.R. No. 122749. July 31, 1996.]

ANTONIO A. S. VALDES, petitioner, vs. REGIONAL TRIAL COURT, BRANCH

102, QUEZON CITY, and CONSUELO M. GOMEZ-VALDES, respondents.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for petitioner.

Roco, Buñag, Kapunan & Migallos for private respondent.

SYLLABUS
 1. CIVIL LAW; FAMILY CODE; VOID MARRIAGES; PROPERTY RELATIONS GOVERNED
BY PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE. — In a void marriage, regardless of
the cause thereof, the property relations of the parties during the period of cohabitation is governed by
the provisions of Article 147 or Article 148, as the case may be, of the Family Code.
2. ID.; ID.; ID.; ID.; ARTICLE 147, ELABORATED. — Article 147 is a remake of Article 144 of
the Civil Code as interpreted and so applied in previous cases. This peculiar kind of co-ownership
applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively
live together as husband and wife under a void marriage or without the benefit of marriage. The term
"capacitated" in the first paragraph of Art. 147 refers to the legal capacity of a party to contract
marriage, i.e., any "male or female of the age of eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38" of the Code. Under this property regime, property
acquired by both spouses through their work and industry shall be governed by the rules on equal co-
ownership. Any property acquired during the union is prima facie presumed to have been obtained
through their joint efforts. A party who did not participate in the acquisition of the property shall still be
considered as having contributed thereto jointly if said party's "efforts consisted in the care and
maintenance of the family household." Unlike the conjugal partnership of gains, the fruits of the
couple's separate property are not included in the co-ownership. Article 147 of the Family Code, in
substance and to the above extent, has clarified Article 144 of the Civil Code; in addition, the law now
expressly provides that — (a) Neither party can dispose or encumber by act inter vivos his or her
share in co-ownership property, without the consent of the other, during the period of cohabitation;
and (b) In the case of a void marriage, any party in bad faith shall forfeit his or her share in the co-
ownership in favor of their common children; in default thereof or waiver by any or all of the common
children, each vacant share shall belong to the respective surviving descendants, or still in default
thereof, to the innocent party. The forfeiture shall take place upon the termination of the cohabitation
or declaration of nullity of the marriage.
3.  ID.; ID.; ID.; ID.; ARTICLE 148, ELABORATED. — When the common-law spouses suffer
from a legal impediment to marry or when they do not live exclusively with each other (as husband
and wife), only the property acquired by both of them through their actual joint contribution of money,
property or industry shall be owned in common and in proportion to their respective contributions.
Such contributions and corresponding shares, however, are prima facie presumed to be equal. The
share of any party who is married to another shall accrue to the absolute community or conjugal
partnership, as the case may be, if so existing under a valid marriage. If the party who has acted in
bad faith is not validly married to another, his or her share shall be forfeited in the manner already
heretofore expressed.
4. ID.; ID.; VOID AND VOIDABLE MARRIAGES; ARTICLE 50, APPLICABILITY. — The first
paragraph of Article 50 of the Family Code, applying paragraphs (2), (3), (4) and (5) of Article 43,
relates only, by its explicit terms, to voidable marriages and, exceptionally, to void marriages under
Article 40 of the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse
of a prior void marriage before the latter is judicially declared void. The latter is a special rule that
somehow recognizes the philosophy and an old doctrine that void marriages are inexistent from the
very beginning and no judicial decree is necessary to establish their nullity. In now requiring
for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted
void marriage, the present law aims to do away with any continuing uncertainty on the status of the
second marriage. It is not then illogical for the provisions of Article 43, in relation to Articles 41 and 42,
of the Family Code, on the effects of the termination of a subsequent marriage contracted during the
subsistence of a previous marriage to be made applicable  pro hac vice. In all other cases, it is not to
be assumed that the law has also meant to have coincident property relations, on the one hand,
between spouses in valid and voidable marriages (before annulment) and, on the other, between
common-law spouses or spouses of void marriages, leaving to ordain, in the latter case, the ordinary
rules on co-ownership subject to the provision of Article 147 and Article 148 of the Family Code. It
must be stressed, nevertheless, even as it may merely state the obvious, that the provisions of the
Family Code on the "family home," i.e., the provisions found in Title V, Chapter 2, of the Family Code,
remain in force and effect regardless of the property regime of the spouses.
5. REMEDIAL LAW; JURISDICTION; COURT IN NULLITY OF MARRIAGE CAN ALSO
SETTLE PARTIES' COMMON PROPERTY. — On the settlement of the parties' common property, a
court which has jurisdiction to declare the marriage a nullity must be deemed likewise clothed with
authority to resolve incidental and consequential matters. Here, petitioner and private respondent own
the "family home" and all their common property in equal shares. In the liquidation and partition of the
property owned in common by them, the provisions on co-ownership under the Civil Code should
aptly prevail.

DECISION

VITUG, J  p:

The petition for review bewails, purely on a question of law, an alleged error committed by the
Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers that the court a quo has failed to
apply the correct law that should govern the disposition of a family dwelling in a situation where a
marriage is declared void ab initio because of psychological incapacity on the part of either or both of
the parties to the contract.
The pertinent facts giving rise to this incident are, by and large, not in dispute.
Antonio Valdes and Consuelo Gomez were married on 05 January 1971. Begotten during the
marriage were five children. In a petition, dated 22 June 1992, Valdes sought the declaration of nullity
of the marriage pursuant to Article 36 of the Family Code (docketed Civil Case No. Q-92-12539,
Regional Trial Court of Quezon City, Branch 102). After hearing the parties following the joinder of
issues, the trial court, 1 in its decision of 29 July 1994, granted the petition; viz:
"WHEREFORE, judgment is hereby rendered as follows:
"(1) The marriage of petitioner Antonio Valdes and respondent Consuelo
Gomez-Valdes is hereby declared null and void under Article 36 of the Family Code
on the ground of their mutual psychological incapacity to comply with their essential
marital obligations;
"(2) The three older children, Carlos Enrique III, Antonio Quintin and Angela
Rosario shall choose which parent they would want to stay with.
"Stella Eloisa and Joaquin Pedro shall be placed in the custody of their
mother, herein respondent Consuelo Gomez-Valdes.
"The petitioner and respondent shall have visitation rights over the children
who are in the custody of the other.
"(3) The petitioner and respondent are directed to start proceedings on the
liquidation of their common properties as defined by Article 147 of the Family Code,
and to comply with the provisions of Articles 50, 51 and 52 of the same code, within
thirty (30) days from notice of this decision.
"Let a copy of this decision be furnished the Local Civil Register of
Mandaluyong, Metro Manila, for proper recording in the registry of
marriages." 2 (Emphasis ours.)
Consuelo Gomez sought a clarification of that portion of the decision directing compliance
with Articles 50, 51 and 52 of the Family Code. She asserted that the Family Code contained no
provisions on the procedure for the liquidation of common property in "unions without marriage."
Parenthetically, during the hearing on the motion, the children filed a joint affidavit expressing their
desire to remain with their father, Antonio Valdes, herein petitioner.
In an Order, dated 05 May 1995, the trial court made the following clarification:
"Consequently, considering that Article 147 of the Family Code explicitly
provides that the property acquired by both parties during their union, in the
absence of proof to the contrary, are presumed to have been obtained through the
joint efforts of the parties and will be owned by them in equal shares, plaintiff and
defendant will own their 'family home' and all their other properties for that matter in
equal shares.
 "In the liquidation and partition of the properties owned in common by the
plaintiff and defendant, the provisions on co-ownership found in the Civil Code shall
apply." 3 (Emphasis supplied.)
In addressing specifically the issue regarding the disposition of the family dwelling, the trial
court said:
"Considering that this Court has already declared the marriage between
petitioner and respondent as null and void ab initio, pursuant to Art. 147, the
property regime of petitioner and respondent shall be governed by the rules on co-
ownership.
"The provisions of Articles 102 and 129 of the Family Code finds no
application since Article 102 refers to the procedure for the liquidation of
the conjugal partnership property and Article 129 refers to the procedure for the
liquidation of the absolute community of property." 4
Petitioner moved for a reconsideration of the order. The motion was denied on 30 October
1995.
In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the Family Code
should be held controlling; he argues that:
"I
"Article 147 of the Family Code does not apply to cases where the parties
are psychological incapacitated.
"II
"Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family
Code govern the disposition of the family dwelling in cases where a marriage is
declared void ab initio, including a marriage declared void by reason of the
psychological incapacity of the spouses.
"III
"Assuming arguendo that Article 147 applies to marriages declares void ab
initio on the ground of the psychological incapacity of a spouse, the same may be
read consistently with Article 129.
"IV
"It is necessary to determine the parent with whom majority of the children
wish to stay." 5
The trial court correctly applied the law. In a void marriage, regardless of the cause thereof,
the property relations of the parties during the period of cohabitation is governed by the provisions
of Article 147 or Article 148, such as the case may be, of the Family Code. Article 147 is a remake of
Article 144 of the Civil Code as interpreted and so applied in previous cases; 6 it provides:
"ART. 147. When a man and a woman who are capacitated to marry each
other, live exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of them through their work
or industry shall be governed by the rules on co-ownership.
"In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares. For purposes of this Article,
a party who did not participate in the acquisition by the other party of any property
shall be deemed to have contributed jointly in the acquisition thereof if the former's
efforts consisted in the care and maintenance of the family and of the household.
"Neither party can encumber or dispose by acts inter vivos of his or her
share in the property acquired during cohabitation and owned in common, without
the consent of the other, until after the termination of their cohabitation.
 "When only one of the parties to a void marriage is in good faith, the share
of the party in bad faith in the co-ownership shall be forfeited in favor of their
common children. In case of default of or waiver by any or all of the common
children or their descendants, each vacant share shall belong to the respective
surviving descendants. In the absence of descendants, such share shall belong to
the innocent party. In all cases, the forfeiture shall take place upon termination of
the cohabitation."
This peculiar kind of co-ownership applies when a man and a woman, suffering no legal
impediment to marry each other, so exclusively live together as husband and wife under a void
marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first
paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male or
female of the age of eighteen years or upwards not under any of the impediments mentioned in
Articles 37 and 38" 7 of the Code.
Under this property regime, property acquired by both spouses through
their work and industry shall be governed by the rules on equal  co-ownership. Any property acquired
during the union is prima facie presumed to have been obtained through their joint efforts. A party who
did not participate in the acquisition of the property shall still be considered as having contributed
thereto jointly if said party's "efforts consisted in the care and maintenance of the family
household." 8 Unlike the conjugal partnership of gains, the fruits of the couple's separate property are
not included in the co-ownership.
Article 147 of the Family Code, in substance and to the above extent, has clarified Article 144
of the Civil Code; in addition, the law now expressly provides that —
(a) Neither party can dispose or encumber by act inter vivos his or her share in co-
ownership property, without the consent of the other, during the period of
cohabitation; and
(b) In the case of a void marriage, any party in bad faith shall forfeit his or her share
in the co-ownership in favor of their common children; in default thereof or
waiver by any or all of the common children, each vacant share shall
belong to the respective surviving descendants, or still in default thereof, to
the innocent party. The forfeiture shall take place upon the termination of
the cohabitation 9 or declaration of nullity of the marriage. 10
When the common-law spouses suffer from a legal impediment to marry or when they do not
live exclusively with each other (as husband and wife),  only the property acquired by both of them
through their actual joint contribution of money, property or industry shall be owned in common and
in proportion to their respective contributions. Such contributions and corresponding shares, however,
are prima facie presumed to be equal. The share of any party who is married to another shall accrue
to the absolute community or conjugal partnership, as the case may be, if so existing under a valid
marriage. If the party who has acted in bad faith is not validly married to another, his or her share shall
be forfeited in the manner already heretofore expressed. 11
In deciding to take further cognizance of the issue on the settlement of the parties' common
property, the trial court acted neither imprudently nor precipitately; a court which has jurisdiction to
declare the marriage a nullity must be deemed likewise clothed with authority to resolve incidental and
consequential matters. Nor did it commit a reversible error in ruling that petitioner and private
respondent own the "family home" and all their common property in equal shares, as well as in
concluding that, in the liquidation and partition of the property owned in common by them, the
provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102
and 129, 12 12a of the Family Code, should aptly prevail. The rules set up to govern the liquidation of
either the absolute community or the conjugal partnership of gains, the property regimes recognized
for valid and voidable marriages (in the latter case until the contract is annulled), are irrelevant to the
liquidation of the co-ownership that exists between common-law spouses. The first paragraph
of Article 50 of the Family Code, applying paragraphs (2), (3), (4) and (5) of Article 43, 13 relates only,
by its explicit terms, to voidable marriages and, exceptionally, to void marriages under Article 40 14 of
the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a prior
void marriage before the latter is judicially declared void. The latter is a special rule that somehow
recognizes the philosophy and an old doctrine that void marriages are inexistent from the very
beginning and no judicial decree is necessary to establish their nullity. In now requiring for  purposes
of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage,
the present law aims to do away with any continuing uncertainty on the status of the second marriage.
It is not then illogical for the provisions of Article 43, in relation to Articles 41 15 and 42, 16 of the
Family Code, on the effects of the termination of a subsequent marriage contracted during the
subsistence of a previous marriage to be made applicable pro hac vice. In all other case, it is not to
be assumed that the law has also meant to have coincident property relations, on the one hand,
between spouses in valid and voidable marriages (before annulment) and, on the other, between
common-law spouses or spouses of void marriages, leaving to ordain, in the latter case, the ordinary
rules on co-ownership subject to the provision of Article 147 and Article 148 of the Family Code. It
must be stressed, nevertheless, even as it may merely state the obvious, that the provisions of the
Family Code on the "family home," i.e., the provisions found in Title V, Chapter 2, of the Family Code,
remain in force and effect regardless of the property regime of the spouses.
WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October 1995, of the trial
court are AFFIRMED. No costs.
SO ORDERED.
Padilla, Kapunan and Hermosisima, Jr., JJ  ., concur.
Bellosillo, J  ., is on leave.

|||  (Valdes v. RTC, Br. 102, Quezon City, G.R. No. 122749, [July 31, 1996], 328 PHIL 1289-1304)

SECOND DIVISION

[G.R. No. 178044. January 19, 2011.]

ALAIN M. DIÑO,  petitioner, vs. MA. CARIDAD L. DIÑO,  respondent.

DECISION

CARPIO,  J p:

The Case
Before the Court is a petition for review 1 assailing the 18 October 2006 Decision 2 and
the 12 March 2007 Order 3 of the Regional Trial Court of Las Piñas City, Branch 254 (trial court)
in Civil Case No. LP-01-0149.
The Antecedent Facts
Alain M. Diño (petitioner) and Ma. Caridad L. Diño (respondent) were childhood friends
and sweethearts. They started living together in 1984 until they decided to separate in 1994. In
1996, petitioner and respondent decided to live together again. On 14 January 1998, they were
married before Mayor Vergel Aguilar of Las Piñas City.
On 30 May 2001, petitioner filed an action for Declaration of Nullity of Marriage against
respondent, citing psychological incapacity under Article 36 of the Family Code. Petitioner alleged
that respondent failed in her marital obligation to give love and support to him, and had
abandoned her responsibility to the family, choosing instead to go on shopping sprees and
gallivanting with her friends that depleted the family assets. Petitioner further alleged that
respondent was not faithful, and would at times become violent and hurt him.
Extrajudicial service of summons was effected upon respondent who, at the time of the
filing of the petition, was already living in the United States of America. Despite receipt of the
summons, respondent did not file an answer to the petition within the reglementary period.
Petitioner later learned that respondent filed a petition for divorce/dissolution of her marriage with
petitioner, which was granted by the Superior Court of California on 25 May 2001. Petitioner also
learned that on 5 October 2001, respondent married a certain Manuel V. Alcantara.
On 30 April 2002, the Office of the Las Piñas prosecutor found that there were no
indicative facts of collusion between the parties and the case was set for trial on the
merits. ACcHIa
Dr. Nedy L. Tayag (Dr. Tayag), a clinical psychologist, submitted a psychological report
establishing that respondent was suffering from Narcissistic Personality Disorder which was
deeply ingrained in her system since her early formative years. Dr. Tayag found that respondent's
disorder was long-lasting and by nature, incurable.
In its 18 October 2006 Decision, the trial court granted the petition on the ground that
respondent was psychologically incapacited to comply with the essential marital obligations at the
time of the celebration of the marriage.
The Decision of the Trial Court
The trial court ruled that based on the evidence presented, petitioner was able to
establish respondent's psychological incapacity. The trial court ruled that even without Dr. Tayag's
psychological report, the allegations in the complaint, substantiated in the witness stand, clearly
made out a case of psychological incapacity against respondent. The trial court found that
respondent committed acts which hurt and embarrassed petitioner and the rest of the family, and
that respondent failed to observe mutual love, respect and fidelity required of her under Article 68
of the Family Code. The trial court also ruled that respondent abandoned petitioner when she
obtained a divorce abroad and married another man.
The dispositive portion of the trial court's decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Declaring the marriage between plaintiff ALAIN M. DIÑO and defendant
MA. CARIDAD L. DIÑO on January 14, 1998, and all its effects
under the law, as NULL and VOID from the beginning; and
2. Dissolving the regime of absolute community of property.
A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall only be issued
upon compliance with Article[s] 50 and 51 of the Family Code.
Let copies of this Decision be furnished the parties, the Office of the
Solicitor General, Office of the City Prosecutor, Las Piñas City and the Office of the
Local Civil Registrar of Las Piñas City, for their information and guidance.
SO ORDERED. 4
Petitioner filed a motion for partial reconsideration questioning the dissolution of the
absolute community of property and the ruling that the decree of annulment shall only be issued
upon compliance with Articles 50 and 51 of the Family Code.
In its 12 March 2007 Order, the trial court partially granted the motion and modified its 18
October 2006 Decision as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1) Declaring the marriage between plaintiff ALAIN M. DIÑO and
defendant MA. CARIDAD L. DIÑO on January 14, 1998, and all its effects
under the law, as NULL and VOID from the beginning; and
2) Dissolving the regime of absolute community of property.
 A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall be issued after
liquidation, partition and distribution of the parties' properties under Article 147 of
the Family Code. SHAcID
Let copies of this Order be furnished the parties, the Office of the Solicitor
General, the Office of the City Prosecutor of Las Piñas City and the Local Civil
Registrar of Las Piñas City, for their information and guidance. 5
Hence, the petition before this Court.
The Issue
The sole issue in this case is whether the trial court erred when it ordered that a decree of
absolute nullity of marriage shall only be issued after liquidation, partition, and distribution of the
parties' properties under Article 147 of the Family Code.
The Ruling of this Court
The petition has merit.
Petitioner assails the ruling of the trial court ordering that a decree of absolute nullity of
marriage shall only be issued after liquidation, partition, and distribution of the parties' properties
under Article 147 of the Family Code. Petitioner argues that Section 19 (1) of the Rule on
Declaration of Absolute Nullity of Null Marriages and Annulment of Voidable Marriages 6 (the
Rule) does not apply to Article 147 of the Family Code.
We agree with petitioner.
The Court has ruled in Valdes v. RTC, Branch 102, Quezon City  that in a void marriage,
regardless of its cause, the property relations of the parties during the period of cohabitation is
governed either by Article 147 or Article 148 of the Family Code. 7 Article 147 of the Family
Code applies to union of parties who are legally capacitated and not barred by any impediment to
contract marriage, but whose marriage is nonetheless void, 8 such as petitioner and respondent
in the case before the Court.
Article 147 of the Family Code provides:
Article 147. When a man and a woman who are capacitated to marry each
other, live exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of them through their work
or industry shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares. For purposes of this Article,
a party who did not participate in the acquisition by the other party of any property
shall be deemed to have contributed jointly in the acquisition thereof if the former's
efforts consisted in the care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos  of his or her
share in the property acquired during cohabitation and owned in common, without
the consent of the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share
of the party in bad faith in the co-ownership shall be forfeited in favor of their
common children. In case of default of or waiver by any or all of the common
children or their descendants, each vacant share shall belong to the respective
surviving descendants. In the absence of descendants, such share shall belong to
the innocent party. In all cases, the forfeiture shall take place upon termination of
the cohabitation.
For Article 147 of the Family Code to apply, the following elements must be
present: AEIDTc
1. The man and the woman must be capacitated to marry each other;
 2. They live exclusively with each other as husband and wife; and
3. Their union is without the benefit of marriage, or their marriage is void. 9
All these elements are present in this case and there is no question that Article 147 of
the Family Code applies to the property relations between petitioner and respondent.
We agree with petitioner that the trial court erred in ordering that a decree of absolute
nullity of marriage shall be issued only after liquidation, partition and distribution of the parties'
properties under Article 147 of the Family Code. The ruling has no basis because Section 19 (1)
of the Rule does not apply to cases governed under Articles 147 and 148 of the Family Code.
Section 19 (1) of the Rule provides:
Sec. 19. Decision. — (1) If the court renders a decision granting the
petition, it shall declare therein that the decree of absolute nullity or decree of
annulment shall be issued by the court only after compliance with Articles 50 and
51 of the Family Code as implemented under the Rule on Liquidation, Partition and
Distribution of Properties.
The pertinent provisions of the Family Code cited in Section 19 (1) of the Rule are:
Article 50. The effects provided for in paragraphs (2), (3), (4) and (5) of
Article 43 and in Article 44 shall also apply in proper cases to marriages which are
declared void ab initio  or annulled by final judgment under Articles 40 and 45. 10
The final judgment in such cases shall provide for the liquidation, partition
and distribution of the properties of the spouses, the custody and support of the
common children, and the delivery of their presumptive legitimes, unless such
matters had been adjudicated in previous judicial proceedings.  
All creditors of the spouses as well as of the absolute community of the
conjugal partnership shall be notified of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated,
shall be adjudicated in accordance with the provisions of Articles 102 and 129.
Article 51. In said partition, the value of the presumptive legitimes of all
common children, computed as of the date of the final judgment of the trial court,
shall be delivered in cash, property or sound securities, unless the parties, by
mutual agreement judicially approved, had already provided for such matters.
The children of their guardian, or the trustee of their property, may ask for
the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way
prejudice the ultimate successional rights of the children accruing upon the death of
either or both of the parents; but the value of the properties already received under
the decree of annulment or absolute nullity shall be considered as advances on
their legitime.
It is clear from Article 50 of the Family Code that Section 19 (1) of the Rule applies only to
marriages which are declared void ab initio or annulled by final judgment under Articles 40 and
45 of the Family Code. In short, Article 50 of the Family Code does not apply to marriages which
are declared void ab initio under Article 36 of the Family Code, which should be declared void
without waiting for the liquidation of the properties of the parties.
Article 40 of the Family Code contemplates a situation where a second or bigamous
marriage was contracted. Under Article 40, "[t]he absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous
marriage void." Thus we ruled: IcCEDA
. . . where the absolute nullity of a previous marriage is sought to be
invoked for purposes of contracting a second marriage, the sole basis acceptable in
law, for said projected marriage to be free from legal infirmity, is a final judgment
declaring a previous marriage void. 11
 Article 45 of the Family Code, on the other hand, refers to voidable marriages, meaning,
marriages which are valid until they are set aside by final judgment of a competent court in an
action for annulment. 12 In both instances under Articles 40 and 45, the marriages are governed
either by absolute community of property 13 or conjugal partnership of gains 14 unless the parties
agree to a complete separation of property in a marriage settlement entered into before the
marriage. Since the property relations of the parties is governed by absolute community of
property or conjugal partnership of gains, there is a need to liquidate, partition and distribute the
properties before a decree of annulment could be issued. That is not the case for annulment of
marriage under Article 36 of the Family Code because the marriage is governed by the ordinary
rules on co-ownership.
In this case, petitioner's marriage to respondent was declared void under Article 36 15 of
the Family Code and not under Article 40 or 45. Thus, what governs the liquidation of properties
owned in common by petitioner and respondent are the rules on co-ownership. In Valdes, the
Court ruled that the property relations of parties in a void marriage during the period of
cohabitation is governed either by Article 147 or Article 148 of the Family Code. 16 The rules on
co-ownership apply and the properties of the spouses should be liquidated in accordance with
the Civil Code provisions on co-ownership. Under Article 496 of the Civil Code, "[p]artition may be
made by agreement between the parties or by judicial proceedings. . . . ." It is not necessary to
liquidate the properties of the spouses in the same proceeding for declaration of nullity of
marriage.
WHEREFORE, we AFFIRM the Decision of the trial court with the MODIFICATION that
the decree of absolute nullity of the marriage shall be issued upon finality of the trial court's
decision without waiting for the liquidation, partition, and distribution of the parties' properties
under Article 147 of the Family Code.
SO ORDERED.
Nachura, Peralta, Abad  and Mendoza, JJ., concur.

|||  (Diño v. Diño, G.R. No. 178044, [January 19, 2011], 655 PHIL 175-186)

THIRD DIVISION

[G.R. No. 176492. October 20, 2014.]

MARIETTA N. BARRIDO,  petitioner, vs. LEONARDO V. NONATO,  respondent.

DECISION

PERALTA * J p:

For the Court's resolution is a Petition for Review filed by petitioner Marietta N. Barrido
questioning the Decision 1 of the Court of Appeals (CA), dated November 16, 2006, and its
Resolution 2 dated January 24, 2007 in CA-G.R. SP No. 00235. The CA affirmed the Decision 3 of
the Regional Trial Court (RTC) of Bacolod City, Branch 53, dated July 21, 2004, in Civil Case No. 03-
12123, which ordered the partition of the subject property.
 The facts, as culled from the records, are as follows:
In the course of the marriage of respondent Leonardo V. Nonato and petitioner Marietta N.
Barrido, they were able to acquire a property situated in Eroreco, Bacolod City, consisting of a house
and lot, covered by Transfer Certificate of Title (TCT) No. T-140361. On March 15, 1996, their
marriage was declared void on the ground of psychological incapacity. Since there was no more
reason to maintain their co-ownership over the property, Nonato asked Barrido for partition, but the
latter refused. Thus, on January 29, 2003, Nonato filed a Complaint for partition before the Municipal
Trial Court in Cities (MTCC) of Bacolod City, Branch 3.
Barrido claimed, by way of affirmative defense, that the subject property had already been
sold to their children, Joseph Raymund and Joseph Leo. She likewise moved for the dismissal of the
complaint because the MTCC lacked jurisdiction, the partition case being an action incapable of
pecuniary estimation.
The Bacolod MTCC rendered a Decision dated September 17, 2003, applying Article 129 of
the Family Code. It ruled in this wise: EISCaD
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered,
ordering the conjugal property of the former Spouses Leonardo and Marietta
Nonato, a house and lot covered by TCT No. T-140361 located at Eroreco, Bacolod
City, which was their conjugal dwelling, adjudicated to the defendant Marietta
Nonato, the spouse with whom the majority of the common children choose to
remain.
Furthermore, defendant's counterclaim is hereby granted, ordering plaintiff
to pay defendant P10,000.00 as moral damages for the mental anguish and
unnecessary inconvenience brought about by this suit; and an additional
P10,000.00 as exemplary damages to deter others from following suit; and
attorney's fees of P2,000.00 and litigation expenses of P575.00.
SO ORDERED. 4
Nonato appealed the MTCC Decision before the RTC. On July 21, 2004, the Bacolod RTC
reversed the ruling of the MTCC. It found that even though the MTCC aptly applied Article 129 of
the Family Code, it nevertheless made a reversible error in adjudicating the subject property to
Barrido. Its dispositive portion reads: EHACcT
WHEREFORE, premises considered, the decision dated September 17,
2003 is hereby REVERSED and SET ASIDE and a new judgment is hereby
rendered ordering the parties:
(1) to equitably partition the house and lot covered by TCT No. T-140361;
(2) to reimburse Joseph Raymund and Joseph Leo Nonato of the amount
advanced by them in payment of the debts and obligation of TCT No. T-140361
with Philippine National Bank;
(3) to deliver the presumptive legitimes of Joseph Raymund and Joseph
Leo Nonato pursuant to Article 51 of the Family Code.
SO ORDERED. 5
Upon appeal, the CA affirmed the RTC Decision on November 16, 2006. It held that since the
property's assessed value was only P8,080.00, it clearly fell within the MTCC's jurisdiction. Also,
although the RTC erred in relying on Article 129 of the Family Code, instead of Article 147, the
dispositive portion of its decision still correctly ordered the equitable partition of the property. Barrido
filed a Motion for Reconsideration, which was, however, denied for lack of merit.
Hence, Barrido brought the case to the Court via a Petition for Review. She assigned the
following errors in the CA Decision:
I.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE MTCC HAD JURISDICTION TO TRY THE PRESENT CASE.
 II.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE LOT COVERED BY TCT NO. T-140361 IS CONJUGAL AFTER BEING SOLD
TO THE CHILDREN, JOSEPH LEO NONATO AND JOSEPH RAYMUND
NONATO.
III.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
ARTICLE 129 OF THE FAMILY CODE HAS NO APPLICATION IN THE PRESENT
CASE, ON THE ASSUMPTION THAT THE TRIAL COURT HAD JURISDICTION
OVER THE CASE. 6
The petition lacks merit. EHaCTA
Contrary to Barrido's contention, the MTCC has jurisdiction to take cognizance of real actions
or those affecting title to real property, or for the recovery of possession, or for the partition or
condemnation of, or foreclosure of a mortgage on real property. 7 Section 33 of Batas Pambansa
Bilang 129 8 provides:
Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts in civil cases. — Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:
xxx xxx xxx
(3) Exclusive original jurisdiction in all civil actions which involve
title to, or possession of, real property, or any interest therein where
the assessed value of the property or interest therein does not exceed
Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila,
where such assessed value does not exceed Fifty thousand pesos
(P50,000.00) exclusive of interest, damages of whatever kind, attorney's
fees, litigation expenses and costs:  Provided, That value of such property
shall be determined by the assessed value of the adjacent lots. (as
amended by R.A. No. 7691) 9
Here, the subject property's assessed value was merely P8,080.00, an amount which
certainly does not exceed the required limit of P20,000.00 for civil actions outside Metro Manila to fall
within the jurisdiction of the MTCC. Therefore, the lower court correctly took cognizance of the instant
case.
The records reveal that Nonato and Barrido's marriage had been declared void for
psychological incapacity under Article 36 10 of the Family Code. During their marriage, however, the
conjugal partnership regime governed their property relations. Although Article 129 11 provides for the
procedure in case of dissolution of the conjugal partnership regime, Article 147 specifically covers he
effects of void marriages on the spouses' property relations. Article 147 reads:
Art. 147. When a man and a woman who are capacitated to marry each
other, live exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of them through their work
or industry shall be governed by the rules on co-ownership. aSITDC
In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares. For purposes of this Article,
a party who did not participate in the acquisition by the other party of any property
shall be deemed to have contributed jointly in the acquisition thereof if the former's
efforts consisted in the care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her
share in the property acquired during cohabitation and owned in common, without
the consent of the other, until after the termination of their cohabitation.
 When only one of the parties to a void marriage is in good faith, the share
of the party in bad faith in the co-ownership shall be forfeited in favor of their
common children. In case of default of or waiver by any or all of the common
children or their descendants, each vacant share shall belong to the respective
surviving descendants. In the absence of descendants, such share shall belong to
the innocent party. In all cases, the forfeiture shall take place upon termination of
the cohabitation.
This particular kind of co-ownership applies when a man and a woman, suffering no illegal
impediment to marry each other, exclusively live together as husband and wife under a void marriage
or without the benefit of marriage. 12 It is clear, therefore, that for Article 147 to operate, the man and
the woman: (1) must be capacitated to marry each other; (2) live exclusively with each other as
husband and wife; and (3) their union is without the benefit of marriage or their marriage is void. Here,
all these elements are present. 13 The term "capacitated" in the first paragraph of the provision
pertains to the legal capacity of a party to contract marriage. 14 Any impediment to marry has not
been shown to have existed on the part of either Nonato or Barrido. They lived exclusively with each
other as husband and wife. However, their marriage was found to be void under Article 36 of
the Family Code on the ground of psychological incapacity. 15
Under this property regime, property acquired by both spouses through their work and
industry shall be governed by the rules on equal co-ownership. Any property acquired during the
union is prima facie  presumed to have been obtained through their joint efforts. A party who did not
participate in the acquisition of the property shall be considered as having contributed to the same
jointly if said party's efforts consisted in the care and maintenance of the family household. 16 Efforts
in the care and maintenance of the family and household are regarded as contributions to the
acquisition of common property by one who has no salary or income or work or industry. 17
In the analogous case of Valdez, 18 it was likewise averred that the trial court failed to apply
the correct law that should govern the disposition of a family dwelling in a situation where a marriage
is declared void ab initio  because of psychological incapacity on the part of either or both parties in
the contract of marriage. The Court held that the court  a quo  did not commit a reversible error in
utilizing Article 147 of the Family Code and in ruling that the former spouses own the family home and
all their common property in equal shares, as well as in concluding that, in the liquidation and partition
of the property that they owned in common, the provisions on co-ownership under the Civil Code
should aptly prevail. 19 The rules which are set up to govern the liquidation of either the absolute
community or the conjugal partnership of gains, the property regimes recognized for valid and
voidable marriages, are irrelevant to the liquidation of the co-ownership that exists between common-
law spouses or spouses of void marriages. 20
Here, the former spouses both agree that they acquired the subject property during the
subsistence of their marriage. Thus, it shall be presumed to have been obtained by their joint efforts,
work or industry, and shall be jointly owned by them in equal shares. Barrido, however, claims that the
ownership over the property in question is already vested on their children, by virtue of a Deed of
Sale. But aside from the title to the property still being registered in the names of the former spouses,
said document of sale does not bear a notarization of a notary public. It must be noted that without the
notarial seal, a document remains to be private and cannot be converted into a public
document, 21 making it inadmissible in evidence unless properly authenticated. 22 Unfortunately,
Barrido failed to prove its due execution and authenticity. In fact, she merely annexed said Deed of
Sale to her position paper. Therefore, the subject property remains to be owned in common by
Nonato and Barrido, which should be divided in accordance with the rules on co-ownership. TSHIDa
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of
Appeals, dated November 16, 2006, as well as its Resolution dated January 24, 2007 in CA-G.R. SP
No. 00235, are hereby AFFIRMED.
SO ORDERED.
Villarama, Jr., Reyes, Perlas-Bernabe ** and Jardeleza, JJ., concur.
 

|||  (Barrido v. Nonato, G.R. No. 176492, [October 20, 2014], 745 PHIL 608-617)
 SECOND DIVISION

[G.R. No. 116668. July 28, 1997.]

ERLINDA A. AGAPAY,  petitioner, vs. CARLINA (CORNELIA) V. PALANG and

HERMINIA P. DELA CRUZ, respondent.

Simplicio M. Sevilleja for petitioner.

Ray L.  Basbas & Fe Fernandez-Bautista  for respondents.

SYNOPSIS

Miguel Palang married on July 16, 1949. It was his first marriage. Their only child, Herminia,
was born on May 12, 1950.
On July 15, 1973, Miguel, then 63 years old, contracted his second marriage with Erlinda
Agapay, 19, herein petitioner. Two months earlier, Miguel and Erlinda purchased a piece of riceland.
Transfer Certificate of Title No. 101736 was issued in their names.
On September 23, 1975, a house and lot was purchased allegedly by Erlinda as the sole
vendee. TCT No. 143120 was later issued in her name.
Miguel and Erlinda's cohabitation produced a son, Kristoper A. Palang, born on December 6,
1977. In 1979, Miguel and Erlinda were convicted of concubinage upon Carlina' s complaint. Two
years later, Miguel died.
On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz, herein
private respondents, instituted an action for recovery of ownership and possession with damages
against petitioner. Private respondents sought to get back the riceland and the house and lot allegedly
purchased by Miguel during his cohabitation with petitioner.
After trial on the merits, the lower court dismissed the complaint declaring that there was little
evidence to prove that the subject properties pertained to the conjugal property of Carlina and Miguel
Palang.
On appeal, the Court of Appeals reversed the trial court's decision. Hence, this petition.
The sale of the riceland was made in favor of Miguel and Erlinda. The application law is Art.
148 of the Family Code on the cohabitation of a man and a woman under a void marriage or without
the benefit of marriage. The marriage of Miguel and Erlinda was patently void because the earlier
marriage of Miguel and Carlina was still subsisting. Under Art. 148, only the properties acquired by
both of the parties through their actual joint contribution of money, property or industry shall be owned
by them in common in proportion to their respective contributions. Actual contribution is required by
this provision, in contrast to Art. 147. If the actual contribution of the party is not proved, there will be
no co-ownership and no presumption of equal shares. Since petitioner failed to prove that she
contributed money to the purchase price ,of the riceland, we find no basis to justify her co-ownership
with Miguel over the same. Consequently, the riceland should revert to the conjugal partnership
property of the deceased Miguel and private respondent Carlina Palang.
As regards Kristopher Palang's heirship and filiation, the same should be ventilated in the
proper probate court or in a special proceeding instituted for the purpose, and cannot be adjudicated
in an ordinary civil action for recovery of ownership and possession.
The decision of the Court of Appeals is affirmed.

SYLLABUS

1. CIVIL LAW; FAMILY CODE; PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE;

PROOF OF ACTUAL CONTRIBUTION BY BOTH PARTIES, REQUIRED; ABSENCE THEREOF IN
CASE AT BAR. — The provision of law applicable here is Article 148 of the Family Code providing for
cases of cohabitation when a man and a woman who are not capacitated to marry each other live
exclusively with each other as husband and wife without the benefit of marriage or under a void
marriage. While Miguel and Erlinda contracted marriage on July 15, 1973, said union was patently
void because the earlier marriage of Miguel and Carlina was still subsisting and unaffected by the
latter's de facto separation. Under Article 148, only the properties acquired by both of the parties
through their actual joint contribution of money, property or industry shall be owned by them in
common in proportion to their respective contributions. It must be stressed that actual contribution is
required by this provision, in contrast to Article 147 which states that efforts in the care and
maintenance of the family and household, are regarded as contributions to the acquisition of common
property by one who has no salary or income or work or industry. If the actual contribution of the party
is not proved, there will be no co-ownership and no presumption of equal shares. Even assuming that
the subject property was bought before cohabitation, the rules of co-ownership would still apply and
proof of actual contribution would still be essential. Since petitioner failed to prove that she contributed
money to the purchase price of the riceland in Binalonan, Pangasinan, we find no basis to justify her
co-ownership with Miguel over the same. Consequently, the riceland should, as correctly held by the
Court of Appeals, revert to the conjugal partnership property of the deceased Miguel and private
respondent Carlina Palang.
2. ID.; ID.; SEPARATION OF PROPERTY OF THE SPOUSES DURING MARRIAGE;
JUDICIAL ORDER, REQUIRED. — Separation of property between spouses during the marriage
shall not take place except by judicial order or without judicial conferment when there is an express
stipulation in the marriage settlements. [Article 134 of the Family Code] The judgment which resulted
from the parties' compromise was not specifically and expressly for separation of property and should
not be so inferred.
3. ID.; ID.; DONATION; BETWEEN PERSONS GUILTY OF ADULTERY OR
CONCUBINAGE; VOID; RATIONALE; CASE AT BAR. — With respect to the house and lot, Erlinda
allegedly bought the same for P20,000.00 on September 23, 1975 when she was only 22 years old.
The testimony of the notary public who prepared the deed of conveyance for the property reveals the
falsehood of this claim. Atty. Constantino Sagun testified that Miguel Palang provided the money for
the purchase price and directed that Erlinda's name alone be placed as the vendee. The transaction
was properly a donation made by Miguel to Erlinda, but one which was clearly void and inexistent by
express provision of law because it was made between persons guilty of adultery or concubinage at
the time of the donation, under Article 739 of the Civil Code. Moreover, Article 87 of the Family Code
expressly provides that the prohibition against donations between spouses now applies to donations
between persons living together as husband and wife without a valid marriage, for otherwise, the
condition of those who incurred guilt would turn out to be better than those in legal union.
4. ID.; ID.; HEIRSHIP AND FILIATION; CANNOT BE ADJUDICATED IN AN ORDINARY
CIVIL ACTION FOR RECOVERY OF OWNERSHIP; CASE AT BAR. — The issue concerning
Kristopher Palang's status and claim as an illegitimate son and heir to Miguel's estate is here resolved
in favor of respondent court's correct assessment that the trial court erred in making pronouncements
regarding Kristopher's heirship and filiation "inasmuch as questions as to who are the heirs of the
decedent, proof of filiation of illegitimate children and the determination of the estate of the latter and
claims thereto should be ventilated in the proper probate court or in a special proceeding instituted for
the purpose and cannot be adjudicated in the instant ordinary civil action which is for recovery of
ownership and possession." Kristopher, not having been impleaded, was not a party to the case at
bar. His mother, Erlinda, cannot be called his guardian ad litem for he was not involved in the case at
bar.

DECISION

ROMERO,  J p:

Before us is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No.
24199 entitled "Erlinda Agapay v. Carlina (Cornelia) Palang and Herminia P. Dela Cruz" dated June
22, 1994 involving the ownership of two parcels of land acquired during the cohabitation of petitioner
and private respondent's legitimate spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when he took private respondent
Carlina (or Cornelia) Vallesterol as a wife at the Pozorrubio Roman Catholic Church in Pangasinan. A
few months after the wedding, in October 1949, he left to work in Hawaii. Miguel and Carlina's only
child, Herminia Palang, was born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964 and during the
entire duration of his year-long sojourn he stayed in Zambales with his brother, not in Pangasinan with
his wife and child. The trial court found evidence that as early as 1957, Miguel had attempted to
divorced Carlina in Hawaii. 1 When he returned for good in 1972, he refused to live with private
respondents, but stayed alone in a house in Pozorrubio, Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted his second marriage with
nineteen-year-old Erlinda Agapay, herein petitioner. 2 Two months earlier, on May 17, 1973, Miguel
and Erlinda, as evidenced by the Deed of Sale, jointly purchased a parcel of agricultural land located
at San Felipe, Binalonan, Pangasinan with an area of 10,080 square meters. Consequently, Transfer
Certificate of Title No. 101736 covering said rice land was issued in their names.
A house and lot in Binalonan, Pangasinan was likewise purchased on September 23, 1975,
allegedly by Erlinda as the sole vendee. TCT No. 143120 covering said property was later issued in
her name.
On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation as a form of
compromise agreement to settle and end a case filed by the latter. 3 The parties therein agreed to
donate their conjugal property consisting of six parcels of land to their only child, Herminia Palang. 4
Miguel and Erlinda's cohabitation produced a son, Kristopher A. Palang, born on December 6,
1977. In 1979, Miguel and Erlinda were convicted of concubinage upon Carlina's complaint. 5 Two
years later, on February 15, 1981, Miguel died.
On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz, herein
private respondents, instituted the case at bar, an action for recovery of ownership and possession
with damages against petitioner before the Regional Trial Court in Urdaneta, Pangasinan (Civil Case
No. U-4265). Private respondents sought to get back the riceland and the house and lot both located
at Binalonan, Pangasinan allegedly purchased by Miguel during his cohabitation with petitioner.
Petitioner, as defendant below, contented that while the riceland covered by TCT No. 101736
is registered in their names (Miguel and Erlinda), she had already given her half of the property to
their son Kristopher Palang. She added that the house and lot covered by TCT No. 143120 is her sole
property, having bought the same with her own money. Erlinda added that Carlina is precluded from
claiming aforesaid properties since the latter had already donated their conjugal estate to Herminia.
After trial on the merits, the lower court rendered its decision on June 30, 1989 dismissing the
complaint after declaring that there was little evidence to prove that the subject properties pertained to
the conjugal property of Carlina and Miguel Palang. The lower court went on to provide for the
intestate shares of the parties, particularly of Kristopher Palang, Miguel's illegitimate son. The
dispositive portion of the decision reads:
"WHEREFORE, premises considered, judgment is hereby rendered —
1) Dismissing the complaint, with cost against plaintiffs;
2) Confirming the ownership of defendant Erlinda Agapay of the residential
lot located at Poblacion, Binalonan, Pangasinan, as evidenced by TCT No. 143120,
Lot 290-B including the old house standing therein;
3) Confirming the ownership of one half (1/2) portion of that piece of
agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan, consisting
of 10,080 square meters and as evidenced by TCT No. 101736, Lot 1123-A to
Erlinda Agapay;
4) Adjudicating to Kristopher Palang as his inheritance from his deceased
father, Miguel Palang, the one-half (1/2) of the Agricultural land situated at Balisa,
San Felipe, Binalonan, Pangasinan, under TCT No. 101736 in the name of Miguel
Palang, provided that the former (Kristopher) executes, within 15 days after this
decision becomes final and executory, a quit-claim forever renouncing any claims
to annul/reduce the donation to Herminia Palang de la Cruz of all conjugal
properties of her parents, Miguel Palang and Carlina Vallesterol Palang, dated
October 30, 1975, otherwise, the state of deceased Miguel Palang will have to be
settled in another separate action;
5) No pronouncement as to damages and attorney's fees.
SO ORDERED." 6
On appeal, respondent court reversed the trial court's decision. The Court of Appeals
rendered its decision on July 22, 1994 within the following dispositive portion:
"WHEREFORE, PREMISES CONSIDERED, the appealed decision is
hereby REVERSED and another one entered:
1. Declaring plaintiffs-appellants the owner of the properties in question;
2. Ordering defendant-appellee to vacate and deliver the properties in
question to herein plaintiffs-appellants;
3. Ordering the Register of Deeds of Pangasinan to cancel Transfer
Certificate of Title Nos. 143120 and 101736 and to issue in lieu thereof another
certificate of title in the name of the plaintiffs-appellants.
No pronouncement as to costs." 7
Hence, this petition.
Petitioner claims that the Court of Appeals erred in not sustaining the validity of two deeds of
absolute sale covering the riceland and the house and lot, the first in favor of Miguel Palang and
Erlinda Agapay and the second, in favor of Erlinda Agapay alone. Second, petitioner contends that
respondent appellate court erred in not declaring Kristopher A. Palang as Miguel Palang's illegitimate
son and thus entitled to inherit from Miguel's estate. Third, respondent court erred, according to
petitioner, "in not finding that there is a sufficient pleading and evidence that Kristoffer A. Palang or
Christopher A. Palang should be considered as party defendant in Civil Case No. U-4625 before the
trial court and in CA-G.R. No. 24199. 8
After studying the merits of the instant case, as well as the pertinent provision of law and
jurisprudence, the Court denies the petition and affirms the questioned decision of the Court of
Appeals.
The first and principal issue is the ownership of the two pieces of property subject of this
action. Petitioner assails the validity of the deeds of conveyance over the same parcels of land. There
is no dispute that the transfer of ownership from the original owners of the riceland and the house and
lot, Corazon Ilomin and the spouses Cespedes, respectively, were valid.
 The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda. The
provision of law applicable here is Article 148 of the Family Code providing for cases of cohabitation
when a man or woman who are not capacitated to marry each other live exclusively with each other
as husband and wife without the benefit of marriage or under a void marriage. While Miguel and
Erlinda contracted marriage on July 15, 1973, said union was patently void because the earlier
marriage of Miguel and Carlina was still subsisting and unaffected by the latter's de facto separation.
Under Article 148, only the properties acquired by both of the parties through their actual joint
contribution of money, property or industry  shall be owned by them in common in proportion to their
respective contributions. It must be stressed that actual contribution is required by this provision, in
contrast to Article 147 which states that efforts in the care and maintenance of the family and
household, are regarded as contributions to the acquisition of common property by one who has no
salary or income or work or industry. If the actual contribution of the party is not proved, there will be
no co-ownership and no presumption of equal shares. 9 cda
In the case at bar, Erlinda tried to establish by her testimony that she is engaged in the
business of buy and sell and had a sari-sari store 10 but failed to persuade to us that she actually
contributed money to buy the subject riceland. Worth noting is the fact that on the date of the
conveyance, May 17, 1973, petitioner was only around twenty years of age and Miguel Palang was
already sixty-four and a pensioner of the U.S. Government. Considering her youthfulness, it is
unrealistic to conclude that in 1973 she contributed P3,750.00 as her share in the purchase price of
subject property, 11 there being no proof of the same.
Petitioner now claims that the riceland was bought two months before Miguel and Erlinda
actually cohabited. In the nature of an afterthought, said added assertion was intended to exclude
their case from operation of Article 148 of the Family Code. Proof of the precise date when they
commenced their adulterous cohabitation not having been adduced, we cannot state definitively that
the riceland was purchased even before they started living together. In any case, even assuming that
the subject property was bought before cohabitation, the rules of co-ownership would still apply and
proof of actual contribution would still be essential.
Since petitioner failed to prove that she contributed money to the purchase price of the
riceland in Binalonan, Pangasinan, we find no basis to justify her co-ownership with Miguel over the
same. Consequently, the riceland should, as correctly held by the Court of Appeals, revert to the
conjugal partnership property of the deceased Miguel and private respondent Carlina Palang.
Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate their
conjugal property in favor of their daughter Herminia in 1975. The trial court erred in holding that the
decision adopting their compromise agreement "in effect partakes the nature of judicial confirmation of
the separation of property between spouses and the termination of the conjugal
partnership." 12 Separation of property between spouse during the marriage shall not take place
except by judicial order or without judicial conferment when there is an express stipulation in the
marriage settlements. 13 The judgment which resulted from the parties' compromise was not
specifically and expressly for separation of property and should not be so inferred.
With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00 on
September 23, 1975 when she was only 22 years old. The testimony of the notary public who
prepared the deed of conveyance for the property reveals the falsehood of this claim. Atty.
Constantino Sagun testified that Miguel Palang provided the money for the purchase price and
directed that Erlinda's name alone be placed as the vendee. 14
The transaction was properly a donation made by Miguel to Erlinda, but one which was
clearly void and inexistent by express provision of law because it was made between persons guilty of
adultery or concubinage at the time of the donation, under Article 739 of the Civil Code.
Moreover, Article 87 of the Family Code expressly provides that the prohibition against donation
between spouses now applies to donations between persons living together as husband and wife
without a valid marriage, 15 for otherwise, the condition of those who incurred guilt would turn out to
be better than those in legal union. 16
The second issue concerning Kristopher Palang's status and claim as an illegitimate son and
heir to Miguel's estate is here resolved in favor of respondent court's correct assessment that the trial
court erred in making pronouncements regarding Kristopher's heirship and filiation "inasmuch as
questions as to who are the heirs of the decedent, proof of filiation of illegitimate children and the
determination of the estate of the latter and claims thereto should be ventilated in the proper probate
court or in a special proceeding instituted for the purpose and cannot be adjudicated in the instant
ordinary civil action which is for recovery of ownership and possession." 17
As regards the third issue, petitioner contends that Kristopher Palang should be considered
as party-defendant in the case at bar following the trial court's decision which expressly found that
Kristopher had not been impleaded as party defendant but theorized that he had submitted to the
court's jurisdiction through his mother/guardian ad litem. 18 The trial court erred gravely. Kristopher,
not having been impleaded, was therefore, not a party to the case at bar. His mother, Erlinda, cannot
be called his guardian ad litem for he was not involved in the case at bar. Petitioner adds that there is
no need for Kristopher to file another action to prove that he is the illegitimate son of Miguel, in order
to avoid multiplicity of suits. 19 Petitioner's grave error has been discussed in the preceding
paragraph where the need for probate proceedings to resolve the settlement of Miguel's estate and
Kristopher's successional rights has been pointed out.
WHEREFORE, the instant petition is hereby  DENIED. The questioned decision of the Court
of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.
Regalado, Puno and Mendoza, JJ  ., concur.
Torres, Jr., J ., is on leave.

|||  (Agapay v. Palang, G.R. No. 116668, [July 28, 1997], 342 PHIL 302-314)

EN BANC

[G.R. No. L-20530. June 29, 1967.]

MANILA SURETY & FIDELITY COMPANY, INC.,  petitioner, vs. TRINIDAD

TEODORO and THE COURT OF APPEALS, respondents.

De Santos & Delfino  for petitioner.

V .J  . Francisco and  R.F  . Francisco for respondents.

SYLLABUS

1. EXECUTION; EXCLUSIVE PROPERTIES OF ONE OF THE PARTNERS IN A VOID

MARRIAGE NOT ANSWERABLE FOR JUDGMENT DEBT OF THE OTHER PARTNER. — The
properties that can be the subject of co-ownership under Article 144 of the Civil Code are those
 acquired by either or both of the partners in the void marriage through their work or industry or
their wages and salaries. Where the funds used in acquiring the properties were fruits of one of
the partners' paraphernal investments which accrued before the "marriage' the said properties
remain exclusively those of that partner, and, as such are beyond the reach of execution to satisfy
the judgment debt of the other partner.
2. ID.; THIRD-PARTY CLAIM NOT AN EXCLUSIVE REMEDY. — A third-party claim is
not an exclusive remedy. Section 16, Rule 39 of the Rules of Court provides that nothing therein
contained "shall prevent such third person from vindicating his claim to the property by any proper
action."
3. INJUNCTION; ELEVATION OF APPEAL TO THE COURT OF APPEALS WHEN AN
INDEPENDENT PETITION FOR INJUNCTION IS JUSTIFIED. — An independent petition for
injunction is not unjustified if under the circumstances it is impracticable to first wait for the appeal
to be elevated to and docketed in the Court of Appeals and then secure the ancillary remedy of
injunction therein.

DECISION

MAKALINTAL, J p:

The Manila Surety & Fidelity Company, Inc., filed this petition for review by certiorari of
the decision of the Court of Appeals in its Case No. CA-G.R. No. 30916. The case relates to the
execution of a joint and several judgment for money obtained by the said company against the
Philippine Ready-Mix Concrete Co., Inc. and Jose Corominas, Jr., in a litigation started in 1952 in
the Court of First Instance of Manila (Civil Case No. 17014), whose decision was affirmed by the
Court of Appeals with only a slight modification in respect of the award for attorney's fees.
The proceedings which took place thereafter are narrated in the decision sought to be
reviewed as follows:
"When said decision became final, respondent Manila Surety secured on
September 20, 1961, from the Court of First Instance of Manila in Civil Case No.
17014 a second alias writ of execution addressed to respondent provincial sheriff of
Rizal whose deputy, together with counsel for respondent Manila Surety, repaired
to the residence of herein petitioner at No. 794 Harvard Street, Mandaluyong, Rizal,
and levied upon a car, some furniture, appliances and personal properties found
therein belonging solely and exclusively to the petitioner with the exception of a
sewing machine which belonged to a maid by the name of Nati Fresco, a G.E.
television set which was the property of the minor Jose Alfonso Corominas, and a
baby grand piano as well as a Columbia, radio phonograph which belonged to Jose
Corominas, Jr. As the petitioner was then abroad, her sister Josefina Teodoro, to
whom she had entrusted the custody and safekeeping of the properties, had made
representations to the deputy sheriff and to the counsel of respondent Manila
Surety regarding the ownership of the petitioner over certain personal effects levied
upon, but they ignored the same and proceeded with the levy.
Thus, respondents caused the posting at several places notices of sale,
preparatory to disposing petitioner's properties at public auction.
To stay the sale at public auction of petitioner's properties, she filed
on November 3, 1961, with the Court of First Instance of Rizal a complaint with
injunction, entitled 'Trinidad Teodoro vs. Manila Surety & Fidelity Co., Inc. and the
Provincial Sheriff of Rizal'. praying among other things, for damages and a writ of
preliminary injunction which was accordingly issued upon petitioner's filing of a
bond in the sum of P30,000.00 enjoining the provincial sheriff of Rizal from selling
at public auction the properties claimed by said petitioner.
 However, on November 9, 1961, respondent Manila Surety filed an
'Omnibus Motion to Dismiss the Complaint and to Dissolve Injunction' to which an
opposition was filed.
After the parties had adduced their evidence in support of their respective
claims and after hearing their arguments, the lower court declared that the
properties in question are community properties of Trinidad Teodoro (herein
petitioner) and Jose Corominas, Jr., dissolved on May 12, 1962, the writ of
preliminary injunction it had issued and dismissed the complaint (Civil case No.
6865, CFI-Rizal).
Not satisfied, Trinidad Teodoro (as plaintiff in said civil case No. 6865 of
Rizal) interposed an appeal. In the meanwhile, however, the Manila Surety filed
on May 29, 1962, in the Court of First Instance of Manila a motion for the issuance
of a third alias writ of execution for the satisfaction of the judgment debt in civil case
No. 17014. Acting upon said motion the Court of First Instance of Manila issued
on June 2, 1962, the Third Alias Writ of Execution.'
Thus, on June 7, 1962, deputies of the provincial sheriff of Rizal again
repaired to the residence of herein petitioner at No. 794 Harvard St., Mandaluyong,
and levied upon the same properties, with the exception of the baby grand piano
and the 'Columbia' phonograph which were the properties of Jose Corominas, Jr.
and which had already been sold at public auction November 6, 1961 for
P3,305.00, the Regal sewing machine owned by Nati Fresco, the beds found in the
boy's and girl's rooms, a marble dining table and chairs, a stereophonic
phonograph and the G.E. television set. An on the following day, June 8, 1962,
respondent provincial sheriff of Rizal advertised the sale at public auction of the
aforementioned properties claimed by herein petitioner, setting the date thereof
for June 16, 1962."
Trinidad Teodoro thereupon filed an original petition for injunction in the Court of Appeals
to stop the scheduled sale. On October 24, 1962 the said Court rendered the decision now under
review, granting the writ prayed for and permanently enjoining respondent provincial sheriff of
Rizal from selling at public auction the properties in question for the satisfaction of the judgment
debt of Jose Corominas, Jr.
The case for herein petitioner rests on the proposition that the said properties, claimed by
respondent Teodoro to be hers exclusively, pertain to the co-ownership established between her
and Jose Corominas, Jr., pursuant to Article 144 of the Civil Code, and consequently may be
levied upon on execution for the satisfaction of the latter's judgment debt. The facts relied upon in
support of this theory of co-ownership are stated in the decision of the court a quo and quoted by
the Court of Appeals, as follows:
"Jose Corominas, Jr. and Sonia Lizares were married in Iloilo on January 5,
1935. On November 29, 1954, a decree of divorce was granted by the Court of the
State of Nevada dissolving the bonds of matrimony between Sonia Lizares and
Jose Corominas, Jr. . . .
"Trinidad Teodoro met Jose Corominas, Jr. in Hongkong on October 30,
1955 . . . On March 26, 1956, they went through a Buddhist wedding ceremony in
Hongkong. Upon their return to the Philippines they took up residence in a rented
house at No. 2305 Agno Street, Manila, . . . On September 5, 1961, plaintiff and
Jose Corominas, Jr. were married for a second time on Washoe County, Nevada,
U.S.A."
Additional pertinent facts, also mentioned in the decision under review and not
controverted by the parties, are that Sonia Lizares is still living and that the conjugal partnership
formed by her marriage to Corominas was dissolved by the Juvenile and Domestic Relations
Court of Manila upon their joint petition, the decree of dissolution having been issued on October
21, 1957.
The principal issue here is the applicability of Article 144 of the Civil Code to the situation
thus created. This Article provides:
 "When a man and a woman live together as husband and wife, but they are
not married, or their marriage is void from the beginning, the property acquired by
either or both of them through their work or industry or their wages and salaries
shall be governed by the rules on co-ownership."
There is no doubt that the decree of divorce granted by the Court of Nevada in 1954 is
not valid under Philippine law, which has outlawed divorce altogether; that the matrimonial bonds
between Jose Corominas, Jr. and Sonia Lizares have not been dissolved, although their conjugal
partnership was terminated in 1957; and that the former's subsequent marriage in Hongkong to
Trinidad Teodoro is bigamous and void.
While Article 144 speaks, inter alia, of a void marriage without any qualification, the Court
of Appeals declined to apply it in this case on two grounds: (1) the subsisting marriage of
Corominas to Sonia Lizares constitutes an impediment to a valid marriage between him and
respondent Trinidad Teodoro, which impediment, according to a number of decisions of the
Supreme Court, precludes the establishment of a co-ownership under said article, and (2) the
funds used by said respondent in acquiring the properties in question were "fruits of her
paraphernal investments which accrued before her marriage to Corominas."
The decisions cited under the first ground are Christensen vs. Garcia, 56 Off. Gaz., No.
16, p. 3199, Samson vs. Salaysay, 56 Off. Gaz., No. 11, p. 2401; and Osmeña vs. Rodriguez, 54
Off. Gaz., No. 20, p. 5526. In a proper case, where it may be necessary to do so in order to
resolve an unavoidable issue, the precise scope of the "no impediment to a valid
marriage" dictum in said decisions will undoubtedly deserve closer examination, since it
establishes an exception to the broad terms of Article 144. For one thing, a situation may arise
involving a conflict of rights between a co-ownership under that provision and an existing conjugal
partnership formed by a prior marriage where, for instance, the husband in such marriage lives
with another woman and with his salary or wages acquires properties during the extra-marital
cohabitation. A ruling would then be in order to determine which — as between the co-ownership
and the conjugal partnership — could claim ascendancy insofar as the properties are concerned.
In the present case, however, we find no need to pass on this question. The particular
properties involved here, which were admittedly acquired by respondent Teodoro, cannot be
deemed to belong to each co-ownership because, as found by the trial court and confirmed by the
Court of Appeals, the funds used in acquiring said properties were fruits of respondent's
paraphernal investments which accrued before her "marriage" to Corominas. In other words they
were not acquired by either or both of the partners in the void marriage through their work or
industry or their wages and salaries, and hence cannot be the subject of co-ownership under
Article 144. They remain respondent's exclusive properties, beyond the reach of execution to
satisfy the judgment debt of Corominas.
Several procedural questions have been raised by petitioner. First, that the injunction
issued by the Court of appeals was improper since it was not in aid of its appellate jurisdiction;
second, that respondent Trinidad Teodoro having elected to appeal from the decision of the Court
of First Instance of Rizal, she may not pursue the remedy of injunction as she did in this case;
third, that respondent's petition for injunction in the Court of Appeals failed to state a cause of
action; fourth, that the proper remedy available to respondent was by filing a third-party claim; and
finally, that the trial judge should have been included as party respondent in the petition for
injunction.
As to the first and second points, the fact is that respondent Trinidad Teodoro perfected
her appeal to the Court of Appeals, which found that there were questions of fact involved therein,
one of them being whether the properties in question were acquired before or after her void
marriage to Corominas. In aid of its appellate jurisdiction, therefore, the said Court could issue a
writ of injunction. Of course, what happened here was that before the record on appeal could be
filed (on June 18, 1962) or approved (on September 8, 1962) a third alias writ of execution was
issued by the trial court (on June 2, 1962) and the properties in question were again levied upon
by the sheriff and advertised for sale on June 16, 1962. It was impracticable for respondent to first
wait for the appeal to be elevated to and docketed in the Court of Appeals and then secure the
ancillary remedy of injunction therein. An independent petition for injunction, under the
circumstances, was not unjustified.
 Respondent could, indeed, have filed a third party claim instead as indicated in Rule 39,
Section 15. But then her sister Josefina Teodoro did make such a claim in her behalf after the
second alias writ of execution was issued, but it was ignored and the sheriff proceeded with the
levy. In any event, a third party claim is not an exclusive remedy: the same rule provides that
nothing therein contained "shall prevent such third person from vindicating his claim to the
property by any proper action."
We do not deem it to be a reversible error for Trinidad Teodoro not to include the trial
Judge as party-respondent in her petition for injunction in the Court of Appeals. The trial Judge
would have been merely a nominal party anyway, and no substantial rights of petitioner here have
been prejudiced by the omission.
In view of the foregoing, the judgment of the Court of Appeals is affirmed, with costs.
Concepcion, C  .J ., Reyes, J  .B.L., Dizon, Bengzon, J .P., Zaldivar, Sanchez and Castro,
JJ  ., concur.
 

|||  (Manila Surety & Fedility Co., Inc. v. Teodoro, G.R. No. L-20530, [June 29, 1967], 126 PHIL 820-
827)
 SECOND DIVISION

[G.R. No. 151967. February 16, 2005.]

JOSEFINA C. FRANCISCO,  petitioner, vs. MASTER IRON WORKS &

CONSTRUCTION CORPORATION and ROBERTO V. ALEJO, Sheriff IV,
Regional Trial Court of Makati City, Branch 142, respondents.

DECISION

CALLEJO, SR., J  p:

Before us is a petition for review on certiorari of the Decision 1 of the Court of Appeals (CA) in
CA-G.R. No. CV No. 59045, which reversed and set aside the Decision 2 of the Regional Trial Court
(RTC) of Parañaque, Metro Manila, Branch 260, in Civil Case No. 94-2260 and the Resolution of the
CA denying the petitioner's motion for reconsideration of the said decision.
Josefina Castillo was only 24 years old when she and Eduardo G. Francisco were married on
January 15, 1983. 3 Eduardo was then employed as the vice president in a private corporation. A little
more than a year and seven months thereafter, or on August 31, 1984, the Imus Rural Bank, Inc.
(Imus Bank) executed a deed of absolute sale for P320,000.00 in favor of Josefina Castillo Francisco,
married to Eduardo Francisco, covering two parcels of residential land with a house thereon located at
St. Martin de Porres Street, San Antonio Valley I, Sucat, Parañaque, Metro Manila. One of the lots
was covered by Transfer Certificate of Title (TCT) No. 36519, with an area of 342 square meters,
while the other lot, with an area of 360 square meters, was covered by TCT No. 36518. 4 The
purchase price of the property was paid to the Bank via Check No. 002334 in the amount of
P320,000.00 drawn and issued by the Commercial Bank of Manila, for which the Imus Bank issued
Official Receipt No. 121408 on August 31, 1984. 5 On the basis of the said deed of sale, TCT Nos.
36518 and 36519 were cancelled and, on September 4, 1984, the Register of Deeds issued TCT Nos.
87976 (60550) and 87977 (60551) in the name of "Josefina Castillo Francisco married to Eduardo G.
Francisco." 6
On February 15, 1985, the Register of Deeds made of record Entry No. 85-18003 at the
dorsal portion of the said titles. This referred to an Affidavit of Waiver executed by Eduardo where he
declared that before his marriage to Josefina, the latter purchased two parcels of land, including the
house constructed thereon, with her own savings, and that he was waiving whatever claims he had
over the property. 7 On January 13, 1986, Josefina mortgaged the said property to Leonila Cando for
a loan of P157,000.00. 8 It appears that Eduardo affixed his marital conformity to the deed. 9
On June 11, 1990, Eduardo, who was then the General Manager and President of Reach Out
Trading International, bought 7,500 bags of cement worth P768,750.00 from Master Iron Works &
Construction Corporation (MIWCC) but failed to pay for the same. On November 27, 1990, MIWCC
filed a complaint against him in the RTC of Makati City for the return of the said commodities, or the
value thereof in the amount of P768,750.00. The case was docketed as Civil Case No. 90-3251. On
January 8, 1992, the trial court rendered judgment in favor of MIWCC and against Eduardo.
The fallo of the decision reads:
Accordingly, the Court renders judgment in favor of the plaintiff Master Iron
Works And Construction Corporation against the defendant [Eduardo] Francisco
ordering the latter as follows:
1. To replace to plaintiff 7,500 bags at 50 kilos/bag of Portland cement or,
in the alternative, to pay the plaintiff the amount of P768,750.00; HCDAcE
2. In either case, to pay liquidated damages by way of interest at 12% per
annum from June 21, 1990 until fully paid;
3. To pay P50,000.00 as actual damages; and
 4. To pay attorney's fees of P153,750.00 and litigation expenses of
P20,000.00.
SO ORDERED. 10
The decision in Civil Case No. 90-3251 became final and executory and, on June 7, 1994, the
court issued a writ of execution. 11 On June 14, 1994, Sheriff Roberto Alejo sold at a public auction
one stainless, owner-type jeep for P10,000.00 to MIWCC. 12 Sheriff Alejo issued a Notice of Levy on
Execution/Attachment over the lots covered by TCT No. 87976 (60550) and 87977 (60551) for the
recovery of the balance of the amount due under the decision of the trial court in Civil Case No. 90-
3251. 13 On June 24, 1994, the sale of the property at a public auction was set to August 5, 1994. 14
On July 3, 1994, Josefina executed an Affidavit of Third Party Claim 15 over the two parcels
of land in which she claimed that they were her paraphernal property, and that her husband Eduardo
had no proprietary right or interest over them as evidenced by his affidavit of waiver, a copy of which
she attached to her affidavit. She, likewise, requested Sheriff Alejo to cause the cancellation of the
notice of levy on execution/attachment earlier issued by him.
On July 7, 1994, Josefina filed the said Affidavit of Third Party Claim in the trial court and
served a copy thereof to the sheriff. MIWCC then submitted an indemnity bond  16 in the amount of
P1,361,500.00 issued by the Prudential Guarantee and Assurance, Inc. The sale at public auction
proceeded. MIWCC made a bid for the property for the price of P1,350,000.00. 17
On July 28, 1994, Josefina filed a Complaint against MIWCC and Sheriff Alejo in the RTC of
Parañaque for damages with a prayer for a writ of preliminary injunction or temporary restraining
order, docketed as Civil Case No. 94-2260. She alleged then that she was the sole owner of the
property levied on execution by Sheriff Alejo in Civil Case No. 90-3251; hence, the levy on execution
of the property was null and void. She reiterated that her husband, the defendant in Civil Case No. 90-
3251, had no right or proprietary interest over the said property as evidenced by his affidavit of waiver
annotated at the dorsal portion of the said title. Josefina prayed that the court issue a temporary
restraining order/writ of preliminary injunction to enjoin MIWCC from causing the sale of the said
property at public auction. Considering that no temporary restraining order had as yet been issued by
the trial court, the sheriff sold the subject property at public auction to MIWCC for P1,350,000.00 on
August 5, 1994. 18 However, upon the failure of MIWCC to remit the sheriff's commission on the sale,
the latter did not execute a sheriff's certificate of sale over the property. The RTC of Parañaque,
thereafter, issued a temporary restraining order 19 on August 16, 1994. cEITCA
When Josefina learned of the said sale at public auction, she filed an amended complaint
impleading MIWCC, with the following prayer:
WHEREFORE, premises considered, it is most respectfully prayed to this
Honorable Court that, after hearing, judgment be rendered in favor of the plaintiff
and against the defendants and the same be in the following tenor:
1. Ordering the defendants, jointly and severally, to pay the plaintiff the
following amounts:
A. The sum of P50,000.00 representing as actual damages;
B. The sum of P200,000.00 representing as moral damages;
C. The sum of P50,000.00 or such amount which this Honorable Court deems
just as exemplary damages;
D. The sum of P60,000.00 as and for attorney's fees.
2. Declaring the levying and sale at public auction of the plaintiff's
properties null and void;
3. To issue writ of preliminary injunction and makes it permanent;
4. Order the cancellation of whatever entries appearing at the titles as a
result of the enforcement of the writ of execution issued in Civil Case No. 90-3251.
Plaintiff further prays for such other reliefs as may be just under the
premises. 20
 In its answer to the complaint, MIWCC cited Article 116 of the Family Code of the
Philippines and averred that the property was the conjugal property of Josefina and her husband
Eduardo, who purchased the same on August 31, 1984 after their marriage on January 14, 1983.
MIWCC asserted that Eduardo executed the affidavit of waiver to evade the satisfaction of the
decision in Civil Case No. 90-3251 and to place the property beyond the reach of creditors; hence, the
said affidavit was null and void. ESTcIA
Before she could commence presenting her evidence, Josefina filed a petition to annul her
marriage to Eduardo in the RTC of Parañaque, Metro Manila, on the ground that when they were
married on January 15, 1983, Eduardo was already married to one Carmelita Carpio. The case was
docketed as Civil Case No. 95-0169.
Josefina and Carmelita testified in Civil Case No. 95-0169. Josefina declared that during her
marriage to Eduardo, she acquired the property covered by TCT Nos. 87976 (60550) and 87977
(60551), through the help of her sisters and brother, and that Eduardo had no participation
whatsoever in the said acquisition. She added that Eduardo had five children, namely, Mary Jane,
Dianne, Mary Grace Jo, Mark Joseph and Mary Cecille, all surnamed Francisco. jur2005cd
On September 9, 1996, the RTC of Parañaque rendered judgment 21 in Civil Case No. 95-
0169, declaring the marriage between Josefina and Eduardo as null and void for being bigamous.
In the meantime, Josefina testified in Civil Case No. 94-2260, declaring, inter alia, that she
was able to purchase the property from the Bank when she was still single with her mother's financial
assistance; she was then engaged in recruitment when Eduardo executed an affidavit of waiver; she
learned that he was previously married when they already had two children; nevertheless, she
continued cohabiting with him and had three more children by him; and because of Eduardo's first
marriage, she decided to have him execute the affidavit of waiver.
Eduardo testified that when his wife bought the property in 1984, he was in Davao City and
had no knowledge of the said purchases; he came to know of the purchase only when Josefina
informed him a week after his arrival from Davao; 22 Josefina's sister, Lolita Castillo, told him that she
would collect from him the money his wife borrowed from her and their mother to buy the
property; 23 when he told Lolita that he had no money, she said that she would no longer collect from
him, on the condition that he would have no participation over the property, 24 which angered
Eduardo; 25 when Josefina purchased the property, he had a gross monthly income of P10,000.00
and gave P5,000.00 to Josefina for the support of his family; 26 Josefina decided that he execute the
affidavit of waiver because her mother and sister gave the property to her. 27
On December 20, 1997, the trial court rendered judgment finding the levy on the subject
property and the sale thereof at public auction to be null and void. The  fallo of the decision reads:
WHEREFORE, PREMISES CONSIDERED, THIS COURT finds the
Levying and sale at public auction of the plaintiff's properties null and
void. ETHCDS
The court orders the defendants to, jointly and severally, pay plaintiff the
following amounts:

a. The sum of P50,000.00 as actual damages;

b. The sum of P50,000.00 representing as moral damages;

c. The sum of P50,000.00 as exemplary damages;

d. The sum of P60,000.00 as and for attorney's fees.

The court orders the cancellation of whatever entries appearing at the
Titles as a result of the enforcement of the writ of execution issued in Civil Case No.
90-3251.
SO ORDERED. 28
The trial court held that the property levied by Sheriff Alejo was the sole and exclusive
property of Josefina, applying Articles 144, 160, 175 and 485 of the New Civil Code. The trial court
also held that MIWCC failed to prove that Eduardo Francisco contributed to the acquisition of the
property.
MIWCC appealed the decision to the CA in which it alleged that:
I. THE TRIAL COURT ERRED IN RULING THAT THE REAL ESTATE
PROPERTIES SUBJECT OF THE AUCTION SALE ARE PARAPHERNAL
PROPERTIES OWNED BY PLAINTIFF-APPELLEE JOSEFINA
FRANCISCO;
II. THE TRIAL COURT ERRED IN ALLOWING THE RECEPTION OF REBUTTAL
EVIDENCE WITH REGARD TO THE ANNULMENT OF PLAINTIFF-
APPELLEE'S MARRIAGE WITH EDUARDO FRANCISCO;
III. THE TRIAL COURT ERRED IN RULING THAT THE LEVY ON EXECUTION OF
PLAINTIFF-APPELLEE'S PROPERTIES SUBJECT OF THE PRESENT
CONTROVERSY IS NULL AND VOID; TEAcCD
IV. THE TRIAL COURT ERRED IN ORDERING DEFENDANT-APPELLANT TO
PAY DAMAGES TO PLAINTIFF-APPELLEE FOR ALLEGED IMPROPER
LEVY ON EXECUTION. 29
The CA rendered judgment setting aside and reversing the decision of the RTC on
September 20, 2001. The fallo of the decision reads:
WHEREFORE, premises considered, the Decision, dated 20 December
1997, of the Regional Trial Court of Parañaque, Branch 260, is hereby REVERSED
and SET ASIDE and a new one entered dismissing Civil Case No. 94-0126.
SO ORDERED. 30
The CA ruled that the property was presumed to be the conjugal property of Eduardo and
Josefina, and that the latter failed to rebut such presumption. It also held that the affidavit of waiver
executed by Eduardo was contrary to Article 146 of the New Civil Code and, as such, had no force
and effect. Josefina filed a motion for reconsideration of the decision, which was, likewise, denied by
the CA.
Josefina, now the petitioner, filed the present petition for review, alleging that:
A. THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THERE
EXISTS A CONJUGAL PARTNERSHIP BETWEEN PETITIONER AND
EDUARDO FRANCISCO;
B. THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THE
SUBJECT PROPERTIES WERE NOT PARAPHERNAL PROPERTIES OF
PETITIONER;
C. THE HONORABLE COURT OF APPEALS ERRED IN DISTURBING THE
FINDINGS OF FACTS AND CONCLUSION BY THE TRIAL COURT IN ITS
DECISION OF DECEMBER 20, 1997, THE SAME BEING IN
ACCORDANCE WITH LAW AND JURISPRUDENCE. 31
The threshold issues for resolution are as follows: (a) whether or not the subject property is
the conjugal property of Josefina Castillo and Eduardo Francisco; and (b) whether or not the subject
properties may be held to answer for the personal obligations of Eduardo. acADIT
We shall deal with the issues simultaneously as they are closely related.
The petitioner asserts that inasmuch as her marriage to Eduardo is void ab initio, there is no
occasion that would give rise to a regime of conjugal partnership of gains. The petitioner adds that to
rule otherwise would render moot and irrelevant the provisions on the regime of special co-ownership
under Articles 147 and 148 of the Family Code of the Philippines, in relation to Article 144 of the New
Civil Code.
The petitioner avers that since Article 148 of the Family Code governs their property
relationship, the respondents must adduce evidence to show that Eduardo actually contributed to the
acquisition of the subject properties. The petitioner asserts that she purchased the property before her
marriage to Eduardo with her own money without any contribution from him; hence, the subject
property is her paraphernal property. Consequently, such property is not liable for the debts of
Eduardo to private respondent MIWCC.
The respondents, on the other hand, contend that the appellate court was correct in ruling
that the properties are conjugal in nature because there is nothing in the records to support the
petitioner's uncorroborated claim that the funds she used to purchase the subject properties were her
personal funds or came from her mother and sister. The respondents point out that if, as claimed by
the petitioner, the subject properties were, indeed, not conjugal in nature, then, there was no need for
her to obtain marital (Eduardo's) consent when she mortgaged the properties to two different parties
sometime in the first quarter of 1986, or after Eduardo executed the affidavit of waiver.
We note that the only questions raised in this case are questions of facts. Under Rule 45 of
the Rules of Court, only questions of law may be raised in and resolved by the Court. The Court may,
however, determine and resolve questions of facts in cases where the findings of facts of the trial
court and those of the CA are inconsistent, where highly meritorious circumstances are present, and
where it is necessary to give substantial justice to the parties. In the present action, the findings of
facts and the conclusions of the trial court and those of the CA are opposite. There is thus an
imperative need for the Court to delve into and resolve the factual issues, in tandem with the
questions of law raised by the parties. HEISca
The petition has no merit.
The petitioner failed to prove that she acquired the property with her personal funds before
her cohabitation with Eduardo and that she is the sole owner of the property. The evidence on record
shows that the Imus Bank executed a deed of absolute sale over the property to the petitioner on
August 31, 1984 and titles over the property were, thereafter, issued to the latter as vendee on
September 4, 1984 after her marriage to Eduardo on January 15, 1983.
We agree with the petitioner that Article 144 of the New Civil Code does not apply in the
present case. This Court in Tumlos v. Fernandez 32 held that Article 144 of the New Civil
Code applies only to a relationship between a man and a woman who are not incapacitated to marry
each other, or to one in which the marriage of the parties is void from the very beginning. It does not
apply to a cohabitation that is adulterous or amounts to concubinage, for it would be absurd to create
a co-ownership where there exists a prior conjugal partnership or absolute community between the
man and his lawful wife. In this case, the petitioner admitted that when she and Eduardo cohabited,
the latter was incapacitated to marry her.
Article 148 of the Family Code of the Philippines, on which the petitioner anchors her claims,
provides as follows:
Art. 148. In cases of cohabitation not falling under the preceding Article,
only the properties acquired by both of the parties through their actual joint
contribution of money, property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence of proof to the contrary,
their contributions and corresponding shares are presumed to be equal. The
same rule and presumption shall apply to joint deposits of money and evidences of
credit.
If one of the parties is validly married to another, his or her share in the co-
ownership shall accrue to the absolute community or conjugal partnership existing
in such valid marriage. If the party who acted in bad faith is not validly married to
another, his or her share shall be forfeited in the manner provided in the last
paragraph of the preceding Article.
The foregoing rules on forfeiture shall, likewise, apply even if both parties
are in bad faith. ADaSEH
Indeed, the Family Code has filled the hiatus in Article 144 of the New Civil Code by expressly
regulating in Article 148 the property relations of couples living in a state of adultery or
concubinage. Under Article 256 of the Family Code, the law can be applied retroactively if it does not
prejudice vested or acquired rights. The petitioner failed to prove that she had any vested right over
the property in question. 33
 Since the subject property was acquired during the subsistence of the marriage of Eduardo
and Carmelita, under normal circumstances, the same should be presumed to be conjugal
property. 34 Article 105 of the Family Code of the Philippines provides that the Code shall apply to
conjugal partnership established before the code took effect, without prejudice to vested rights
already acquired under the  New Civil Code or other laws. 35 Thus, even if Eduardo and Carmelita
were married before the effectivity of the Family Code of the Philippines, the property still cannot be
considered conjugal property because there can only be but one valid existing marriage at any given
time. 36 Article 148 of the Family Code also debilitates against the petitioner's claim since, according
to the said article, a co-ownership may ensue in case of cohabitation where, for instance, one party
has a pre-existing valid marriage provided that the parents prove their actual joint contribution of
money, property or industry and only to the extent of their proportionate interest thereon. 37
We agree with the findings of the appellate court that the petitioner failed to adduce
preponderance of evidence that she contributed money, property or industry in the acquisition of the
subject property and, hence, is not a co-owner of the property:
First of all, other than plaintiff-appellee's bare testimony, there is nothing in
the record to support her claim that the funds she used to purchase the subject
properties came from her mother and sister. She did not, for instance, present the
testimonies of her mother and sister who could have corroborated her claim.
Furthermore, in her Affidavit of Third-Party Claim (Exh. "C"), she stated that the
subject properties "are my own paraphernal properties, including the improvements
thereon, as such are the fruits of my own exclusive efforts . . .," clearly implying that
she used her own money and contradicting her later claim that the funds were
provided by her mother and sister. She also stated in her affidavit that she acquired
the subject properties before her marriage to Eduardo Francisco on 15 January
1983, a claim later belied by the presentation of the Deed of Absolute Sale clearly
indicating that she bought the properties from Imus Rural Bank on 31 August 1984,
or one year and seven months after her marriage (Exh. "D"). In the face of all these
contradictions, plaintiff-appellee's uncorroborated testimony that she acquired the
subject properties with funds provided by her mother and sister should not have
been given any weight by the lower court.
It is to be noted that plaintiff-appellee got married at the age of 23. At that
age, it is doubtful if she had enough funds of her own to purchase the subject
properties as she claimed in her Affidavit of Third Party Claim. Confronted with this
reality, she later claimed that the funds were provided by her mother and sister,
clearly an afterthought in a desperate effort to shield the subject properties from
appellant Master Iron as judgment creditor. 38
Aside from her bare claims, the petitioner offered nothing to prove her allegation that she
borrowed the amount of P320,000.00 from her mother and her sister, which she paid to the Imus
Bank on August 31, 1984 to purchase the subject property. The petitioner even failed to divulge the
name of her mother and the sources of her income, if any, and that of her sister. When she testified in
Civil Case No. 95-0169, the petitioner declared that she borrowed part of the purchase price of the
property from her brother, 39 but failed to divulge the latter's name, let alone reveal how much money
she borrowed and when. The petitioner even failed to adduce any evidence to prove that her mother
and sister had P320,000.00 in 1984, which, considering the times, was then quite a substantial
amount. Moreover, the petitioner's third-party-claim affidavit stating that the properties "are the fruits
of my own exclusive effort before I married Eduardo Francisco" belies her testimony in the trial court
and in Civil Case No. 95-0169. cECTaD
We note that, as gleaned from the receipt issued by the Imus Bank, the payment for the
subject property was drawn via Check No. 002334 and issued by the Commercial Bank of Manila in
the amount of P320,000.00. 40 The petitioner failed to testify against whose account the check was
drawn and issued, and whether the said account was owned by her and/or Eduardo Francisco or her
mother, sister or brother. She even failed to testify whether the check was a manager's check and, if
so, whose money was used to purchase the same.
We also agree with the findings of the CA that the affidavit of waiver executed by Eduardo on
February 15, 1985, stating that the property is owned by the petitioner, is barren of probative weight.
We are convinced that he executed the said affidavit in anticipation of claims by third parties against
him and hold the property liable for the said claims. First, the petitioner failed to prove that she had
any savings before her cohabitation with Eduardo. Second, despite Eduardo's affidavit of waiver, he
nevertheless affixed his marital conformity to the real estate mortgage executed by the petitioner over
the property in favor of Leonila on January 13, 1986. 41 Third, the petitioner testified that she
borrowed the funds for the purchase of the property from her mother and sister. 42 Fourth, the
petitioner testified that Eduardo executed the affidavit of waiver because she discovered that he had a
first marriage. 43 Lastly, Eduardo belied the petitioner's testimony when he testified that he executed
the affidavit of waiver because his mother-in-law and sister-in-law had given the property to the
petitioner. 44
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision
of the Court of Appeals reversing the decision of the Regional Trial Court is AFFIRMED. No
pronouncement as to costs.
SO ORDERED.
Puno, Austria-Martinez, Tinga and Chico-Nazario, JJ., concur.
 

|||  (Francisco v. Master Iron Works & Construction Corp., G.R. No. 151967, [February 16, 2005], 491
PHIL 669-684)
 SECOND DIVISION

[G.R. No. 169698. November 29, 2006.]

LUPO ATIENZA,  petitioner, vs. YOLANDA DE CASTRO, respondent.

DECISION

GARCIA, J  p:

Assailed and sought to be set aside in this petition for review on certiorari is the
Decision 1 dated April 29, 2005 of the Court of Appeals (CA) in CA-G.R. CV No. 69797, as
reiterated in its Resolution 2 of September 16, 2005, reversing an earlier decision of the Regional
Trial Court (RTC) of Makati City, Branch 61, in an action for  Judicial Partition of Real
Property thereat commenced by the herein petitioner Lupo Atienza against respondent Yolanda
de Castro.
The facts:
Sometime in 1983, petitioner Lupo Atienza, then the President and General Manager of
Enrico Shipping Corporation and Eurasian Maritime Corporation, hired the services of respondent
Yolanda U. De Castro as accountant for the two corporations.
In the course of time, the relationship between Lupo and Yolanda became intimate.
Despite Lupo being a married man, he and Yolanda eventually lived together in consortium
beginning the later part of 1983. Out of their union, two children were born. However, after the
birth of their second child, their relationship turned sour until they parted ways.
On May 28, 1992, Lupo filed in the RTC of Makati City a complaint against Yolanda for
the judicial partition between them of a parcel of land with improvements located in Bel-Air
Subdivision, Makati City and covered by Transfer Certificate of Title No. 147828 of the Registry of
Deeds of Makati City. In his complaint, docketed in said court as Civil Case No. 92-1423, Lupo
alleged that the subject property was acquired during his union with Yolanda as common-law
husband and wife, hence the property is co-owned by them.
Elaborating, Lupo averred in his complaint that the property in question was acquired by
Yolanda sometime in 1987 using his exclusive funds and that the title thereto was transferred by
the seller in Yolanda's name without his knowledge and consent. He did not interpose any
objection thereto because at the time, their affair was still thriving. It was only after their
separation and his receipt of information that Yolanda allowed her new live-in partner to live in the
disputed property, when he demanded his share thereat as a co-owner. DHIcET
In her answer, Yolanda denied Lupo's allegations. According to her, she acquired the
same property for Two Million Six Hundred Thousand Pesos (P2,600,000.00) using her exclusive
funds. She insisted having bought it thru her own savings and earnings as a businesswoman.
In a decision 3 dated December 11, 2000, the trial court rendered judgment for Lupo by
declaring the contested property as owned in common by him and Yolanda and ordering its
partition between the two in equal shares, thus:
WHEREFORE, judgment is hereby rendered declaring the property
covered by Transfer Certificate of Title No. 147828 of the Registry of Deeds of
Makati City to be owned in common by plaintiff LUPO ATIENZA and the defendant
YOLANDA U. DE CASTRO share-and-share alike and ordering the partition of said
 property between them. Upon the finality of this Decision, the parties are hereby
directed to submit for the confirmation of the Court a mutually agreed project of
partition of said property or, in case the physical partition of said property is not
feasible because of its nature, that either the same be assigned to one of the
parties who shall pay the value corresponding to the share of the other or that the
property to be sold and the proceeds thereof be divided equally between the parties
after deducting the expenses incident to said sale.
The parties shall bear their own attorney's fees and expenses of litigation.
Costs against the defendant.
SO ORDERED.
From the decision of the trial court, Yolanda went on appeal to the CA in CA-G.R. CV No.
69797, therein arguing that the evidence on record preponderate that she purchased the disputed
property in her own name with her own money. She maintained that the documents appertaining
to her acquisition thereof are the best evidence to prove who actually bought it, and refuted the
findings of the trial court, as well as Lupo's assertions casting doubt as to her financial capacity to
acquire the disputed property.
As stated at the threshold hereof, the appellate court, in its decision 4 of April 29, 2005,
reversed and set aside that of the trial court and adjudged the litigated property as exclusively
owned by Yolanda, to wit:
WHEREFORE, the foregoing considered, the assailed decision is
hereby REVERSED and SET ASIDE. The subject property is hereby declared to be
exclusively owned by defendant-appellant Yolanda U. De Castro. No costs.
SO ORDERED.
In decreeing the disputed property as exclusively owned by Yolanda, the CA ruled that
under the provisions of Article 148 of the Family Code vis-à-vis the evidence on record and
attending circumstances, Yolanda's claim of sole ownership is meritorious, as it has been
substantiated by competent evidence. To the CA, Lupo failed to overcome the burden of proving
his allegation that the subject property was purchased by Yolanda thru his exclusive funds.
With his motion for reconsideration having been denied by the CA in its Resolution of
September 16, 2005, 5 Lupo is now with this Court via the present recourse arguing that pursuant
to Article 144 6 of the Civil Code, he was in no way burdened to prove that he contributed to the
acquisition of the subject property because with or without the contribution by either partner, he is
deemed a co-owner thereof, adding that under Article 484 7 of Civil Code, as long as the property
was acquired by either or both of them during their extramarital union, such property would be
legally owned by them in common and governed by the rules on co-ownership, which apply in
default of contracts, or special provisions. aEAcHI
We DENY.
It is not disputed that the parties herein were not capacitated to marry each other because
petitioner Lupo Atienza was validly married to another woman at the time of his cohabitation with
the respondent. Their property regime, therefore, is governed by Article 148 8 of the Family Code,
which applies to bigamous marriages, adulterous relationships, relationships in a state of
concubinage, relationships where both man and woman are married to other persons, and
multiple alliances of the same married man. Under this regime, . . . only the properties acquired
by both of the parties through their actual joint contribution of money, property, or industry shall
be owned by them in common in proportion to their respective contributions . . . 9 Proof of actual
contribution is required. 10
As it is, the regime of limited co-ownership of property governing the union of parties who
are not legally capacitated to marry each other, but who nonetheless live together as husband
and wife, applies to properties acquired during said cohabitation in proportion to their respective
contributions. Co-ownership will only be up to the extent of the proven actual contribution of
money, property or industry. Absent proof of the extent thereof, their contributions and
corresponding shares shall be presumed to be equal. 11
 Here, although the adulterous cohabitation of the parties commenced in 1983, or way
before the effectivity of the Family Code on August 3, 1998, Article 148 thereof applies because
this provision was intended precisely to fill up the hiatus in Article 144 of the Civil Code.12 Before
Article 148 of the Family Code was enacted, there was no provision governing property relations
of couples living in a state of adultery or concubinage. Hence, even if the cohabitation or the
acquisition of the property occurred before the Family Code took effect, Article 148 governs. 13
The applicable law being settled, we now remind the petitioner that here, as in other civil
cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature
of the case, asserts an affirmative issue. Contentions must be proved by competent evidence and
reliance must be had on the strength of the party's own evidence and not upon the weakness of
the opponent's defense. The petitioner as plaintiff below is not automatically entitled to the relief
prayed for. The law gives the defendant some measure of protection as the plaintiff must still
prove the allegations in the complaint. Favorable relief can be granted only after the court is
convinced that the facts proven by the plaintiff warrant such relief. 14 Indeed, the party alleging a
fact has the burden of proving it and a mere allegation is not evidence. 15
It is the petitioner's posture that the respondent, having no financial capacity to acquire
the property in question, merely manipulated the dollar bank accounts of his two (2) corporations
to raise the amount needed therefor. Unfortunately for petitioner, his submissions are burdened
by the fact that his claim to the property contradicts duly written instruments, i.e., the Contract to
Sell dated March 24, 1987, the Deed of Assignment of Redemption dated March 27, 1987 and the
Deed of Transfer dated April 27, 1987, all entered into by and between the respondent and the
vendor of said property, to the exclusion of the petitioner. As aptly pointed out by the CA:
Contrary to the disquisition of the trial court, [Lupo] failed to overcome this
burden. Perusing the records of the case, it is evident that the trial court committed
errors of judgment in its findings of fact and appreciation of evidence with regard to
the source of the funds used for the purchase of the disputed property and
ultimately the rightful owner thereof. Factual findings of the trial court are indeed
entitled to respect and shall not be disturbed, unless some facts or circumstances
of weight and substance have been overlooked or misinterpreted that would
otherwise materially affect the disposition of the case.
In making proof of his case, it is paramount that the best and most
complete evidence be formally entered. Rather than presenting proof of his actual
contribution to the purchase money used as consideration for the disputed property,
[Lupo] diverted the burden imposed upon him to [Yolanda] by painting her as a
shrewd and scheming woman without the capacity to purchase any property.
Instead of proving his ownership, or the extent thereof, over the subject property,
[Lupo] relegated his complaint to a mere attack on the financial capacity of
[Yolanda]. He presented documents pertaining to the ins and outs of the dollar
accounts of ENRICO and EURASIAN, which unfortunately failed to prove his actual
contribution in the purchase of the said property. The fact that [Yolanda] had a
limited access to the funds of the said corporations and had repeatedly withdrawn
money from their bank accounts for their behalf do not prove that the money she
used in buying the disputed property, or any property for that matter, came from
said withdrawals.
As it is, the disquisition of the court a quo heavily rested on the apparent
financial capacity of the parties. On one side, there is [Lupo], a retired sea captain
and the President and General Manager of two corporations and on the other is
[Yolanda], a Certified Public Accountant. Surmising that [Lupo] is financially well
heeled than [Yolanda], the court a quo concluded, sans evidence, that [Yolanda]
had taken advantage of [Lupo]. Clearly, the court a quo is in error. (Words in
brackets supplied.)
As we see it, petitioner's claim of co-ownership in the disputed property is without basis
because not only did he fail to substantiate his alleged contribution in the purchase thereof but
likewise the very trail of documents pertaining to its purchase as evidentiary proof redounds to the
benefit of the respondent. In contrast, aside from his mere say so and voluminous records of bank
accounts, which sadly find no relevance in this case, the petitioner failed to overcome his burden
 of proof. Allegations must be proven by sufficient evidence. Simply stated, he who alleges a fact
has the burden of proving it; mere allegation is not evidence. HCETDS
True, the mere issuance of a certificate of title in the name of any person does not
foreclose the possibility that the real property covered thereby may be under co-ownership with
persons not named in the certificate or that the registrant may only be a trustee or that other
parties may have acquired interest subsequent to the issuance of the certificate of title. However,
as already stated, petitioner's evidence in support of his claim is either insufficient or immaterial to
warrant the trial court's finding that the disputed property falls under the purview of Article 148 of
the Family Code. In contrast to petitioner's dismal failure to prove his cause, herein respondent
was able to present preponderant evidence of her sole ownership. There can clearly be no co-
ownership when, as here, the respondent sufficiently established that she derived the funds used
to purchase the property from her earnings, not only as an accountant but also as a
businesswoman engaged in foreign currency trading, money lending and jewelry retail. She
presented her clientele and the promissory notes evincing substantial dealings with her clients.
She also presented her bank account statements and bank transactions, which reflect that she
had the financial capacity to pay the purchase price of the subject property.
All told, the Court finds and so holds that the CA committed no reversible error in
rendering the herein challenged decision and resolution.
WHEREFORE, the instant petition is DENIED and the assailed issuances of the CA are
AFFIRMED.
Costs against the petitioner.
SO ORDERED.
Puno, Sandoval-Gutierrez, Corona and Azcuna, JJ., concur.

|||  (Atienza v. De Castro, G.R. No. 169698, [November 29, 2006], 538 PHIL 440-451)
 SECOND DIVISION

[G.R. No. 162084. June 28, 2005.]

APRIL MARTINEZ, FRITZ DANIEL MARTINEZ and MARIA OLIVIA

MARTINEZ, petitioners, vs. RODOLFO G. MARTINEZ, respondent.

DECISION

CALLEJO, SR., J  p:

This is a petition for review on certiorari of the Decision 1 of the Court of Appeals (CA) in CA-
G.R. SP No. 59420 setting aside and reversing the decision of the Regional Trial Court (RTC) of
Manila, Branch 30, in Civil Case No. 00-96962 affirming, on appeal, the decision of the Metropolitan
Trial Court (MTC) of Manila in Civil Case No. 164761 (CV) for ejectment.
The Antecedents
The spouses Daniel P. Martinez, Sr. and Natividad de Guzman-Martinez were the owners of
a parcel of land identified as Lot 18-B-2 covered by Transfer Certificate of Title (TCT) No. 54334, as
well as the house constructed thereon. 2 On March 6, 1993, Daniel, Sr. executed a Last Will and
Testament 3 directing the subdivision of the property into three lots, namely, Lots 18-B-2-A, 18-B-2-B
and 18-B-2-C. He then bequeathed the three lots to each of his sons, namely, Rodolfo, Manolo and
Daniel, Jr.; Manolo was designated as the administrator of the estate.
In May 1995, Daniel, Sr. suffered a stroke which resulted in the paralysis of the right side of
his body. Natividad died on October 26, 1996. 4 Daniel, Sr. passed away on October 6, 1997. 5
On September 16, 1998, Rodolfo found a deed of sale purportedly signed by his father on
September 15, 1996, where the latter appears to have sold Lot 18-B-2 to Manolo and his wife
Lucila. 6 He also discovered that TCT No. 237936 was issued to the vendees based on the said deed
of sale. 7
Rodolfo filed a complaint 8 for annulment of deed of sale and cancellation of TCT No. 237936
against his brother Manolo and his sister-in-law Lucila before the RTC. He also filed a criminal
complaint for estafa through falsification of a public document in the Office of the City Prosecutor
against Manolo, which was elevated to the Department of Justice. 9
On motion of the defendants the RTC issued an Order 10 on March 29, 1999, dismissing the
complaint for annulment of deed of sale on the ground that the trial court had no jurisdiction over the
action since there was no allegation in the complaint that the last will of Daniel Martinez, Sr. had been
admitted to probate. Rodolfo appealed the order to the CA. 11
On October 4, 1999 Rodolfo filed a Petition with the RTC of Manila for the probate of the last
will of the deceased Daniel Martinez, Sr. 12
In the meantime, the spouses Manolo and Lucila Martinez wrote Rodolfo, demanding that he
vacate the property. Rodolfo ignored the letter and refused to do so. This prompted the said spouses
to file a complaint for unlawful detainer against Rodolfo in the MTC of Manila. They alleged that they
were the owners of the property covered by TCT No. 237936, and that pursuant to Presidential
Decree (P.D.) No. 1508, the matter was referred to the barangay for conciliation and settlement, but
none was reached. They appended the certification to file action executed by the barangay chairman
to the complaint. IcaHCS
In his Answer 13 to the complaint filed on October 11, 1999, Rodolfo alleged, inter alia, that
the complaint failed to state a condition precedent, namely, that earnest efforts for an amicable
settlement of the matter between the parties had been exerted, but that none was reached. He also
pointed out that the dispute had not been referred to the barangay before the complaint was filed.
On October 20, 1999, the spouses Martinez filed an Amended Complaint in which they
alleged that earnest efforts toward a settlement had been made, but that the same proved futile.
Rodolfo filed his opposition thereto, on the ground that there was no motion for the admission of the
amended complaint. The trial court failed to act on the matter.
The spouses Martinez alleged in their position paper that earnest efforts toward a
compromise had been made and/or exerted by them, but that the same proved futile.  14 No amicable
settlement was, likewise, reached by the parties during the preliminary conference because of
irreconcilable differences. The MTC was, thus, impelled to terminate the conference. 15
On February 21, 2000, the trial court rendered judgment in favor of the spouses Martinez.
The fallo of the decision reads:
WHEREFORE, premises considered, judgment is rendered in favor of
plaintiff. The defendant, including any person claiming right under him, is ordered:
1) To vacate the subject premises;
2) To pay plaintiff the sum of P10,000.00 a month starting July 17, 1999,
the date of last demand until he vacates the same;
3) To pay the sum of P10,000.00 as and for attorney's fees; and
4) Costs of suit.
SO ORDERED. 16
The trial court declared that the spouses Martinez had substantially complied with Article 151
of the Family Code of the Philippines 17 based on the allegations of the complaint and the appended
certification to file action issued by the barangay captain.
Rodolfo, appealed the decision to the RTC. On May 31, 2000, the RTC rendered judgment
affirming the appealed decision. He then filed a petition for review of the decision with the CA, alleging
that:
1. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC
WHICH FOUND WITHOUT MERIT THE DEFENSE OF PETITIONER THAT
THERE IS NO ALLEGATION IN THE COMPLAINT THAT PETITIONER HAS
UNLAWFULLY WITHHELD POSSESSION OF THE PROPERTY FROM
RESPONDENTS — A REQUIREMENT IN [AN] UNLAWFUL DETAINER SUIT.
2. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC
WHICH FOUND THAT PETITIONER'S POSSESSION OF THE PROPERTY IS BY
MERE TOLERANCE OF RESPONDENTS.
3. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC
WHICH FOUND THAT THE RESPONDENTS HAVE A CAUSE OF ACTION.
 4. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC
WHICH DID NOT RESOLVE THE SIXTH ISSUE, TO WIT, "Whether or not this
Court has jurisdiction over this case considering that the allegations in the
complaint makes out a case of accion publiciana."
5. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC
WHICH HAS NO JURISDICTION OVER THE CASE. DaTICc
6. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC
WHICH FOUND THAT THE MANDATORY REQUIREMENT OF CONCILIATION
HAS BEEN COMPLIED WITH.
7. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC
WHICH FOUND THAT THERE WAS SUBSTANTIAL COMPLIANCE WITH
THE KATARUNGANG PAMBARANGAY LAW.
8. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC
WHICH FOUND THAT THE PENDENCY OF CIVIL CASE NO. 98-91147 AND
SPECIAL PROCEEDINGS NO. 99-95281, INVOLVING THE PETITIONER AND
RESPONDENTS AND INVOLVING THE SAME PROPERTY DID NOT DIVEST
THE MTC OF AUTHORITY TO DECIDE THE CASE.
9. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC
WHICH GRANTED THE RELIEF PRAYED FOR BY THE RESPONDENTS.
10. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC. 18
On November 27, 2003, the CA rendered judgment granting the petition and reversing the
decision of the RTC. The appellate court ruled that the spouses Martinez had failed to comply with
Article 151 of the Family Code. The CA also held that the defect in their complaint before the MTC
was not cured by the filing of an amended complaint because the latter pleading was not admitted by
the trial court.
Upon the denial of their motion for reconsideration of the said decision, the spouses Martinez
filed the present petition for review on certiorari, in which they raise the following issues:
I.
WHETHER OR NOT THE CERTIFICATION TO FILE ACTION AND THE
ALLEGATIONS IN THE COMPLAINT THAT THE CASE PASSED [THROUGH]
THE BARANGAY BUT NO SETTLEMENT WAS REACHED, ARE SUFFICIENT
COMPLIANCE TO PROVE THAT, INDEED, EARNEST EFFORTS WERE, IN
FACT, MADE BUT THE SAME HAVE FAILED PRIOR TO THE FILING OF THE
COMPLAINT.
II.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY AND SERIOUSLY
ERRED IN FINDING THAT THERE WAS NON-COMPLIANCE WITH THE
REQUIREMENT PROVIDED FOR UNDER ARTICLE 151 OF THE FAMILY CODE,
CONSIDERING THAT ONE OF THE PARTIES TO A SUIT IN THIS CASE IS NOT
A MEMBER OF THE SAME FAMILY. 19
The petitioners alleged that they substantially complied with Article 151 of the Family Code,
since they alleged the following in their original complaint:
2. In compliance with P.D. 1508, otherwise known as the "Katarungang
Pambarangay," this case passed (through the Barangay and no settlement was
forged between plaintiffs and defendant as a result of which Certification to File
Action was issued by Barangay 97, Zone 8, District I, Tondo, Manila. . . ."
(Underscoring supplied) 20
Further, the petitioners averred, they alleged in their position paper that they had exerted
earnest efforts towards a compromise which proved futile. They also point out that the MTC resolved
to terminate the preliminary conference due to irreconcilable difference between the parties. Besides,
even before they filed their original complaint, animosity already existed between them and the
respondent due to the latter's filing of civil and criminal cases against them; hence, the objective of an
amicable settlement could not have been attained. Moreover, under Article 150 of the Family Code,
petitioner Lucila Martinez had no familial relations with the respondent, being a mere sister-in-law.
She was a stranger to the respondent; hence, there was no need for the petitioners 21 to comply with
Article 151 of the Family Code. EHTSCD
The petition is meritorious.
Article 151 of the Family Code provides:
Art. 151. No suit between members of the same family shall prosper unless
it should appear from the verified complaint or petition that earnest efforts toward a
compromise have been made, but that the same have failed. If it is shown that no
such efforts were, in fact, made, the case must be dismissed.
This rule shall not apply to cases which may not be the subject of
compromise under the Civil Code.
The phrase "members of the family" must be construed in relation to Article 150 of the  Family
Code, to wit:
 
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or half-blood.
Article 151 of the Family Code must be construed strictly, it being an exception to the general
rule. Hence, a sister-in-law or brother-in-law is not included in the enumeration. 22
As pointed out by the Code Commission, it is difficult to imagine a sadder and more tragic
spectacle than a litigation between members of the same family. It is necessary that every effort
should be made toward a compromise before a litigation is allowed to breed hate and passion in the
family and it is known that a lawsuit between close relatives generates deeper bitterness than
between strangers. 23
Thus, a party's failure to comply with Article 151 of the Family Code before filing a complaint
against a family member would render such complaint premature.
In this case, the decision of the CA that the petitioners were mandated to comply with Article
151 of the Family Code and that they failed to do so is erroneous.
First. Petitioner Lucila Martinez, the respondent's sister-in-law, was one of the plaintiffs in the
MTC. The petitioner is not a member of the same family as that of her deceased husband and the
respondent:
As regards plaintiffs failure to seek a compromise, as an alleged obstacle
to the present case, Art. 222 of our Civil Code provides:
"No suit shall be filed or maintained between members of the same
family unless it should appear that earnest efforts toward a compromise
have been made, but that the same have failed, subject to the limitations in
Article 2035."
It is noteworthy that the impediment arising from this provision applies to
suits "filed or maintained between members of the same family." This
phrase, "members of the same family, should, however, be construed in the light of
Art. 217 of the same Code, pursuant to which:
"Family relations shall include those:
 (1) Between husband and wife;
(2) Between parent and child;
(3) Among other ascendants and their descendants;
(4) Among brothers and sisters."
Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his nephews
and/or nieces. Inasmuch as none of them is included in the enumeration contained
in said Art. 217 — which should be construed strictly, it being an exception to the
general rule — and Silvestre Gayon must necessarily be excluded as party in the
case at bar, it follows that the same does not come within the purview of Art. 222,
and plaintiff's failure to seek a compromise before filing the complaint does not bar
the same. 24
Second. The petitioners were able to comply with the requirements of Article 151 of
the Family Code because they alleged in their complaint that they had initiated a proceeding against
the respondent for unlawful detainer in the Katarungang Pambarangay, in compliance with P.D. No.
1508; and that, after due proceedings, no amicable settlement was arrived at, resulting in
the barangay chairman's issuance of a certificate to file action. 25 The Court rules, that such
allegation in the complaint, as well as the certification to file action by the barangay chairman, is
sufficient compliance with Article 151 of the Family Code. It bears stressing that under Section 412(a)
of Republic Act No. 7160, no complaint involving any matter within the authority of the Lupon shall be
instituted or filed directly in court for adjudication unless there has been a confrontation between the
parties and no settlement was reached. 26
IN LIGHT OF ALL THE FOREGOING the petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. SP No. 59420 is REVERSED AND SET ASIDE. The Decision of the Metropolitan
Trial Court of Manila as affirmed on appeal by the Regional Trial Court of Manila, Branch 30, in Civil
Case No. 164761(CV) is REINSTATED. No costs. AHcaDC
SO ORDERED.
Puno, Austria-Martinez, Tinga and Chico-Nazario, JJ., concur.

|||  (Martinez v. Martinez, G.R. No. 162084, [June 28, 2005], 500 PHIL 332-341)

SECOND DIVISION

[G.R. No. L-28394. November 26, 1970.]

PEDRO GAYON, plaintiff-appellant, vs. SILVESTRE GAYON and GENOVEVA DE

GAYON, defendants-appellees.

German M. Lopez for plaintiff-appellant.

Pedro R. Davila for defendants-appellees.

DECISION

CONCEPCION, C.J p:
 Appeal, taken by plaintiff Pedro Gayon, from an order of the Court of First Instance of
Iloilo dismissing his complaint in Civil Case. No. 7334 thereof.
The records show that on July 31, 1967, Pedro Gayon filed said complaint against the
spouses Silvestre Gayon and Genoveva de Gayon, alleging substantially that, on October 1,
1952, said spouses executed a deed — copy of which was attached to the complaint, as Annex
"A" — whereby they sold to Pedro Gelera, for the sum of P500.00, a parcel of unregistered land
therein described, and located in the barrio of Cabubugan, municipality of Guimbal, province of
Iloilo, including the improvements thereon, subject to redemption within five (5) years or not later
than October 1, 1957; that said right of redemption had not been exercised by Silvestre Gayon,
Genoveva de Gayon, or any of their heirs or successors, despite the expiration of the period
therefor; that said Pedro Gelera and his wife Estelita Damaso had, by virtue of a deed of sale —
copy of which was attached to the complaint, as Annex "B" — dated March 21, 1961, sold the
aforementioned land to plaintiff Pedro Gayon for the sum of P614.00; that plaintiff had, since
1961, introduced thereon improvements worth P1,000; that he had, moreover, fully paid the taxes
on said property up to 1967; and that Articles 1606 and 1616 of our Civil Code require a judicial
decree for the consolidation of the title in and to a land acquired through a conditional sale, and,
accordingly, praying that an order be issued in plaintiff's favor for the consolidation of ownership in
and to the aforementioned property.
In her answer to the complaint, Mrs. Gayon alleged that her husband, Silvestre Gayon,
died on January 6, 1954, long before the institution of this case; that Annex "A" to the complaint is
fictitious, for the signature thereon purporting to be her signature is not hers; that neither she nor
her deceased husband had ever executed "any document of whatever nature in plaintiff's favor";
that the complaint is malicious and had embarrassed her and her children; that the heirs of
Silvestre Gayon had to "employ the services of counsel for a fee of P500.00 and incurred
expenses of at least P200.00"; and that being a brother of the deceased Silvestre Gayon, plaintiff
"did not exert efforts for the amicable settlement of the case" before filing his complaint. She
prayed, therefore, that the same be dismissed and that plaintiff be sentenced to pay damages.
Soon later, she filed a motion to dismiss, reproducing substantially the averments made in
her answer and stressing that, in view of the death of Silvestre Gayon, there is a "necessity of
amending the complaint to suit the genuine facts on record." Presently, or on September 16,
1967, the lower court issued the order appealed from, reading:
"Considering the motion to dismiss and it appearing from Exhibit 'A'
annexed to the complaint that Silvestre Gayon is the absolute owner of the
land in question, and considering the fact that Silvestre Gayon is now dead
and his wife Genoveva de Gayon has nothing to do with the land subject of
plaintiff's complaint, as prayed for, this case is hereby dismissed, without
pronouncement as to costs." 1
A reconsideration of this order having been denied, plaintiff interposed the present
appeal, which is well taken.
Said order is manifestly erroneous and must be set aside. To begin with, it is not true that
Mrs. Gayon "has nothing to do with the land subject of plaintiff's complaint." As the widow of
Silvestre Gayon, she is one of his compulsory heirs 2 and has, accordingly, an interest in the
property in question. Moreover, her own motion to dismiss indicated merely "a necessity of
amending the complaint," to the end that the other successors in interest of Silvestre Gayon,
instead of the latter, be made parties in this case. In her opposition to the aforesaid motion for
reconsideration of the plaintiff, Mrs. Gayon alleged, inter alia, that the "heirs cannot represent the
dead defendant, unless there is a declaration of heirship." Inasmuch, however, as succession
takes place, by operation of law, "from the moment of the death of the decedent"  3 and "(t)he
inheritance includes all the property, rights and obligations of a person which are not extinguished
by his death," 4 it follows that if his heirs were included as defendants in this case, they would be
sued, not as "representatives" of the decedent, but as owners of an aliquot interest in the property
in question, even if the precise extent of their interest may still be undetermined and they have
derived it from the decent. Hence, they may be sued without a previous declaration of heirship,
provided there is no pending special proceeding for the settlement of the estate of the decedent. 5
As regards plaintiff's failure to seek a compromise, as an alleged obstacle to the present
case, Art. 222 of our Civil Code provides:
 "No suit shall be filed or maintained between members of the same
family unless it should appear that earnest efforts toward a compromise have
been made, but that the same have failed, subject to the limitations in article
2035."
It is noteworthy that the impediment arising from this provision applies to suits "filed or
maintained between members of the same family." This phrase, "members of the same family,"
should, however, be construed in the light of Art. 217 of the same Code, pursuant to which:
"Family relations shall include those:
(1) Between husband and wife;
(2) Between parent and child;
(3) Among other ascendants and their descendants;
(4) Among brothers and sisters."
Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his nephews and/or
nieces. Inasmuch as none of them is included in the enumeration contained in said Art. 217 —
which should be construed strictly, it being an exception to the general rule — and Silvestre
Gayon must necessarily be excluded as party in the case at bar, it follows that the same does not
come within the purview of Art. 222, and plaintiff's failure to seek a compromise before filing the
complaint does not bar the same.
WHEREFORE, the order appealed from is hereby set aside and the case remanded to
the lower court for the inclusion, as defendant or defendants therein, of the administrator or
executor of the estate of Silvestre Gayon, if any, in lieu of the decedent, or, in the absence of
such administrator or executor, of the heirs of the deceased Silvestre Gayon, and for further
proceedings, not inconsistent with this decision, with the costs of this instance against defendant-
appellee, Genoveva de Gayon. It is so ordered.
Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor,
JJ., concur.
Dizon and Makasiar, JJ., are on leave.

|||  (Gayon v. Gayon, G.R. No. L-28394, [November 26, 1970], 146 PHIL 695-700)

THIRD DIVISION

[G.R. No. 97898. August 11, 1997.]

FLORANTE F. MANACOP, petitioner, vs. COURT OF APPEALS and E & L

MERCANTILE, INC.,  respondents.

Jose F  . Manacop for petitioner.

 Cesar D.  Turiano for private respondent.

SYNOPSIS

Private respondent E & L Mercantile, Inc. filed a complaint against petitioner and his
company, F.F. Manacop Construction Co., Inc. before the Regional Trial Court of Pasig to collect an
indebtedness of P3,359,218.45. Instead of filing an answer, petitioner and his company entered into a
compromise agreement. The trial court approved the agreement and enjoined the parties to comply in
good faith. Three months thereafter, private respondent filed a motion for execution, which the trial
court granted. The sheriff levied on several personal and real properties of the petitioner including the
subject residential house and lot. The chattels were sold at public auction in partial satisfaction of the
judgment debts. Petitioner filed a motion to quash on the ground that the judgment was not yet
executory. Private respondent opposed the motion and petitioner's addendum to the motion to quash
the writ of execution assailing the inclusion of the subject residential house and lot, which by its very
nature exempt from execution. Private respondent alleged that the property covered by TCT No.
174180 could not be considered as a family home on the grounds that petitioner was already living
abroad and the same was not judicially constituted as a family home to exempt it from execution. The
trial court denied petitioner's motion to quash the writ of execution. Petitioner and his company filed
with the Court of Appeals a petition for certiorari assailing the order of the trial court. Hence, the
present petition. The core issue raised by petitioner is whether a final and executory decision
promulgated and a writ of execution issued before the effectivity of the Family Code can be executed
on a family home constituted under the provisions of said code.
The Supreme Court ruled that under the Family Code which took effect on August 3, 1988,
the subject property became petitioner's family home under the simplified process embodied in Article
153 of said code, however, the case of Modequillo vs. Breva explicitly ruled that said provision of the
Family Code does not have a retroactive effect. In other words, prior to August 5, 1988, the procedure
mandated by the Civil Code had to be followed for a family home to be constituted as such. There
being no proof that the subject property was judicially or extrajudicially constituted as a family home, it
follows that petitioner cannot avail of the law's protective mantle.
Petition denied.

SYLLABUS

1. CIVIL LAW; FAMILY CODE; FAMILY HOME; CONTRIBUTION THEREOF HAS NO

RETROACTIVE EFFECT; CASE AT BAR. — Under the Family Code which took effect on August 3,
1988, the subject property became his family home under the simplified process embodied in Article
153 of said Code. However, Modequillo explicitly ruled that said provision of the Family Code does not
have retroactive effect. In other words, prior to August 3, 1988, the procedure mandated by the Civil
Code had to be followed for a family home to be constituted as such. There being absolutely no proof
that the subject property was judicially or extrajudicially constituted as a family home, it follows that
the law's protective mantle cannot be availed orders of the trial court issued prior to August 3, 1988,
the petitioner cannot be shielded by the benevolent provisions of the Family Code.
2. ID.; ID.; ID.; "ACTUAL" OCCUPANCY BY OWNER OR "BENEFICIARIES" AS
ENUMERATED BY LAW; EXCLUDES MAIDS AND OVERSEER. — The law explicitly provides that
occupancy of the family home either by the owner thereof or by "any of its beneficiaries" must be
actual. That which is "actual" is something real, or actually existing, as opposed to something merely
possible, or to something which is presumptive or constructible. Actual occupancy, however, need not
be by the owner of the house specifically. Rather, the property may be occupied by the beneficiaries"
enumerated by Article 154 of the Family Code. This enumeration may include the in-laws where the
family home is constituted jointly by the husband and wife. But the law definitely excludes maids and
overseers. They are not the beneficiaries contemplated by the Code.

DECISION
PANGANIBAN,  J p:

May a writ of execution of a final and executory judgment issued before the effectivity of the
Family Code be executed on a house and lot constituted as a family home under the provision of said
Code?
Statement of the Case
This is the principal question posed by petitioner in assailing the Decision of Respondent
Court of Appeals 1 in CA-G.R. SP No. 18906 promulgated on February 21, 1990 and its Resolution
promulgated on March 21, 1991, affirming the orders issued by the trial court commanding the
issuance of various writs of execution to enforce the latter's decision in Civil Case No. 53271. LibLex
The Facts
Petitioner Florante F. Manacop 2 and his wife Eulaceli purchased on March 10, 1972 a 446-
square-meter residential lot with a bungalow, in consideration of P75,000.00. 3 The property, located
in Commonwealth Village, Commonwealth Avenue, Quezon City, is covered by Transfer Certificate of
Title No. 174180.
On March 17, 1986, Private Respondent E & L Mercantile, Inc. filed a complaint against
petitioner and F.F. Manacop Construction Co., Inc. before the Regional Trial Court of Pasig, Metro
Manila to collect. an indebtedness of P3,359,218.45. Instead of filing an answer, petitioner and his
company entered into a compromise agreement with private respondent, the salient portion of which
provides:
"c. That defendants will undertake to pay the amount of P2,000,000.00 as
and when their means permit, but expeditiously as possible as their collectibles will
be collected." (sic)
On April 20, 1986, the trial court rendered judgment approving the aforementioned
compromise agreement. It enjoined the parties to comply with the agreement in good faith. On July
15, 1986, private respondent filed a motion for execution which the lower court granted on  September
23, 1986. However, execution of the judgment was delayed. Eventually, the sheriff levied on several
vehicles and other personal properties of petitioner. In partial satisfaction of the judgment debt, these
chattels were sold at public auction for which certificates of sale were correspondingly issued by the
sheriff.
On August 1, 1989, petitioner and his company filed a motion to quash the alias writs of
execution and to stop the sheriff from continuing to enforce them on the ground that the judgment was
not yet executory. They alleged that the compromise agreement had not yet matured as there was no
showing that they had the means to pay the indebtedness or that their receivables had in fact been
collected. They buttressed their motion with supplements and other pleadings.
On August 11, 1989, private respondent opposed the motion on the following grounds: (a) it
was too late to question the September 23, 1986 Order considering that more than two years had
elapsed; (b) the second alias writ of execution had been partially implemented; and (c) petitioner and
his company were in bad faith in refusing to pay their indebtedness notwithstanding that from
February 1984 to January 5, 1989, they had collected the total amount of P41,664,895.56. On
September 21, 1989, private respondent filed an opposition to petitioner and his company's
addendum to the motion to quash the writ of execution. It alleged that the property covered by TCT
No. 174180 could not be considered a family home on the grounds that petitioner was already living
abroad and that the property, having been acquired in 1972, should have been  judicially constituted
as a family home to exempt it from execution.
On September 26, 1989, the lower court denied the motion to quash the writ of execution and
the prayers in the subsequent pleadings filed by petitioner and his company. Finding that petitioner
and his company had not paid their indebtedness even though they collected receivables amounting
to P57,224,319.75, the lower court held that the case had become final and executory. It also ruled
that petitioner's residence was not exempt from execution as it was not duly constituted as a family
home, pursuant to the Civil Code.
Hence, petitioner and his company filed with the Court of Appeals a petition for certiorari
assailing the lower court's Orders of September 23, 1986 and September 26, 1989. On February 21,
1990, Respondent Court of Appeals rendered its now questioned Decision dismissing the petition for
certiorari. The appellate court quoted with approval the findings of the lower court that: (a) the
judgment based on the compromise agreement had become final and executory, stressing that
petitioner and his company had collected the total amount of P57,224,319.75 but still failed to pay
their indebtedness and (b) there was no showing that petitioner's residence had been duly constituted
as a family home to exempt it from execution. On the second finding, the Court of Appeals added that:
". . . We agree with the respondent judge that there is no showing in
evidence that petitioner Mañacop's residence under TCT 174180 has been duly
constituted as a family home in accordance with law. For one thing, it is the clear
implication of Article 153 that the family home continues to be so deemed
constituted so long as any of its beneficiaries enumerated in Article 154 actually
resides therein. Conversely, it ceases to continue as such family home if none of its
beneficiaries actually occupies it. There is no showing in evidence that any of its
beneficiaries is actually residing therein. On the other hand, the unrefuted assertion
of private respondent is that petitioner Florante Mañacop had already left the
country and is now, together with all the members of his family, living in West
Covina, Los Angeles, California, U.S.A."
Petitioner and his company filed a motion for reconsideration of this Decision on the ground
that the property covered by TCT No. 174180 was exempt from execution. On March 21, 1991, the
Court of Appeals rendered the challenged Resolution denying the motion. It anchored its ruling
on Modequillo v.  Breva, 4 which held that "all existing family residences at the time of the effectivity of
the Family Code are considered family homes and are prospectively entitled to the benefits accorded
to a family home under the Family Code."
Applying the foregoing pronouncements to this case, the Court of Appeals explained:
"The record of the present case shows that petitioners incurred the debt of
P3,468,000.00 from private respondent corporation on February 18, 1982 (Annex
'A', Petition). The judgment based upon the compromise agreement was rendered
by the court on April 18, 1986 (Annex 'C', ibid). Paraphrasing the aforecited
Modequillo case, both the debt and the judgment preceded the effectivity of the
Family Code on August 3, 1988. Verily, the case at bar does not fall under the
exemptions from execution provided under Article 155 of the Family Code."
Undeterred, petitioner filed the instant petition for review on certiorari arguing that the Court of
Appeals misapplied Modequillo. He contends that there was no need for him to constitute his house
and lot as a family home for it to be treated as such since he was and still is a resident of the same
property from the time "it was levied upon and up to this moment."
The Issue
As stated in the opening sentence of this Decision, the issue in this case boils down to
whether a final and executory decision promulgated and a writ of execution issued before the
effectivity of the Family Code can be executed on a family home constituted under the provisions of
the said Code.
The Court's Ruling
We answer the question in the affirmative. The Court of Appeals committed no reversible
error. On the contrary, its Decision and Resolution are supported by law and applicable jurisprudence.
No Novel Issue
At the outset, the Court notes that the issue submitted for resolution in the instant case is not
entirely new. In Manacop v. Court of Appeals, 5 petitioner himself as a party therein raised a similar
question of whether this very same property was exempt from preliminary attachment for the same
excuse that it was his family home. In said case, F.F. Cruz & Co., Inc. filed a complaint for a sum of
money. As an incident in the proceedings before it, the trial court issued a writ of attachment on the
said house and lot. In upholding the trial court (and the Court of Appeals) in that case, we ruled that
petitioner incurred the indebtedness in 1987 or prior to the effectivity of the Family Code on August 3,
1988. Hence, petitioner's family home was not exempt from attachment "by sheer force of exclusion
embodied in paragraph 2, Article 155 of the Family Code cited in Modequillo," where the Court
categorically ruled:
 "Under the Family Code, a family home is deemed constituted on a house
and lot from the time it is occupied as a family residence. There is no need to
constitute the same judicially or extrajudicially as required in the Civil Code. If the
family actually resides in the premises, it is, therefore, a family home as
contemplated by law. Thus, the creditors should take the necessary precautions to
protect their interest before extending credit to the spouses or head of the family
who owns the home.
Article 155 of the Family Code also provides as follows:
'Art. 155. The family home shall be exempt from execution, forced sale or
attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such
constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen
and others who have rendered service or furnished material for the
construction of the building.'
The exemption provided as aforestated is effective from
the time of the constitution of the family home as such, and lasts so
long as any of its beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was not
constituted as a family home whether judicially or extrajudicially under the Civil
Code. It became a family home by operation of law only under Article 153 of the
Family Code. It is deemed constituted as a family home upon the effectivity of the
Family Code on August 3, 1988 not August 4, one year after its publication in the
Manila Chronicle on August 4, 1987 (1988 being a leap year). prcd
The contention of petitioner that it should be considered a family home from
the time it was occupied by petitioner and his family in 1960 is not well-taken.
Under Article 162 of the Family Code, it is provided that 'the provisions of this
Chapter shall also govern existing family residences insofar as said provisions are
applicable.' It does not mean that Articles 152 and 153 of said Code have a
retroactive effect such that all existing family residences are deemed to have been
constituted as family homes at the time of their occupation prior to the effectivity of
the Family Code and are exempt from execution for the payment of obligations
incurred before the effectivity of the Family Code. Article 162 simply means that all
existing family residences at the time of the effectivity of the Family Code are
considered family homes and are prospectively entitled to the benefits accorded to
a family home under the Family Code. Article 162 does not state that the provisions
of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the money
judgment aforecited? No. The debt or liability which was the basis of the judgment
arose or was incurred at the time of the vehicular accident on March 16, 1976 and
the money judgment arising therefrom was rendered by the appellate court on
January 29, 1988. Both preceded the effectivity of the Family Code on August 3,
1988. This case does not fall under the exemptions from execution provided in the
Family Code." 6 (Emphasis supplied.)
Article 153 of the Family Code
Has No Retroactive Effect
Petitioner contends that the trial court erred in holding that his residence was not exempt from
execution in view of his failure to show that the property involved "has been duly constituted as a
family home in accordance with law." He asserts that the Family Code and Modequillo require simply
the occupancy of the property by the petitioner, without need for its judicial or extrajudicial constitution
as a family home. 7
Petitioner is only partly correct. True, under the Family Code which took effect on August 3,
1988, 8 the subject property became his family home under the simplified process embodied in  Article
153 of said Code. However, Modequillo explicitly ruled that said provision of the Family Code does not
have retroactive effect. In other words, prior to August 3, 1988, the procedure mandated by the Civil
Code 9 had to be followed for a family home to be constituted as such. There being absolutely no
proof that the subject property was judicially or extrajudicially constituted as a family home, it follows
that the law's protective mantle cannot be availed of by petitioner. Since the debt involved herein was
incurred and the assailed orders of the trial court issued prior to August 3, 1988, the petitioner cannot
be shielded by the benevolent provisions of the Family Code.
List of Beneficiary-Occupants Restricted
to Those Enumerated in the Code
In view of the foregoing discussion, there is no reason to address the other arguments of
petitioner other than to correct his misconception of the law. Petitioner contends that he should be
deemed residing in the family home because his stay in the United States is merely temporary. He
asserts that the person staying in the house is his overseer and that whenever his wife visited this
country, she stayed in the family home. This contention lacks merit.
The law explicitly provides that occupancy of the family home either by the owner thereof or
by "any of its beneficiaries" must be actual. That which is "actual" is something real, or actually
existing, as opposed to something merely possible, or to something which is presumptive or
constructive. 10 Actual occupancy, however, need not be by the owner of the house specifically.
Rather, the property may be occupied by the "beneficiaries" enumerated by Article 154 of the Family
Code.
"Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of the
family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether
the relationship be legitimate or illegitimate, who are living in the family home and
who depend upon the head of the family for lead support."
This enumeration may include the in-laws where the family home is constituted jointly by the
husband and wife. 11 But the law definitely excludes maids and overseers. They are not the
beneficiaries contemplated by the Code. Consequently, occupancy of a family home by an overseer
like Carmencita V. Abat in this case 12 is insufficient compliance with the law. cdasia
WHEREFORE, the petition is hereby DENIED for utter lack of merit. This Decision is
immediately executory. Double costs against petitioner.
SO ORDERED.
Narvasa, C  .J ., Davide, Jr., Melo, and Francisco, JJ ., concur.

Footnotes

1.Special Eleventh Division, composed of J  . Alfredo Marigomen, ponente, and Acting Chairman,
and JJ  . Asaali S. Isnani and Filemon H. Mendoza, concurring.
2.The Court of Appeals referred to petitioner as "Florante F. Mañacop."
3.Rollo, p. 40.
4.185 SCRA 766,772, May 31, 1990, per Gancayco. J.
5.215 SCRA 773, November 13, 1992, per Melo, J  .
6.Supra, pp. 770-772.
 7.Petition, pp. 5-7.
8.Modequillo vs. Breva, supra.
9.Articles 225, 229-231 and 233 of the Civil Code.
10.Moreno, Philippine Law Dictionary, 3rd ed., p. 26 citing Salaysay v.  Ruiz Castro, 98 Phil. 385
(1956).
11.Sempio-Diy, Handbook On The Family Code Of the Philippines, 1988 ed., p. 219.
12.In her affidavit of March 14, 1990, Carmencita V. Abat alleged that she was the "maid and
caretaker" of petitioner's house and that petitioner provided "for the necessary expenses of
maintenance thereof" (Rollo, p. 47).

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

FIRST DIVISION

[G.R. No. 108532. March 9, 1999.]

PABLITO TANEO, JR., JOSE TANEO, NENA T. CATUBIG and HUSBAND,

CILIA T. MORING and HUSBAND,  petitioners, vs. COURT OF APPEALS and
ABDON GILIG, respondents.

Carlito P. Somido for petitioners.

Augusto G. Maderazo for private respondent.

SYNOPSIS

The two parcels of land owned by Pablo Taneo located at Barrio Igpit, Opol, Misamis Oriental
were levied to satisfy the judgment in Civil Case No. 590 for recovery of property in favor of private
respondent Abdon Gilig. The subject properties were sold at public auction on February 12, 1966 to
the private respondent as the highest bidder. After Pablo Taneo failed to redeem the said properties,
a final deed of conveyance was executed on February 9, 1968, in favor of the private respondent. On
February 12, 1977, Pablo Taneo died. And on November 5, 1985, the herein petitioners as legal heirs
of Pablo Taneo, filed an action to declare the deed of conveyance void and to quiet title over the land
claiming that one parcel of land had been acquired through free patent under Commonwealth Act No.
141 and the other parcel of land is a family home, hence, both parcels of land are inalienable and not
subject to any encumbrance for the payment of debt. After trial, the RTC dismissed the complaint. On
appeal, the Court of Appeals affirmed in toto the decision of the trial court.
Hence, this petition. DEICHc
The Court ruled that the prohibition against alienation of lands acquired by homestead or free
patent commences on the date of the approval of the application for free patent and the five-year
period is counted from the issuance of the patent. The reckoning point is actually the date of approval
of the application. Pablo Taneo's application for free patent was approved only on October 19, 1973.
As of February 9, 1968, the date of issuance of the deed of conveyance, Pablo Taneo did not actually
have anymore rights over the land which he could have transferred to herein petitioners. The
petitioners are not the owners of the land and cannot claim to be such by invoking  Commonwealth Act
No. 141. The prohibition does not apply since it is clear from the records that the judgment debt and
the execution sale took place prior  to the approval of the application for free patent.
Further, the applicable law in the case at bar is still the Civil Code where registration of the
declaration of a family home is a prerequisite. The instrument constituting the family home was
registered only on January 24, 1966. The money judgment against Pablo Taneo was registered on
January 24, 1964. Thus, at that time when the "debt" was incurred, the family home was not yet
constituted or even registered. Clearly, petitioners' alleged family home, as constituted by their father,
is not exempt as it falls under the exception of Article 243 (2).
The petition was DENIED. TCaADS

SYLLABUS

1. CIVIL LAW; LAND TITLES AND DEEDS; COMMONWEALTH ACT NO. 141; INTENT OF
THE LAW. — We are not unmindful of the intent of the law. In fact, in Republic v. Court of Appeals,
the Court elucidated, to wit: It is well-known that the homestead laws were designed to distribute
disposable agricultural lots of the State to land-destitute citizens for their home and cultivation.
Pursuant to such benevolent intention the State prohibits the sale or encumbrance of the homestead
(Section 116) within five years after the grant of the patent. After that five-year period the law impliedly
permits alienation of the homestead; but in line with the primordial purpose to favor the homesteader
and his family the statute provides that such alienation or conveyance (Section 117) shall be subject
to the right of repurchase by the homesteader, his widow or heirs within five years. This Section 117 is
undoubtedly a complement of Section 116. It aims to preserve and keep in the family of the
homesteader that portion of public land which the State had gratuitously given to him. It would,
therefore, be in keeping with this fundamental idea to hold, as we hold, that the right to repurchase
exists not only when the original homesteader makes the conveyance, but also when it is made by his
widow or heirs. This construction is clearly deducible from the terms of the statute.
2. ID.; ID.; ID.; PROHIBITION AGAINST ALIENATION OF LANDS. — The prohibition against
alienation of lands acquired by homestead or free patent commences on the date of the approval of
the application for free patent and the five-year period is counted from the issuance of the patent. The
reckoning point is actually the date of approval of the application.
3. ID.; ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. — The sequence of the events
leads us to the inescapable conclusion that even before the application for homestead had been
approved, Pablo Taneo was no longer the owner of the land. The deed of conveyance issued on
February 9, 1968 finally transferred the property to Abdon Gilig. As of that date, Pablo Taneo did not
actually have anymore rights over the land which he could have transferred to herein petitioners. The
petitioners are not the owners of the land and cannot claim to be such by invoking  Commonwealth Act
No. 141. The prohibition does not apply since it is clear from the records that the judgment debt and
the execution sale took place prior  to the approval of the application for free patent.
4. ID.; PERSONS; FAMILY HOME; CONCEPT. — A family home is the dwelling place of a
person and his family. It is said, however, that the family home is a real right, which is gratuitous,
inalienable and free from attachment, constituted over the dwelling place and the land on which it is
situated, which confers upon a particular family the right to enjoy such properties, which must remain
with the person constituting it and his heirs. It cannot be seized by creditors except in certain special
cases.
5. ID.; ID.; ID.; WAYS TO CONSTITUTE. — Under the Civil Code (Articles 224 to 251), a
family home may be constituted judicially and extrajudicially, the former by the filing of the petition and
with the approval of the proper court, and the latter by the recording of a public instrument in the
proper registry of property declaring the establishment of the family home. The operative act then
which created the family home extrajudicially was the registration in the Registry of Property of the
declaration prescribed by Articles 240 and 241 of the Civil Code.Under the Family Code, however,
registration was no longer necessary. Article 153 of the Family Code provides that the family home is
deemed constituted on a house and lot from the time it is occupied in the family residence. HAICcD
 6. ID.; ID.; ID.; RETROACTIVE EFFECT OF THE FAMILY CODE IN RELATION THERETO.
— However, the retroactive effect of the Family Code, particularly on the provisions on the family
home has been clearly laid down by the court as explained in the case of Manacop v. Court of
Appeals, to wit: Finally, the petitioner insists that the attached property is a family home, having been
occupied by him and his family since 1972, and is therefore exempt from attachment. The contention
is not well-taken. While Article 153 of the Family Code provides that the family home is deemed
constituted on a house and lot from the time it is occupied as a family residence, it does not mean
that said article has a retroactive effect such that all existing family residences, petitioners included,
are deemed to have been constituted as family homes at the time of their occupation prior to the
effectivity of the  Family Code and henceforth, are exempt from execution for the payment of
obligations incurred before the effectivity of the  Family Code  on August 3, 1988 (Modequillo vs.
Breva,  185 SCRA 766). Neither does Article 162 of said Code state that the provisions of Chapter 2,
Title V thereof have retroactive effect. It simply means that all existing family residences at the time of
the effectivity of the Family Code are considered family homes and are prospectively entitled to the
benefits accorded to a family home under the Family Code (Modequillo vs. Breva, supra). Since
petitioner's debt was incurred as early as November 25, 1987, it preceded the effectivity of the  Family
Code. His property is therefore not exempt from attachment. CEASaT
7. ID.; ID.; ID.; NOT EXEMPTED FROM EXECUTION; CASE AT BAR. — The applicable law,
therefore, in the case at bar is still the Civil Code where registration of the declaration of a family
home is a prerequisite. The trial court found that on March 7, 1964, Pablo Taneo constituted the
house in question, erected on the land of Plutarco Vacalares, as the family home. The instrument
constituting the family home was registered only on January 24, 1966. The money judgment against
Pablo Taneo was rendered on January 24, 1964. Thus, at that time when the "debt" was incurred, the
family home was not yet constituted or even registered. Clearly, petitioners' alleged family home, as
constituted by their father is not exempt as it falls under the exception of Article 243(2).
8. ID.; ID.; ID.; THE HOUSE MUST BE CONSTRUCTED ON THE LAND NOT BELONGING
TO ANOTHER. — Moreover, the constitution of the family home by Pablo Taneo is even doubtful
considering that such constitution did not comply with the requirements of the law. The trial court
found that the house was erected not on the land which the Taneos owned but on the land of one
Plutarco Vacalares. By the very definition of the law that the "family home is the dwelling house where
a person and his family resides and the land on which it is situated," it is understood that the house
should be constructed on a land not  belonging to another. caIETS

DECISION

KAPUNAN,  J p:

The issues in this case are not novel: whether or not the conveyance made by way of the
sheriff's sale pursuant to the writ of execution issued by the trial court in Civil Case No. 590 is
prohibited under Sec. 118 of Commonwealth Act No. 141; and whether or not the family home is
exempt from execution.
As a result of a judgment in Civil Case No. 590 (for recovery of property) in favor of private
respondent, two (2) of petitioners' properties were levied to satisfy the judgment amount of about
P5,000.00: one was a parcel of land located in Barrio Igpit, Municipality of Opol, Misamis Oriental with
an area of about five (5) hectares, and the other was the family home also located at Igpit, Opol,
Misamis Oriental. The subject properties were sold at public auction on February 12, 1966 to the
private respondent as the highest bidder. Consequently, after petitioners' failure to redeem the same,
a final deed of conveyance was executed on February 9, 1968, definitely selling, transferring, and
conveying said properties to the private respondent.
To forestall such conveyance, petitioners filed an action on November 5, 1985 (docketed as
Civil Case No. 10407) to declare the deed of conveyance void and to quiet title over the land with a
prayer for a writ of preliminary injunction. In their complaint, it was alleged that petitioners are the
children and heirs of Pablo Taneo and Narcisa Valaceras who died on February 12, 1977 and
September 12, 1984, respectively. Upon their death, they left the subject property covered by OCT
No. P-12820 and Free Patent No. 548906. Considering that said property has been acquired through
free patent, such property is therefore inalienable and not subject to any encumbrance for the
payment of debt, pursuant to Commonwealth Act No. 141. Petitioners further alleged that they were in
continuous, open and peaceful possession of the land and that on February 9, 1968, Deputy
Provincial Sheriff Jose V. Yasay issued a Sheriff's Deed of Conveyance in favor of the private
respondent over the subject property including their family home which was extrajudicially constituted
in accordance with law. As a result of the alleged illegal deed of conveyance, private respondent was
able to obtain in his name Tax Declaration No. 851920 over the land, thus casting a cloud of doubt
over the title and ownership of petitioners over said property. cdtai
Private respondent refuted petitioners' contentions alleging that he lawfully acquired the
subject properties described as Lot No. 5545, Cad. 237 which was a private land, by virtue of a
Sheriff's Sale on February 12, 1966. Said sale has become final as no redemption was made within
one year from the registration of the Sheriff's Certificate of Sale. The validity of the sale in favor of
Abdon Gilig was even confirmed by the Court of Appeals in a related case (CA No. 499965-R) entitled
"Arriola v. Gilig," where one Rufino Arriola also claimed ownership over the subject property.
Private respondent averred that the subject land was originally owned by Lazaro Ba-a who
sold the land to Pablo Taneo on September 18, 1941, as evidenced by an Escritura de Venta. Despite
it being a private land, Pablo Taneo filed an application for free patent which was made final only in
1979.
As counterclaim, private respondent alleged that since petitioners are still in possession of the
subject property, he has been deprived of acts of ownership and possession and therefore, prayed for
payment of rentals from February, 1968 until possession has been restored to them.
In its decision of March 27, 1989, the RTC dismissed the complaint. The dispositive portion
thereof reads as follows:
Premises considered, Judgment is hereby rendered in favor of the
defendant and against the plaintiffs, ordering the dismissal of the complaint filed by
the plaintiffs;
a) Declaring OCT No. P-12820 and Free Patent No. 548906 both in the
name of Pablo Taneo as null and void and directing the Register of
Deeds to cancel the same, without prejudice however on the part
of the defendant to institute legal proceedings for the transfer of the
said title in the name of defendant Abdon Gilig;
b) Declaring Abdon Gilig as the absolute and legal owner of the land
covered by OCT No. P-12820, and covered by Tax Declaration No.
851920, and hence entitled to the possession of the same and as a
necessary concomitant, admonishing the plaintiffs to refrain from
disturbing the peaceful possession of the defendant over the land
in question; cdrep
c) Likewise declaring the defendant Abdon Gilig as the true and absolute
owner of the house in question formerly declared under Tax
Declaration No. 4142 in the name of Pablo Taneo and presently
declared under Tax Declaration No. 851916 in the name of Abdon
Gilig; ordering the plaintiffs or any of their representatives to vacate
and return the possession of the same to defendant Abdon Gilig;
d) Ordering the plaintiffs, except the nominal parties herein, to pay to
defendant Abdon Gilig the amount of P500.00 a month as
reasonable rental of the house in question to be reckoned from
February 9, 1968 until the possession of the same is returned to
the defendant.
e) To pay to defendant the amount of P5,000.00 as attorney's fees and to
pay the costs.
SO ORDERED. 1
 On appeal, the Court of Appeals affirmed in toto the decision of the RTC.
Hence, this petition.
The petition is devoid of merit.
In resolving the issues, the lower court made the following findings of fact which this Court
finds no cogent reason to disturb:
1. That the land in question originally belonged to Lazaro Ba-a who sold the same
to the late Pablito (sic) Taneo father of the herein plaintiff on September 18,
1941, by virtue of an Escritura de Venta identified as Reg. Not. 50; pages
53, Foleo Not. V, Series of 1941 of the Notarial Register of Ernie Pelaez
(Exh. 10);
2. That on July 19, 1951 Abdon Gilig with his wife filed a Civil Case No. 590 for
recovery of property against Pablo Taneo, et al., wherein Judgment was
rendered on June 24, 1964, in favor of Abdon Gilig and against Pablo
Taneo ordering the latter to pay damages in the amount of P5,000.00 (Exh.
2); Cdpr
3. That by virtue of said decision, a writ of Execution was issued on November 22,
1965 against the properties of Pablo Taneo and on December 1, 1965, a
Notice of Levy was executed by the Clerk of Court Pedro Perez wherein
the properties in question were among the properties levied by the Sheriff
(Exh. 3);
4. That the said properties were sold at public auction wherein the defendant Abdon
Gilig came out as the highest bidder and on February 12, 1965, a Sheriff's
Certificate of Sale was executed by Ex-Oficio Provincial Sheriff Pedro
Perez (Exh. 1) ceding the said properties in favor of Abdon Gilig and which
Certificate of Sale was registered with the Register of Deeds on March 2,
1966;
5. That for failure to redeem the said property within the reglementary period, a
Sheriff's final Deed of Conveyance was executed by same Provincial
Sheriff Jose V. Yasay on February 1968, (Exhs. 4, 4-A) conveying the
property definitely to Abdon Gilig.
6. That on April 20, 1966, after his third-party claim which he filed with the Sheriff in
Civil Case No. 590 was not given due course, Rufino Arriola filed Civil Case
No. 2667 entitled Arriola vs. Abdon Gilig, et al., for Recovery of Property
and/or annulment of Sale with Damages;
7. That Judgment was rendered by the Court thru Judge Bernardo Teves
dismissing the case with costs on February 21, 1969;
8. That said decision was appealed to the Court of Appeals which affirmed the
decision in toto on June 20, 1979; declaring the alleged Deed of Sale
executed by Abdon Gilig in favor of the plaintiff as null and void for being
simulated or fictitious and executed in fraud or (sic) creditors;
9. That on March 7, 1964, Pablo Taneo constituted the house in question erected
on the land of Plutarco Vacalares as a family home (Exh. F) but was
however, notarized only on May 2, 1965 and registered with the Register of
Deeds on June 24, 1966;
10. That in the meanwhile, unknown to the defendant, Pablo Taneo applied for a
free patent on the land in question which was approved on October 13,
1973, (Exh. B) and the Patent and Title issued on December 10, 1980 (Oct
No. P-12820-Exh. 12);
11. On November 3, 1985, the plaintiff filed the present action. 2 cdll
 Petitioners contend that under Section 118 of Commonwealth Act No. 141, the subject land
which they inherited from their father under free patent cannot be alienated or encumbered in violation
of the law. Citing in particular the cases of Oliveros v. Porciongcola 3 and Gonzaga v. Court of
Appeals, 4 the execution or auction sale of the litigated land falls within the prohibited period and is,
likewise, a disavowal of the rationale of the law which is to give the homesteader or patentee every
chance to preserve for himself and his family the land which the State had gratuitously given to him as
a reward for his labor in cleaning and cultivating it. 5
We are not unmindful of the intent of the law. In fact, in Republic v. Court of Appeals, 6 the
Court elucidated, to wit:
It is well-known that the homestead laws were designed to distribute
disposable agricultural lots of the State to land-destitute citizens for their home and
cultivation. Pursuant to such benevolent intention the State prohibits the sale or
encumbrance of the homestead (Section 116) within five years after the grant of the
patent. After that five-year period the law impliedly permits alienation of the
homestead; but in line with the primordial purpose to favor the homesteader and his
family the statute provides that such alienation or conveyance (Section 117) shall
be subject to the right of repurchase by the homesteader, his widow or heirs within
five years. This Section 117 is undoubtedly a complement of Section 116. It aims to
preserve and keep in the family of the homesteader that portion of public land
which the State had gratuitously given to him. It would, therefore, be in keeping with
this fundamental idea to hold, as we hold, that the right to repurchase exists not
only when the original homesteader makes the conveyance, but also when it is
made by his widow or heirs. This construction is clearly deducible from the terms of
the statute. LLpr
The intent of the law is undisputable but under the facts of the case, the prohibition invoked
by the petitioners under Section 118 does not apply to them.
Section 118 of Commonwealth Act No. 141 reads:
Except in favor of the Government or any of its branches, units or
institutions, or legally constituted banking corporations, lands acquired under free
patent or homestead provisions shall not be subject to encumbrance or alienation
from the date of the approval of the application and for a term of five years from and
after the date of issuance of the patent or grant, nor shall they become liable to the
satisfaction of any debt contracted prior to the expiration of said period, but the
improvements or crops on the land may be mortgaged or pledged to qualified
persons, associations, or corporations.
xxx xxx xxx.
The prohibition against alienation of lands acquired by homestead or free patent commences
on the date of the approval of the application for free patent and the five-year period is counted from
the issuance of the patent. The reckoning point is actually the date of approval of the application.
In Amper v. Presiding Judge, 7 the Court held that:
. . . The date when the prohibition against the alienation of lands acquired
by homesteads or free patents commences is "the date of the approval of the
application" and the prohibition embraces the entire five-year period "from and after
the date of issuance of the patent or grant." As stated in Beniga v. Bugas, (35
SCRA 111), the provision would make no sense if the prohibition starting "from the
date of the approval of the application" would have no termination date.
The specific period of five years within which the alienation or
encumbrance of a homestead is restricted starts to be computed from the date of
the issuance of the patent. But the prohibition of alienation commences from the
date the application is approved which comes earlier. (Underlining ours.) LLphil
Following this ruling, we agree with the respondent court that the conveyance made by way of
the sheriff's sale was not violative of the law. The judgment obligation of the petitioners against Abdon
Gilig arose on June 24, 1964. The properties were levied and sold at public auction with Abdon Gilig
as the highest bidder on February 12, 1966. On February 9, 1968, the final deed of conveyance
ceding the subject property to Abdon Gilig was issued after the petitioners failed to redeem the
property after the reglementary period. Pablo Taneo's application for free patent was approved only
on October 19, 1973.
The sequence of the events leads us to the inescapable conclusion that even before the
application for homestead had been approved, Pablo Taneo was no longer the owner of the land. The
deed of conveyance issued on February 9, 1968 finally transferred the property to Abdon Gilig. As of
that date, Pablo Taneo did not actually have anymore rights over the land which he could have
transferred to herein petitioners. The petitioners are not the owners of the land and cannot claim to be
such by invoking Commonwealth Act No. 141. The prohibition does not apply since it is clear from the
records that the judgment debt and the execution sale took place prior  to the approval of the
application for free patent. We quote with favor the respondent court's valid observation on the matter:
. . . the application of Pablo Taneo for a free patent was approved only on
19 October 1973 and Free Patent was issued on 10 December 1980. Under the
aforecited provision, the subject land could not be made liable for the satisfaction of
any debt contracted from the time of the application and during the 5-year period
following 10 December 1980, or until 10 December 1985. However, debts
contracted prior to the approval of the application for free patent, that is prior to 18
October 1973, are not covered by the prohibition. This is because they do not fall
within the scope of the prohibited period. In this case, the judgment debt in favor of
defendant-appellee was rendered on 24 June 1964, the writ of execution issued on
22 November 1965, notice of levy made on 1 December 1965, the execution sale
held on 12 February 1966, and the certificate of sale registered on 2 March 1966,
all before Pablo Taneo's application for free patent was approved on 19 October
1973. The execution, therefore, was not violative of the law. 8
Anent the second issue, petitioners aver that the house which their father constituted as
family home is exempt from execution. In a last ditch effort to save their property, petitioners invoke
the benefits accorded to the family home under the Family Code. prcd
A family home is the dwelling place of a person and his family. It is said, however, that the
family home is a real right, which is gratuitous, inalienable and free from attachment, constituted over
the dwelling place and the land on which it is situated, which confers upon a particular family the right
to enjoy such properties, which must remain with the person constituting it and his heirs. 9 It cannot
be seized by creditors except in certain special cases.
Under the Civil Code (Articles 224 to 251), a family home may be constituted judicially and
extrajudicially, the former by the filing of the petition and with the approval of the proper court, and the
latter by the recording of a public instrument in the proper registry of property declaring the
establishment of the family home. The operative act then which created the family home
extrajudicially was the registration in the Registry of Property of the declaration prescribed by Articles
240 and 241 of the Civil Code.10
Under the Family Code, however, registration was no longer necessary. Article 153 of
the Family Code provides that the family home is deemed constituted on a house and lot from the
time it is occupied in the family residence. It reads:
The family home is deemed constituted on a house and lot from the time it
is occupied as family residence. From the time of its constitution and so long as its
beneficiaries actually resides therein, the family home continues to be such and is
exempt from execution, forced sale or attachment, except as hereinafter provided
and to the extent of the value allowed by law.
It is under the foregoing provision which petitioners seek refuge to avert execution of the
family home arguing that as early as 1964, Pablo Taneo had already constituted the house in
question as their family home. However, the retroactive effect of the Family Code, particularly on the
provisions on the family home has been clearly laid down by the court as explained in the case
of Manacop v. Court of Appeals 11 to wit: cdtai
Finally, the petitioner insists that the attached property is a family home,
having been occupied by him and his family since 1972, and is therefore exempt
from attachment.
 The contention is not well-taken.
While Article 153 of the Family Code provides that the family home is
deemed constituted on a house and lot from the time it is occupied as a family
residence, it does not mean that said article has a retroactive effect such that all
existing family residences, petitioner's included, are deemed to have been
constituted as family homes at the time of their occupation prior to the effectivity of
the Family Code and henceforth, are exempt from execution for the payment of
obligations incurred before the effectivity of the  Family Code on August 3,
1988 (Modequillo vs. Breva, 185 SCRA 766). Neither does Article 162 of
said Code state that the provisions of Chapter 2, Title V thereof have retroactive
effect. It simply means that all existing family residences at the time of the effectivity
of the Family Code are considered family homes and are prospectively entitled to
the benefits accorded to a family home under the Family Code (Modequillo vs.
Breva, supra). Since petitioner's debt was incurred as early as November 25, 1987,
it preceded the effectivity of the Family Code. His property is therefore not exempt
from attachment (Annex "O," Plaintiff's Position Paper and Memorandum of
Authorities, p. 78)." (pp. 5-6, Decision; pp. 64-65, Rollo) (underscoring ours)
The applicable law, therefore, in the case at bar is still the Civil Code where registration of the
declaration of a family home is a prerequisite. Nonetheless, the law provides certain instances where
the family home is not exempted from execution, forced sale or attachment.
Article 243 reads:
The family home extrajudicially formed shall be exempt from execution,
forced sale or attachment, except:
(1) For nonpayment of taxes;
(2) For debts incurred before the declaration was recorded in the Registry
of Property;
(3) For debts secured by mortgages on the premises before or after such
record of the declaration;
(4) For debts due to laborers, mechanics, architects, builders, material-men
and others who have rendered service or furnished material for the construction of
the building. 12 cdrep
The trial court found that on March 7, 1964, Pablo Taneo constituted the house in question,
erected on the land of Plutarco Vacalares, as the family home. The instrument constituting the family
home was registered only on January 24, 1966. The money judgment against Pablo Taneo was
rendered on January 24, 1964. Thus, at that time when the "debt" was incurred, the family home was
not yet constituted or even registered. Clearly, petitioners' alleged family home, as constituted by their
father is not exempt as it falls under the exception of Article 243(2).
Moreover, the constitution of the family home by Pablo Taneo is even doubtful considering
that such constitution did not comply with the requirements of the law. The trial court found that the
house was erected not on the land which the Taneos owned but on the land of one Plutarco
Vacalares. By the very definition of the law that the "family home is the dwelling house where a
person and his family resides and the land on which it is situated," 13 it is understood that the house
should be constructed on a land not belonging to another. Apparently the constitution of a family
home by Pablo Taneo in the instant case was merely an afterthought in order to escape execution of
their property but to no avail. cdphil
WHEREFORE the petition is DENIED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Melo and Pardo, JJ., concur.

|||  (Taneo, Jr. v. Court of Appeals, G.R. No. 108532, [March 9, 1999], 363 PHIL 652-666)
 FIRST DIVISION

[G.R. No. 86355. May 31, 1990.]

JOSE MODEQUILLO,  petitioner, vs. HON. AUGUSTO V. BREVA, FRANCISCO

SALINAS, FLORIPER ABELLAN-SALINAS, JUANITO CULAN-CULAN and
DEPUTY SHERIFF FERNANDO PLATA, respondents.

Josefina Brandares-Almazan for petitioner.

ABC Law Offices for private respondents.

DECISION

GANCAYCO, J p:

The issue in this petition is whether or not a final judgment of the Court of Appeals in an
action for damages may be satisfied by way of execution of a family home constituted under the
Family Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered by the Court of Appeals in CA-G.R. CV
No. 09218 entitled "Francisco Salinas, et al. vs. Jose Modequillo, et al.," the dispositive part of
which read as follows: LexLib
"WHEREFORE, the decision under appeal should be, as it is hereby,
reversed and set aside. Judgment is hereby rendered finding the defendants-
appellees Jose Modequillo and Benito Malubay jointly and severally liable to
plaintiffs-appellants as hereinbelow set forth. Accordingly, defendants-
appellees are ordered to pay jointly and severally to:
1. Plaintiffs appellants, the Salinas spouses:
a. the amount of P30,000.00 by way of compensation for the
death of their son Audie Salinas;
b. P10,000.00 for the loss of earnings by reason of the death
of said Audie Salinas;
c. the sum of P5,000.00 as burial expenses of Audie Salinas;
and
d. the sum of P5,000.00 by way of moral damages.
2. Plaintiffs-appellants Culan-Culan:
a. the sum of P5,000.00 for hospitalization expenses of
Renato Culan-Culan; and
b. P5,000.00 for moral damages.
3. Both plaintiffs-appellants Salinas and Culan-Culan, P7,000.00 for
attorney's fees and litigation expenses.
All counterclaims and other claims are hereby dismissed." 1
The said judgment having become final and executory, a writ of execution was issued by
the Regional Trial Court of Davao City to satisfy the said judgment on the goods and chattels of
the defendants Jose Modequillo and Benito Malubay at Malalag, Davao del Sur.
 On July 7, 1988, the sheriff levied on a parcel of residential land located at Poblacion
Malalag, Davao del Sur containing an area of 600 square meters with a market value of
P34,550.00 and assessed value of P7,570.00 per Tax Declaration No. 87-0008-01359,
registered in the name of Jose Modequillo in the office of the Provincial Assessor of Davao del
Sur; and a parcel of agricultural land located at Dalagbong, Bulacan, Malalag, Davao del Sur
containing an area of 3 hectares with a market value of P24,130.00 and assessed value of
P9,650.00 per Tax Declaration No. 87-08-01848 registered in the name of Jose Modequillo in the
office of the Provincial Assessor of Davao del Sur. 2
A motion to quash and/or to set aside levy of execution was filed by defendant Jose
Modequillo alleging therein that the residential land located at Poblacion Malalag is where the
family home is built since 1969 prior to the commencement of this case and as such is exempt
from execution, forced sale or attachment under Articles 152 and 153 of the Family Code except
for liabilities mentioned in Article 155 thereof; and that the judgment debt sought to be enforced
against the family home of defendant is not one of those enumerated under Article 155 of the
Family Code. As to the agricultural land although it is declared in the name of defendant it is
alleged to be still part of the public land and the transfer in his favor by the original possessor and
applicant who was a member of a cultural minority was not approved by the proper government
agency. An opposition thereto was filed by the plaintiffs.
In an order dated August 26, 1988, the trial court denied the motion. A motion for
reconsideration thereof was filed by defendant and this was denied for lack of merit on
September 2, 1988. cdrep
Hence, the herein petition for review on certiorari wherein it is alleged that the trial court
erred and acted in excess of its jurisdiction in denying petitioner's motion to quash and/or to set
aside levy on the properties and in denying petitioner's motion for reconsideration of the order
dated August 26, 1988. Petitioner contends that only a question of law is involved in this petition.
He asserts that the residential house and lot was first occupied as his family residence in 1969
and was duly constituted as a family home under the Family Code which took effect on August 4,
1988. Thus, petitioner argues that the said residential house and lot is exempt from payment of
the obligation enumerated in Article 155 of the Family Code; and that the decision in this case
pertaining to damages arising from a vehicular accident took place on March 16, 1976 and which
became final in 1988 is not one of those instances enumerated under Article 155 of the Family
Code when the family home may be levied upon and sold on execution. It is further alleged that
the trial court erred in holding that the said house and lot became a family home only on August
4, 1988 when the Family Code became effective, and that the Family Code cannot be interpreted
in such a way that all family residences are deemed to have been constituted as family homes at
the time of their occupancy prior to the effectivity of the said Code and that they are exempt from
execution for the payment of obligations incurred before the effectivity of said Code; and that it
also erred when it declared that Article 162 of the Family Code does not state that the provisions
of Chapter 2, Title V have a retroactive effect.
Articles 152 and 153 of the Family Code provide as follows:
"Art. 152. The family home, constituted jointly by the husband and
the wife or by an unmarried head of a family, is the dwelling house where
they and their family reside, and the land on which it is situated."
"Art. 153. The family home is deemed constituted on a house and lot
from the time it is occupied as a family residence. From the time of its
constitution and so long as any of its beneficiaries actually resides therein,
the family home continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to the extent of the
value allowed by law."
Under the Family Code, a family home is deemed constituted on a house and lot from
the time it is occupied as a family residence, There is no need to constitute the same judicially or
extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is,
therefore, a family home as contemplated by law. Thus, the creditors should take the necessary
precautions to protect their interest before extending credit to the spouses or head of the family
who owns the home.
Article 155 of the Family Code also provides as follows:
 "Art. 155. The family home shall be exempt from execution, forced
sale or attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family
home;
(3) For debts secured by mortgages on the premises before
or after such constitution; and
(4) For debts due to laborers, mechanics, architects,
builders, materialmen and others who have rendered service or
furnished material for the construction of the building."
The exemption provided as aforestated is effective from the time of the constitution of the
family home as such, and lasts so long as any of its beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was not constituted as a
family home whether judicially or extrajudicially under the Civil Code. It became a family home by
operation of law only under Article 153 of the Family Code. It is deemed constituted as a family
home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its
publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year). LLpr
The contention of petitioner that it should be considered a family home from the time it
was occupied by petitioner and his family in 1969 is not well-taken. Under Article 162 of the
Family Code, it is provided that "the provisions of this Chapter shall also govern existing family
residences insofar as said provisions are applicable." It does not mean that Articles 152 and 153
of said Code have a retroactive effect such that all existing family residences are deemed to have
been constituted as family homes at the time of their occupation prior to the effectivity of the
Family Code and are exempt from execution for the payment of obligations incurred before the
effectivity of the Family Code. Article 162 simply means that all existing family residences at the
time of the effectivity of the Family Code, are considered family homes and are prospectively
entitled to the benefits accorded to a family home under the Family Code. Article 162 does not
state that the provisions of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the money judgment
aforecited? No. The debt or liability which was the basis of the judgment arose or was incurred at
the time of the vehicular accident on March 16, 1976 and the money judgment arising therefrom
was rendered by the appellate court on January 29, 1988. Both preceded the effectivity of the
Family Code on August 3, 1988. This case does not fall under the exemptions from execution
provided in the Family Code.
As to the agricultural land subject of the execution, the trial court correctly ruled that the
levy to be made by the sheriff shall be on whatever rights the petitioner may have on the land.
WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to
costs.
SO ORDERED.
Narvasa, Cruz and Medialdea, JJ., concur.
Griño-Aquino, J., is on leave. 

|||  (Modequillo v. Breva, G.R. No. 86355, [May 31, 1990], 264 PHIL 381-387)

FIRST DIVISION

[G.R. No. 170829. November 20, 2006.]

PERLA G. PATRICIO, petitioner, vs. MARCELINO G. DARIO III and THE

HONORABLE COURT OF APPEALS, Second Division, respondents.
 DECISION

YNARES-SANTIAGO,  J p:

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul

and set aside the Resolution of the Court of Appeals dated December 9, 2005 1 in CA-G.R. CV
No. 80680, which dismissed the complaint for partition filed by petitioner for being contrary to law
and evidence.
On July 5, 1987, Marcelino V. Dario died intestate. He was survived by his wife, petitioner
Perla G. Patricio and their two sons, Marcelino Marc Dario and private respondent Marcelino G.
Dario III. Among the properties he left was a parcel of land with a residential house and a pre-
school building built thereon situated at 91 Oxford corner Ermin Garcia Streets in Cubao, Quezon
City, as evidenced by Transfer Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon
City Registry of Deeds, covering an area of seven hundred fifty five (755) square meters, more or
less. 2
On August 10, 1987, petitioner, Marcelino Marc and private respondent, extrajudicially
settled the estate of Marcelino V. Dario. Accordingly, TCT No. RT-30731 (175992) was cancelled
and TCT No. R-213963 was issued in the names of petitioner, private respondent and Marcelino
Marc.
Thereafter, petitioner and Marcelino Marc formally advised private respondent of their
intention to partition the subject property and terminate the co-ownership. Private respondent
refused to partition the property hence petitioner and Marcelino Marc instituted an action for
partition before the Regional Trial Court of Quezon City which was docketed as Civil Case No. Q-
01-44038 and raffled to Branch 78.
On October 3, 2002, 3 the trial court ordered the partition of the subject property in the
following manner: Perla G. Patricio, 4/6; Marcelino Marc G. Dario, 1/6; and Marcelino G. Dario III,
1/6. The trial court also ordered the sale of the property by public auction wherein all parties
concerned may put up their bids. In case of failure, the subject property should be distributed
accordingly in the aforestated manner. 4
Private respondent filed a motion for reconsideration which was denied by the trial court
on August 11, 2003, 5 hence he appealed before the Court of Appeals, which denied the same on
October 19, 2005. However, upon a motion for reconsideration filed by private respondent on
December 9, 2005, the appellate court partially reconsidered the October 19, 2005 Decision. In
the now assailed Resolution, the Court of Appeals dismissed the complaint for partition filed by
petitioner and Marcelino Marc for lack of merit. It held that the family home should continue
despite the death of one or both spouses as long as there is a minor beneficiary thereof. The
heirs could not partition the property unless the court found compelling reasons to rule otherwise.
The appellate court also held that the minor son of private respondent, who is a grandson of
spouses Marcelino V. Dario and Perla G. Patricio, was a minor beneficiary of the family home. 6
Hence, the instant petition on the following issues:
I.
THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN REVERSING
ITS EARLIER DECISION OF OCTOBER 19, 2005 WHICH AFFIRMED IN TOTO
THE DECISION OF THE TRIAL COURT DATED 03 OCTOBER 2002 GRANTING
THE PARTITION AND SALE BY PUBLIC AUCTION OF THE SUBJECT
PROPERTY. aScIAC
II.
COROLLARILY, THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN
APPLYING ARTICLE 159 IN RELATION TO ARTICLE 154 OF THE FAMILY
CODE ON FAMILY HOME INSTEAD OF ARTICLE 494 IN RELATION TO
ARTICLES 495 AND 498 OF THE NEW CIVIL CODE ON CO-OWNERSHIP. 7
 The sole issue is whether partition of the family home is proper where one of the co-
owners refuse to accede to such partition on the ground that a minor beneficiary still resides in the
said home.
Private respondent claims that the subject property which is the family home duly
constituted by spouses Marcelino and Perla Dario cannot be partitioned while a minor beneficiary
is still living therein namely, his 12-year-old son, who is the grandson of the decedent. He argues
that as long as the minor is living in the family home, the same continues as such until the
beneficiary becomes of age. Private respondent insists that even after the expiration of ten years
from the date of death of Marcelino on July 5, 1987, i.e., even after July 1997, the subject
property continues to be considered as the family home considering that his minor son, Marcelino
Lorenzo R. Dario IV, who is a beneficiary of the said family home, still resides in the premises.
On the other hand, petitioner alleges that the subject property remained as a family home
of the surviving heirs of the late Marcelino V. Dario only up to July 5, 1997, which was the 10th
year from the date of death of the decedent. Petitioner argues that the brothers Marcelino Marc
and private respondent Marcelino III were already of age at the time of the death of their
father, 8 hence there is no more minor beneficiary to speak of.
The family home is a sacred symbol of family love and is the repository of cherished
memories that last during one's lifetime. 9 It is the dwelling house where husband and wife, or by
an unmarried head of a family, reside, including the land on which it is situated. 10 It is constituted
jointly by the husband and the wife or by an unmarried head of a family. 11 The family home is
deemed constituted from the time it is occupied as a family residence. From the time of its
constitution and so long as any of its beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced sale or attachment except as
hereinafter provided and to the extent of the value allowed by law. 12
The law explicitly provides that occupancy of the family home either by the owner thereof
or by "any of its beneficiaries" must be actual. That which is "actual" is something real, or actually
existing, as opposed to something merely possible, or to something which is presumptive or
constructive. Actual occupancy, however, need not be by the owner of the house specifically.
Rather, the property may be occupied by the "beneficiaries" enumerated in Article 154 of
the Family Code, which may include the in-laws where the family home is constituted jointly by
the husband and wife. But the law definitely excludes maids and overseers. They are not the
beneficiaries contemplated by the Code. 13
Article 154 of the Family Code enumerates who are the beneficiaries of a family home:
(1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their
parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or
illegitimate, who are living in the family home and who depend upon the head of the family for
legal support. ADHcTE
To be a beneficiary of the family home, three requisites must concur: (1) they must be
among the relationships enumerated in Art. 154 of the Family Code; (2) they live in the family
home; and (3) they are dependent for legal support upon the head of the family.
Moreover, Article 159 of the Family Code provides that the family home shall continue
despite the death of one or both spouses or of the unmarried head of the family for a period of 10
years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless
the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the
property or constituted the family home.
Article 159 of the Family Code applies in situations where death occurs to persons who
constituted the family home. Dr. Arturo M. Tolentino comments on the effect of death of one or
both spouses or the unmarried head of a family on the continuing existence of the family home:
Upon the death of the spouses or the unmarried family head who
constituted the family home, or of the spouse who consented to the constitution of
his or her separate property as family home, the property will remain as family
home for ten years or for as long as there is a minor beneficiary living in it. If there
is no more beneficiary left at the time of death, we believe the family home
will be dissolved or cease, because there is no more reason for its existence.
If there are beneficiaries who survive living in the family home, it will
 continue for ten years, unless at the expiration of the ten years, there is still a
minor beneficiary, in which case the family home continues until that
beneficiary becomes of age.
After these periods lapse, the property may be partitioned by the heirs. May
the heirs who are beneficiaries of the family home keep it intact by not partitioning
the property after the period provided by this article? We believe that although
the heirs will continue in ownership by not partitioning the property, it will
cease to be a family home. 14 (Emphasis supplied)
Prof. Ernesto L. Pineda further explains the import of Art. 159 in this manner:
The family home shall continue to exist despite the death of one or both
spouses or of the unmarried head of the family. Thereafter, the length of its
continued existence is dependent upon whether there is still a minor-
beneficiary residing therein. For as long as there is one beneficiary even if
the head of the family or both spouses are already dead, the family home will
continue to exist (Arts. 153, 159). If there is no minor-beneficiary, it will
subsist until 10 years and within this period, the heirs cannot partition the
same except when there are compelling reasons which will justify the
partition. This rule applies regardless of whoever owns the property or who
constituted the family home. 15 (Emphasis supplied)
The rule in Article 159 of the Family Code may thus be expressed in this wise: If there are
beneficiaries who survive and are living in the family home, it will continue for 10 years, unless at
the expiration of 10 years, there is still a minor beneficiary, in which case the family home
continues until that beneficiary becomes of age.
It may be deduced from the view of Dr. Tolentino that as a general rule, the family home
may be preserved for a minimum of 10 years following the death of the spouses or the unmarried
family head who constituted the family home, or of the spouse who consented to the constitution
of his or her separate property as family home. After 10 years and a  minor beneficiary still lives
therein, the family home shall be preserved only until that minor beneficiary reaches the age of
majority. The intention of the law is to safeguard and protect the interests of the  minor
beneficiary until he reaches legal age and would now be capable of supporting himself. However,
three requisites must concur before a minor beneficiary is entitled to the benefits of Art. 159: (1)
the relationship enumerated in Art. 154 of the  Family Code; (2) they live in the family home, and
(3) they are dependent for legal support upon the head of the family. CIcTAE
Thus, the issue for resolution now is whether Marcelino Lorenzo R. Dario IV, the minor
son of private respondent, can be considered as a beneficiary under Article 154 of the Family
Code.
As to the first requisite, the beneficiaries of the family home are: (1) The husband and
wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants,
descendants, brothers and sisters, whether the relationship be legitimate or illegitimate. The term
"descendants" contemplates all descendants of the person or persons who constituted the family
home without distinction; hence, it must necessarily include the grandchildren and great
grandchildren of the spouses who constitute a family home. Ubi lex non distinguit nec nos
distinguire debemos. Where the law does not distinguish, we should not distinguish. Thus, private
respondent's minor son, who is also the grandchild of deceased Marcelino V. Dario satisfies the
first requisite.
As to the second requisite, minor beneficiaries must be actually living in the family home
to avail of the benefits derived from Art. 159. Marcelino Lorenzo R. Dario IV, also known as Ino,
the son of private respondent and grandson of the decedent Marcelino V. Dario, has been living in
the family home since 1994, or within 10 years from the death of the decedent, hence, he satisfies
the second requisite.
However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot demand support
from his paternal grandmother if he has parents who are capable of supporting him. The liability
for legal support falls primarily on Marcelino Lorenzo R. Dario IV's parents, especially his father,
herein private respondent who is the head of his immediate family. The law first imposes the
obligation of legal support upon the shoulders of the parents, especially the father, and only in
their default is the obligation imposed on the grandparents.
Marcelino Lorenzo R. Dario IV is dependent on legal support not from his grandmother,
but from his father. Thus, despite residing in the family home and his being a descendant of
Marcelino V. Dario, Marcelino Lorenzo R. Dario IV cannot be considered as beneficiary
contemplated under Article 154 because he did not fulfill the third requisite of being dependent on
his grandmother for legal support. It is his father whom he is dependent on legal support, and who
must now establish his own family home separate and distinct from that of his parents, being of
legal age.
Legal support, also known as family support, is that which is provided by law, comprising
everything indispensable for sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family. 16 Legal support has the
following characteristics: (1) It is personal, based on family ties which bind the obligor and the
obligee; (2) It is intransmissible; (3) It cannot be renounced; (4) It cannot be compromised; (5) It is
free from attachment or execution; (6) It is reciprocal; (7) It is variable in amount. 17
Professor Pineda is of the view that grandchildren cannot demand support directly from
their grandparents if they have parents (ascendants of nearest degree) who are capable of
supporting them. This is so because we have to follow the order of support under Art. 199. 18 We
agree with this view.
The reasons behind Art. 199 as explained by Pineda and Tolentino: the closer the
relationship of the relatives, the stronger the tie that binds them. Thus, the obligation to support
under Art. 199 which outlines the order of liability for support is imposed first upon the shoulders
of the closer relatives and only in their default is the obligation moved to the next nearer relatives
and so on. EHTIDA
There is no showing that private respondent is without means to support his son; neither
is there any evidence to prove that petitioner, as the paternal grandmother, was willing to
voluntarily provide for her grandson's legal support. On the contrary, herein petitioner filed for the
partition of the property which shows an intention to dissolve the family home, since there is no
more reason for its existence after the 10-year period ended in 1997.
With this finding, there is no legal impediment to partition the subject property.
The law does not encourage co-ownerships among individuals as oftentimes it results in
inequitable situations such as in the instant case. Co-owners should be afforded every available
opportunity to divide their co-owned property to prevent these situations from arising.
As we ruled in Santos v. Santos, 19 no co-owner ought to be compelled to stay in a co-
ownership indefinitely, and may insist on partition on the common property at any time. An action
to demand partition is imprescriptible or cannot be barred by laches. Each co-owner may demand
at any time the partition of the common property. 20
Since the parties were unable to agree on a partition, the court a quo should have
ordered a partition by commissioners pursuant to Section 3, Rule 69 of the Rules of Court. Not
more than three competent and disinterested persons should be appointed as commissioners to
make the partition, commanding them to set off to the plaintiff and to each party in interest such
part and proportion of the property as the court shall direct.
When it is made to appear to the commissioners that the real estate, or a portion thereof,
cannot be divided without great prejudice to the interest of the parties, the court may order it
assigned to one of the parties willing to take the same, provided he pays to the other parties such
sum or sums of money as the commissioners deem equitable, unless one of the parties interested
ask that the property be sold instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale, and the commissioners shall sell the same
accordingly. 21
The partition of the subject property should be made in accordance with the rule
embodied in Art. 996 of the Civil Code.22 Under the law of intestate succession, if the widow and
legitimate children survive, the widow has the same share as that of each of the children.
However, since only one-half of the conjugal property which is owned by the decedent is to be
allocated to the legal and compulsory heirs (the other half to be given exclusively to the surviving
 spouse as her conjugal share of the property), the widow will have the same share as each of her
two surviving children. Hence, the respective shares of the subject property, based on the law on
intestate succession are: (1) Perla Generosa Dario, 4/6; (2) Marcelino Marc G. Dario II, 1/6 and
(3) Marcelino G. Dario III, 1/6.
In Vda. de Daffon v. Court of Appeals, 23 we held that an action for partition is at once an
action for declaration of co-ownership and for segregation and conveyance of a determinate
portion of the properties involved. If the court after trial should find the existence of co-ownership
among the parties, the court may and should order the partition of the properties in the same
action. 24
WHEREFORE, the petition is GRANTED. The Resolution of the Court of Appeals in CA-
G.R. CV No. 80680 dated December 9, 2005, is REVERSED and SET ASIDE. The case is
REMANDED to the Regional Trial Court of Quezon City, Branch 78, who is directed to conduct a
PARTITION BY COMMISSIONERS and effect the actual physical partition of the subject property,
as well as the improvements that lie therein, in the following manner: Perla G. Dario, 4/6;
Marcelino Marc G. Dario, 1/6 and Marcelino G. Dario III, 1/6. The trial court is DIRECTED to
appoint not more than three (3) competent and disinterested persons, who should determine the
technical metes and bounds of the property and the proper share appertaining to each heir,
including the improvements, in accordance with Rule 69 of the Rules of Court. When it is made to
the commissioners that the real estate, or a portion thereof, cannot be divided without great
prejudice to the interest of the parties, the court a quo may order it assigned to one of the parties
willing to take the same, provided he pays to the other parties such sum or sums of money as the
commissioners deem equitable, unless one of the parties interested ask that the property be sold
instead of being so assigned, in which case the court shall order the commissioners to sell the
real estate at public sale, and the commissioners shall sell the same accordingly, and thereafter
distribute the proceeds of the sale appertaining to the just share of each heir. No pronouncement
as to costs. SDHETI
SO ORDERED.
Panganiban, C.J., Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur.

|||  (Patricio v. Dario III, G.R. No. 170829, [November 20, 2006], 537 PHIL 595-610)

FIRST DIVISION

[G.R. No. 186322. July 8, 2015.]

ENRICO S. EULOGIO and NATIVIDAD V. EULOGIO,  petitioners, vs. PATERNO

C. BELL, SR., ROGELIA CALINGASAN-BELL, PATERNO WILLIAM BELL, JR.,
FLORENCE FELICIA VICTORIA BELL, PATERNO FERDINAND BELL III, and
PATERNO BENERAÑO BELL IV,  respondents.

DECISION

SERENO, C.J p:

This is a Petition for Review on Certiorari assailing the Court of Appeals (CA)

Decision 1 in CA-G.R. SP No. 87531 which granted the Petition for Certiorari filed by respondents
and enjoined the execution sale of their family home for the satisfaction of the money judgment
awarded to petitioners in Civil Case No. 4581, and the Resolution 2 which denied petitioners'
Motion for Reconsideration. HTcADC
 ANTECEDENT FACTS
Respondents Paterno William Bell, Jr., Florence Felicia Victoria Bell, Paterno Ferdinand
Bell III, and Paterno Beneraño IV (the Bell siblings) are the unmarried children of respondent
Spouses Paterno C. Bell and Rogelia Calingasan-Bell (Spouses Bell). In 1995, the Bell siblings
lodged a Complaint for annulment of documents, reconveyance, quieting of title and damages
against petitioners Enrico S. Eulogio and Natividad Eulogio (the Eulogios). It was docketed as
Civil Case No. 4581 at the Regional Trial Court (RTC) of Batangas City, Branch 84. The
Complaint sought the annulment of the contract of sale executed by Spouses Bell over their 329-
square-meter residential house and lot, as well as the cancellation of the title obtained by
petitioners by virtue of the Deed.
The RTC granted respondents' prayers, but declared Spouses Bell liable to petitioners in
the amount of P1 million plus 12% interest per annum. The dispositive portion of the Decision
dated 15 July 1998 reads as follows:
WHEREFORE, prescinding from all the foregoing, the Court hereby
declares:
1. That the sale of the subject house and lot under Deed of Sale marked
as Exhibit "F" is only an equitable mortgage in favor of the defendants Enrico
Eulogio and Natividad Eulogio. However, the mortgage cannot bind the property
in question for being violative of Chapter 2, Title 4 of the Family Code, its
encumbrance not having been consented to in writing by a majority of the
beneficiaries who are the plaintiffs herein;
2. The said equitable mortgage is deemed to be an unsecured
mortgage [sic] for which the Spouses Paterno C. Bell, Sr. and Rogelia Calingasan
Bell as mortgagors are liable to the defendants-spouses Enrico Eulogio and
Natividad Eulogio in the amount of P1,000,000 plus interest of 12% per annum.
However, under the Fourth Party Complaint Sps. Paterno C. Bell, Sr. and Rogelia
Calingasan Bell have the right of reimbursement from fourth party defendants
Nicolas Moraña and Julieta Moraña for whom their loan of P1,000,000 was
secured by Sps. Paterno C. Bell, Sr. and Rogelia Calingasan Bell. Accordingly,
the fourth party defendants Nicolas Moraña and Julieta Moraña are hereby
ordered to reimburse Paterno C. Bell, Sr. and Rogelia Calingasan Bell the loan of
P1,000,000 plus interest of 12% per annum to be paid by the latter to defendants
Enrico and Natividad Eulogio;
3. The house and lot in question is free from any and all encumbrances
by virtue of said equitable mortgage or the purported sale; and
4. The Deed of Sale (Exhibit "F") is null and void for being contrary to law
and public policy.
Accordingly, (1) the Register of Deeds of Batangas City is hereby
ordered to cancel Transfer Certificate of Title No. T-131472 in the name of
defendants Enrico S. Eulogio and Natividad Eulogio and to
reconstitute (sic) Transfer Certificate of Title No. RT-680-(5997) as "family home"
of the plaintiffs Florence Felicia Victoria C. Bell, Paterno William C. Bell Jr.,
Paterno Ferdinand C. Bell III, Paterno Beneraño C. Bell IV and fourth party
plaintiffs Paterno C. Bell Sr. and Rogelia Calingasan Bell; or in the alternative to
issue a new Transfer Certificate of Title under the same tenor;
2. The City Assessor of Batangas City is hereby directed to issue a tax
declaration covering the said subject property as family home for the said
plaintiffs and fourth party plaintiffs Paterno C. Bell and Rogelia Calingasan Bell;
and aScITE
3. Defendants Enrico Eulogio and Natividad Eulogio are ordered to pay
the plaintiffs attorney's fees and litigation expenses of P35,000.00, as the
plaintiffs have been compelled to litigate to protect their property rights, and
costs. 3
 Both petitioners and respondents appealed to the CA, but the trial court's Decision was
affirmed en toto. Spouses Bell later brought the case to this Court to question their liability to
petitioners in the amount of P1 million plus interest. The Court, however, dismissed their Petition
for failure to show any reversible error committed by the CA. 4 Thereafter, entry of judgment was
made. 5
On 9 June 2004 the RTC issued a Writ of Execution, as a result of which respondents'
property covered by the newly reconstituted Transfer Certificate of Title (TCT) No. 54208
[formerly RT-680 (5997)] was levied on execution. Upon motion by respondents, the trial court, on
31 August 2004, ordered the lifting of the writ of execution on the ground that the property was a
family home. 6
Petitioners filed a Motion for Reconsideration of the lifting of the writ of execution.
Invoking Article 160 of the Family Code, they posited that the current market value of the property
exceeded the statutory limit of P300,000 considering that it was located in a commercial area, and
that Spouses Bell had even sold it to them for P1 million. 7
The RTC, on 13 October 2004, set the case for hearing to determine the present value of
the family home of respondents. It also appointed a Board of Appraisers to conduct a study on the
prevailing market value of their house and lot. 8
Respondents sought reconsideration of the above directives and asked the RTC to cite
petitioners for contempt because of forum-shopping. 9 They argued that petitioners' bid to
determine the present value of the subject property was just a ploy to re-litigate an issue that had
long been settled with finality.
The RTC, however, denied the Motion for Reconsideration 10 of respondents and
directed the commissioners to canvass prospective buyers of their house and lot. 11
On 23 November 2004, respondents filed a Petition for Certiorari and Injunction before
the CA, 12 where it was docketed as CA-G.R. SP No. 87531.
Subsequently, the RTC issued on 25 November 2004 an Order 13 dispensing with the
valuation report of the commissioners and directing the issuance of a writ of execution.
Consequently, respondents filed before the CA a Supplemental Petition with an urgent prayer for
a temporary restraining order. 14
The CA eventually enjoined 15 the execution sale set on 22 December 2004 16 by the
RTC.
On 31 July 2008, the CA rendered its Decision granting respondents' Petition
for Certiorari, but it rejected their theory that res judicata had already set in.
The appellate court ruled that the RTC Decision, which had become final and executory,
only declared respondents' house and lot as a family home. Since the issue of whether it may be
sold in execution was incidental to the execution of the aforesaid Decision, there was as yet
no res judicata. DETACa
Still, the CA found that the trial court committed grave abuse of discretion in ordering the
execution sale of the subject family home after finding that its present value exceeded the
statutory limit. The basis for the valuation of a family home under Article 160, according to the
appellate court, is its actual value at the time of its constitution and not the market/present value;
therefore, the trial court's order was contrary to law. 17
On 09 February 2009, 18 the CA denied petitioners' Motion for Reconsideration. Hence,
this Petition.
ISSUES
The issues to be resolved are: (1) whether petitioners are guilty of forum-shopping; (2)
whether a hearing to determine the value of respondents' family home for purposes of execution
under Article 160 of the Family Code is barred under the principle of res judicata; and (3) whether
respondents' family home may be sold on execution under Article 160 of the Family Code.
THE COURT'S RULING
The Court denies the Petition for lack of merit.
Petitioners are not guilty of forum-
shopping.
Forum shopping can be committed in three ways: (1) by filing multiple cases based on the
same cause of action and with the same prayer, the previous case not having been resolved yet
(where the ground for dismissal is litis pendentia); (2) by filing multiple cases based on the same
cause of action and with the same prayer, the previous case having been finally resolved (where
the ground for dismissal is res judicata); and (3) by filing multiple cases based on the same cause
of action but with different prayers, or by splitting of causes of action (where the ground for
dismissal is also either litis pendentia or res judicata). 19
The essence of forum shopping is the filing of multiple suits involving the same parties for
the same cause of action, either simultaneously or successively, for the purpose of obtaining a
favorable judgment through means other than by appeal or certiorari. 20 Forum shopping
does not apply to cases that arise from an initiatory or original action that has been elevated by
way of appeal or certiorari to higher or appellate courts or authorities. This is so because the
issues in the appellate courts necessarily differ from those in the lower court, and the appealed
cases are but a continuation of the original case and treated as only one case. 21
Respondents contend that the Decision in Civil Case No. 4581, which declared that
property in dispute was a family home, had long attained finality. Accordingly, respondents
maintain that petitioners' bid to re-litigate the present value of the property in the course of the
execution proceedings is barred by res judicata, and that petitioners should be cited for contempt
of court because of forum-shopping. 22
Recall that although the trial court had nullified the Deed of Sale over respondents' family
home in Civil Case No. 4581 for lack of a written consent from its beneficiaries as required under
Article 158 of the Family Code, 23 the court still recognized the validity of the transaction as an
unsecured loan. Hence, it declared Spouses Bell liable to petitioners in the amount of P1 million
plus 12% interest per annum.
Petitioners' bid to satisfy the above judgment cannot be considered an act of forum
shopping. Simply, the execution of a decision is just the fruit and end of a suit and is very aptly
called the life of the law. 24 It is not separate from the main case. Similarly, the filing of the instant
Petition as a continuation of the execution proceedings does not constitute forum shopping.
Seeking a reversal of an adverse judgment or order by appeal or certiorari does not constitute
forum shopping. Such remedies are sanctioned and provided for by the rules. 25
Indeed, as will be presently discussed, the causes of action in the main proceedings in
Civil Case No. 4581 and the consequent execution proceedings are identical. Suffice it to say,
however, that the danger of a multiplicity of suits upon one and the same cause of action, which
the judicial policy against forum shopping seeks to prevent, does not exist in this case.
Re-litigating the issue of the value of
respondents' family home is barred
by res judicata.
Res judicata (meaning, a "matter adjudged") is a fundamental principle of law that
precludes parties from re-litigating issues actually litigated and determined by a prior and final
judgment. 26 Under the 1997 Rules of Court, there are two aspects of  res judicata, namely: bar
by prior judgment 27 and conclusiveness of judgment. 28
There is "bar by prior judgment" when, as between the first case in which the judgment
has been rendered and the second case that is sought to be barred, there is an identity of parties,
subject matter, and causes of action. In this instance, the judgment in the first case constitutes an
absolute bar to the second action. The judgment or decree on the merits of the court of competent
jurisdiction concludes the litigation between the parties, as well as their privies, and constitutes a
bar to a new action or suit involving the same cause of action before the same or any other
tribunal. 29
On the other hand, there is "conclusiveness of judgment" where there is an identity of
parties in the first and second cases, but no identity of causes of action. Under this rule, the first
judgment is conclusive only as to those matters actually and directly controverted and determined
and not as to matters merely involved therein. Stated differently, any right, fact, or matter in issue
directly adjudicated or necessarily involved in the determination of an action before a competent
court in which judgment is rendered on the merits is conclusively settled by the judgment therein
and cannot again be litigated between the parties and their privies whether or not the claim,
demand, purpose, or subject matter of the two actions is the same. 30
In this case, the trial court's final decision in Civil Case No. 4581 bars petitioners' move to
have the property in dispute levied on execution.
There is no question that the main proceedings in Civil Case No. 4581 and the
subsequent execution proceedings involved the same parties 31 and subject matter. 32 For these
reasons, respondents argue that the execution sale of the property in dispute under Article 160 of
the Family Code is barred by res judicata, since the trial court has already determined that the
value of the property fell within the statutory limit.
The CA held that the trial court's Decision, which is indisputably final, only settled the
issue of whether the property in dispute was a family home. The CA ruled thus:
We rule that there is no res judicata.
At the outset, let it be emphasized that the decision of the trial court
dated July 15, 1998, which has become final and executory, only declares the
subject property as a family home.  As a matter of fact, private respondents never
questioned that such property is a family home, and consequently, the issue as to
whether or not the property is family home is settled and res judicata  lies only
with respect to this issue. aDSIHc
But the issue as to whether or not a family home could be the subject of
an execution sale was not resolved by the trial court. This issue[was] raised only
when the writ of execution was issued and hence, [was not] resolved with finality.
Thus, the issue before this Court is whether or not the [f]amily [h]ome of
petitioners under the facts and circumstances of the case could be the subject of
a writ of execution and sold at public auction. 33
The Court disagrees with the CA.
"Cause of action" is the act or omission by which a party violates the right of another.  34 It
may be argued that the cause of action in the main proceedings was the sale of the property in
dispute, while in the execution proceedings it was the indebtedness of Spouses Bell to petitioners.
The settled rule, however, is that identity of causes of action does not mean absolute
identity. Otherwise, a party could easily escape the operation of res judicata by changing the form
of the action or the relief sought. 35 The test to determine whether the causes of action are
identical is to ascertain whether the same evidence will sustain both actions, or whether there is
an identity of the facts essential to the maintenance of the two actions. If the same facts or
evidence would sustain both, the two actions are considered the same, and a judgment in the first
case would be a bar to the subsequent action. Hence, a party cannot, by varying the form of
action or adopting a different method of presenting the case, escape the operation of the principle
that one and the same cause of action shall not be twice litigated between the same parties or
their privies. 36
Among several tests resorted to in ascertaining whether two suits relate to a single or
common cause of action are: (1) whether the same evidence would support and sustain both the
first and the second causes of action; and (2) whether the defenses in one case may be used to
substantiate the complaint in the other. Also fundamental is the test for determining whether the
cause of action in the second case existed at the time of the filing of the first complaint. 37
Applying the above guidelines, the Court finds that the entirety of Civil Case No. 4581 —
including the bid of petitioners to execute the money judgment awarded to them by the trial court
— is founded on a common cause of action. Records show that the sole evidence submitted by
petitioners during the execution proceedings was the Deed of Sale, which the trial court had
nullified in the main proceedings. Concomitantly, the very same defense raised by petitioners in
the main proceedings,  i.e., that they had bought the property from Spouses Bell for P1 million —
was utilized to substantiate the claim that the current value of respondents' family home was
actually P1 million. In fact, the trial court's order for respondents' family home to be levied on
execution was solely based on the price stated in the nullified Deed of Sale.
 Res judicata applies, considering that the parties are litigating over the same property.
Moreover, the same contentions and evidence advanced by the petitioners to substantiate their
claim over respondents' family home have already been used to support their arguments in the
main proceedings.
Any lingering doubt on the application of res judicata to this case should be put to rest by
the trial court's discussion of the nature and alienability of the property in dispute, to wit:
The second issue is about the allegation of the plaintiffs that the family
home which has been constituted on the house and lot in question is exempt from
alienation and that its value does not exceed P300,000. Paterno Bell, Sr. testified
that the two-storey house was built in 1947 and was made of wood and hollow
blocks. He inherited it in 1976 from his parents and has been living there with his
family. In 1976, when an extra-judicial settlement was made of the estate of his
parents, the fair market value of the house was P70,000.
City Assessor Rodezinda Pargas testified and presented Tax Declaration
and others, (Exhibit "J", Tax Declaration No. 005-047) beginning 1985 showing
that the subject lot with an area of 329 sq. m. had a fair market value of
P76,000.00 and the residential house located thereon of P50,000.00, for a total
value of P126,000.00. She testified that during the prior years the assessed
values were lower. This shows that the limit of the value of P300,000.00 under
Article 157, Title 5 of the Family Code has not been exceeded. The testimonies of
the plaintiffs who are children of Sps. Paterno Bell, Sr. and Rogelia Calingasan
Bell show that they had lived in that house together with their said parents. The
Court therefore concludes that the said house is a family home under Chapter 2,
Title 5 of the Family Code. Its alienation by the said Spouses without the written
consent of the majority of the children/plaintiffs is null and void for being contrary
to law and public policy as enunciated in Art. 158 of the Family
Code. 38 [Underscoring supplied]
The foregoing points plainly show that the issue of whether the property in dispute
exceeded the statutory limit of P300,000 has already been determined with finality by the trial
court. Its finding necessarily meant that the property is exempt from execution. Assuming for the
sake of argument that causes of action in the main proceedings and in the execution proceedings
are different, the parties are still barred from litigating the issue of whether respondents' family
home may be sold on execution sale under the principle of conclusiveness of judgment.
Respondents' family home cannot be
sold on execution under Article 160
of the Family Code.
Unquestionably, the family home is exempt from execution as expressly provided for in
Article 153 of the Family Code. 39
It has been said that the family home is a real right that is gratuitous, inalienable and free
from attachment. 40 The great controlling purpose and policy of the Constitution is the protection
or the preservation of the homestead — the dwelling place. A houseless, homeless population is
a burden upon the energy, industry, and morals of the community to which it belongs. No greater
calamity, not tainted with crime, can befall a family than to be expelled from the roof under which
it has been gathered and sheltered. 41 The family home cannot be seized by creditors except in
special cases. 42
The nature and character of the property that debtors may claim to be exempt, however,
are determined by the exemption statute. The exemption is limited to the particular kind of
property or the specific articles prescribed by the statute; the exemption cannot exceed the
statutory limit. 43
Articles 155 and 160 of the Family Code specify the exceptions mentioned in Article 153,
to wit:
ARTICLE 155. The family home shall be exempt from execution, forced
sale or attachment except:
(1) For nonpayment of taxes;
 (2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after
such constitution; and
(4) For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or furnished material for the
construction of the building.
ARTICLE 160. When a creditor whose claims is not among those
mentioned in Article 155 obtains a judgment in his favor, and he has reasonable
grounds to believe that the family home is actually worth more than the maximum
amount fixed in Article 157, he may apply to the court which rendered the
judgment for an order directing the sale of the property under execution. The
court shall so order if it finds that the actual value of the family home exceeds the
maximum amount allowed by law as of the time of its constitution. If the increased
actual value exceeds the maximum allowed in Article 157 and results from
subsequent voluntary improvements introduced by the person or persons
constituting the family home, by the owner or owners of the property, or by any of
the beneficiaries, the same rule and procedure shall apply.
At the execution sale, no bid below the value allowed for a family home
shall be considered. The proceeds shall be applied first to the amount mentioned
in Article 157, and then to the liabilities under the judgment and the costs. The
excess, if any, shall be delivered to the judgment debtor.
Related to the foregoing is Article 157 of the Family Code, which provides:
ARTICLE 157. The actual value of the family home shall not exceed, at
the time of its constitution, the amount of three hundred thousand pesos in urban
areas, and two hundred thousand pesos in rural areas, or such amounts as may
hereafter be fixed by law. ETHIDa
In any event, if the value of the currency changes after the adoption of
this Code, the value most favorable for the constitution of a family home shall be
the basis of evaluation.
For purposes of this Article, urban areas are deemed to include chartered
cities and municipalities whose annual income at least equals that legally
required for chartered cities. All others are deemed to be rural areas.
[Underscoring supplied]
The minutes of the deliberation by the drafters of Family Code on Article 160 are
enlightening, to wit:
Justice Puno inquired if the above Article [160] is still necessary. In reply,
Judge Diy opined that the above Article is intended to cover a situation where the
family home is already worth P500,000 or P1M. Justice Reyes stated that it is
possible that a family home, originally valued at P300,000, later appreciated to
almost P1M because of improvements made, like roads and plazas. Justice
Caguioa, however, made a distinction between voluntary and involuntary
improvements in the sense that if the value of the family home exceeded the
maximum amount because of voluntary improvements by the one establishing
the family home, the Article will apply; but if it is through an involuntary
improvement, like the conversion into a residential area or the establishment of
roads and other facilities, the one establishing the family home should not be
punished by making his home liable to creditors. He suggested that the matter be
clarified in the provision.
xxx xxx xxx
Prof. Bautista objected to the phrase "is worth" since if they will specify
that the family home is worth more than the maximum amount at the time it was
constituted, they will avoid the suit because the creditor will be given proper
warning. Justice Puno opined that this is a question of fact. Justice Caguioa
 added that, under the second sentence, there will be a preliminary determination
as to whether the family home exceeds the maximum amount allowed by law.
xxx xxx xxx
Justice Caguioa accordingly modified the last sentence as follows:
If the excess in actual value over that allowed in Article 157 is
due to subsequent voluntary improvements by the person or
persons constituting the family home or by the owner or owners
of the property, the same rules and procedure shall apply.
Prof. Bautista objected to the above provision, because it will in effect
penalize the owner for improving the family home. On the other hand, Justice
Puno opined that the provision covers only the excess in actual value over that
allowed by law. Judge Diy added that the owner may improve the family home up
to P300,000. Justice Caguioa stated that without the above provision, one can
borrow money, put it all on improvement of the family home even beyond the
maximum value of a family home and, thereby, exempt it from levy on the part of
the creditor. He added that anyway, if one voluntarily improves his family home
out of his money, nobody can complain because there are no creditors.
Justice Puno posed the question: What is "due to the subsequent
improvement?" Is it the "excess" or is it the "increase", or is it the "increase",
which constitutes the "excess"? In reply, Justice Reyes opined that it is the
"increase" which constituted the "excess". Justice Puno, Justice Reyes and
Justice Caguioa modified the last sentence as follows:
If the increase in actual value exceeds that maximum allowed in
Article 157 and results from subsequent voluntary improvements
introduced by the person or persons constituting the family home
or by the owner or owners of the property, the same rule and
procedure shall apply.
Prof. Bautista commented that the phrase "increase in
actual value" does not include the original value. Justice Puno
suggested that they just say "increased actual value", which the
Committee approved. 44 [Underscoring supplied]
To summarize, the exemption of the family home from execution, forced sale or
attachment is limited to P300,000 in urban areas and P200,000 in rural areas, unless those
maximum values are adjusted by law. If it is shown, though, that those amounts do not match the
present value of the peso because of currency fluctuations, the amount of exemption shall be
based on the value that is most favorable to the constitution of a family home. Any amount in
excess of those limits can be applied to the payment of any of the obligations specified in Articles
155 and 160.
Any subsequent improvement or enlargement of the family home by the persons
constituting it, its owners, or any of its beneficiaries will still be exempt from execution, forced sale
or attachment provided the following conditions obtain: (a) the actual value of the property at the
time of its constitution has been determined to fall below the statutory limit; and (b) the
improvement or enlargement does not result in an increase in its value exceeding the statutory
limit. 45 Otherwise, the family home can be the subject of a forced sale, and any amount above
the statutory limit is applicable to the obligations under Articles 155 and 160.
Certainly, the humane considerations for which the law surrounds the family home with
immunities from levy do not include the intent to enable debtors to thwart the just claims of their
creditors. 46
Petitioners maintain that this case falls under the exceptions to the exemption of the
family home from execution or forced sale. They claim that the actual value of respondents' family
home exceeds the P300,000 limit in urban areas. This fact is supposedly shown by the Deed of
Sale whereby private respondents agreed to sell the property for P1 million way back in 1995.
Therefore, the RTC only properly ordered the execution sale of the property under Article 160 to
satisfy the money judgment awarded to them in Civil Case No. 4581. 47
 As earlier discussed, it has been judicially determined with finality that the property in
dispute is a family home, and that its value at the time of its constitution was within the statutory
limit. Moreover, respondents have timely claimed the exemption of the property from
execution. 48 On the other hand, there is no question that the money judgment awarded to
petitioners falls under the ambit of Article 160.
Notwithstanding petitioners' right to enforce the trial court's money judgment, however,
they cannot obtain its satisfaction at the expense of respondents' rights over their family home. It
is axiomatic that those asserting the protection of an exception from an exemption must bring
themselves clearly within the terms of the exception and satisfy any statutory requirement for its
enforcement. 49
To warrant the execution sale of respondents' family home under Article 160, petitioners
needed to establish these facts: (1) there was an increase in its actual value; (2) the increase
resulted from voluntary improvements on the property introduced by the persons constituting the
family home, its owners or any of its beneficiaries; and (3) the increased actual value exceeded
the maximum allowed under Article 157.
During the execution proceedings, none of those facts was alleged — much less proven
— by petitioners. The sole evidence presented was the Deed of Sale, but the trial court had
already determined with finality that the contract was null, and that the actual transaction was an
equitable mortgage. Evidently, when petitioners and Spouses Bell executed the Deed of Sale in
1990, the price stated therein was not the actual value of the property in dispute.
The Court thus agrees with the CA's conclusion that the trial court committed grave abuse
of discretion in ordering the sale on execution of the property in dispute under Article 160. The
trial court had already determined with finality that the property was a family home, and there was
no proof that its value had increased beyond the statutory limit due to voluntary improvements by
respondents. Yet, it ordered the execution sale of the property. There is grave abuse of discretion
when one acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of one's
judgment, as in this case in which the assailed order is bereft of any factual or legal
justification. 50
WHEREFORE, the Petition for Review on Certiorari is hereby DENIED for lack of merit.
Accordingly, the Decision of the Court of Appeals in CA-G.R. SP No. 87531, enjoining the trial
court from proceeding with the sale of the family home of respondents, is AFFIRMED. cSEDTC
SO ORDERED.
Leonardo-de Castro, Bersamin, Perez and Perlas-Bernabe, JJ., concur.

|||  (Eulogio v. Bell, Sr., G.R. No. 186322, [July 8, 2015], 763 PHIL 266-289)

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 185922               January 15, 2014

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

DECISION

PEREZ, J.:

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

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

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

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

2. A commercial building erected on the aforesaid parcel of land with an assessed value of
₱126,000.00; x x x;

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

4. A house with an assessed value of ₱17,600.00 x x x;

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

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

On 16 October 1994, he allegedly executed a Deed of Donation 5 transferring and conveying

properties described in (1) and (2) in favor of his grandchildren with Juana.

Claiming that said donation prejudiced their legitime, Dr. Favis’ children with Capitolina, petitioners
herein, filed an action for annulment of the Deed of Donation, inventory, liquidation and partition of
property before the Regional Trial Court (RTC) of Vigan, Ilocos Sur, Branch 20 against Juana,
Spouses Mariano and Larcelita and their grandchildren as respondents.
In their Answer with Counterclaim, respondents assert that the properties donated do not form part of
the estate of the late Dr. Favis because said donation was made inter vivos, hence petitioners have
no stake over said properties.6

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

In a Decision dated 14 November 2005, the RTC nullified the Deed of Donation and cancelled the
corresponding tax declarations. The trial court found that Dr. Favis, at the age of 92 and plagued with
illnesses, could not have had full control of his mental capacities to execute a valid Deed of Donation.
Holding that the subsequent marriage of Dr. Favis and Juana legitimated the status of Mariano, the
trial court also declared Juana and Mariano as compulsory heirs of Dr. Favis. The dispositive portion
reads:WHEREFORE, in view of all the foregoing considerations, the Deed of Donation dated October
16, 1994 is hereby annulled and the corresponding tax declarations issued on the basis thereof
cancelled. Dr. Mariano Favis, Sr. having died without a will, his estate would result to intestacy.
Consequently, plaintiffs Heirs of Dr. Mariano Favis, Sr., namely Purita A. Favis, Reynaldo A. Favis,
Consolacion F. Queliza, Mariano A. Favis, Jr., Esther F. Filart, Mercedes A. Favis, Nelly F. Villafuerte
and the defendants Juana Gonzales now deceased and Mariano G. Favis, Jr. shall inherit in equal
shares in the estate of the late Dr. Mariano Favis, Sr. which consists of the following:

1. A parcel of residential land located at Bonifacio St. Brgy. 1, Vigan City, Ilocos Sur,
consisting an area of 89 sq. meters more or less, bounded on the north by Salvador Rivero;
on the East by Eleutera Pena; on the South by Bonifacio St., and on the West by Carmen
Giron;

2. A commercial building erected on the aforesaid parcel of land with an assessed value of
₱126,000.00;

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

4. The accumulated rentals of the new Vigan Coliseum in the amount of One Hundred Thirty
[Thousand] (₱130,000.00) pesos per annum from the death of Dr. Mariano Favis, Sr. 8

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

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

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

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

Undaunted by this legal setback, petitioners filed the instant petition raising the following arguments:
 1. The Honorable Court of Appeals GRAVELY and SERIOUSLY ERRED in DISMISSING the
COMPLAINT.

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

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

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

5. Assuming arguendo that petitioners cannot be construed as complying substantially with

Article 151 of the Family Code, still, the same should be considered as a non-issue
considering that private respondents are in estoppel.

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

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

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

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

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

This rule shall not apply to cases which may not be the subject of compromise under the Civil Code.

The appellate court correlated this provision with Section 1, par. (j), Rule 16 of the 1997 Rules of Civil
Procedure, which provides:

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

xxxx

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

The appellate court’s reliance on this provision is misplaced. Rule 16 treats of the grounds for a
motion to dismiss the complaint. It must be distinguished from the grounds provided under Section 1,
Rule 9 which specifically deals with dismissal of the claim by the court motu proprio. Section 1, Rule 9
of the 1997 Rules of Civil Procedure provides:
Section 1. Defenses and objections not pleaded. − Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings
or the evidence on record that the court has no jurisdiction over the subject matter, that there is
another action pending between the same parties for the same cause, or that the action is barred by a
prior judgment or by statute of limitations, the court shall dismiss the claim.

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

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

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

It was in Heirs of Domingo Valientes v. Ramas14 cited in P.L. Uy Realty Corporation v. ALS

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

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

The alleged defect is that the present complaint does not state a cause of action. The proposed
amendment seeks to complete it. An amendment to the effect that the requirements of Article 222
have been complied with does not confer jurisdiction upon the lower court. With or without this
amendment, the subject-matter of the action remains as one for support, custody of children, and
damages, cognizable by the court below.
To illustrate, Tamayo v. San Miguel Brewery, Inc.,17 allowed an amendment which " merely corrected
a defect in the allegation of plaintiff-appellant’s cause of action, because as it then stood, the original
complaint stated no cause of action." We there ruled out as inapplicable the holding in Campos
Rueda Corporation v. Bautista,18 that an amendment cannot be made so as to confer jurisdiction on
the court x x x. (Italics supplied).

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

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

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

Therefore, the rule on deemed waiver of the non-jurisdictional defense or objection is wholly
applicable to respondent.1âwphi1 If the respondents as parties-defendants could not, and did not,
after filing their answer to petitioner’s complaint, invoke the objection of absence of the required
allegation on earnest efforts at a compromise, the appellate court unquestionably did not have any
authority or basis to motu propio order the dismissal of petitioner’s complaint.

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

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

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

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

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

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

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

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

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

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

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

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

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

THIRD DIVISION

[G.R. No. 142877. October 2, 2001.]

JINKIE CHRISTIE A. DE JESUS and JACQUELINE A. DE JESUS, minors,

represented by their mother, CAROLINA A. DE JESUS,  petitioners, vs. THE
ESTATE OF DECEDENT JUAN GAMBOA DIZON, ANGELINA V. DIZON,
CARLOS DIZON, FELIPE DIZON, JUAN DIZON, JR. and MARYLIN DIZON and
as proper parties: FORMS MEDIA CORP., QUAD MANAGEMENT CORP.,
FILIPINAS PAPER SALES CO., INC. and AMITY CONSTRUCTION &
INDUSTRIAL ENTERPRISES, INC., respondents.

Ramon N. Bernaldo  for petitioners.

 Fortun Narvasa & Salazar  for respondents.

SYNOPSIS

Upon the death of Juan G. Dizon, petitioners, born during the marriage of Danilo de Jesus
and Carolina Aves de Jesus, were recognized in a notarized document by the decedent Juan G.
Dizon as his own illegitimate children by Carolina Aves de Jesus. Based on this notarized
acknowledgment, the petitioners filed a complaint, inventory and accounting of the Dizon estate.
Private respondents filed a motion to dismiss, alleging that the case, while denominated as an
action for partition, would call for the altering of the status of petitioners from being the legitimate
children of Sps. Danilo de Jesus and Carolina Aves de Jesus to instead be the illegitimate
children of Carolina Aves de Jesus and deceased Juan Dizon. The trial court ultimately dismissed
the complaint for lack of cause of action and for being improper, decreeing that the declaration of
heirship could only be made in a special proceeding.
On appeal, petitioners assailed the said order of the trial court maintaining that their
recognition as being illegitimate children in an authentic writing is in itself sufficient to establish
their status as such and does not require a separate action for judicial approval.
The Supreme Court held that in an attempt to establish their illegitimate filiation to the late
Juan G. Dizon, petitioners, in effect, would impugn their legitimate status as being children of
Danilo de Jesus and Carolina Aves de Jesus. This cannot be done because the law itself
established their legitimacy which can only be contested in a direct suit specifically brought for
that purpose.

SYLLABUS

1. CIVIL LAW; FAMILY CODE; PROOF OF FILIATION OF ILLEGITIMATE CHILDREN, HOW

ESTABLISHED. — The filiation of illegitimate children, like legitimate children, is established by (1)
the record of birth appearing in the civil register or a final judgment; or (2) an admission of legitimate
filiation in a public document or a private handwritten instrument and signed by the parent concerned.
In the absence thereof, filiation shall be proved by (1) the open and continuous possession of the
status of a legitimate child; or (2) any other means allowed by the Rules of Court and special
laws. The due recognition of an illegitimate child in a record of birth, a will, a statement before a court
of record, or in any authentic writing is, in itself, a consummated act of acknowledgment of the child,
and no further court action is required. In fact, any authentic writing is treated not just a ground for
compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for
judicial approval. Where, instead, a claim for recognition is predicated on other evidence merely
tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record
or an authentic writing, judicial action within the applicable statute of limitations is essential in order to
establish the child's acknowledgment.
2. ID.; ID.; PROOF OF FILIATION; PRESUMPTION OF LEGITIMACY, WHEN
CONCLUSIVE. — A scrutiny of the records would show that petitioners were born during the marriage
of their parents. The certificates of live birth would also identify Danilo de Jesus as being their father.
There is perhaps no presumption of the law more firmly established and founded on sounder morality
and more convincing reason than the presumption that children born in wedlock are legitimate. This
presumption indeed becomes conclusive in the absence of proof that there is physical impossibility of
access between the spouses during the first 120 days of the 300 days which immediately precedes
the birth of the child due to (a) the physical incapacity of the husband to have sexual intercourse with
his wife; (b) the fact that the husband and wife are living separately in such a way that sexual
intercourse is not possible; or (c) serious illness of the husband, which absolutely prevents sexual
intercourse. Quite remarkably, upon the expiration of the periods set forth in Article 170, and in proper
cases Article 171, of the Family Code (which took effect on 03 August 1988), the action to impugn the
legitimacy of a child would no longer be legally feasible and the status conferred by the presumption
becomes fixed and unassailable.
3. ID.; ID.; ID.; ID.; LEGITIMACY CANNOT BE COLLATERALLY ATTACKED; CASE AT
BAR. — The presumption of legitimacy fixes a civil status for the child born in wedlock, and only the
father, or in exceptional instances the latter's heirs, can contest in an appropriate action the legitimacy
of a child born to his wife. Thus, it is only when the legitimacy of a child has been successfully
impugned that the paternity of the husband can be rejected. . . . The rule that the written
acknowledgment made by the deceased Juan G. Dizon establishes petitioners' alleged illegitimate
filiation to the decedent cannot be validly invoked to be of any relevance in this instance. This
issue, i.e., whether petitioners are indeed the acknowledged illegitimate offsprings of the decedent,
cannot be aptly adjudicated without an action having been first instituted to impugn their legitimacy as
being the children of Danilo B. de Jesus and Carolina Aves de Jesus born in lawful wedlock.
Jurisprudence is strongly settled that the paramount declaration of legitimacy by law cannot be
attacked collaterally, one that can only be repudiated or contested in a direct suit specifically brought
for that purpose. Indeed, a child so born in such wedlock shall be considered legitimate although the
mother may have declared against its legitimacy or may have been sentenced as having been an
adulteress.

DECISION

VITUG, J  p:

The petition involves the case of two illegitimate children who, having been born in lawful
wedlock, claim to be the illegitimate scions of the decedent in order to enforce their respective shares
in the latter's estate under the rules on succession.
Danilo B.  de Jesus and Carolina Aves de Jesus got married on 23 August 1964. It was during
this marriage that Jacqueline A. de Jesus and Jinkie Christie A. de Jesus, herein petitioners, were
born, the former on 01 March 1979 and the latter on 06 July 1982.
In notarized document, dated 07 June 1991, Juan G. Dizon  acknowledged Jacqueline and
Jinkie de Jesus as being his own illegitimate children by Carolina Aves de Jesus. Juan G. Dizon died
intestate on 12 March 1992, leaving behind considerable assets consisting of shares of stock in
various corporations and some real property. It was on the strength of his notarized acknowledgment
that petitioners filed a complaint on 01 July 1993 for "Partition with Inventory and Accounting" of the
Dizon estate with the Regional Trial Court, Branch 88, of Quezon City.
Respondents, the surviving spouse and legitimate children of the decedent Juan G. Dizon,
including the corporations of which the deceased was a stockholder, sought the dismissal of the case,
arguing that the complaint, even while denominated as being one for partition, would nevertheless call
for altering the status of petitioners from being the legitimate children of the spouses Danilo de Jesus
and Carolina de Jesus to instead be the illegitimate children of Carolina de Jesus and deceased Juan
Dizon. The trial court denied, due to lack of merit, the motion to dismiss and the subsequent motion
for reconsideration on, respectively, 13 September 1993 and 15 February 1994. Respondents
assailed the denial of said motions before the Court of Appeals.
On 20 May 1994, the appellate court upheld the decision of the lower court and ordered the
case to be remanded to the trial court for further proceedings. It ruled that the veracity of the
conflicting assertions should be threshed out at the trial considering that the certificates presented by
respondents appeared to have effectively contradicted petitioners' allegation of illegitimacy.
On 03 January 2000, long after submitting their answer, pre-trial brief and several other
motions, respondents filed an omnibus motion, again praying for the dismissal of the complaint on the
ground that the action instituted was, in fact, made to compel the recognition of petitioners as being
the illegitimate children of decedent Juan G. Dizon and that the partition sought was merely an ulterior
relief once petitioners would have been able to establish their status as such heirs. It was contended,
in fine, that an action for partition was not an appropriate forum to likewise ascertain the question of
paternity and filiation, an issue that could only be taken up in an independent suit or proceeding.
Finding credence in the argument of respondents, the trial court, ultimately, dismissed the
complaint of petitioners for lack of cause of action and for being improper. 1 It decreed that the
declaration of heirship could only be made in a special proceeding inasmuch as petitioners were
seeking the establishment of a status or right. cITAaD
 Petitioners assail the foregoing order of the trial court in the instant petition for review
on certiorari. Basically, petitioners maintain that their recognition as being illegitimate children of the
decedent, embodied in an authentic writing, is in itself sufficient to establish their status as such and
does not require a separate action for judicial approval following the doctrine enunciated
in Divinagracia vs. Bellosillo. 2
In their comment, respondents submit that the rule in Divinagracia being relied by petitioners
is inapplicable to the case because there has been no attempt to impugn legitimate filiation
in Divinagracia. In praying for the affirmance of dismissal of the complaint, respondents count on the
case of Sayson vs. Court of Appeals, 3 which has ruled that the issue of legitimacy cannot be
questioned in a complaint for partition and accounting but must be seasonably brought up in a direct
action frontally addressing the issue.
The controversy between the parties has been pending for much too long, and it is time that
this matter draws to a close.
The filiation of illegitimate children, like legitimate children, is established by (1) the record of
birth appearing in the civil register or a final judgment; or (2) an admission of legitimate filiation in a
public document or a private handwritten instrument and signed by the parent concerned. In the
absence thereof, filiation shall be proved by (1) the open and continuous possession of the status of a
legitimate child; or (2) any other means allowed by the Rules of Court and special laws. 4 The due
recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in
any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further
court action is required. 5 In fact, any authentic writing is treated not just a ground for compulsory
recognition; it is in itself a voluntary recognition that does not require a separate action for judicial
approval. 6 Where, instead, a claim for recognition is predicated on other evidence merely tending to
prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record or an
authentic writing, judicial action within the applicable statute of limitations is essential in order to
establish the child's acknowledgment. 7
A scrutiny of the records would show that petitioners were born during the marriage of their
parents. The certificates of live birth would also identify Danilo de Jesus as being their father.
There is perhaps no presumption of the law more firmly established and founded on sounder
morality and more convincing reason than the presumption that children born in wedlock are
legitimate. 8 This presumption indeed becomes conclusive in the absence of proof that there is
physical impossibility of access between the spouses during the first 120 days of the 300 days which
immediately precedes the birth of the child due to (a) the physical incapacity of the husband to have
sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such a
way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely
prevents sexual intercourse. 9 Quite remarkably, upon the expiration of the periods set forth in Article
170, 10 and in proper cases Article 171, 11 of the Family Code (which took effect on 03 August 1988),
the action to impugn the legitimacy of a child would no longer be legally feasible and the status
conferred by the presumption becomes fixed and unassailable. 12
Succinctly, in an attempt to establish their illegitimate filiation to the late Juan G. Dizon,
petitioners, in effect, would impugn their legitimate status as being children of Danilo de Jesus and
Carolina Aves de Jesus. This step cannot be aptly done because the law itself establishes the
legitimacy of children conceived or born during the marriage of the parents. The presumption of
legitimacy fixes a civil status for the child born in wedlock, and only the father,  13 or in exceptional
instances the latter's heirs, 14 can contest in an appropriate action the legitimacy of a child born to his
wife. Thus, it is only when the legitimacy of a child has been successfully impugned that the paternity
of the husband can be rejected.
Respondents correctly argued that petitioners hardly could find succor in Divinagracia. In said
case, the Supreme Court remanded to the trial court for further proceedings the action for partition
filed by an illegitimate child who had claimed to be an acknowledged spurious child by virtue of a
private document, signed by the acknowledging parent, evidencing such recognition. It was not a case
of legitimate children asserting to be somebody else's illegitimate children. Petitioners totally ignored
the fact that it was not for them, given the attendant circumstances particularly, to declare that they
could not have been the legitimate children, clearly opposed to the entries in their respective birth
certificates, of Danilo and Carolina de Jesus. ATCaDE
 The rule that the written acknowledgment made by the deceased Juan G. Dizon establishes
petitioner's alleged illegitimate filiation to the decedent cannot be validly invoked to be of any
relevance in this instance. This issue, i.e., whether petitioners are indeed the acknowledged
illegitimate offsprings of the decedent, cannot be aptly adjudicated without an action having been first
been instituted to impugn their legitimacy as being the children of Danilo B. de Jesus and Carolina
Aves de Jesus born in lawful wedlock. Jurisprudence is strongly settled that the paramount
declaration of legitimacy by law cannot be attacked collaterally, 15 one that can only be repudiated or
contested in a direct suit specifically brought for that purpose. 16 Indeed, a child so born in such
wedlock shall be considered legitimate although the mother may have declared against its legitimacy
or may have been sentenced as having been an adulteress. 17
WHEREFORE, the foregoing disquisitions considered, the instant petition is DENIED. No
costs.
SO ORDERED.
Melo, Panganiban  and Sandoval-Gutierrez, JJ., concur.

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

FIRST DIVISION

[G.R. No. 165546. February 27, 2006.]

SOCIAL SECURITY SYSTEM,  petitioner, vs. ROSANNA H. AGUAS, JANET H.

AGUAS, and minor JEYLNN H. AGUAS, represented by her Legal Guardian,
ROSANNA H. AGUAS, respondents.

DECISION
CALLEJO, SR., J  p:

Before us is a petition for review on certiorari of the Decision 1 of the Court of Appeals
(CA) in CA-G.R. SP No. 66531 and its Resolution denying the motion for reconsideration thereof.
The antecedents are as follows:
Pablo Aguas, a member of the Social Security System (SSS) and a pensioner, died on
December 8, 1996. Pablo's surviving spouse, Rosanna H. Aguas, filed a claim with the SSS for
death benefits on December 13, 1996. Rosanna indicated in her claim that Pablo was likewise
survived by his minor child, Jeylnn, who was born on October 29, 1991. 2 Her claim for monthly
pension was settled on February 13, 1997. 3
Sometime in April 1997, the SSS received a sworn letter 4 dated April 2, 1997 from
Leticia Aguas-Macapinlac, Pablo's sister, contesting Rosanna's claim for death benefits. She
alleged that Rosanna abandoned the family abode approximately more than six years before, and
lived with another man on whom she has been dependent for support. She further averred that
Pablo had no legal children with Rosanna, but that the latter had several children with a certain
Romeo dela Peña. In support of her allegation, Leticia enclosed a notarized copy of the original
birth certificate 5 of one Jefren H. dela Peña, showing that the latter was born on November 15,
1996 to Rosanna Y. Hernandez and Romeo C. dela Peña, and that the two were married on
November 1, 1990.
As a result, the SSS suspended the payment of Rosanna and Jeylnn's monthly pension in
September 1997. It also conducted an investigation to verify Leticia's allegations. In a
Memorandum 6 dated November 18, 1997, the Social Security Officer who conducted the
investigation reported that, based on an interview with Mariquita D. Dizon, Pablo's first cousin and
neighbor, and Jessie Gonzales (also a neighbor). She learned that the deceased had no legal
children with Rosanna; Jenelyn 7 and Jefren were Rosanna's children with one Romeo C. dela
Peña; and Rosanna left the deceased six years before his death and lived with Romeo while she
was still pregnant with Jenelyn, who was born on October 29, 1991. Mariquita also confirmed that
Pablo was not capable of having a child as he was under treatment.
On the basis of the report and an alleged confirmation by a certain Dr. Manuel
Macapinlac that Pablo was infertile, the SSS denied Rosanna's request to resume the payment of
their pensions. She was advised to refund to the SSS within 30 days the amount of P10,350.00
representing the total death benefits released to her and Jenelyn from December 1996 to August
1997 at P1,150.00 per month. 8
Rosanna and Jeylnn, through counsel, requested for a reconsideration of the said
decision. 9 However, in its Letter dated February 6, 1998, the SSS denied the claim. 10
This prompted Rosanna and Jeylnn to file a claim/petition for the Restoration/Payment of
Pensions with the Social Security Commission (SSC) on February 20, 1998. 11 Janet H. Aguas,
who also claimed to be the child of the deceased and Rosanna, now joined them as claimant. The
case was docketed as SSC Case No. 3-14769-98. aESIHT
The claimants appended to their petition, among others, photocopies of the following: (1)
Pablo and Rosanna's marriage certificate; (2) Janet's certificate of live birth; (3) Jeylnn's certificate
of live birth; and (4) Pablo's certificate of death.
In its Answer, the SSS averred that, based on the sworn testimonies and documentary
evidence showing the disqualification of the petitioners as primary beneficiaries, the claims were
barren of factual and legal basis; as such, it was justified in denying their claims. 12
In their Position Paper, the claimants averred that Jeylnn was a legitimate child of Pablo
as evidenced by her birth certificate bearing Pablo's signature as Jeylnn's father. They asserted
that Rosanna never left Pablo and that they lived together as husband and wife under one roof. In
support thereof, they attached a Joint Affidavit 13 executed by their neighbors, Vivencia Turla and
Carmelita Yangu, where they declared that Rosanna and Pablo lived together as husband and
wife until the latter's death. In Janet's birth certificate, which was registered in the Civil Registry of
San Fernando, it appears that her father was Pablo and her mother was Rosanna. As to the
alleged infertility of Pablo, the claimants averred that Dr. Macapinlac denied giving the opinion
precisely because he was not an expert on such matters, and that he treated the deceased only
for tuberculosis. The claimant likewise claimed that the information the SSS gathered from the
doctor was privileged communication. 14
In compliance with the SSC's order, the SSS secured Confirmation Reports 15 signed by
clerks from the corresponding civil registers confirming (1) the fact of marriage between Pablo
and Rosanna on December 4, 1977; (2) the fact of Jefren dela Peña's birth on November 15,
1996; (3) the fact of Jeylnn's birth on October 29, 1991; and (4) the fact of Pablo's death on
December 8, 1996.
The SSC decided to set the case for hearing. It also directed the SSS to verify the
authenticity of Pablo's signature as appearing on Jeylnn's birth certificate from his claim records,
particularly his SSS Form E-1 and retirement benefit application. 16 The SSS complied with said
directive and manifested to the SSC that, based on the laboratory analysis conducted, Pablo's
signature in the birth certificate was made by the same person who signed the member's record
and other similar documents submitted by Pablo. 17
The SSC then summoned Vivencia Turla, Carmelita Yangu and Leticia Aguas-
Macapinlac for clarificatory questions with regard to their respective sworn affidavits. 18 Vivencia
testified that she had known Pablo and Rosanna for more than 30 years already; the couple were
married and lived in Macabacle, Dolores, San Fernando, Pampanga; she was a former neighbor
of the spouses, but four years after their marriage, she (Vivencia) and her family moved to Sto.
Niño Triangulo, San Fernando, Pampanga; she would often visit the two, especially during
Christmas or fiestas; the spouses' real child was Jeylnn; Janet was only an adopted child; the
spouse later transferred residence, not far from their old house, and Janet, together with her
husband and son, remained in the old house. 19
On the other hand, Carmelita testified that she had been a neighbor of Pablo and
Rosanna for 15 years and that, up to the present, Rosanna and her children, Janet, Jeylnn and
Jefren, were still her neighbors; Janet and Jeylnn were the children of Pablo and Rosanna but
she did not know whose child Jefren is. 20
According to Leticia, Janet was not the real child of Pablo and Rosanna; she was just
taken in by the spouses because for a long time they could not have children; 21 however, there
were no legal papers on Janet's adoption. 22 Later on, Rosanna got pregnant with Jeylnn; after
the latter's baptism, there was a commotion at the house because Romeo dela Peña was
claiming that he was the father of the child and he got mad because the child was named after
Pablo; the latter also got mad and even attempted to shoot Rosanna; he drove them away from
the house; since then, Pablo and Rosanna separated; 23 she knew about this because at that
time their mother was sick, and she would often visit her at their ancestral home, where Pablo and
Rosanna were also staying; Rosanna was no longer living in their ancestral home but Janet
resided therein; she did not know where Rosanna was staying now but she knew that the latter
and Romeo dela Peña were still living together. 24
Subsequently, Mariquita Dizon and Jessie Gonzales were also summoned for clarificatory
questions. 25 During the hearing, Mariquita brought with her photocopies of two baptismal
certificates: that of Jeylnn Aguas, 26 child of Pablo Aguas and Rosanna Hernandez born on
October 29, 1991, and that of Jenelyn H. dela Peña, 27 child of Romeo dela Peña and Rosanna
Hernandez, born on January 29, 1992. aHESCT
On March 14, 2001, the SSC rendered a decision denying the claims for lack of merit and
ordering Rosanna to immediately refund to the SSS the amount of P10,350.00 erroneously paid
to her and Jeylnn as primary beneficiaries of the deceased. The SSC likewise directed the SSS to
pay the death benefit to qualified secondary beneficiaries of the deceased, and in their absence,
to his legal heirs. 28
The SSC ruled that Rosanna was no longer qualified as primary beneficiary, it appearing
that she had contracted marriage with Romeo dela Peña during the subsistence of her marriage
to Pablo. The SSC based its conclusion on the birth certificate of Jefren dela Peña stating that his
mother, Rosanna, and father, Romeo dela Peña, were married on November 1, 1990. The SSC
declared that Rosanna had a child with Romeo dela Peña while she was still married to Pablo (as
evidenced by the baptismal certificate of Jenelyn H. dela Peña showing that she was the child of
Rosanna Hernandez and Romeo dela Peña and that she was born on January 29, 1992). The
SSC concluded that Rosanna was no longer entitled to support from Pablo prior to his death
because of her act of adultery. As for Jeylnn, the SSC ruled that, even if her birth certificate was
signed by Pablo as her father, there was more compelling evidence that Jeylnn was not his
legitimate child. The SSC deduced from the records that Jeylnn and Jenelyn was one and the
same person and concluded, based on the latter's baptismal certificate, that she was the daughter
of Rosanna and Romeo dela Peña. It also gave credence to the testimonies of Leticia and
Mariquita that Jeylnn was the child of Rosanna and Romeo dela Peña. As for Janet, the SSC
relied on Leticia's declaration that she was only adopted by Pablo and Rosanna. 29
The claimants filed a motion for reconsideration of the said decision but their motion was
denied by the SSC for lack of merit and for having been filed out of time. 30 The claimants then
elevated the case to the CA via a petition for review under Rule 43 of the Rules of Court.
On September 9, 2003, the CA rendered a decision in favor of petitioners. The  fallo of the
decision reads:
WHEREFORE, the resolution and order appealed from are
hereby REVERSED and SET ASIDE, and a new one is
entered DECLARING petitioners as ENTITLED to the SSS benefits accruing from
the death of Pablo Aguas. The case is hereby REMANDED to public respondent for
purposes of computing the benefits that may have accrued in favor of petitioners
after the same was cut and suspended in September 1997.
SO ORDERED. 31
In so ruling, the CA relied on the birth certificates of Janet and Jeylnn showing that they
were the children of the deceased. According to the appellate court, for judicial purposes, these
records were binding upon the parties, including the SSS. These entries made in public
documents may only be challenged through adversarial proceedings in courts of law, and may not
be altered by mere testimonies of witnesses to the contrary. As for Rosanna, the CA found no
evidence to show that she ceased to receive support from Pablo before he died. Rosanna's
alleged affair with Romeo dela Peña was not properly proven. In any case, even if Rosanna
married Romeo dela Peña during her marriage to Pablo, the same would have been a void
marriage; it would not have ipso facto made her not dependent for support upon Pablo and
negate the presumption that, as the surviving spouse, she is entitled to support from her
husband. 32
The SSS filed a motion for reconsideration of the decision, which the CA denied for lack
of merit. 33 Hence, this petition.
Petitioner seeks a reversal of the decision of the appellate court, contending that
it AETcSa
I
GRAVELY ERRED IN HOLDING THAT ROSANNA AGUAS IS ACTUALLY
DEPENDENT FOR SUPPORT UPON THE MEMBER DURING HIS LIFETIME TO
QUALIFY AS PRIMARY BENEFICIARY WITHIN THE INTENDMENT OF SECTION
8(e), IN RELATION TO SECTION (k) OF THE SSS LAW, AS AMENDED.
II
ERRED IN HOLDING THAT JANET AGUAS AND JEYLNN AGUAS ARE
ENTITLED TO THE PENSION BENEFIT ACCRUING FROM THE DEATH OF
PABLO AGUAS. 34
Petitioner invokes Section 8 of Republic Act No. 1161, as amended by Presidential
Decree No. 735, which defines a dependent spouse as "the legitimate spouse dependent for
support upon the employee." According to petitioner, Rosanna forfeited her right to be supported
by Pablo when she engaged in an intimate and illicit relationship with Romeo dela Peña and
married the latter during her marriage to Pablo. Such act constitutes abandonment, which
divested her of the right to receive support from her husband. It asserts that her act of adultery is
evident from the birth certificate of Jefren H. dela Peña showing that he was born on November
15, 1996 to Rosanna and Romeo dela Peña. Petitioner submits that Rosanna cannot be
considered as a dependent spouse of Pablo; consequently, she is not a primary beneficiary. 35
As for Janet and Jeylnn, petitioner maintains that they are not entitled to the pension
because, based on the evidence on record, particularly the testimonies of the witnesses, they are
not the legitimate children of Pablo. It argues that, in the exercise of its quasi-judicial authority
under Section 5(a) of the Social Security Act, the SSC can pass upon the legitimacy of
respondents' relationship with the member to determine whether they are entitled to the benefits,
even without correcting their birth certificates. 36
Respondents, for their part, assert that petitioner failed to prove that Rosanna committed
acts of adultery or that she married another man after the death of her husband. They contend
that Janet and Jeylnn's legitimacy may be impugned only on the grounds stated in Article 166 of
the Family Code, none of which were proven in this case. 37
The issue to be resolved in this case is whether Rosanna, Jeylnn and Janet are entitled to
the SSS death benefits accruing from the death of Pablo.
The petition is partly meritorious.
The general rule is that only questions of law may be raised by the parties and passed
upon by the Court in petitions for review under Rule 45 of the Rules of Court. 38 In an appeal
via certiorari, the Court may not review the factual findings of the CA. 39 It is not the Court's
function under Rule 45 to review, examine, and evaluate or weigh the probative value of the
evidence presented. 40 However, the Court may review findings of facts in some instances, such
as, when the judgment is based on a misapprehension of facts, when the findings of the CA are
contrary to those of the trial court or quasi-judicial agency, or when the findings of facts of the CA
are premised on the absence of evidence and are contradicted by the evidence on record. 41 The
Court finds these instances present in this case.
At the time of Pablo's death, the prevailing law was Republic Act No. 1161, as amended
by Presidential Decree No. 735. Section 13 of the law enumerates those who are entitled to death
benefits:
Sec. 13. Death benefits. — Effective July 1, 1975, upon the covered
employee's death, (a) his primary beneficiaries shall be entitled to the basic
monthly pension, and his dependents to the dependent's pension: Provided, That
he has paid at least thirty-six monthly contributions prior to the semester of death:
Provided, further, That if the foregoing condition is not satisfied, or if he has no
primary beneficiaries, his secondary beneficiaries shall be entitled to a lump sum
benefit equivalent to thirty times the basic monthly pension: Provided, however,
That the death benefit shall not be less than the total contributions paid by him and
his employer on his behalf nor less than five hundred pesos: Provided, finally, That
the covered employee who dies in the month of coverage shall be entitled to the
minimum benefit. TCEaDI
Section 8(k) and (e), in turn, defines dependents and primary beneficiaries of an SSS
member as follows:
SECTION 8.  Terms defined. — For the purposes of this Act the following
terms shall, unless the context indicates otherwise, have the following meanings:
xxx xxx xxx
(e) Dependent. — The legitimate, legitimated, or legally adopted child who
is unmarried, not gainfully employed, and not over twenty-one years of age
provided that he is congenitally incapacitated and incapable of self-support
physically or mentally; the legitimate spouse dependent for support upon the
employee; and the legitimate parents wholly dependent upon the covered
employee for regular support.
xxx xxx xxx
(k) Beneficiaries. — The dependent spouse until he remarries and
dependent children, who shall be the primary beneficiaries. In their absence, the
dependent parents and, subject to the restrictions imposed on dependent children,
the legitimate descendants and illegitimate children who shall be the secondary
beneficiaries. In the absence of any of the foregoing, any other person designated
by the covered employee as secondary beneficiary.
 Whoever claims entitlement to such benefits should establish his or her right thereto by
substantial evidence. Substantial evidence, the quantum of evidence required to establish a fact
in cases before administrative or quasi-judicial bodies, is that level of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion. 42
The Court has reviewed the records of the case and finds that only Jeylnn has sufficiently
established her right to a monthly pension.
Jeylnn's claim is justified by the photocopy of her birth certificate which bears the
signature of Pablo. Petitioner was able to authenticate the certification from the Civil Registry
showing that she was born on October 29, 1991. The records also show that Rosanna and Pablo
were married on December 4, 1977 and the marriage subsisted until the latter's death on
December 8, 1996. It is therefore evident that Jeylnn was born during Rosanna and Pablo's
marriage.
It bears stressing that under Article 164 of the Family Code, children conceived or born
during the marriage of the parents are legitimate. This Court, in De Jesus v. Estate of Decedent
Juan Gamboa Dizon, 43 extensively discussed this presumption —
There is perhaps no presumption of the law more firmly established and
founded on sounder morality and more convincing reason than the presumption
that children born in wedlock are legitimate. This presumption indeed becomes
conclusive in the absence of proof that there is physical impossibility of access
between the spouses during the first 120 days of the 300 days which immediately
precedes the birth of the child due to (a) the physical incapacity of the husband to
have sexual intercourse with his wife; (b) the fact that the husband and wife are
living separately in such way that sexual intercourse is not possible; or (c) serious
illness of the husband, which absolutely prevents sexual intercourse. Quite
remarkably, upon the expiration of the periods set forth in Article 170, 44 and in
proper cases Article 171, 45 of the Family Code (which took effect on 03 August
1988), the action to impugn the legitimacy of the child would no longer be legally
feasible and the status conferred by the presumption becomes fixed and
unassailable. 46
Indeed, impugning the legitimacy of a child is a strictly personal right of the husband or, in
exceptional cases, his heirs. 47 In this case, there is no showing that Pablo challenged the
legitimacy of Jeylnn during his lifetime. Hence, Jeylnn's status as a legitimate child of Pablo can
no longer be contested. aAHDIc
The presumption that Jeylnn is a legitimate child is buttressed by her birth certificate
bearing Pablo's signature, which was verified from his specimen signature on file with petitioner. A
birth certificate signed by the father is a competent evidence of paternity. 48
The presumption of legitimacy under Article 164, however, can not extend to Janet
because her date of birth was not substantially proven. Such presumption may be availed only
upon convincing proof of the factual basis therefor, i.e., that the child's parents were legally
married and that his/her conception or birth occurred during the subsistence of that marriage. 49 It
should be noted that respondents likewise submitted a photocopy of Janet's alleged birth
certificate. However, the Court cannot give said birth certificate the same probative weight as
Jeylnn's because it was not verified in any way by the civil register. It stands as a mere
photocopy, without probative weight. Unlike Jeylnn, there was no confirmation by the civil register
of the fact of Janet's birth on the date stated in the certificate.
In any case, a record of birth is merely prima facie evidence of the facts contained
therein. 50 Here, the witnesses were unanimous in saying that Janet was not the real child but
merely adopted by Rosanna and Pablo. Leticia also testified that Janet's adoption did not undergo
any legal proceedings; hence, there were no papers to prove it. Under Section 8(e) of Republic
Act No. 1161, as amended, only "legally adopted" children are considered dependent children.
Absent any proof that the family has legally adopted Janet, the Court cannot consider her a
dependent child of Pablo, hence, not a primary beneficiary.
On the claims of Rosanna, it bears stressing that for her to qualify as a primary
beneficiary, she must prove that she was "the legitimate spouse dependent for support from the
employee." The claimant-spouse must therefore establish two qualifying factors: (1) that she is
the legitimate spouse, and (2) that she is dependent upon the member for support. In this case,
Rosanna presented proof to show that she is the legitimate spouse of Pablo, that is, a copy of
their marriage certificate which was verified with the civil register by petitioner. But whether or not
Rosanna has sufficiently established that she was still dependent on Pablo at the time of his
death remains to be resolved. Indeed, a husband and wife are obliged to support each
other, 51 but whether one is actually dependent for support upon the other is something that has
to be shown; it cannot be presumed from the fact of marriage alone.
In a parallel case 52 involving a claim for benefits under the GSIS law, the Court defined
a dependent as "one who derives his or her main support from another. Meaning, relying on, or
subject to, someone else for support; not able to exist or sustain oneself, or to perform anything
without the will, power, or aid of someone else." It should be noted that the GSIS law likewise
defines a dependent spouse as "the legitimate spouse dependent for support upon the member or
pensioner." In that case, the Court found it obvious that a wife who abandoned the family for more
than 17 years until her husband died, and lived with other men, was not dependent on her
husband for support, financial or otherwise, during that entire period. Hence, the Court denied her
claim for death benefits.
The obvious conclusion then is that a wife who is already separated de facto from her
husband cannot be said to be "dependent for support" upon the husband, absent any showing to
the contrary. Conversely, if it is proved that the husband and wife were still living together at the
time of his death, it would be safe to presume that she was dependent on the husband for
support, unless it is shown that she is capable of providing for herself.
Rosanna had the burden to prove that all the statutory requirements have been complied
with, particularly her dependency on her husband for support at the time of his death. Aside from
her own testimony, the only evidence adduced by Rosanna to prove that she and Pablo lived
together as husband and wife until his death were the affidavits of Vivencia Turla and Carmelita
Yangu where they made such declaration. IHcTDA
Still, the affidavits of Vivencia and Carmelita and their testimonies before the SSC will not
prevail over the categorical and straightforward testimonies of the other witnesses who testified
that Rosanna and Pablo had already separated for almost six years before the latter died. Except
for the bare assertion of Carmelita that the couple never separated, there was no further
statement regarding the witnesses' assertion in their affidavits that the couple lived together until
Pablo's death. On the contrary, Leticia narrated that the two separated after Jeylnn's baptism as a
result of an argument regarding Romeo dela Peña. According to Leticia, there was a commotion
at their ancestral house because Romeo dela Peña was grumbling why Jeylnn was named after
Pablo when he was the father, and as a result, Pablo drove them away. The SSC's observation
and conclusion on the two baptismal certificates of Jeylnn and Jenelyn convinces this Court to
further believe Leticia's testimony on why Pablo and Rosanna separated. As noted by the SSC:
It appears from the records that Jeylnn Aguas and Jenelyn H. dela Peña
are one and the same person. Jeylnn Aguas, born on October 29, 1991 was
baptized at the Metropolitan Cathedral of San Fernando, Pampanga, on November
24, 1991 as the child of Pablo Aguas and Rosanna Hernandez. Jenelyn H dela
Peña, on the other hand, was born on January 29, 1992 to spouses Rosanna
Hernandez and Romeo dela Peña and baptized on February 9, 1992. It will be
noted that Jenelyn dela Peña was born approximately three months after the birth
of Jeylnn Aguas. It is physically impossible for Rosanna to have given birth
successively to two children in so short a time. . . . The testimony of Leticia Aguas-
Macapinlac that Rosanna was driven away by Pablo after the baptism of Jeylnn
because of the commotion that was created by Romeo dela Peña who wanted
Jeylnn to be baptized using his name explains why Jeylnn was again baptized in
the Parish of Sto. Niño in San Fernando using the name Jenelyn dela Peña. They
changed her date of birth also to make it appear in the record of the parish that she
is another child of Rosanna. 53
On the other hand, Mariquita categorically affirmed that Rosanna was no longer living at
Pablo's house even before he died, and that she is still living with Romeo dela Peña up to the
present. Mariquita testified as follows:
Hearing Officer:
 Nagsama ba si Rosanna at Romeo?
Mrs. Dizon:
 Ngayon at kahit na noon.
Hearing Officer:
 Kailan namatay si Pablo?
Mrs. Dizon:
 1996.
Hearing Officer:
 Noong bago mamatay si Pablo?
Mrs. Dizon:
 Nagsasama na sila Romeo at Rosanna noon.
Hearing Officer:
 So, buhay pa si Pablo . . .
Mrs. Dizon:
 . . . nagsasama na sila ni Romeo.
Hearing Officer:
 Kailan nagkahiwalay si Romeo at Rosanna?
Mrs. Dizon:
 Hindi na sila nagkahiwalay.
Hearing Officer:
 Hindi, ibig ko sabihin si Pablo at Rosana?
Mrs. Dizon:
 Hindi ko alam kasi hindi ako madalas pumunta sa kanila eh, dahil namatay na
yung nanay ni Kuya Pabling, yung tiyahin ko, kapatid ng nanay ko. Noon
madalas ako noong buhay pa yung nanay ni Kuya Pabling dahil kami ang
nag aalaga sa kanya.
Hearing Officer:
 Bago namatay si Pablo, nagsasama ba sina Romeo at Rosanna?
Mrs. Dizon:
 Oo.
Hearing Officer:
 Sa ngayon, may alam ka pa ba kung nagsasama pa sila Romeo at Rosanna?
Mrs. Dizon:
 Oo, nagsasama sila, may bahay sila.
Hearing Officer:
 Saan naman?
Mrs. Dizon:
 Doon sa malapit sa amin sa may riles ng tren. 54
 In conclusion, the Court finds that, among respondents, only Jeylnn is entitled to the SSS
death benefits accruing from the death of Pablo, as it was established that she is his legitimate
child. On the other hand, the records show that Janet was merely "adopted" by the spouses, but
there are no legal papers to prove it; hence, she cannot qualify as a primary beneficiary. Finally,
while Rosanna was the legitimate wife of Pablo, she is likewise not qualified as a primary
beneficiary since she failed to present any proof to show that at the time of his death, she was still
dependent on him for support even if they were already living separately.
IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The
Decision and Resolution of the Court of Appeals are AFFIRMED WITH MODIFICATION. Only
Jeylnn H. Aguas is declared entitled to the SSS death benefits accruing from the death of Pablo
Aguas. AcHEaS
SO ORDERED.
Panganiban, C.J., Ynares-Santiago and Austria-Martinez, JJ., concur.
Chico-Nazario, J., is on leave.

|| THIRD DIVISION

[G.R. No. 123450. August 31, 2005.]

GERARDO B. CONCEPCION, petitioner, vs. COURT OF APPEALS and MA.

THERESA ALMONTE,  respondents.

Juan Orendain P. Buted  for petitioner.

Stephen L. Monsanto  for private respondent.

SYLLABUS
1. CIVIL LAW; FAMILY CODE; PATERNITY AND FILIATION; LEGITIMATE CHILDREN; THE
LAW REQUIRES THAT EVERY REASONABLE PRESUMPTION BE MADE IN FAVOR OF
LEGITIMACY. — The status and filiation of a child cannot be compromised. Article 164 of the  Family
Code is clear. A child who is conceived or born during the marriage of his parents is legitimate. As a
guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the Family
Code provides: "Article 167. The child shall be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an adulteress." The law requires that
every reasonable presumption be made in favor of legitimacy. We explained the rationale of this rule
in the recent case of Cabatania v. Court of Appeals. "The presumption of legitimacy does not only
flow out of a declaration in the statute but is based on the broad principles of natural justice and the
supposed virtue of the mother. It is grounded on the policy to protect the innocent offspring from the
odium of illegitimacy."
2. ID.; ID.; ID.; ID.; IMPUGNING THE LEGITIMACY OF A CHILD IS A STRICTLY
PERSONAL RIGHT OF THE HUSBAND OR, IN EXCEPTIONAL CASES, HIS HEIRS; CASE AT
BAR. — Gerardo invokes Article 166 (1) (b) of the Family Code. He cannot. He has no standing in law
to dispute the status of Jose Gerardo. Only Ma. Theresa's husband Mario or, in a proper case, his
heirs, who can contest the legitimacy of the child Jose Gerardo born to his wife. Impugning the
legitimacy of a child is a strictly personal right of the husband or, in exceptional cases, his heirs. Since
the marriage of Gerardo and Ma. Theresa was void from the very beginning, he never became her
husband and thus never acquired any right to impugn the legitimacy of her child.
3. ID.; ID.; ID.; ID.; THE PRESUMPTION OF LEGITIMACY PROCEEDS FROM THE
SEXUAL UNION IN MARRIAGE, PARTICULARLY DURING THE PERIOD OF CONCEPTION. —
The presumption of legitimacy proceeds from the sexual union in marriage, particularly during the
period of conception. To overthrow this presumption on the bases of Article 166 (1) (b) of the  Family
Code, it must be shown beyond reasonable doubt that there was no access that could have enabled
the husband to father the child. Sexual intercourse is to be presumed where personal access is not
disproved, unless such presumption is rebutted by evidence to the contrary. The presumption is
quasi-conclusive and may be refuted only by the evidence of physical impossibility of coitus between
husband and wife within the first 120 days of the 300 days which immediately preceded the birth of
the child. To rebut the presumption, the separation between the spouses must be such as to make
marital intimacy impossible. This may take place, for instance, when they reside in different countries
or provinces and they were never together during the period of conception. Or, the husband was in
prison during the period of conception, unless it appears that sexual union took place through the
violation of prison regulations.
4. ID.; ID.; ID.; ID.; AN ASSERTION BY THE MOTHER AGAINST THE LEGITIMACY OF
HER CHILD CANNOT AFFECT THE LEGITIMACY OF A CHILD BORN OR CONCEIVED WITHIN A
VALID MARRIAGE; CASE AT BAR. — An assertion by the mother against the legitimacy of her child
cannot affect the legitimacy of a child born or conceived within a valid marriage. . . . A mother has no
right to disavow a child because maternity is never uncertain. Hence, Ma. Theresa is not permitted by
law to question Jose Gerardo's legitimacy.
5. ID.; ID.; ID.; PROOF OF FILIATION; NECESSARY ONLY WHEN THE LEGITIMACY OF
THE CHILD IS BEING QUESTIONED OR WHEN THE STATUS OF A CHILD BORN AFTER THREE
HUNDRED DAYS FOLLOWING THE TERMINATION OF MARRIAGE IS SOUGHT TO BE
ESTABLISHED. — The reliance of Gerardo on Jose Gerardo's birth certificate is misplaced. It has no
evidentiary value in this case because it was not offered in evidence before the trial court. The rule is
that the court shall not consider any evidence which has not been formally offered. Moreover, the law
itself establishes the status of a child from the moment of his birth. Although a record of birth or birth
certificate may be used as primary evidence of the filiation of a child, as the status of a child is
determined by the law itself, proof of filiation is necessary only when the legitimacy of the child is
being questioned, or when the status of a child born after 300 days following the termination of
marriage is sought to be established. Here, the status of Jose Gerardo as a legitimate child was not
under attack as it could not be contested collaterally and, even then, only by the husband or, in
extraordinary cases, his heirs. Hence, the presentation of proof of legitimacy in this case was
improper and uncalled for.
6. ID.; ID.; ID.; ID.; BETWEEN THE CERTIFICATE OF BIRTH WHICH IS PRIMA FACIE
EVIDENCE OF THE CHILD'S ILLEGITIMACY AND THE QUASI-CONCLUSIVE PRESUMPTION OF
LAW OF HIS LEGITIMACY, THE LATTER SHALL PREVAIL; CASE AT BAR. — [A] record of birth is
merely prima facie evidence of the facts contained therein. As prima facie evidence, the statements in
the record of birth may be rebutted by more preponderant evidence. It is not conclusive evidence with
respect to the truthfulness of the statements made therein by the interested parties. Between the
certificate of birth which is prima facie evidence of Jose Gerardo's illegitimacy and the quasi-
conclusive presumption of law (rebuttable only by proof beyond reasonable doubt) of his legitimacy
the latter shall prevail. Not only does it bear more weight, it is also more conducive to the best
interests of the child and in consonance with the purpose of the law.
7. ID.; ID.; ID.; LEGITIMATE AND ILLEGITIMATE CHILDREN, DISTINGUISHED. — Law,
reason and common sense dictate that a legitimate status is more favorable to the child. In the eyes
of the law, the legitimate child enjoys a preferred and superior status. He is entitled to bear the
surnames of both his father and mother, full support and full inheritance. On the other hand, an
illegitimate child is bound to use the surname and be under the parental authority only of his mother.
He can claim support only from a more limited group and his legitime is only half of that of his
legitimate counterpart. Moreover (without unwittingly exacerbating the discrimination against him), in
the eyes of society, a 'bastard' is usually regarded as bearing a stigma or mark of dishonor. Needless
to state, the legitimacy presumptively vested by law upon Jose Gerardo favors his interest.
8. ID.; ID.; MARRIAGE; IN CASE OF ANNULMENT OR DECLARATION OF ABSOLUTE
NULLITY OF MARRIAGE, VISITATION RIGHTS IS GRANTED TO A PARENT WHO IS DEPRIVED
OF CUSTODY OF HIS CHILDREN. — In case of annulment or declaration of absolute nullity of
marriage, Article 49 of the Family Code grants visitation rights to a parent who is deprived of custody
of his children. Such visitation rights flow from the natural right of both parent and child to each other's
company. There being no such parent-child relationship between them, Gerardo has no legally
demandable right to visit Jose Gerardo.
 9. POLITICAL LAW; CONSTITUTIONAL LAW DOCTRINE OF PARENS PATRIAE; APPLIED
IN CASE AT BAR. — The State as parens patriae affords special protection to children from abuse,
exploitation and other conditions prejudicial to their development. It is mandated to provide protection
to those of tender years. Through its law, the State safeguards them from every one, even their own
parents, to the end that their eventual development as responsible citizens and members of society
shall not be impeded, distracted or impaired by family acrimony. This is especially significant where,
as in this case, the issue concerns their filiation as it strikes at their very identity and lineage.

DECISION

CORONA, J  p:

The child, by reason of his mental and physical immaturity, needs special safeguard and care,
including appropriate legal protection before as well as after birth. 1 In case of assault on his rights by
those who take advantage of his innocence and vulnerability, the law will rise in his defense with the
single-minded purpose of upholding only his best interests.
This is the story of petitioner Gerardo B. Concepcion and private respondent Ma. Theresa
Almonte, and a child named Jose Gerardo. Gerardo and Ma. Theresa were married on December 29,
1989. 2 After their marriage, they lived with Ma. Theresa's parents in Fairview, Quezon City. 3 Almost
a year later, on December 8, 1990, Ma. Theresa gave birth to Jose Gerardo. 4
Gerardo and Ma. Theresa's relationship turned out to be short-lived, however. On December
19, 1991, Gerardo filed a petition to have his marriage to Ma. Theresa annulled on the ground of
bigamy. 5 He alleged that nine years before he married Ma. Theresa on December 10, 1980, she had
married one Mario Gopiao, which marriage was never annulled. 6 Gerardo also found out that Mario
was still alive and was residing in Loyola Heights, Quezon City. 7
Ma. Theresa did not deny marrying Mario when she was twenty years old. She, however,
averred that the marriage was a sham and that she never lived with Mario at all. 8
The trial court ruled that Ma. Theresa's marriage to Mario was valid and subsisting when she
married Gerardo and annulled her marriage to the latter for being bigamous. It declared Jose Gerardo
to be an illegitimate child as a result. The custody of the child was awarded to Ma. Theresa while
Gerardo was granted visitation rights. 9
Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage annulled. She
held him responsible for the 'bastardization' of Gerardo. She moved for the reconsideration of the
above decision "INSOFAR ONLY as that portion of the . . . decision which grant(ed) to the petitioner
so-called 'visitation rights' . . . between the hours of 8 in the morning to 12:00 p.m. of any
Sunday." 10 She argued that there was nothing in the law granting "visitation rights in favor of the
putative father of an illegitimate child." 11 She further maintained that Jose Gerardo's surname should
be changed from Concepcion to Almonte, her maiden name, following the rule that an illegitimate
child shall use the mother's surname.
Gerardo opposed the motion. He insisted on his visitation rights and the retention of
'Concepcion' as Jose Gerardo's surname.
Applying the "best interest of the child" principle, the trial court denied Ma. Theresa's motion
and made the following observations:
It is a pity that the parties herein seem to be using their son to get at or to
hurt the other, something they should never do if they want to assure the normal
development and well-being of the boy.
The Court allowed visitorial rights to the father knowing that the minor
needs a father, especially as he is a boy, who must have a father figure to
recognize — something that the mother alone cannot give. Moreover, the Court
believes that the emotional and psychological well-being of the boy would be better
served if he were allowed to maintain relationships with his father.
 There being no law which compels the Court to act one way or the other on
this matter, the Court invokes the provision of Art. 8, PD 603 as amended,
otherwise known as the Child and Youth Welfare Code, to wit:
"In all questions regarding the care, custody, education and property of the
child, his welfare shall be the paramount consideration."
WHEREFORE, the respondent's Motion for Reconsideration has to be, as it
is hereby DENIED. 12
Ma. Theresa elevated the case to the Court of Appeals, assigning as error the ruling of the
trial court granting visitation rights to Gerardo. She likewise opposed the continued use of Gerardo's
surname (Concepcion) despite the fact that Jose Gerardo had already been declared illegitimate and
should therefore use her surname (Almonte). The appellate court denied the petition and affirmed  in
toto the decision of the trial court. 13
On the issue raised by Ma. Theresa that there was nothing in the law that granted a putative
father visitation rights over his illegitimate child, the appellate court affirmed the "best interest of the
child" policy invoked by the court a quo. It ruled that "[a]t bottom, it (was) the child's welfare and not
the convenience of the parents which (was) the primary consideration in granting visitation rights a
few hours once a week." 14
The appellate court likewise held that an illegitimate child cannot use the mother's
surname motu proprio. The child, represented by the mother, should file a separate proceeding for a
change of name under Rule 103 of the Rules of Court to effect the correction in the civil registry. 15
Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision of the
appellate court. She also filed a motion to set the case for oral arguments so that she could better
ventilate the issues involved in the controversy. EHSAaD
After hearing the oral arguments of the respective counsels of the parties, the appellate court
resolved the motion for reconsideration. It reversed its earlier ruling and held that Jose Gerardo was
not the son of Ma. Theresa by Gerardo but by Mario during her first marriage:
It is, therefore, undeniable — established by the evidence in this case —
that the appellant [Ma. Theresa] was married to Mario Gopiao, and that she had
never entered into a lawful marriage with the appellee [Gerardo] since the so-called
"marriage" with the latter was void ab initio. It was [Gerardo] himself who had
established these facts. In other words, [Ma. Theresa] was legitimately married to
Mario Gopiao when the child Jose Gerardo was born on December 8, 1990.
Therefore, the child Jose Gerardo — under the law — is the legitimate child of the
legal and subsisting marriage between [Ma. Theresa] and Mario Gopiao; he cannot
be deemed to be the illegitimate child of the void and non-existent 'marriage'
between [Ma. Theresa] and [Gerardo], but is said by the law to be the child of the
legitimate and existing marriage between [Ma. Theresa] and Mario Gopiao (Art.
164, Family Code). Consequently, [she] is right in firmly saying that [Gerardo] can
claim neither custody nor visitorial rights over the child Jose Gerardo. Further,
[Gerardo] cannot impose his name upon the child. Not only is it without legal basis
(even supposing the child to be his illegitimate child [Art. 146, The Family Code]); it
would tend to destroy the existing marriage between [Ma. Theresa] and Gopiao,
would prevent any possible rapprochement between the married couple, and would
mean a judicial seal upon an illegitimate relationship. 16
The appellate court brushed aside the common admission of Gerardo and Ma. Theresa that
Jose Gerardo was their son. It gave little weight to Jose Gerardo's birth certificate showing that he
was born a little less than a year after Gerardo and Ma. Theresa were married:
We are not unaware of the movant's argument that various evidence exist
that appellee and the appellant have judicially admitted that the minor is their
natural child. But, in the same vein, We cannot overlook the fact that Article 167 of
the Family Code mandates:
 "The child shall be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an
adulteress." (underscoring ours)
Thus, implicit from the above provision is the fact that a minor cannot be
deprived of his/her legitimate status on the bare declaration of the mother and/or
even much less, the supposed father. In fine, the law and only the law
determines who are the legitimate or illegitimate children for one's legitimacy
or illegitimacy cannot ever be compromised. Not even the birth certificate of the
minor can change his status for the information contained therein are merely
supplied by the mother and/or the supposed father. It should be what the law
says and not what a parent says it is. 17 (Emphasis supplied)
Shocked and stunned, Gerardo moved for a reconsideration of the above decision but the
same was denied. 18 Hence, this appeal.
The status and filiation of a child cannot be compromised. 19 Article 164 of the Family
Code is clear. A child who is conceived or born during the marriage of his parents is legitimate. 20
As a guaranty in favor of the child 21 and to protect his status of legitimacy, Article 167 of
the Family Code provides:
Article 167. The child shall be considered legitimate although the mother
may have declared against its legitimacy or may have been sentenced as an
adulteress.
The law requires that every reasonable presumption be made in favor of legitimacy. 22 We
explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals  23 :
The presumption of legitimacy does not only flow out of a declaration in the
statute but is based on the broad principles of natural justice and the supposed
virtue of the mother. It is grounded on the policy to protect the innocent offspring
from the odium of illegitimacy.
Gerardo invokes Article 166 (1)(b) 24 of the Family Code. He cannot. He has no standing in
law to dispute the status of Jose Gerardo. Only Ma. Theresa's husband Mario or, in a proper
case, 25 his heirs, who can contest the legitimacy of the child Jose Gerardo born to his
wife. 26 Impugning the legitimacy of a child is a strictly personal right of the husband or, in exceptional
cases, his heirs. 27 Since the marriage of Gerardo and Ma. Theresa was void from the very
beginning, he never became her husband and thus never acquired any right to impugn the legitimacy
of her child. DHAcET
 
The presumption of legitimacy proceeds from the sexual union in marriage, particularly during
the period of conception. 28 To overthrow this presumption on the basis of Article 166 (1)(b) of
the Family Code, it must be shown beyond reasonable doubt that there was no access that could
have enabled the husband to father the child. 29 Sexual intercourse is to be presumed where
personal access is not disproved, unless such presumption is rebutted by evidence to the contrary. 30
The presumption is quasi-conclusive and may be refuted only by the evidence of physical
impossibility of coitus between husband and wife within the first 120 days of the 300 days which
immediately preceded the birth of the child. 31
To rebut the presumption, the separation between the spouses must be such as to make
marital intimacy impossible. 32 This may take place, for instance, when they reside in different
countries or provinces and they were never together during the period of conception. 33 Or, the
husband was in prison during the period of conception, unless it appears that sexual union took place
through the violation of prison regulations. 34
Here, during the period that Gerardo and Ma. Theresa were living together in Fairview,
Quezon City, Mario was living in Loyola Heights which is also in Quezon City. Fairview and Loyola
Heights are only a scant four kilometers apart.
 Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at
all was presented to disprove personal access between them. Considering these circumstances, the
separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as to make it
physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption
should be presented by him who asserts the contrary. There is no such evidence here. Thus, the
presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma.
Theresa and Mario, stands.
Gerardo relies on Ma. Theresa's statement in her answer 35 to the petition for annulment of
marriage 36 that she never lived with Mario. He claims this was an admission that there was never
any sexual relation between her and Mario, an admission that was binding on her.
Gerardo's argument is without merit.
First, the import of Ma. Theresa's statement is that Jose Gerardo is not her legitimate son with
Mario but her illegitimate son with Gerardo. This declaration — an avowal by the mother that her child
is illegitimate — is the very declaration that is proscribed by Article 167 of the Family Code.
The language of the law is unmistakable. An assertion by the mother against the legitimacy of
her child cannot affect the legitimacy of a child born or conceived within a valid marriage.
Second, even assuming the truth of her statement, it does not mean that there was never an
instance where Ma. Theresa could have been together with Mario or that there occurred absolutely no
intercourse between them. All she said was that she never lived with Mario. She never claimed that
nothing ever happened between them.
Telling is the fact that both of them were living in Quezon City during the time material to Jose
Gerardo's conception and birth. Far from foreclosing the possibility of marital intimacy, their proximity
to each other only serves to reinforce such possibility. Thus, the impossibility of physical access was
never established beyond reasonable doubt.
Third, to give credence to Ma. Theresa's statement is to allow her to arrogate unto herself a
right exclusively lodged in the husband, or in a proper case, his heirs. 37 A mother has no right to
disavow a child because maternity is never uncertain. 38 Hence, Ma. Theresa is not permitted by law
to question Jose Gerardo's legitimacy.
Finally, for reasons of public decency and morality, a married woman cannot say that she had
no intercourse with her husband and that her offspring is illegitimate. 39 The proscription is in
consonance with the presumption in favor of family solidarity. It also promotes the intention of the law
to lean toward the legitimacy of children. 40
Gerardo's insistence that the filiation of Jose Gerardo was never an issue both in the trial
court and in the appellate court does not hold water. The fact that both Ma. Theresa and Gerardo
admitted and agreed that Jose Gerardo was born to them was immaterial. That was, in effect, an
agreement that the child was illegitimate. If the Court were to validate that stipulation, then it would be
tantamount to allowing the mother to make a declaration against the legitimacy of her child and
consenting to the denial of filiation of the child by persons other than her husband. These are the very
acts from which the law seeks to shield the child.
Public policy demands that there be no compromise on the status and filiation of a
child. 41 Otherwise, the child will be at the mercy of those who may be so minded to exploit his
defenselessness.
The reliance of Gerardo on Jose Gerardo's birth certificate is misplaced. It has no evidentiary
value in this case because it was not offered in evidence before the trial court. The rule is that the
court shall not consider any evidence which has not been formally offered. 42
Moreover, the law itself establishes the status of a child from the moment of his
birth. 43 Although a record of birth or birth certificate may be used as primary evidence of the filiation
of a child, 44 as the status of a child is determined by the law itself, proof of filiation is necessary only
when the legitimacy of the child is being questioned, or when the status of a child born after 300 days
following the termination of marriage is sought to be established. 45
 Here, the status of Jose Gerardo as a legitimate child was not under attack as it could not be
contested collaterally and, even then, only by the husband or, in extraordinary cases, his heirs.
Hence, the presentation of proof of legitimacy in this case was improper and uncalled for.
In addition, a record of birth is merely prima facie evidence of the facts contained
therein. 46 As  prima facie evidence, the statements in the record of birth may be rebutted by more
preponderant evidence. It is not conclusive evidence with respect to the truthfulness of the statements
made therein by the interested parties. 47 Between the certificate of birth which is  prima
facie evidence of Jose Gerardo's illegitimacy and the quasi-conclusive presumption of law (rebuttable
only by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail. Not only does it bear
more weight, it is also more conducive to the best interests of the child and in consonance with the
purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose Gerardo's
illegitimacy while claiming that they both had the child's interests at heart. The law, reason and
common sense dictate that a legitimate status is more favorable to the child. In the eyes of the law,
the legitimate child enjoys a preferred and superior status. He is entitled to bear the surnames of both
his father and mother, full support and full inheritance. 48 On the other hand, an illegitimate child is
bound to use the surname and be under the parental authority only of his mother.  He can claim
support only from a more limited group and his legitime is only half of that of his legitimate
counterpart. 49 Moreover (without unwittingly exacerbating the discrimination against him), in the eyes
of society, a 'bastard' is usually regarded as bearing a stigma or mark of dishonor. Needless to state,
the legitimacy presumptively vested by law upon Jose Gerardo favors his interest.
It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble between the
very persons who were passionately declaring their concern for him. The paradox was that he was
made to suffer supposedly for his own sake. This madness should end.
This case has been pending for a very long time already. What is specially tragic is that an
innocent child is involved. Jose Gerardo was barely a year old when these proceedings began. He is
now almost fifteen and all this time he has been a victim of incessant bickering. The law now comes to
his aid to write finis to the controversy which has unfairly hounded him since his infancy.
Having only his best interests in mind, we uphold the presumption of his legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear the surnames of his father
Mario and mother Ma. Theresa, in conformity with the provisions of the Civil Code on surnames. 50 A
person's surname or family name identifies the family to which he belongs and is passed on from
parent to child. 51 Hence, Gerardo cannot impose his surname on Jose Gerardo who is, in the eyes
of the law, not related to him in any way.
The matter of changing Jose Gerardo's name and effecting the corrections of the entries in
the civil register regarding his paternity and filiation should be threshed out in a separate proceeding.
In case of annulment or declaration of absolute nullity of marriage, Article 49 of the Family
Code grants visitation rights to a parent who is deprived of custody of his children. Such visitation
rights flow from the natural right of both parent and child to each other's company. There being no
such parent-child relationship between them, Gerardo has no legally demandable right to visit Jose
Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of PD 603, otherwise known
as the Child and Youth Welfare Code, is clear and unequivocal:
Article 8. Child's Welfare Paramount. — In all questions regarding the care,
custody, education and property of the child, his welfare shall be the paramount
consideration.
 
Article 3 (1) of the United Nations Convention on the Rights of a Child of which the Philippines
is a signatory is similarly emphatic:
Article 3
 1. In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration.
The State as  parens patriae affords special protection to children from abuse, exploitation
and other conditions prejudicial to their development. It is mandated to provide protection to those of
tender years. 52 Through its laws, the State safeguards them from every one, even their own parents,
to the end that their eventual development as responsible citizens and members of society shall not
be impeded, distracted or impaired by family acrimony. This is especially significant where, as in this
case, the issue concerns their filiation as it strikes at their very identity and lineage. ADEaHT
WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and January 10,
1996 resolutions of the Court of Appeals in CA-G.R. CV No. 40651 are hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Panganiban, Sandoval-Gutierrez and Garcia, JJ., concur.
Carpio Morales, J.,  took no part.

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

THIRD DIVISION

[G.R. No. 171713. December 17, 2007.]

 ESTATE OF ROGELIO G. ONG, petitioner, vs. Minor JOANNE RODJIN DIAZ,
Represented by Her Mother and Guardian, Jinky C. Diaz,  respondent.

DECISION

CHICO-NAZARIO,  J p:

This is a petition for Review on Certiorari under Rule 45 of the Revised Rules of Civil

Procedure assailing (1) the Decision 1 of the Court of Appeals dated 23 November 2005 and (2)
the Resolution 2 of the same court dated 1 March 2006 denying petitioner's Motion for
Reconsideration in CA-G.R. CV No. 70125.
A Complaint 3 for compulsory recognition with prayer for support pending litigation was
filed by minor Joanne Rodjin Diaz (Joanne), represented by her mother and guardian, Jinky C.
Diaz (Jinky), against Rogelio G. Ong (Rogelio) before the Regional Trial Court (RTC) of Tarlac
City. In her Complaint, Jinky prayed that judgment be rendered:
(a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his
daughter.
(b) Ordering defendant to give plaintiff monthly support of
P20,000.00 pendente lite and thereafter to fix monthly support.
(c) Ordering the defendant to pay plaintiff attorney's fees in the sum of
P100,000.00.
(d) Granting plaintiff such other measure of relief as maybe just and
equitable in the premises. 4
As alleged by Jinky in her Complaint in November 1993 in Tarlac City, she and Rogelio
got acquainted. This developed into friendship and later blossomed into love. At this time, Jinky
was already married to a Japanese national, Hasegawa Katsuo, in a civil wedding solemnized on
19 February 1993 by Municipal Trial Court Judge Panfilo V. Valdez. 5
From January 1994 to September 1998, Jinky and Rogelio cohabited and lived together
at Fairlane Subdivision, and later at Capitol Garden, Tarlac City.
From this live-in relationship, minor Joanne Rodjin Diaz was conceived and on 25
February 1998 was born at the Central Luzon Doctors' Hospital, Tarlac City.
Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after
delivery. Rogelio paid all the hospital bills and the baptismal expenses and provided for all of
minor Joanne's needs — recognizing the child as his.
In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped supporting
minor Joanne, falsely alleging that he is not the father of the child.
Rogelio, despite Jinky's remonstrance, failed and refused and continued failing and
refusing to give support for the child and to acknowledge her as his daughter, thus leading to the
filing of the heretofore adverted complaint.
After summons had been duly served upon Rogelio, the latter failed to file any responsive
pleading despite repeated motions for extension, prompting the trial court to declare him in default
in its Order dated 7 April 1999. Rogelio's Answer with Counterclaim and Special and Affirmative
Defenses was received by the trial court only on 15 April 1999. Jinky was allowed to present her
evidence ex parte on the basis of which the trial court on 23 April 1999 rendered a decision
granting the reliefs prayed for in the complaint.
In its Decision 6 dated 23 April 1999, the RTC held:
WHEREFORE, judgment is hereby rendered:
1. Ordering defendant to recognize plaintiff as his natural child;
 2. Ordering defendant to provide plaintiff with a monthly support of
P10,000.00 and further
3. Ordering defendant to pay reasonable attorney's fees in the amount of
P5,000.00 and the cost of the suit.
On 28 April 1999, Rogelio filed a motion to lift the order of default and a motion for
reconsideration seeking the court's understanding, as he was then in a quandary on what to do to
find a solution to a very difficult problem of his life. 7
On 29 April 1999, Rogelio filed a motion for new trial with prayer that the decision of the
trial court dated 23 April 1999 be vacated and the case be considered for trial  de novo pursuant
to the provisions of Section 6, Rule 37 of the 1997 Rules of Civil Procedure. 8
On 16 June 1999, the RTC issued an Order granting Rogelio's Motion for New Trial:
WHEREFORE, finding defendant's motion for new trial to be impressed
with merit, the same is hereby granted.
The Order of this court declaring defendant in default and the decision is
this court dated April 23, 1999 are hereby set aside but the evidence adduced shall
remain in record, subject to cross-examination by defendant at the appropriate
stage of the proceedings.
In the meantime defendant's answer is hereby admitted, subject to the right
of plaintiff to file a reply and/or answer to defendant's counterclaim within the period
fixed by the Rules of Court.
Acting on plaintiff's application for support pendente lite which this court
finds to be warranted, defendant is hereby ordered to pay to plaintiff immediately
the sum of P2,000.00 a month from January 15, 1999 to May 1999 as support
pendente lite in arrears and the amount of P4,000.00 every month thereafter as
regular support pendente lite during the pendency of this case. 9
The RTC finally held:
The only issue to be resolved is whether or not the defendant is the father
of the plaintiff Joanne Rodjin Diaz.
Since it was duly established that plaintiff's mother Jinky Diaz was married
at the time of the birth of Joanne Rodjin Diaz, the law presumes that Joanne is a
legitimate child of the spouses Hasegawa Katsuo and Jinky Diaz (Article 164,
Family Code). The child is still presumed legitimate even if the mother may have
declared against her legitimacy (Article 167, Ibid).
The legitimacy of a child may be impugned only on the following grounds
provided for in Article 166 of the same Code. Paragraph 1 of the said Article
provides that there must be physical impossibility for the husband to have sexual
intercourse with the wife within the first 120 days of the 300 days following the birth
of the child because of —
a) physical incapacity of the husband to have sexual intercourse with his
wife;
b) husband and wife were living separately in such a way that sexual
intercourse was not possible;
c) serious illness of the husband which prevented sexual intercourse.
It was established by evidence that the husband is a Japanese national
and that he was living outside of the country (TSN, Aug. 27, 1999, page 5) and he
comes home only once a year. Both evidence of the parties proved that the
husband was outside the country and no evidence was shown that he ever arrived
in the country in the year 1997 preceding the birth of plaintiff Joanne Rodjin Diaz.
While it may also be argued that plaintiff Jinky had a relationship with
another man before she met the defendant, there is no evidence that she also had
 sexual relations with other men on or about the conception of Joanne Rodjin.
Joanne Rodjin was her second child (see Exh. "A"), so her first child, a certain
Nicole (according to defendant) must have a different father or may be the son of
Hasegawa K[u]tsuo.
The defendant admitted having been the one who shouldered the hospital
bills representing the expenses in connection with the birth of plaintiff. It is an
evidence of admission that he is the real father of plaintiff. Defendant also admitted
that even when he stopped going out with Jinky, he and Jinky used to go to motels
even after 1996. Defendant also admitted that on some instances, he still used to
see Jinky after the birth of Joanne Rodjin. Defendant was even the one who
fetched Jinky after she gave birth to Joanne.
On the strength of this evidence, the Court finds that Joanne Rodjin is the
child of Jinky and defendant Rogelio Ong and it is but just that the latter should
support plaintiff. 10
On 15 December 2000, the RTC rendered a decision and disposed:
WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz
to be the illegitimate child of defendant Rogelio Ong with plaintiff Jinky Diaz. The
Order of this Court awarding support pendente lite dated June 15, 1999, is hereby
affirmed and that the support should continue until Joanne Rodjin Diaz shall have
reached majority age. 11
Rogelio filed a Motion for Reconsideration, which was denied for lack of merit in an Order
of the trial court dated 19 January 2001. 12 From the denial of his Motion for Reconsideration,
Rogelio appealed to the Court of Appeals. After all the responsive pleadings had been filed, the
case was submitted for decision and ordered re-raffled to another Justice for study and report as
early as 12 July 2002. 13
During the pendency of the case with the Court of Appeals, Rogelio's counsel filed a
manifestation informing the Court that Rogelio died on 21 February 2005; hence, a Notice of
Substitution was filed by said counsel praying that Rogelio be substituted in the case by the
Estate of Rogelio Ong, 14 which motion was accordingly granted by the Court of Appeals. 15
In a Decision dated 23 November 2005, the Court of Appeals held:
WHEREFORE, premises considered, the present appeal is hereby
GRANTED. The appealed Decision dated December 15, 2000 of the Regional Trial
Court of Tarlac, Tarlac, Branch 63 in Civil Case No. 8799 is hereby SET ASIDE.
The case is hereby REMANDED to the court  a quo  for the issuance of an order
directing the parties to make arrangements for DNA analysis for the purpose of
determining the paternity of plaintiff minor Joanne Rodjin Diaz, upon consultation
and in coordination with laboratories and experts on the field of DNA analysis.
No pronouncement as to costs. 16
Petitioner filed a Motion for Reconsideration which was denied by the Court of Appeals in
a Resolution dated 1 March 2006.
In disposing as it did, the Court of Appeals justified its Decision as follows:
In this case, records showed that the late defendant-appellant Rogelio G.
Ong, in the early stage of the proceedings volunteered and suggested that he and
plaintiff's mother submit themselves to a DNA or blood testing to settle the issue of
paternity, as a sign of good faith. However, the trial court did not consider resorting
to this modern scientific procedure notwithstanding the repeated denials of
defendant that he is the biological father of the plaintiff even as he admitted having
actual sexual relations with plaintiff's mother. We believe that DNA paternity testing,
as current jurisprudence affirms, would be the most reliable and effective method of
settling the present paternity dispute. Considering, however, the untimely demise of
defendant-appellant during the pendency of this appeal, the trial court, in
consultation with out laboratories and experts on the field of DNA analysis, can
possibly avail of such procedure with whatever remaining DNA samples from the
 deceased defendant alleged to be the putative father of plaintiff minor whose
illegitimate filiations is the subject of this action for support. 17
Hence, this petition which raises the following issues for resolution:
I
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT
DISMISS RESPONDENT'S COMPLAINT FOR COMPULSORY RECOGNITION
DESPITE ITS FINDING THAT THE EVIDENCE PRESENTED FAILED TO PROVE
THAT ROGELIO G. ONG WAS HER FATHER.
II
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT
DECLARE RESPONDENT AS THE LEGITIMATE CHILD OF JINKY C. DIAZ AND
HER JAPANESE HUSBAND, CONSIDERING THAT RESPONDENT FAILED TO
REBUT THE PRESUMPTION OF HER LEGITIMACY.
III
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT REMANDED
THE CASE TO THE COURT A QUO FOR DNA ANALYSIS DESPITE THE FACT
THAT IT IS NO LONGER FEASIBLE DUE TO THE DEATH OF ROGELIO G.
ONG. 18
Petitioner prays that the present petition be given due course and the Decision of the
Court of Appeals dated November 23, 2005 be modified, by setting aside the judgment remanding
the case to the trial court for DNA testing analysis, by dismissing the complaint of minor Joanne
for compulsory recognition, and by declaring the minor as the legitimate child of Jinky and
Hasegawa Katsuo. 19
From among the issues presented for our disposition, this Court finds it prudent to
concentrate its attention on the third one, the propriety of the appellate court's decision remanding
the case to the trial court for the conduct of DNA testing. Considering that a definitive result of the
DNA testing will decisively lay to rest the issue of the filiation of minor Joanne, we see no reason
to resolve the first two issues raised by the petitioner as they will be rendered moot by the result
of the DNA testing.
As a whole, the present petition calls for the determination of filiation of minor Joanne for
purposes of support in favor of the said minor.
Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a
legal right associated with paternity, such as citizenship, support (as in the present case), or
inheritance. The burden of proving paternity is on the person who alleges that the putative father
is the biological father of the child. There are four significant procedural aspects of a traditional
paternity action which parties have to face: a prima facie case, affirmative defenses, presumption
of legitimacy, and physical resemblance between the putative father and child. 20
A child born to a husband and wife during a valid marriage is presumed legitimate. 21 As
a guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the  Family
Code provides:
Article 167. The children shall be considered legitimate although the mother
may have declared against its legitimacy or may have been sentenced as an
adulteress.
The law requires that every reasonable presumption be made in favor of legitimacy. We
explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals: 22
The presumption of legitimacy does not only flow out of a declaration in the
statute but is based on the broad principles of natural justice and the supposed
virtue of the mother. The presumption is grounded on the policy to protect the
innocent offspring from the odium of illegitimacy.
 The presumption of legitimacy of the child, however, is not conclusive and consequently,
may be overthrown by evidence to the contrary. Hence, Article 255 of the New Civil
Code 23 provides:
Article 255. Children born after one hundred and eighty days following the
celebration of the marriage, and before three hundred days following its dissolution
or the separation of the spouses shall be presumed to be legitimate.
Against this presumption no evidence shall be admitted other than that of
the physical impossibility of the husband's having access to his wife within the first
one hundred and twenty days of the three hundred which preceded the birth of the
child.
This physical impossibility may be caused:
1) By the impotence of the husband;
2) By the fact that husband and wife were living separately in such a way
that access was not possible;
3) By the serious illness of the husband. 24
The relevant provisions of the Family Code provide as follows:
ART. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
ART. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
There had been divergent and incongruent statements and assertions bandied about by
the parties to the present petition. But with the advancement in the field of genetics, and the
availability of new technology, it can now be determined with reasonable certainty whether
Rogelio is the biological father of the minor, through DNA testing.
DNA is the fundamental building block of a person's entire genetic make-up. DNA is
found in all human cells and is the same in every cell of the same person. Genetic identity is
unique. Hence, a person's DNA profile can determine his identity. 25
DNA analysis is a procedure in which DNA extracted from a biological sample obtained
from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for
the individual from whom the sample is taken. This DNA profile is unique for each person, except
for identical twins.
Everyone is born with a distinct genetic blueprint called DNA
(deoxyribonucleic acid). It is exclusive to an individual (except in the rare
occurrence of identical twins that share a single, fertilized egg), and DNA is
unchanging throughout life. Being a component of every cell in the human body, the
DNA of an individual's blood is the very DNA in his or her skin cells, hair follicles,
muscles, semen, samples from buccal swabs, saliva, or other body parts.
The chemical structure of DNA has four bases. They are known as A
(Adenine), G (guanine), C (cystosine) and T (thymine). The order in which the four
bases appear in an individual's DNA determines his or her physical make up. And
since DNA is a double stranded molecule, it is composed of two specific paired
bases, A-T or T-A and G-C or C-G. These are called "genes."
Every gene has a certain number of the above base pairs distributed in a
particular sequence. This gives a person his or her genetic code. Somewhere in the
DNA framework, nonetheless, are sections that differ. They are known as
"polymorphic loci," which are the areas analyzed in DNA typing (profiling, tests,
fingerprinting). In other words, DNA typing simply means determining the
"polymorphic loci."
How is DNA typing performed? From a DNA sample obtained or extracted,
a molecular biologist may proceed to analyze it in several ways. There are five (5)
techniques to conduct DNA typing. They are: the RFLP (restriction fragment length
polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was used in 287
cases that were admitted as evidence by 37 courts in the U.S. as of November
1994; DNA process; VNTR (variable number tandem repeats); and the most recent
which is known as the PCR-([polymerase] chain reaction) based STR (short
tandem repeats) method which, as of 1996, was availed of by most forensic
laboratories in the world. PCR is the process of replicating or copying DNA in an
evidence sample a million times through repeated cycling of a reaction involving the
so-called DNA polymerize enzyme. STR, on the other hand, takes measurements
in 13 separate places and can match two (2) samples with a reported theoretical
error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, "matches" are determined.
To illustrate, when DNA or fingerprint tests are done to identify a suspect in a
criminal case, the evidence collected from the crime scene is compared with the
"known" print. If a substantial amount of the identifying features are the same, the
DNA or fingerprint is deemed to be a match. But then, even if only one feature of
the DNA or fingerprint is different, it is deemed not to have come from the suspect.
As earlier stated, certain regions of human DNA show variations between
people. In each of these regions, a person possesses two genetic types called
"allele," one inherited from each parent. In [a] paternity test, the forensic scientist
looks at a number of these variable regions in an individual to produce a DNA
profile. Comparing next the DNA profiles of the mother and child, it is possible to
determine which half of the child's DNA was inherited from the mother. The other
half must have been inherited from the biological father. The alleged father's profile
is then examined to ascertain whether he has the DNA types in his profile, which
match the paternal types in the child. If the man's DNA types do not match that of
the child, the man is excluded as the father. If the DNA types match, then he is not
excluded as the father. 26
In the newly promulgated rules on DNA evidence it is provided:
SEC. 3 Definition of Terms. — For purposes of this Rule, the following
terms shall be defined as follows:
xxx xxx xxx
(c) "DNA evidence" constitutes the totality of the DNA profiles, results and
other genetic information directly generated from DNA testing of
biological samples;
(d) "DNA profile" means genetic information derived from DNA testing of a
biological sample obtained from a person, which biological sample
is clearly identifiable as originating from that person;
(e) "DNA testing" means verified and credible scientific methods which
include the extraction of DNA from biological samples, the
generation of DNA profiles and the comparison of the information
obtained from the DNA testing of biological samples for the
purpose of determining, with reasonable certainty, whether or not
the DNA obtained from two or more distinct biological samples
 originates from the same person (direct identification) or if the
biological samples originate from related persons (kinship
analysis); and
(f) "Probability of Parentage" means the numerical estimate for the
likelihood of parentage of a putative parent compared with the
probability of a random match of two unrelated individuals in a
given population.
Amidst the protestation of petitioner against the DNA analysis, the resolution thereof may
provide the definitive key to the resolution of the issue of support for minor Joanne. Our
articulation in  Agustin v. Court of Appeals 27 is particularly relevant, thus:
Our faith in DNA testing, however, was not quite so steadfast in the
previous decade. In  Pe Lim v. Court of Appeals (336 Phil. 741, 270 SCRA 1),
promulgated in 1997, we cautioned against the use of DNA because "DNA, being a
relatively new science, (had) not as yet been accorded official recognition by our
courts. Paternity (would) still have to be resolved by such conventional evidence as
the relevant incriminating acts, verbal and written, by the putative father."
In 2001, however, we opened the possibility of admitting DNA as evidence
of parentage, as enunciated in  Tijing v. Court of Appeals [G.R. No. 125901, 8
March 2001, 354 SCRA 17]:
. . . Parentage will still be resolved using conventional methods
unless we adopt the modern and scientific ways available. Fortunately, we
have now the facility and expertise in using DNA test for identification and
parentage testing. The University of the Philippines Natural Science
Research Institute (UP-NSRI) DNA Analysis Laboratory has now the
capability to conduct DNA typing using short tandem repeat (STR) analysis.
The analysis is based on the fact that the DNA of a child/person has two (2)
copies, one copy from the mother and the other from the father. The DNA
from the mother, the alleged father and child are analyzed to establish
parentage. Of course, being a novel scientific technique, the use of DNA
test as evidence is still open to challenge. Eventually, as the appropriate
case comes, courts should not hesitate to rule on the admissibility of DNA
evidence. For it was said, that courts should apply the results of science
when competently obtained in aid of situations presented, since to reject
said results is to deny progress.
The first real breakthrough of DNA as admissible and authoritative
evidence in Philippine jurisprudence came in 2002 with out en banc decision
in  People v. Vallejo [G.R. No. 144656, 9 May 2002, 382 SCRA 192] where the rape
and murder victim's DNA samples from the bloodstained clothes of the accused
were admitted in evidence. We reasoned that "the purpose of DNA testing (was) to
ascertain whether an association exist(ed) between the evidence sample and the
reference sample. The samples collected (were) subjected to various chemical
processes to establish their profile.
A year later, in People v. Janson [G.R. No. 125938, 4 April 2003, 400
SCRA 584], we acquitted the accused charged with rape for lack of evidence
because "doubts persist(ed) in our mind as to who (were) the real malefactors. Yes,
a complex offense (had) been perpetrated but who (were) the perpetrators? How
we wish we had DNA or other scientific evidence to still our doubts."
In 2004, in  Tecson, et al. v. COMELEC  [G.R. Nos. 161434, 161634 and
161824, 3 March 2004, 424 SCRA 277], where the Court en banc was faced with
the issue of filiation of then presidential candidate Fernando Poe, Jr., we stated:
In case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA testing, which
examines genetic codes obtained from body cells of the illegitimate child
and any physical residue of the long dead parent could be resorted to. A
 positive match would clear up filiation or paternity. In Tijing v. Court of
Appeals, this Court has acknowledged the strong weight of DNA testing. . .
Moreover, in our en banc decision in People v. Yatar  [G.R. No.
150224, 19 May 2004, 428 SCRA 504], we affirmed the conviction of the
accused for rape with homicide, the principal evidence for which included
DNA test results. . . . .
Coming now to the issue of remand of the case to the trial court, petitioner questions the
appropriateness of the order by the Court of Appeals directing the remand of the case to the RTC
for DNA testing given that petitioner has already died. Petitioner argues that a remand of the case
to the RTC for DNA analysis is no longer feasible due to the death of Rogelio. To our mind, the
alleged impossibility of complying with the order of remand for purposes of DNA testing is more
ostensible than real. Petitioner's argument is without basis especially as the New Rules on DNA
Evidence 28 allows the conduct of DNA testing, either  motu proprio or upon application of any
person who has a legal interest in the matter in litigation, thus:
SEC. 4. Application for DNA Testing Order. — The appropriate court may,
at any time, either motu proprio or on application of any person who has a legal
interest in the matter in litigation, order a DNA testing. Such order shall issue after
due hearing and notice to the parties upon a showing of the following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected to the type of DNA
testing now requested; or (ii) was previously subjected to DNA testing, but
the results may require confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce new information that is
relevant to the proper resolution of the case; and
(e) The existence of other factors, if any, which the court may consider as
potentially affecting the accuracy or integrity of the DNA testing.
From the foregoing, it can be said that the death of the petitioner does not ipso
facto negate the application of DNA testing for as long as there exist appropriate biological
samples of his DNA.
As defined above, the term "biological sample" means any organic material originating
from a person's body, even if found in inanimate objects, that is susceptible to DNA testing. This
includes blood, saliva, and other body fluids, tissues, hairs and bones. 29
Thus, even if Rogelio already died, any of the biological samples as enumerated above
as may be available, may be used for DNA testing. In this case, petitioner has not shown the
impossibility of obtaining an appropriate biological sample that can be utilized for the conduct of
DNA testing.
And even the death of Rogelio cannot bar the conduct of DNA testing. In  People v.
Umanito, 30 citing  Tecson v. Commission on Elections, 31 this Court held:
The 2004 case of  Tecson v. Commission on Elections [G.R. No. 161434, 3
March 2004, 424 SCRA 277] likewise reiterated the acceptance of DNA testing in
our jurisdiction in this wise: "[i]n case proof of filiation or paternity would be unlikely
to satisfactorily establish or would be difficult to obtain, DNA testing, which
examines genetic codes obtained from body cells of the illegitimate child and any
physical residue of the long dead parent could be resorted to."
It is obvious to the Court that the determination of whether appellant is the
father of AAA's child, which may be accomplished through DNA testing, is material
to the fair and correct adjudication of the instant appeal. Under Section 4 of the
Rules, the courts are authorized, after due hearing and notice, motu proprio  to
order a DNA testing. However, while this Court retains jurisdiction over the case at
bar, capacitated as it is to receive and act on the matter in controversy, the
Supreme Court is not a trier of facts and does not, in the course of daily routine,
 conduct hearings. Hence, it would be more appropriate that the case be remanded
to the RTC for reception of evidence in appropriate hearings, with due notice to the
parties. (Emphasis supplied.)
As we have declared in the said case of Agustin v. Court of Appeals: 32
. . . [F]or too long, illegitimate children have been marginalized by fathers
who choose to deny their existence. The growing sophistication of DNA testing
technology finally provides a much needed equalizer for such ostracized and
abandoned progeny. We have long believed in the merits of DNA testing and have
repeatedly expressed as much in the past. This case comes at a perfect time when
DNA testing has finally evolved into a dependable and authoritative form of
evidence gathering. We therefore take this opportunity to forcefully reiterate our
stand that DNA testing is a valid means of determining paternity.
WHEREFORE, the instant petition is DENIED for lack of merit. The Decision of the Court
of Appeals dated 23 November 2005 and its Resolution dated 1 March 2006 are AFFIRMED.
Costs against petitioner.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Nachura and Reyes, JJ., concur.
 

|||  (Estate of Ong v. Diaz, G.R. No. 171713, [December 17, 2007], 565 PHIL 215-233)

SECOND DIVISION

[G.R. No. 105625. January 24, 1994.]

MARISSA BENITEZ-BADUA, petitioner, vs. COURT OF APPEALS, VICTORIA

BENITEZ LIRIO AND FEODOR BENITEZ AGUILAR, respondents.

SYLLABUS

1.  CIVIL LAW; FAMILY CODE; PATERNITY AND FILIATION; ACTION TO IMPUGN THE
LEGITIMACY OF A CHILD; RULE. — A careful reading of Articles 164, 166, 170  and 171 of the
Family Code will show that they do not contemplate a situation, like in the instant case, where a child
is alleged not to be the child of nature or biological child of a certain couple. Rather, these articles
govern a situation where a husband (or his heirs) denies as his own a child of his wife. Thus, under
Article 166, it is the husband who can impugn the legitimacy of said child by proving; (1) it was
physically impossible for him to have sexual intercourse, with his wife within the first 120 days of the
300 days which immediately preceded the birth of the child; (2) that for biological or other scientific
reasons, the child could not have been his child; (3) that in case of children conceived through
artificial insemination, the written authorization or ratification by either parent was obtained through
mistake, fraud, violence, intimidation or undue influence. Articles 170 and 171 reinforce this reading
as they speak of the prescriptive period within which the husband or any of his heirs should file the
action impugning the legitimacy of said child.
2.  ID.; ID.; ID.; ID.; ID.; NOT APPLICABLE FOR ACTION TO CLAIM INHERITANCE OF A
CHILDLESS DECEDENT. — Doubtless then, the appellate court did not err when it refused to apply
these articles to the case at bench. For the case at bench is not one where the heirs of the late
Vicente are contending that petitioner is not his child by Isabel. Rather, their clear submission is that
petitioner was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs. Intermediate Appellate
Court, 166 SCRA 451, 457 cited in the impugned decision is apropos, viz: "Petitioners' recourse to
Article 263 of the New Civil Code [now Art. 170 of the Family Code] is not well-taken. This legal
provision refers to an action to impugn legitimacy. It is inapplicable to this case because this is not an
action to impugn the legitimacy of a child, but an action of the private respondents to claim their
inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner Violeta
Cabatbat Lim is an illegitimate child of the deceased, but that she is not the decedent's child at all.
Being neither legally adopted child, not an acknowledged natural child, nor a child by legal fiction of
Esperanza Cabatbat, Violeta is not a legal heir of the deceased."
3.  ID.; ID.; ID.; ADOPTION; CANNOT BE VALIDATED BY MERE REGISTRATION OF A
CHILD IN BIRTH CERTIFICATE AS THE CHILD OF THE SUPPOSED PARENT. — Appellee's birth
certificate with the late Vicente O. Benitez appearing as the informant, is highly questionable and
suspicious. For if Vicente's wife Isabel, who was already 36 years old at the time of the child's
supposed birth, was truly the mother of that child, as reported by Vicente in her birth certificate, should
the child not have been born in a hospital under the experienced, skillful, and caring hands of Isabel's
obstetrician-gynecologist Dr. Constantino Manahan, since delivery of a child at that late age by Isabel
would have been difficult and quite risky to her health and even life? How come, then, that as
appearing in appellee's birth certificate, Marissa was supposedly born at the Benitez home in Avenida
Rizal, Nagcarlan, Laguna, with no physician or even a midwife attending? At this juncture, it might be
meet to mention that it has become a practice in recent times for people who want to avoid the
expense and trouble of a judicial adoption to simply register the child as their supposed child in the
civil registry. Perhaps Atty. Vicente O. Benitez, though a lawyer himself, thought that he could avoid
the trouble if not the expense of adopting the child Marissa through court proceedings by merely
putting himself and his wife as the parents of the child in her birth certificate. Or perhaps he had
intended to legally adopt the child when she grew a little older but did not come around doing so either
because he was too busy or for some other reason. But definitely, the mere registration of a child in
his or her birth certificate as the child of the supposed parents is not a valid adoption, does not confer
upon the child the status of an adopted child and the legal rights of such child, and even amounts to
stimulation of the child's birth or falsification of his or her birth certificate, which is a public document.
4.  ID.; CIVIL REGISTER; BOOKS MAKING UP THE CIVIL REGISTRY AND ALL
DOCUMENTS RELATING THERETO ARE CONSIDERED PUBLIC DOCUMENT AND SHALL BE
PRIMA FACIE EVIDENCE OF THE FACTS THEREIN STATED. — We sustain the findings in case at
bar as they are not unsupported by the evidence on record. The weight of these findings was not
negated by the documentary evidence presented by the petitioner, the most notable of which is her
Certificate of Live Birth purportedly showing that her parents were the late Vicente Benitez and Isabel
Chipongian. This Certificate registered on December 28, 1954 appears to have been signed by the
deceased Vicente Benitez. Under Article 410 of the New Civil Code, however, "the books making up
the Civil Registry and all documents relating thereto shall be considered public documents and shall
be prima facie evidence of the facts therein stated." As related above, the totality of contrary
evidence, presented by the private respondents sufficiently rebutted the truth of the content of
petitioner's Certificate of Live Birth. Of said rebutting evidence, the most telling was the Deed of Extra-
Judicial Settlement of the Estate of the Deceased Isabel Chipongian executed on July 20, 1982 by
Vicente Benitez, and Dr. Nilo Chipongian, a brother of Isabel. In this notarized document, they stated
the "(they) are the sole heirs of the deceased Isabel Chipongian because she died without
descendants or ascendants." In executing this Deed, Vicente Benitez effectively repudiated the
Certificate of Live Birth of petitioner where it appeared that he was petitioner's father. The repudiation
was made twenty eight years after he signed petitioner's Certificate of Live Birth.

DECISION
PUNO, J  p:

This is a petition for review of the Decision of the 12th Division of the Court of Appeals in CA-
G.R. No. CV No. 30862 dated May 29, 1992. 1
The facts show that the spouses Vicente Benitez and Isabel Chipongian owned various
properties especially in Laguna. Isabel died on April 25, 1982. Vicente followed her in the grave on
November 13, 1989. He died intestate.
The fight for administration of Vicente's estate ensued. On September 24, 1990, private
respondents Victoria Benitez-Lirio and Feodor Benitez Aguilar (Vicente's sister and nephew,
respectively) instituted Sp. Proc. No. 797 (90) before the RTC of San Pablo City, 4th Judicial Region,
Br. 30. They prayed for the issuance of letters of administration of Vicente's estate in favor of private
respondent Aguilar. They alleged, inter alia, viz:
xxx xxx xxx
"4. The decedent is survived by no other heirs or relatives be they
ascendants or descendants, whether legitimate, illegitimate or legally adopted;
despite claims or representation to the contrary, petitioners can well and truly
establish, given the chance to do so, that said decedent and his spouse Isabel
Chipongian who pre-deceased him, and whose estate had earlier been settled
extra-judicial, were without issue and/or without descendants whatsoever, and that
one Marissa Benitez-Badua who was raised and cared by them since childhood is,
in fact, not related to them by blood, nor legally adopted, and is therefore not a legal
heir; . . ."
On November 2, 1990, petitioner opposed the petition. She alleged that she is the sole heir of
the deceased Vicente Benitez and capable of administering his estate. The parties further exchanged
reply and rejoinder to buttress their legal postures.
The trial court then received evidence on the issue of petitioner's heirship to the estate of the
deceased. Petitioner tried to prove that she is the only legitimate child of the spouses Vicente Benitez
and Isabel Chipongian. She submitted documentary evidence, among others: (1) her Certificate of
Live Birth (Exh. 3); (2) Baptismal Certificate; (Exh. 4); (3) Income Tax Returns and Information Sheet
for Membership with the GSIS of the late Vicente naming her as his daughter (Exhs. 10 to 21); and (4)
School Records (Exhs. 5 & 6). She also testified that the said spouses reared and continuously
treated her as their legitimate daughter. On the other hand, private respondents tried to prove, mostly
thru testimonial evidence, that the said spouses failed to beget a child during their marriage; that the
late Isabel, then thirty six (36) years of age, was even referred to Dr. Constantino Manahan, a noted
obstetrician-gynecologist, for treatment. Their primary witness, Victoria Benitez-Lirio, elder sister of
the late Vicente, then 77 years of age, 2 categorically declared that petitioner was not the biological
child of the said spouses who were unable to physically procreate.
On December 17, 1990, the trial court decided in favor of the petitioner. It dismissed the
private respondents petition for letters of administration and declared petitioner as the legitimate
daughter and sole heir of the spouses Vicente O. Benitez and Isabel Chipongian. The trial court relied
on Articles 166 and 170 of the Family Code. LexLib
On appeal, however, the Decision of the trial court was reversed on May 29, 1992 by the 17th
Division of the Court of Appeals. The dispositive portion of the Decision of the appellate court states:
"WHEREFORE, the decision appealed from herein is REVERSED and
another one entered declaring that appellee Marissa Benitez is not the biological
daughter or child by nature of the spouse Vicente O. Benitez and Isabel Chipongian
and, therefore, not a legal heir of the deceased Vicente O. Benitez. Her opposition
to the petition for the appointment of an administrator of the intestate estate of the
deceased Vicente O. Benitez is, consequently, DENIED; said petition and the
proceedings already conducted therein reinstated; and the lower court is directed to
proceed with the hearing of Special Proceeding No. SP-797 (90) in accordance with
law and the Rules.
Costs against appellee.
SO ORDERED."
 In juxtaposition, the appellate court held that the trial court erred in applying Articles 166 and 170
of the Family Code.
In this petition for review, petitioner contends:
"1. The Honorable Court of Appeals committed error of law and
misapprehension of facts when it failed to apply the provisions, more particularly,
Arts. 164, 166, 170 and 171 of the Family Code in this case and in adopting or
upholding private respondent's theory that the instant case does not involve an
action to impugn the legitimacy of a child;
"2. Assuming arguendo that private respondents can question or impugn
directly or indirectly, the legitimacy of Marissa's birth, still the respondent appellate
Court committed grave abuse of discretion when it gave more weight to the
testimonial evidence of witnesses of private respondents whose credibility and
demeanor have not convinced the trial court of the truth and sincerity thereof, than
the documentary and testimonial evidence of the now petitioner Marissa Benitez-
Badua;
"3. The Honorable Court of Appeals has decided the case in a way not in
accord with law or with applicable decisions of the Supreme Court, more
particularly, on prescription or laches."
We find no merit to the petition.
Petitioner's insistence on the applicability of Articles 164, 166, 170 and 171 of the Family
Code to the case at bench cannot be sustained. These articles provide:
"Art. 164. Children conceived or born during the marriage of the parents are
legitimate.
"Children conceived as a result of artificial insemination of the wife with
sperm of the husband or that of a donor or both are likewise legitimate children of
the husband and his wife, provided, that both of them authorized or ratified such
insemination in a written instrument executed and signed by them before the birth
of the child. The instrument shall be recorded in the civil registry together with the
birth certificate of the child. cdrep
"Art. 166. Legitimacy of child may be impugned only on the following
grounds:
"1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days which immediately
preceded the birth of the child because of:
a) the physical incapacity of the husband to have sexual
intercourse with his wife;
b) the fact that the husband and wife were living separately in such
a way that sexual intercourse was not possible; or
c) serious illness of the husband, which absolutely prevented
sexual intercourse.
"2) That it is proved that for biological or other scientific reasons, the child
could not have been that of the husband except in the instance provided in the
second paragraph of Article 164; or
"3) That in case of children conceived through artificial insemination, the
written authorization or ratification of either parent was obtained through mistake,
fraud, violence, intimidation, or undue influence.
"Art. 170. The action to impugn the legitimacy of the child shall be brought
within one year from the knowledge of the birth or its recording in the civil register, if
the husband or, in a proper case, any of his heirs, should reside in the city or
municipality where the birth took place or was recorded.
"If the husband or, in his default, all of his heirs do not reside at the place of
birth as defined in the first paragraph or where it was recorded, the period shall be
 two years if they should reside in the Philippines; and three years if abroad. If the
birth of the child has been concealed from or was unknown to the husband or his
heirs, the period shall be counted from the discovery or knowledge of the birth of
the child or of the fact of registration of said birth, whichever is earlier.
"Art. 171. The heirs of the husband may impugn the filiation of the child
within the period prescribed in the preceding Article only in the following case:
"1) If the husband should die before the expiration of the period
fixed for bringing his action;
"2) If he should die after the filing of the complaint, without having
desisted therefrom; or
"3) If the child was born after the death of the husband."
A careful reading of the above articles will show that they do not contemplate a situation, like in
the instant case, where a child is alleged not to be the child of nature or biological child of a
certain couple. Rather, these articles govern a situation where a husband (or his heirs) denies as
his own a child of his wife. Thus, under Article 166, it is the husband who can impugn the
legitimacy of said child by proving: (1) it was physically impossible for him to have sexual
intercourse, with his wife within the first 120 days of the 300 days which immediately preceded the
birth of the child; (2) that for biological or other scientific reasons, the child could not have been
his child; (3) that in case of children conceived through artificial insemination, the written
authorization or ratification by either parent was obtained through mistake, fraud, violence,
intimidation or undue influence. Articles 170 and 171 reinforce this reading as they speak of the
prescriptive period within which the husband or any of his heirs should file the action impugning
the legitimacy of said child. Doubtless then, the appellate court did not err when it refused to apply
these articles to the case at bench. For the case at bench is not one where the heirs of the late
Vicente are contending that petitioner is not his child by Isabel. Rather, their clear submission is
that petitioner was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs. Intermediate
Appellate Court, 166 SCRA 451, 457 cited in the impugned decision is apropos, viz:
"Petitioners' recourse to Article 263 of the New Civil Code [now Art. 170 of
the Family Code] is not well-taken. This legal provision refers to an action to
impugn legitimacy. It is inapplicable to this case because this is not an action to
impugn the legitimacy of a child, but an action of the private respondents to claim
their inheritance as legal heirs of their childless deceased aunt. They do not claim
that petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that
she is not the decedent's child at all. Being neither legally adopted child, nor an
acknowledged natural child, nor a child by legal fiction of Esperanza Cabatbat,
Violeta is not a legal heir of the deceased."
We now come to the factual finding of the appellate court that petitioner was not the biological
child or child of nature of the spouses Vicente Benitez and Isabel Chipongian. The appellate court
exhaustively dissected the evidence of the parties as follows:
". . . And on this issue, we are constrained to say that appellee's evidence
is utterly insufficient to establish her biological and blood kinship with the aforesaid
spouses, while the evidence on record is strong and convincing that she is not, but
that said couple being childless and desirous as they were of having a child, the
late Vicente O. Benitez took Marissa from somewhere while still a baby, and
without he and his wife's legally adopting her treated, cared for, reared, considered,
and loved her as their own true child, giving her the status as not so, such that she
herself had believed that she was really their only daughter and entitled to inherit
from them as such. llcd
"The strong and convincing evidence referred to by us are the following:
"First, the evidence is very cogent and clear that Isabel Chipongian never
became pregnant and, therefore, never delivered a child. Isabel's own only brother
and sibling, Dr. Lino Chipongian, admitted that his sister had already been married
for ten years and was already about 36 years old and still she has not begotten or
still could not bear a child, so that he even had to refer her to the late Dr.
Constantino Manahan, a well-known and eminent obstetrician-gynecologist and the
OB of his mother and wife, who treated his sister for a number of years. There is
likewise the testimony of the elder sister of the deceased Vicente O. Benitez,
Victoria Benitez Lirio, who then, being a teacher, helped him (he being the only boy
and the youngest of the children of their widowed mother) through law school, and
whom Vicente and his wife highly respected and consulted on family matters, that
her brother Vicente and his wife Isabel being childless, they wanted to adopt her
youngest daughter and when she refused, they looked for a baby to adopt
elsewhere, that Vicente found two baby boys but Isabel wanted a baby girl as she
feared a boy might grow up unruly and uncontrollable, and that Vicente finally
brought home a baby girl and told his elder sister Victoria he would register the
baby as his and his wife's child. Victoria Benitez Lirio was already 77 years old and
too weak to travel and come to court in San Pablo City, so that the taking of her
testimony by the presiding judge of the lower court had to be held at her residence
in Parañaque, MM. Considering, her advanced age and weak physical condition at
the time she testified in this case, Victoria Benitez Lirio's testimony is highly
trustworthy and credible, for as one who may be called by her Creator at any time,
she would hardly be interested in material things anymore and can be expected not
to lie, especially under her oath as a witness. There were also several disinterested
neighbors of the couple Vicente O. Benitez and Isabel Chipongian in Nagcarlan,
Laguna (Sergio Fule, Cecilia Coronado, and Benjamin C. Asendido) who testified in
this case and declared that they used to see Isabel almost everyday especially as
she had a drugstore in the ground floor of her house, but that they never saw her to
have been pregnant, in 1954 (the year appellee Marissa Benitez was allegedly
born, according to her birth certificate Exh. "3") or at any time at all, and that this is
also true with the rest of their townmates. Resurreccion A. Tuico, Isabel
Chipongian's personal beautician who used to set her hair once a week at her
(Isabel's) residence, likewise declared that she did not see Isabel ever become
pregnant, that she knows that Isabel never delivered a baby, and that when she
saw the baby Marissa in her crib one day when she went to Isabel's house to set
the latter's hair, she was surprised and asked the latter where the baby came from,
and "she told me that the child was brought by Atty. Benitez and told me not to tell
about it" (p. 10, tsn, Nov. 29, 1990).
The facts of a woman's becoming pregnant and growing big with child, as
well as her delivering a baby, are matters that cannot be hidden from the public
eye, and so is the fact that a woman never became pregnant and could not have,
therefore, delivered a baby at all. Hence, if she is suddenly seen mothering and
caring for a baby as if it were her own, especially at the rather late age of 36 (the
age of Isabel Chipongian when appellee Marissa Benitez was allegedly born), we
can be sure that she is not the true mother of that baby.
Second, appellee's birth certificate Exh. "3" with the late Vicente O. Benitez
appearing as the informant, is highly questionable and suspicious. For if Vicente's
wife Isabel, who was already 36 years old at the time of the child's supposed birth,
was truly the mother of that child, as reported by Vicente in her birth certificate,
should the child not have been born in a hospital under the experienced, skillful and
caring hands of Isabel's obstetrician-gynecologist Dr. Constantino Manahan, since
delivery of a child at that late age by Isabel would have been difficult and quite risky
to her health and even life? How come, then, that as appearing in appellee's birth
certificate, Marissa was supposedly born at the Benitez home in Avenida Rizal,
Nagcarlan, Laguna, with no physician or even a midwife attending?
At this juncture, it might be meet to mention that it has become a practice in
recent times for people who want to avoid the expense and trouble of a judicial
adoption to simply register the child as their supposed child in the civil registry.
Perhaps Atty. Vicente O. Benitez, though a lawyer himself, thought that he could
avoid the trouble if not the expense of adopting the child Marissa through court
proceedings by merely putting himself and his wife as the parents of the child in her
birth certificate. Or perhaps he had intended to legally adopt the child when she
grew a little older but did not come around doing so either because he was too busy
or for some other reason. But definitely, the mere registration of a child in his or her
birth certificate as the child of the supposed parents is not a valid adoption, does
not confer upon the child the status of an adopted child and the legal rights of such
 child, and even amounts of simulation of the child's birth or falsification of his or her
birth certificate, which is a public document.
Third, if appellee Marissa Benitez is truly the real, biological daughter of the
late Vicente O. Benitez and his wife Isabel Chipongian, why did he and Isabel's
only brother and sibling Dr. Nilo Chipongian, after Isabel's death on April 25, 1982,
state in the extrajudicial settlement Exh. "E" that they executed her estate, "that we
are the sole heirs of the deceased ISABEL CHIPONGIAN because she died
without descendants or ascendants"? Dr. Chipongian, placed on the witness stand
by appellants, testified that it was his brother-in-law Atty. Vicente O. Benitez who
prepared said document and that he signed the same only because the latter told
him to do so (p. 24, tsn, Nov. 22, 1990). But why would Atty. Benitez make such a
statement in said document, unless appellee Marissa Benitez is really not his and
his wife's daughter and descendant and, therefore, not his deceased's wife legal
heir? As for Dr. Chipongian, he lamely explained that he signed said document
without understanding completely the meaning of the words "descendant and
ascendant"  (p. 21, tsn, Nov. 22, 1990). This we cannot believe, Dr. Chipongian
being a practicing pediatrician who has even gone to the United States (p. 52, tsn,
Dec. 13, 1990). Obviously, Dr. Chipongian was just trying to protect the interests of
appellee, the foster-daughter of his deceased sister and brother-in-law, as against
those of the latter's collateral blood relatives. LLpr
Fourth, it is likewise odd and strange, if appellee Marissa Benitez is really
the daughter and only legal heir of the spouses Vicente O. Benitez and Isabel
Chipongian, that the latter, before her death, would write a note to her husband and
Marissa stating that:
"even without any legal papers, I wish that my husband and my child or
only daughter will inherit what is legally my own property, in case I die
without a will,"
and in the same handwritten note, she even implored her husband —
"that any inheritance due him from my property — when he die — to make
our own daughter his sole heir. This do [sic] not mean what he legally owns
or his inherited property. I leave him to decide for himself regarding those."
(Exhs. "F-1", "F-1-A" and "F-1-B")
We say odd and strange, for if Marissa Benitez is really the daughter of the
spouses Vicente O. Benitez and Isabel Chipongian, it would not have been
necessary for Isabel to write and plead for the foregoing requests to her husband,
since Marissa would be their legal heir by operation of law. Obviously, Isabel
Chipongian had to implore and supplicate her husband to give appellee although
without any legal papers her properties when she dies, and likewise for her
husband to give Marissa the properties that he would inherit from her (Isabel), since
she well knew that Marissa is not truly their daughter and could not be their legal
heir unless her (Isabel's) husband makes her so.
Finally, the deceased Vicente O. Benitez' elder sister Victoria Benitez Lirio
even testified that her brother Vicente gave the date December 8 as Marissa's
birthday in her birth certificate because that date is the birthday of their (Victoria
and Vicente's) mother. It is indeed too much of a coincidence for the child Marissa
and the mother of Vicente and Victoria to have the same birthday unless it is true,
as Victoria testified, that Marissa was only registered by Vicente as his and his
wife's child and that they gave her the birth date of Vicente's mother."
We sustain these findings as they are not unsupported by the evidence on record. The weight of
these findings was not negated by the documentary evidence presented by the petitioner, the
most notable of which is her Certificate of Live Birth (Exh. "3") purportedly showing that her
parents were the late Vicente Benitez and Isabel Chipongian. This Certificate registered on
December 28, 1954 appears to have been signed by the deceased Vicente Benitez. Under Article
410 of the New Civil Code, however, "the books making up the Civil Registry and all documents
relating thereto shall be considered public documents and shall be prima facie evidence of the
facts therein stated." As related above, the totality of contrary evidence, presented by the private
 respondents sufficiently rebutted the truth of the content of petitioner's Certificate of Live Birth. Of
said rebutting evidence, the most telling was the Deed of Extra-Judicial Settlement of the Estate
of the Deceased Isabel Chipongian (Exh. "E") executed on July 20, 1982 by Vicente Benitez, and
Dr. Nilo Chipongian, a brother of Isabel. In this notarized document, they stated that "(they) are
the sole heirs of the deceased Isabel Chipongian because she died without descendants or
ascendants". In executing this Deed, Vicente Benitez effectively repudiated the Certificate of Live
Birth of petitioner where it appeared that he was petitioner's father. The repudiation was made
twenty-eight years after he signed petitioner's Certificate of Live Birth. LibLex
IN VIEW WHEREOF, the petition for review is dismissed for lack of merit. Costs against
petitioner.
SO ORDERED.
Narvasa, C.J., Padilla and  Regalado, JJ., concur.
Nocon, J., is on leave.

Footnotes

1.Composed of Associate Justice Pedro Ramirez (Chairman); Associate Justice Alicia Sempio-Diy
(Ponente) and Associate Justice Ricardo Galvez.
2.She died during the pendency of the present action, and was substituted by her daughters,
Mayra B. Lirio and Nieva L. Isla and son, Jose B. Lirio, Jr.

|||  (Benitez-Badua v. Court of Appeals, G.R. No. 105625, [January 24, 1994], 299 PHIL 493-506)

THIRD DIVISION

[G.R. No. 197099. September 28, 2015.]

EUGENIO SAN JUAN GERONIMO, petitioner, vs. KAREN SANTOS,  respondent.

DECISION

VILLARAMA, JR.,  J p:

At bar is a petition for review on certiorari of the Decision 1 and Resolution 2 of the Court
of Appeals (CA) in CA-G.R. CV No. 88650 promulgated on January 17, 2011 and May 24, 2011,
respectively, which affirmed the Decision 3 of the Regional Trial Court (RTC) of Malolos City,
Bulacan, Branch 8. Both courts  a quo ruled that the subject document titled  Pagmamana sa
Labas ng Hukuman is null and void, and ordered herein petitioner Eugenio San Juan Geronimo
(Eugenio), who was previously joined by his brother Emiliano San Juan Geronimo (Emiliano) as
co-defendant, to vacate the one-half portion of the subject 6,542-square meter property and
surrender its possession to respondent Karen Santos. In a Resolution 4 dated November 28,
2011, this Court ordered the deletion of the name of Emiliano from the title of the instant petition
as co-petitioner, viz.:
. . . The Court resolves:
xxx xxx xxx
(2) to  AMEND the title of this petition to read "Eugenio San Juan Geronimo,
petitioner vs. Karen Santos, respondent," considering the sworn statement
 of Eugenio San Juan Geronimo that he does not know whether his brother
is still alive and that his brother did not verify the instant petition; . . . 5
The following facts were found by the trial court and adopted by the appellate court in its
assailed Decision,  viz.:
On April 17, 2001, plaintiff Karen Santos, claiming to be the only child of
deceased Rufino and Caridad Geronimo filed a complaint for annulment of
document and recovery of possession against the defendants Eugenio and
Emiliano Geronimo who are the brothers of her father. She alleged that with the
death of her parents, the property consisting of one-half of the parcel of land
located at San Jose, Paombong, Bulacan with Tax Declaration No. 99-02017-
00219 and belonging to her parents was passed on to her by the law on
intestacy; that lately, she discovered that defendants executed a document
entitled Pagmamana sa Labas ng Hukuman declaring themselves as the only
heirs of spouses Rufino and Caridad and adjudicating to themselves the property
in question; and that consequently[,] they took possession and were able to
transfer the tax declaration of the subject property to their names. She prayed
that the document Exhibit C be annulled and the tax declaration of the land
transferred to her, and that the defendants vacate the property and pay her
damages.
In an amended answer, the defendants denied the allegation that plaintiff
was the only child and sole heir of their brother. They disclosed that the deceased
Rufino and Caridad Geronimo were childless and took in as their ward the plaintiff
who was in truth, the child of Caridad's sister. They claimed that the birth
certificate of the plaintiff was a simulated document. It was allegedly impossible
for Rufino and Caridad to have registered the plaintiff in Sta. Maria, Ilocos Sur
because they had never lived or sojourned in the place and Caridad, who was an
elementary teacher in Bulacan never filed any maternity leave during the period
of her service from August 1963 until October 1984.
The plaintiff took the stand and testified that her parents were Rufino and
Caridad Geronimo. The defendants Eugenio and Emiliano were the half-brothers
of her father Rufino, being the children of Rufino's father Marciano Geronimo with
another woman Carmen San Juan. Rufino co-owned Lot 1716 with the
defendants' mother Carmen, and upon his death in 1980, when the plaintiff was
only 8 years old, his share in the property devolved on his heirs. In 1998, some
18 years later, Caridad and she executed an extra-judicial settlement of Rufino's
estate entitled Pagmamanahan sa Labas ng Hukuman na may Pagtalikod sa
Karapatan, whereby the plaintiff's mother Caridad waived all her rights to Rufino's
share and in the land in question to her daughter the plaintiff. Be that as it may, in
1985, guardianship proceedings appeared to have been instituted with the
Regional Trial Court of Malolos by Caridad in which it was established that the
plaintiff was the minor child of Caridad with her late husband Rufino. Caridad was
thus appointed guardian of the person and estate of the plaintiff. CAIHTE
The plaintiff further declared that she and her mother had been paying
the real estate taxes on the property, but in 2000, the defendants took possession
of the land and had the tax declaration transferred to them. This compelled her to
file the present case.
Eugenio Geronimo, the defendant, disputes the allegation that the
plaintiff is the only child and legal heir of his brother Rufino. He disclosed that
when Rufino's wife could not bear a child, the couple decided to adopt the plaintiff
who was Caridad's niece from Sta. Maria, Ilocos Sur. It was in 1972, 13 years
after the marriage, when Karen joined her adoptive parents' household. Believing
that in the absence of a direct heir, his brother Emiliano and he should succeed to
the estate of their brother, they executed in 2000 an extra-judicial settlement
called Pagmamana sa Labas ng Hukuman.
Eugenio was able to obtain a copy of the plaintiff's alleged birth
certificate. It had irregular features, such as that it was written in pentel pen, the
entry in the box date of birth was erased and the word and figure  April 6,
 1972 written and the name Emma Daño  was superimposed on the entry in the
box intended for the informant's signature.
Two more witnesses were adduced. Atty. Elmer Lopez, a legal consultant
of the DECS in Bulacan brought the plaintiff's service record as an elementary
school teacher at Paombong[,] Bulacan to show that she did not have any
maternity leave during the period of her service from March 11, 1963 to October
24, 1984, and a certification from the Schools Division Superintendent that the
plaintiff did not file any maternity leave during her service. He declared that as far
as the service record is concerned, it reflects the entry and exit from the service
as well as the leaves that she availed of. Upon inquiry by the court, he clarified
that the leaves  were reflected but the  absences were not. Testifying on the
plaintiff's birth certificate, Exhibit 14, Arturo Reyes, a representative of the NSO,
confirmed that there was an alteration in the date of birth and signature of the
informant. In view of the alterations, he considered the document questionable. 6
On October 27, 2006, the trial court ruled in favor of respondent,  viz.:
WHEREFORE, judgment is hereby rendered as follows:
1. Declaring the document Pagmamana sa Labas ng Hukuman dated
March 9, 2000 executed in favor of Eugenio San Juan-Geronimo and Emilio San
Juan-Geronimo as null and void;
2. Annulling Tax Declaration No. 99-02017-01453 of the subject property
in the names of Eugenio San Juan-Geronimo and Emiliano San Juan-Geronimo;
3. Ordering defendants Eugenio San Juan-Geronimo and Emiliano San
Juan-Geronimo to vacate the 1/2 portion of the subject property and to surrender
the possession to the plaintiff;
4. Ordering the defendants to pay the plaintiff the amount of [P]30,000.00
as attorney's fees;
5. To pay the costs of the suit.
SO ORDERED. 7
The trial court ruled that respondent is the legal heir — being the legitimate child — of the
deceased spouses Rufino and Caridad Geronimo (spouses Rufino and Caridad). It found that
respondent's filiation was duly established by the certificate of live birth which was presented in
evidence. The RTC dismissed the claim of petitioner that the birth certificate appeared to have
been tampered, specifically on the entries pertaining to the date of birth of respondent and the
name of the informant. The trial court held that petitioner failed to adduce evidence to explain how
the erasures were done. Petitioner also failed to prove that the alterations were due to the fault of
respondent or another person who was responsible for the act. In the absence of such contrary
evidence, the RTC relied on the  prima facie presumption of the veracity and regularity of the birth
certificate as a public document.
The trial court further stated that even granting arguendo that the birth certificate is
questionable, the filiation of respondent has already been sufficiently proven by evidence of her
open and continuous possession of the status of a legitimate child under Article 172 of the Family
Code of the Philippines. The RTC considered the following overt acts of the deceased spouses as
acts of recognition that respondent is their legitimate child: they sent her to school and paid for
her tuition fees; Caridad made respondent a beneficiary of her burial benefits from the
Government Service Insurance System; and, Caridad filed a petition for guardianship of
respondent after the death of her husband Rufino. Lastly, the trial court held that to be allowed to
impugn the filiation and status of respondent, petitioner should have brought an action for the
purpose under Articles 170 and 171 of the Family Code. Since petitioner failed to file such action,
the trial court ruled that respondent alone is entitled to the ownership and possession of the
subject land owned by Rufino. The extrajudicial settlement executed by petitioner and his brother
was therefore declared not valid and binding as respondent is Rufino's only compulsory heir.
On appeal, petitioner raised the issue on the alterations in the birth certificate of
respondent and the offered evidence of a mere certification from the Office of the Civil Registry
instead of the birth certificate itself. According to petitioner, respondent's open and continuous
possession of the status of a legitimate child is only secondary evidence to the birth certificate
itself. Respondent questioned if it was legally permissible for petitioner to question her filiation as
a legitimate child of the spouses Rufino and Caridad in the same action for annulment of
document and recovery of possession that she herself filed against petitioner and his then co-
defendant. Respondent argued that the conditions enumerated under Articles 170 and 171 of
the Family Code, giving the putative father and his heirs the right to bring an action to impugn the
legitimacy of the child, are not present in the instant case. She further asserted that the  Family
Code contemplates a direct action, thus her civil status may not be assailed indirectly or
collaterally in this suit. DETACa
In the assailed Decision dated January 17, 2011, the appellate court held that under
Article 170, the action to impugn the legitimacy of the child must be reckoned from either of these
two dates: the date the child was born to the mother during the marriage, or the date when the
birth of such child was recorded in the civil registry. The CA found no evidence or admission that
Caridad indeed gave birth to respondent on a specific date. It further resolved that the birth
certificate presented in this case, Exhibit 14, does not qualify as the valid registration of birth in
the civil register as envisioned by the law, viz.:
. . . The reason is that under the statute establishing the civil register, Act
No. 3753, the declaration of the physician or midwife in attendance at the birth or
in default thereof, that declaration of either parent of the newborn child, shall be
sufficient for the registration of birth in the civil register. The document in question
was signed by one Emma Daño who was not identified as either the parent of the
plaintiff or the physician or midwife who attended to her birth. Exhibit 14, legally,
cannot be the birth certificate envisioned by the law; otherwise, with an informant
as shadowy as Emma Daño, the floodgates to spurious filiations will be opened.
Neither may the order of the court Exhibit E be treated as the  final
judgment mentioned in Article 172 as another proof of filiation. The final judgment
mentioned refers to a decision of a competent court finding the child legitimate.
Exhibit G is merely an order granting letters of guardianship to the parent Caridad
based on her representations that she is the mother of the plaintiff. 8
Noting the absence of such record of birth, final judgment or admission in a public or
private document that respondent is the legitimate child of the spouses Rufino and Caridad, the
appellate court — similar to the trial court — relied on Article 172 of the Family Code which allows
the introduction and admission of secondary evidence to prove one's legitimate filiation  via open
and continuous possession of the status of a legitimate child. The CA agreed with the trial court
that respondent has proven her legitimate filiation, viz.:
We agree with the lower court that the plaintiff has proven her filiation by
open and continuous possession of the status of a legitimate child. The evidence
consists of the following: (1) the plaintiff was allowed by her putative parents to
bear their family name  Geronimo; (2) they supported her and sent her to school
paying for her tuition fees and other school expenses; (3) she was the beneficiary
of the burial benefits of Caridad before the GSIS; (4) after the death of Rufino,
Caridad applied for and was appointed legal guardian of the person and property
of the plaintiff from the estate left by Rufino; and (5) both Caridad and the plaintiff
executed an extrajudicial settlement of the estate of Rufino on the basis of the
fact that they are both the legal heirs of the deceased.
It is clear that the status enjoyed by the plaintiff as the legitimate child of
Rufino and Caridad has been open and continuous. . . . The conclusion follows
that the plaintiff is entitled to the property left by Rufino to the exclusion of his
brothers, the defendants, which consists of a one-half share in Lot
1716. 9 HEITAD
Petitioners moved for reconsideration 10 but the motion was denied in the assailed
Resolution dated May 24, 2011. Hence, this petition raising the following assignment of errors:
I. THAT THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS
DISCRETION, AMOUNTING TO LACK OF JURISDICTION, WHEN IT
ALLOWED THE INTRODUCTION OF SECONDARY EVIDENCE AND
RENDERED JUDGMENT BASED THEREON NOTWITHSTANDING THE
 EXISTENCE OF PRIMARY EVIDENCE OF BIRTH CERTIFICATE
[EXHIBIT 14].
II. THAT THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS
DISCRETION, AMOUNTING TO LACK OF JURISDICTION WHEN IT
RULED THAT PETITIONERS HAVE NO PERSONALITY TO IMPUGN
RESPONDENT'S LEGITIMATE FILIATION. 11
On the first issue, petitioner argues that secondary evidence to prove one's filiation is
admissible only if there is no primary evidence, i.e., a record of birth or an authentic admission in
writing. 12 Petitioner asserts that herein respondent's birth certificate, Exhibit 14, constitutes the
primary evidence enumerated under Article 172 of the Family Code and the ruling of both
courts a quo that the document is not the one "envisioned by law" should have barred the
introduction of secondary evidence. Petitioner expounds this proposition,  viz.:
The findings of the courts a quo that the birth certificate [Exhibit 14] is not
[the] one envisioned by law finds support in numerous cases decided by the
Honorable Supreme Court. Thus, a certificate of live birth purportedly identifying
the putative father is not competent evidence as to the issue of paternity, when
there is no showing that the putative father had a hand in the preparation of said
certificates, and the Local Civil Registrar is devoid of authority to record the
paternity of an illegitimate child upon the information of a third person. Where the
birth certificate and the baptismal certificate are  per se inadmissible in evidence
as proof of filiation, they cannot be admitted indirectly as circumstantial evidence
to prove the same. . . .
. . . The birth certificate Exhibit 14 contains erasures. The date of birth
originally written in ball pen was erased and the date April 6, 1972 was
superimposed using a pentel pen; the entry on the informant also originally
written in ball pen was erased and the name E. Dano was superimposed using
also a pentel pen; there is no signature as to who received it from the office of the
registry. Worst, respondent Karen confirms the existence of her birth certificate
when she introduced in evidence [Exhibit A] a mere Certification from the Office
of the Local Civil Registrar of Sta. Maria, Ilocos Sur, which highlighted more
suspicions of its existence, thus leading to conclusion and presumption that if
such evidence is presented, it would be adverse to her claim. True to the
suspicion, when Exhibit 14 was introduced by the petitioner and testified on by no
less than the NSO representative, Mr. Arturo Reyes, and confirmed that there
were alterations which renders the birth certificate questionable.
Argued differently, with the declaration that the birth certificate is a nullity
or falsity, the courts  a quo should have stopped there, ruled that respondent
Karen is not the child of Rufino, and therefore not entitled to inherit from the
estate. 13
On the second issue, petitioner alleges that the CA gravely erred and abused its
discretion amounting to lack of jurisdiction when it ruled that he does not have personality to
impugn respondent's legitimate filiation. 14 While petitioner admits that the CA "did not directly
rule on this particular issue," 15 he nonetheless raises the said issue as an error since the
appellate court affirmed the decision of the trial court. Petitioner argues that in so affirming, the
CA also adopted the ruling of the trial court that the filiation of respondent is strictly personal to
respondent's alleged father and his heirs under Articles 170 and 171 of the  Family
Code, 16 thereby denying petitioner the "right to impugn or question the filiation and status of the
plaintiff." 17 Petitioner argues, viz.:
. . . [T]he lower court's reliance on Articles 170 and 171 of the Family
Code is totally misplaced, with due respect. It should be read in conjunction with
the other articles in the same chapter on paternity and filiation of the Family
Code. A careful reading of said chapter would reveal that it contemplates
situations where a doubt exists that a child is indeed a man's child, and the father
[or, in proper cases, his heirs] denies the child's filiation. It does not refer to
situations where a child is alleged not to be the child at all of a particular couple.
Petitioners are asserting not merely that respondent Karen is not a legitimate
child of, but that she is not a child of Rufino Geronimo at all. . . . 18
 We grant the petition.
Despite its finding that the birth certificate which respondent offered in evidence is
questionable, the trial court ruled that respondent is a legitimate child and the sole heir of
deceased spouses Rufino and Caridad. The RTC based this conclusion on secondary evidence
that is similar to proof admissible under the second paragraph of Article 172 of the Family Code to
prove the filiation of legitimate children,  viz.:
ART. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment;
or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the following evidence, the legitimate filiation shall be
proved by: ATICcS
(1) The open and continuous possession of the status of a legitimate
child; or
(2) Any other means allowed by the Rules of Court and special laws.
Petitioner argues that such secondary evidence may be admitted only in a direct action
under Article 172 because the said provision of law is meant to be instituted as a separate action,
and proof of filiation cannot be raised as a collateral issue as in the instant case which is an action
for annulment of document and recovery of possession.
Petitioner is correct that proof of legitimacy under Article 172, or illegitimacy under Article
175, should only be raised in a direct and separate action instituted to prove the filiation of a child.
The rationale behind this procedural prescription is stated in the case of  Tison v. Court of
Appeals, 19 viz.:
. . . [W]ell settled is the rule that the issue of legitimacy cannot be
attacked collaterally.
The rationale for these rules has been explained in this wise:
"The presumption of legitimacy in the Family Code . . .
actually fixes a civil status for the child born in wedlock, and that
civil status cannot be attacked collaterally. The legitimacy of the
child can be impugned only in a direct action brought for that
purpose, by the proper parties, and within the period limited by
law.
The legitimacy of the child cannot be contested by
way of defense or as a collateral issue in another action for
a different purpose. The necessity of an independent action
directly impugning the legitimacy is more clearly expressed in the
Mexican Code (Article 335) which provides: 'The contest of the
legitimacy of a child by the husband or his heirs must be made
by proper complaint before the competent court; any contest
made in any other way is void.' This principle applies under our
Family Code. Articles 170 and 171 of the code confirm this view,
because they refer to "the action to impugn the legitimacy." This
action can be brought only by the husband or his heirs and within
the periods fixed in the present articles.
Upon the expiration of the periods provided in Article
170, the action to impugn the legitimacy of a child can no longer
be brought. The status conferred by the presumption, therefore,
becomes fixed, and can no longer be questioned. The obvious
intention of the law is to prevent the status of a child born in
wedlock from being in a state of uncertainty for a long time. It
also aims to force early action to settle any doubt as to the
 paternity of such child, so that the evidence material to the
matter, which must necessarily be facts occurring during the
period of the conception of the child, may still be easily
available. ETHIDa
xxx xxx xxx
Only the husband can contest the legitimacy of a child
born to his wife. He is the one directly confronted with the
scandal and ridicule which the infidelity of his wife produces; and
he should decide whether to conceal that infidelity or expose it, in
view of the moral and economic interest involved. It is only in
exceptional cases that his heirs are allowed to contest such
legitimacy. Outside of these cases, none — even his heirs — can
impugn legitimacy; that would amount to an insult to his
memory." 20
What petitioner failed to recognize, however, is that this procedural rule is applicable only
to actions where the legitimacy — or illegitimacy — of a child is at issue. This situation does not
obtain in the case at bar.
In the instant case, the filiation of a child — herein respondent — is not at issue.
Petitioner does not claim that respondent is not the legitimate child of his deceased brother Rufino
and his wife Caridad. What petitioner alleges is that respondent is not the child of the deceased
spouses Rufino and Caridad at all. He proffers this allegation in his Amended Answer before the
trial court by way of defense that respondent is not an heir to his brother Rufino. When petitioner
alleged that respondent is not a child of the deceased spouses Rufino and Caridad in the
proceedings below, jurisprudence shows that the trial court was correct in admitting and ruling on
the secondary evidence of respondent — even if such proof is similar to the evidence admissible
under the second paragraph of Article 172 and despite the instant case not being a direct action
to prove one's filiation. In the following cases, the courts  a quo and this Court did not bar the
introduction of secondary evidence in actions which involve allegations that the opposing party is
not the child of a particular couple — even if such evidence is similar to the kind of proof
admissible under the second paragraph of Article 172.
In the 1994 case of  Benitez-Badua v. Court of Appeals, 21 therein deceased spouses
Vicente Benitez (Vicente) and Isabel Chipongian (Isabel) owned various properties while they
were still living. Isabel departed in 1982, while Vicente died intestate in 1989. In 1990, Vicente's
sister (Victoria Benitez-Lirio) and nephew (Feodor Benitez Aguilar) instituted an action before the
trial court for the issuance of letters of administration of his estate in favor of Feodor. In the said
proceedings, they alleged that Vicente was "survived by no other heirs or relatives be they
ascendants or descendants, whether legitimate, illegitimate or legally adopted . . . ." 22 They
further argued that one "Marissa Benitez[-]Badua who was raised and cared for by them since
childhood is, in fact, not related to them by blood, nor legally adopted, and is therefore not a legal
heir [of Vicente]." 23 Marissa opposed the petition and proffered evidence to prove that she is an
heir of Vicente. Marissa submitted the following evidence,  viz.:
1. her Certificate of Live Birth (Exh. 3);
2. Baptismal Certificate (Exh. 4);
3. Income Tax Returns and Information Sheet for Membership with the
GSIS of the late Vicente naming her as his daughter (Exhs. 10 to
21); and
4. School Records (Exhs. 5 & 6).
She also testified that the said spouses reared and continuously treated
her as their legitimate daughter. 24
Feodor and his mother Victoria offered mostly testimonial evidence to show that the
spouses Vicente and Isabel failed to beget a child during their marriage. They testified that the
late Isabel, when she was 36 years old, was even referred to an obstetrician-gynecologist for
treatment. Victoria, who was 77 years old at the time of her testimony, also categorically stated
that Marissa was not the biological child of the said spouses who were unable to physically
procreate. 25
 The trial court, relying on Articles 166 and 170 of the Family Code, declared Marissa as
the legitimate daughter and sole heir of the spouses Vicente and Isabel. The appellate court
reversed the RTC's ruling holding that the trial court erred in applying Articles 166 and 170 of
the Family Code. On appeal to this Court, we affirmed the reversal made by the appellate
court,  viz.:
A careful reading of the above articles will show that they do not contemplate a
situation, like in the instant case, where a child is alleged not to be the child
of nature or biological child of a certain couple. Rather, these articles govern
a situation where a husband (or his heirs) denies as his own a child of his wife.
Thus, under Article 166, it is the husband who can impugn the legitimacy of said
child by proving: (1) it was physically impossible for him to have sexual
intercourse, with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child; (2) that for biological or other
scientific reasons, the child could not have been his child; (3) that in case of
children conceived through artificial insemination, the written authorization or
ratification by either parent was obtained through mistake, fraud, violence,
intimidation or undue influence. Articles 170 and 171 reinforce this reading as
they speak of the prescriptive period within which the  husband or any of his
heirs should file the action impugning the legitimacy of said child. Doubtless
then, the appellate court did not err when it refused to apply these articles
to the case at bench. For the case at bench is not one where the heirs of the
late Vicente are contending that petitioner is not his child by Isabel. Rather,
their clear submission is that petitioner was not born to Vicente and Isabel.
Our ruling in  Cabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA 451, 457
cited in the impugned decision is apropos, viz.: cSEDTC
"Petitioners' recourse to Article 263 of the New Civil
Code [now Art. 170 of the Family Code] is not well-taken. This
legal provision refers to an action to impugn legitimacy. It is
inapplicable to this case because this is not an action to impugn
the legitimacy of a child, but an action of the private respondents
to claim their inheritance as legal heirs of their childless
deceased aunt. They do not claim that petitioner Violeta
Cabatbat Lim is an illegitimate child of the deceased, but
that she is not the decedent's child at all. Being neither legally
adopted child, nor an acknowledged natural child, nor a child by
legal fiction of Esperanza Cabatbat, Violeta is not a legal heir of
the deceased." 26
Similarly, the 2001 case of  Labagala v. Santiago 27 originated from a complaint for
recovery of title, ownership and possession before the trial court. Respondents therein contended
that petitioner is not the daughter of the decedent Jose and sought to recover from her the 1/3
portion of the subject property pertaining to Jose but which came into petitioner's sole possession
upon Jose's death. Respondents sought to prove that petitioner is not the daughter of the
decedent as evidenced by her birth certificate which did not itself indicate the name of Jose as her
father. Citing the case of Sayson v. Court of Appeals and Article 263 of the Civil Code (now
Article 170 of the Family Code), 28 petitioner argued that respondents cannot impugn her filiation
collaterally since the case was not an action impugning a child's legitimacy but one for recovery of
title, ownership and possession of property. We ruled in this case that petitioner's reliance on
Article 263 of the Civil Code is misplaced and respondents may impugn the petitioner's filiation in
an action for recovery of title and possession. Thus, we affirmed the ruling of the appellate court
that the birth certificate of petitioner Labagala proved that she "was born of different parents, not
Jose and his wife." 29 Citing the aforecited cases of  Benitez-Badua and  Lim v. Intermediate
Appellate Court, 30 we stated, viz.:
This article should be read in conjunction with the other articles in the
same chapter on paternity and filiation in the Civil Code. A careful reading of said
chapter would reveal that it contemplates situations where a doubt exists that a
child is indeed a man's child by his wife, and the husband (or, in proper cases, his
heirs) denies the child's filiation. It does not refer to situations where a child is
alleged not to be the child at all of a particular couple. 31
 Article 263 refers to an action to impugn the legitimacy of a child, to
assert and prove that a person is not a man's child by his wife. However, the
present case is not one impugning petitioner's legitimacy. Respondents are
asserting not merely that petitioner is not a legitimate child of Jose, but that
she is not a child of Jose at all. . . . 32
Be that as it may, even if both courts a quo were correct in admitting secondary evidence
similar to the proof admissible under Article 172 of the Family Code in this action for annulment of
document and recovery of possession, we are constrained to rule after a meticulous examination
of the evidence on record that all proof points to the conclusion that herein respondent is not a
child of the deceased spouses Rufino and Caridad. While we ascribe to the general principle that
this Court is not a trier of facts, 33 this rule admits of the following exceptions where findings of
fact may be passed upon and reviewed by this Court,  viz.:
(1) When the conclusion is a finding grounded entirely on speculation,
surmises or conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the
inference made is manifestly mistaken, absurd or impossible (Luna v. Linatok, 74
Phil. 15 [1942]); (3) Where there is a grave abuse of discretion (Buyco v. People,
95 Phil. 453 [1955]); (4) When the judgment is based on a misapprehension of
facts (Cruz v. Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact are
conflicting (Casica v. Villaseca, L-9590, Apr. 30, 1957; unrep.); (6) When the
Court of Appeals, in making its findings, went beyond the issues of the case and
the same is contrary to the admissions of both appellant and
appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]); (7)
The findings of the Court of Appeals are contrary to those of the trial
court (Garcia v. Court of Appeals, 33 SCRA 622 [1970];  Sacay v.
Sandiganbayan, 142 SCRA 593 [1986]); (8) When the findings of fact are
conclusions without citation of specific evidence on which they are based (Ibid.,);
(9) When the facts set forth in the petition as well as in the petitioners' main and
reply briefs are not disputed by the respondents (Ibid.,); and (10) The finding of
fact of the Court of Appeals is premised on the supposed absence of evidence
and is contradicted by the evidence on record (Salazar v. Gutierrez, 33 SCRA
242 [1970]). 34
It is clear in the case at bar that the ruling of both courts a quo declaring respondent as a
legitimate child and sole heir of the deceased spouses Rufino and Caridad is one based on a
misapprehension of facts.
A mere cursory reading of the birth certificate of respondent would show that it was
tampered specifically on the entries pertaining to the date of birth of respondent and the name of
the informant. Using pentel ink, the date of birth of respondent — April 6, 1972 — and the name
of the informant — Emma Daño — were both superimposed on the document. Despite these
glaring erasures, the trial court still relied on the  prima facie presumption of the veracity and
regularity of the birth certificate for failure of petitioner to explain how the erasures were done and
if the alterations were due to the fault of respondent. It thus ruled that respondent's filiation was
duly established by the birth certificate. The appellate court did not agree with this finding and
instead ruled that the birth certificate presented does not qualify as the valid registration of birth in
the civil register as envisioned by the law. We reiterate the relevant pronouncement of the
CA, viz.:
. . . The document in question was signed by one Emma Daño who was
not identified as either the parent of the plaintiff or the physician or midwife who
attended to her birth. Exhibit 14, legally, cannot be the birth certificate envisioned
by the law; otherwise, with an informant as shadowy as Emma Daño, the
floodgates to spurious filiations will be opened. Neither may the order of the court
Exhibit E be treated as the final judgment mentioned in Article 172 as another
proof of filiation. The final judgment mentioned refers to a decision of a competent
court finding the child legitimate. Exhibit G is merely an order granting letters of
guardianship to the parent Caridad based on her representations that she is the
mother of the plaintiff. 35
 Nonetheless, the appellate court agreed with the trial court that respondent has proven
her filiation by showing that she has enjoyed that open and continuous possession of the status of
a legitimate child of the deceased spouses Rufino and Caridad, viz.: SDAaTC
. . . The evidence consists of the following: (1) the plaintiff was allowed by
her putative parents to bear their family name Geronimo; (2) they supported her
and sent her to school paying for her tuition fees and other school expenses; (3)
she was the beneficiary of the burial benefits of Caridad before the GSIS; (4) after
the death of Rufino, Caridad applied for and was appointed legal guardian of the
person and property of the plaintiff from the estate left by Rufino; and (5) both
Caridad and the plaintiff executed an extrajudicial settlement of the estate of
Rufino on the basis of the fact that they are both the legal heirs of the
deceased. 36
We do not agree with the conclusion of both courts a quo. The appellate court itself ruled
that the irregularities consisting of the superimposed entries on the date of birth and the name of
the informant made the document questionable. The corroborating testimony of Arturo Reyes, a
representative of the NSO, further confirmed that the entries on the date of birth and the signature
of the informant are alterations on the birth certificate which rendered the document questionable.
To be sure, even the respondent herself did not offer any evidence to explain such irregularities
on her own birth certificate. These irregularities and the totality of the following circumstances
surrounding the alleged birth of respondent are sufficient to overthrow the presumption of
regularity attached to respondent's birth certificate,  viz.:
1. The identity of one Emma Daño, whose name was superimposed as the informant
regarding the birth of respondent, remains unknown.
2. The testimony of Atty. Elmer De Dios Lopez, a legal consultant of the Department of
Education in Bulacan, proved that the deceased Caridad did not have any
maternity leave during the period of her service from March 11, 1963 to October
24, 1984 as shown by her Service Record as an elementary school teacher at
Paombong, Bulacan. This was corroborated by a certification from Dr. Teofila R.
Villanueva, Schools Division Superintendent, that she did not file any maternity
leave during her service. No testimonial or documentary evidence was also
offered to prove that the deceased Caridad ever had a pregnancy.
3. Based on the birth certificate, respondent was born in 1972 or 13 years into the
marriage of the deceased spouses Rufino and Caridad. When respondent was
born, Caridad was already 40 years old. There are no hospital records of
Caridad's delivery, and while it may have been possible for her to have given
birth at her own home, this could have been proven by medical or non-medical
records or testimony if they do, in fact, exist.
4. It is worthy to note that respondent was the sole witness for herself in the instant case.
Finally, we also find that the concurrence of the secondary evidence relied upon by both
courts a quo does not sufficiently establish the one crucial fact in this case: that respondent is
indeed a child of the deceased spouses. Both the RTC and the CA ruled that respondent is a
legitimate child of her putative parents because she was allowed to bear their family name
"Geronimo", they supported her and her education, she was the beneficiary of the burial benefits
of Caridad in her GSIS policy, Caridad applied for and was appointed as her legal guardian in
relation to the estate left by Rufino, and she and Caridad executed an extrajudicial settlement of
the estate of Rufino as his legal heirs.
In the case of Rivera v. Heirs of Romualdo Villanueva 37 which incisively discussed its
parallelisms and contrasts with the case of Benitez-Badua v. Court of Appeals, 38 we ruled that
the presence of a similar set of circumstances — which were relied upon as secondary proof by
both courts a quo  in the case at bar — does not establish that one is a child of the putative
parents. Our discussion in the Rivera case is instructive,  viz.:
In Benitez-Badua v. Court  of Appeals, Marisa Benitez-Badua, in
attempting to prove that she was the sole heir of the late Vicente Benitez,
submitted a certificate of live birth, a baptismal certificate, income tax returns and
an information sheet for membership in the Government Service Insurance
 System of the decedent naming her as his daughter, and her school records. She
also testified that she had been reared and continuously treated as Vicente's
daughter.
By testimonial evidence alone, to the effect that Benitez-Badua's alleged
parents had been unable to beget children, the siblings of Benitez-Badua's
supposed father were able to rebut all of the documentary evidence indicating her
filiation. One fact that was counted against Benitez-Badua was that her supposed
mother Isabel Chipongian, unable to bear any children even after ten years of
marriage, all of a sudden conceived and gave birth to her at the age of 36.
Of great significance to this controversy was the following
pronouncement:
But definitely, the mere registration of a child in his or
her birth certificate as the child of the supposed parents is
not a valid adoption, does not confer upon the child the
status of an adopted child and the legal rights of such child,
and even amounts to simulation of the child's birth or falsification
of his or her birth certificate, which is a public document.
(emphasis ours) acEHCD
Furthermore, it is well-settled that a record of birth is merely a  prima
facie  evidence of the facts contained therein. It is not conclusive evidence of the
truthfulness of the statements made there by the interested parties.  Following the
logic of Benitez, respondent Angelina and her co-defendants in SD-857 should
have adduced evidence of her adoption, in view of the contents of her birth
certificate. The records, however, are bereft of any such evidence.
There are several parallels between this case and Benitez-Badua  that
are simply too compelling to ignore. First, both Benitez-Badua and respondent
Angelina submitted birth certificates as evidence of filiation. Second, both claimed
to be children of parents relatively advanced in age. Third, both claimed to have
been born after their alleged parents had lived together childless for several
years.
There are, however, also crucial differences between Benitez-Badua and
this case which ineluctably support the conclusion that respondent Angelina was
not Gonzales' daughter, whether illegitimate or adopted. Gonzales, unlike
Benitez-Badua's alleged mother Chipongian, was not only 36 years old but 44
years old, and on the verge of menopause at the time of the alleged birth. Unlike
Chipongian who had been married to Vicente Benitez for only 10 years, Gonzales
had been living childless with Villanueva for 20 years. Under the circumstances,
we hold that it was not sufficiently established that respondent Angelina was
Gonzales' biological daughter, nor even her adopted daughter. Thus, she cannot
inherit from Gonzales. Since she could not have validly participated in Gonzales'
estate, the extrajudicial partition which she executed with Villanueva on August 8,
1980 was invalid. 39
In view of these premises, we are constrained to disagree with both courts a quo and rule
that the confluence of the circumstances and the proof presented in this case do not lead to the
conclusion that respondent is a child of the deceased spouses.
WHEREFORE, the petition is hereby GRANTED. The assailed Decision and Resolution
of the Court of Appeals in CA-G.R. CV No. 88650 dated January 17, 2011 and May 24, 2011,
respectively, are REVERSED and SET ASIDE. The Complaint in Civil Case No. 268-M-2001 for
Annulment of Document and Recovery of Possession is hereby ordered DISMISSED.
With costs against the respondent.
SO ORDERED.
Velasco, Jr., Peralta, Perez * and  Jardeleza, JJ., concur.
 
|||  (Geronimo v. Santos, G.R. No. 197099, [September 28, 2015], 770 PHIL 364-388)

FIRST DIVISION

[G.R. No. 180284. September 11, 2013.]

NARCISO SALAS,  petitioner, vs. ANNABELLE MATUSALEM,  respondent.

DECISION

VILLARAMA, JR., J  p:
 Before the Court is a petition for review on certiorari which seeks to reverse and set aside the
Decision 1 dated July 18, 2006 and Resolution 2 dated October 19, 2007 of the Court of Appeals (CA)
in CA-G.R. CV No. 64379.
The factual antecedents:
On May 26, 1995, Annabelle Matusalem (respondent) filed a complaint 3 for
Support/Damages against Narciso Salas (petitioner) in the Regional Trial Court (RTC) of Cabanatuan
City (Civil Case No. 2124-AF).
Respondent claimed that petitioner is the father of her son Christian Paulo Salas who was
born on December 28, 1994. Petitioner, already 56 years old at the time, enticed her as she was then
only 24 years old, making her believe that he is a widower. Petitioner rented an apartment where
respondent stayed and shouldered all expenses in the delivery of their child, including the cost of
caesarian operation and hospital confinement. However, when respondent refused the offer of
petitioner's family to take the child from her, petitioner abandoned respondent and her child and left
them to the mercy of relatives and friends. Respondent further alleged that she attempted suicide due
to depression but still petitioner refused to support her and their child. EaDATc
Respondent thus prayed for support pendente lite  and monthly support in the amount of
P20,000.00, as well as actual, moral and exemplary damages, and attorney's fees.
Petitioner filed his answer 4 with special and affirmative defenses and counterclaims. He
described respondent as a woman of loose morals, having borne her first child also out of wedlock
when she went to work in Italy. Jobless upon her return to the country, respondent spent time riding
on petitioner's jeepney which was then being utilized by a female real estate agent named Felicisima
de Guzman. Respondent had seduced a senior police officer in San Isidro and her charge of sexual
abuse against said police officer was later withdrawn in exchange for the quashing of drug charges
against respondent's brother-in-law who was then detained at the municipal jail. It was at that time
respondent introduced herself to petitioner whom she pleaded for charity as she was pregnant with
another child. Petitioner denied paternity of the child Christian Paulo; he was motivated by no other
reason except genuine altruism when he agreed to shoulder the expenses for the delivery of said
child, unaware of respondent's chicanery and deceit designed to "scandalize" him in exchange for
financial favor.
At the trial, respondent and her witness Grace Murillo testified. Petitioner was declared to
have waived his right to present evidence and the case was considered submitted for decision based
on respondent's evidence.
Respondent testified that she first met petitioner at the house of his "kumadre" Felicisima de
Guzman at Bgy. Malapit, San Isidro, Nueva Ecija. During their subsequent meeting, petitioner told her
he is already a widower and he has no more companion in life because his children are all grown-up.
She also learned that petitioner owns a rice mill, a construction business and a housing subdivision
(petitioner offered her a job at their family-owned Ma. Cristina Village). Petitioner at the time already
knows that she is a single mother as she had a child by her former boyfriend in Italy. He then brought
her to a motel, promising that he will take care of her and marry her. She believed him and yielded to
his advances, with the thought that she and her child will have a better life. Thereafter, they saw each
other weekly and petitioner gave her money for her child. When she became pregnant with
petitioner's child, it was only then she learned that he is in fact not a widower. She wanted to abort the
baby but petitioner opposed it because he wanted to have another child. 5
On the fourth month of her pregnancy, petitioner rented an apartment where she stayed with
a housemaid; he also provided for all their expenses. She gave birth to their child on December 28,
1994 at the Good Samaritan Hospital in Cabanatuan City. Before delivery, petitioner even walked her
at the hospital room and massaged her stomach, saying he had not done this to his wife. She filled
out the form for the child's birth certificate and wrote all the information supplied by petitioner himself.
It was also petitioner who paid the hospital bills and drove her baby home. He was excited and happy
to have a son at his advanced age who is his "look-alike," and this was witnessed by other boarders,
visitors and Grace Murillo, the owner of the apartment unit petitioner rented. However, on the 18th day
after the baby's birth, petitioner went to Baguio City for a medical check-up. He confessed to her
daughter and eventually his wife was also informed about his having sired an illegitimate child. His
family then decided to adopt the baby and just give respondent money so she can go abroad. When
she refused this offer, petitioner stopped seeing her and sending money to her. She and her baby
survived through the help of relatives and friends. Depressed, she tried to commit suicide by drug
overdose and was brought to the hospital by Murillo who paid the bill. Murillo sought the help of the
Cabanatuan City Police Station which set their meeting with petitioner. However, it was only
petitioner's wife who showed up and she was very mad, uttering unsavory words against
respondent. 6
Murillo corroborated respondent's testimony as to the payment by petitioner of apartment
rental, his weekly visits to respondent and financial support to her, his presence during and after
delivery of respondent's baby, respondent's attempted suicide through sleeping pills overdose and
hospitalization for which she paid the bill, her complaint before the police authorities and meeting with
petitioner's wife at the headquarters. 7
On April 5, 1999, the trial court rendered its decision 8 in favor of respondent, the dispositive
portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor
of the plaintiff and against the defendant as follows:
1. Ordering the defendant to give as monthly support of TWO THOUSAND
(P2,000.00) PESOS for the child Christian Paulo through the
mother;
2. Directing the defendant to pay the plaintiff the sum of P20,000.00 by way
of litigation expenses; and
3. To pay the costs of suit.
SO ORDERED. 9
Petitioner appealed to the CA arguing that: (1) the trial court decided the case without
affording him the right to introduce evidence on his defense; and (2) the trial court erred in finding that
petitioner is the putative father of Christian Paulo and ordering him to give monthly support.
By Decision dated July 18, 2006, the CA dismissed petitioner's appeal. The appellate court
found no reason to disturb the trial court's exercise of discretion in denying petitioner's motion for
postponement on April 17, 1998, the scheduled hearing for the initial presentation of defendant's
evidence, and the motion for reconsideration of the said order denying the motion for postponement
and submitting the case for decision. TAaEIc
On the paternity issue, the CA affirmed the trial court's ruling that respondent satisfactorily
established the illegitimate filiation of her son Christian Paulo, and consequently no error was
committed by the trial court in granting respondent's prayer for support. The appellate court thus held:
Christian Paulo, in instant case, does not enjoy the benefit of a record of
birth in the civil registry which bears acknowledgment signed by Narciso Salas. He
cannot claim open and continuous possession of the status of an illegitimate child.
It had been established by plaintiff's evidence, however, that during her
pregnancy, Annabelle was provided by Narciso Salas with an apartment at a rental
of P1,500.00 which he paid for (TSN, October 6, 1995, p. 18). Narciso provided her
with a household help with a salary of P1,500.00 a month (TSN, October 6, 1995,
ibid) He also provided her a monthly food allowance of P1,500.00 (Ibid. p. 18).
Narciso was with Annabelle at the hospital while the latter was in labor, "walking"
her around and massaging her belly (Ibid. p. 11). Narciso brought home Christian
Paulo to the rented apartment after Annabelle's discharge from the hospital. People
living in the same apartment units were witnesses to Narciso's delight to father a
son at his age which was his "look alike". It was only after the 18th day when
Annabelle refused to give him Christian Paulo that Narciso withdrew his support to
him and his mother.
Said testimony of Annabelle aside from having been corroborated by Grace
Murillo, the owner of the apartment which Narciso rented, was never rebutted on
record. Narciso did not present any evidence, verbal or documentary, to repudiate
plaintiff's evidence.
 In the cases of Lim vs. CA (270 SCRA 1) and Rodriguez vs. CA (245
SCRA 150), the Supreme Court made it clear that Article 172 of the Family Code is
an adaptation of Article 283 of the Civil Code. Said legal provision provides that the
father is obliged to recognize the child as his natural child . . . " 3) when the child
has in his favor any evidence or proof that the defendant is his father".
In fact, in Ilano vs. CA (230 SCRA 242, 258-259), it was held that —
"The last paragraph of Article 283 contains a blanket provision that
practically covers all the other cases in the preceding paragraphs. 'Any
other evidence or proof' that the defendant is the father is broad enough to
render unnecessary the other paragraphs of this article. When the evidence
submitted in the action for compulsory recognition is not sufficient to meet
[the] requirements of the first three paragraphs, it may still be enough under
the last paragraph. This paragraph permits hearsay and reputation
evidence, as provided in the Rules of Court, with respect to illegitimate
filiation."
As a necessary consequence of the finding that Christian Paulo is the son
of defendant Narciso Salas, he is entitled to support from the latter (Ilano vs.
CA,  supra).
It "shall be demandable from the time the person who has the right to
recover the same needs it for maintenance . . ." (Art. 203,  Family Code of the
Philippines). 10
Petitioner filed a motion for reconsideration but it was denied by the CA.
Hence, this petition submitting the following arguments:
1. THE VENUE OF THE CASE WAS IMPROPERLY LAID BEFORE THE
REGIONAL TRIAL COURT OF CABANATUAN CITY CONSIDERING THAT BOTH
PETITIONER AND RESPONDENT ARE ACTUAL RESIDENTS OF BRGY.
MALAPIT, SAN ISIDRO, NUEVA ECIJA.
2. THE HONORABLE COURT OF APPEALS ERRED IN PRONOUNCING
THAT PETITIONER WAS AFFORDED THE FULL MEASURE OF HIS RIGHT TO
DUE PROCESS OF LAW AND IN UPHOLDING THAT THE TRIAL COURT DID
NOT GRAVELY ABUSE ITS DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT DECIDED THE INSTANT CASE WITHOUT
AFFORDING PETITIONER THE RIGHT TO INTRODUCE EVIDENCE IN HIS
DEFENSE.
3. THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE FILIATION OF CHRISTIAN PAULO WAS DULY ESTABLISHED PURSUANT
TO ARTICLE 175 IN RELATION TO ARTICLE 172 OF THE FAMILY CODE AND
EXISTING JURISPRUDENCE AND THEREFORE ENTITLED TO SUPPORT
FROM THE PETITIONER. 11
We grant the petition.
It is a legal truism that the rules on the venue of personal actions are fixed for the
convenience of the plaintiffs and their witnesses. Equally settled, however, is the principle that
choosing the venue of an action is not left to a plaintiff's caprice; the matter is regulated by the Rules
of Court. 12
In personal actions such as the instant case, the Rules give the plaintiff the option of choosing
where to file his complaint. He can file it in the place (1) where he himself or any of them resides, or
(2) where the defendant or any of the defendants resides or may be found. 13 The plaintiff or the
defendant must be residents of the place where the action has been instituted at the time the action is
commenced. 14
However, petitioner raised the issue of improper venue for the first time in the Answer itself
and no prior motion to dismiss based on such ground was filed. Under the Rules of Court before the
1997 amendments, an objection to an improper venue must be made before a responsive pleading is
filed. Otherwise, it will be deemed waived. 15 Not having been timely raised, petitioner's objection on
venue is therefore deemed waived.
As to the denial of the motion for postponement filed by his counsel for the resetting of the
initial presentation of defense evidence on April 17, 1998, we find that it was not the first time
petitioner's motion for postponement was denied by the trial court.
Records disclosed that after the termination of the testimony of respondent's last witness on
November 29, 1996, the trial court as prayed for by the parties, set the continuation of hearing for the
reception of evidence for the defendant (petitioner) on January 27, February 3, and February 10,
1997. In the Order dated December 17, 1996, petitioner was advised to be ready with his evidence at
those hearing dates earlier scheduled. At the hearing on January 27, 1997, petitioner's former
counsel, Atty. Rolando S. Bala, requested for the cancellation of the February 3 and 10, 1997
hearings in order to give him time to prepare for his defense, which request was granted by the trial
court which thus reset the hearing dates to March 3, 14 and 17, 1997. On March 3, 1997, upon oral
manifestation by Atty. Bala and without objection from respondent's counsel, Atty. Feliciano Wycoco,
the trial court again reset the hearing to March 14 and 17, 1997. With the non-appearance of both
petitioner and Atty. Bala on March 14, 1997, the trial court upon oral manifestation by Atty. Wycoco
declared their absence as a waiver of their right to present evidence and accordingly deemed the
case submitted for decision. 16 ICHAaT
On July 4, 1997, Atty. Bala withdrew as counsel for petitioner and Atty. Rafael E. Villarosa
filed his appearance as his new counsel on July 21, 1997. On the same date he filed entry of
appearance, Atty. Villarosa filed a motion for reconsideration of the March 14, 1997 Order pleading for
liberality and magnanimity of the trial court, without offering any explanation for Atty. Bala's failure to
appear for the initial presentation of their evidence. The trial court thereupon reconsidered its March
14, 1997 Order, finding it better to give petitioner a chance to present his evidence. On August 26,
1997, Atty. Villarosa received a notice of hearing for the presentation of their evidence scheduled on
September 22, 1997. On August 29, 1997, the trial court received his motion requesting that the said
hearing be re-set to October 10, 1997 for the reason that he had requested the postponement of a
hearing in another case which was incidentally scheduled on September 22, 23 and 24, 1997. As
prayed for, the trial court reset the hearing to October 10, 1997. On said date, however, the hearing
was again moved to December 15, 1997. On February 16, 1998, the trial court itself reset the hearing
to April 17, 1998 since it was unclear whether Atty. Wycoco received a copy of the motion. 17
On April 17, 1998, petitioner and his counsel failed to appear but the trial court received on
April 16, 1998 an urgent motion to cancel hearing filed by Atty. Villarosa. The reason given by the
latter was the scheduled hearing on the issuance of writ of preliminary injunction in another case
under the April 8, 1998 Order issued by the RTC of Gapan, Nueva Ecija, Branch 36 in Civil Case No.
1946. But as clearly stated in the said order, it was the plaintiffs therein who requested the
postponement of the hearing and it behoved Atty. Villarosa to inform the RTC of Gapan that he had a
previous commitment considering that the April 17, 1998 hearing was scheduled as early as February
16, 1998. Acting on the motion for postponement, the trial court denied  for the second
time  petitioner's motion for postponement. Even at the hearing of their motion for reconsideration of
the April 17, 1998 Order on September 21, 1998, Atty. Villarosa failed to appear and instead filed
another motion for postponement. The trial court thus ordered that the case be submitted for decision
stressing that the case had long been pending and that petitioner and his counsel have been given
opportunities to present their evidence. It likewise denied a second motion for reconsideration filed by
Atty. Villarosa, who arrived late during the hearing thereof on December 4, 1998. 18
A motion for continuance or postponement is not a matter of right, but a request addressed to
the sound discretion of the court. Parties asking for postponement have absolutely no right to assume
that their motions would be granted. Thus, they must be prepared on the day of the
hearing. 19 Indeed, an order declaring a party to have waived the right to present evidence for
performing dilatory actions upholds the trial court's duty to ensure that trial proceeds despite the
deliberate delay and refusal to proceed on the part of one party. 20
Atty. Villarosa's plea for liberality was correctly rejected by the trial court in view of his own
negligence in failing to ensure there will be no conflict in his trial schedules. As we held in  Tiomico v.
Court of Appeals: 21
Motions for postponement are generally frowned upon by Courts if there is
evidence of bad faith, malice or inexcusable negligence on the part of the movant.
 The inadvertence of the defense counsel in failing to take note of the trial dates and
in belatedly informing the trial court of any conflict in his schedules of trial or court
appearances, constitutes inexcusable negligence. It should be borne in mind that a
client is bound by his counsel's conduct, negligence and mistakes in handling the
case. 22
With our finding that there was no abuse of discretion in the trial court's denial of the motion
for postponement filed by petitioner's counsel, petitioner's contention that he was deprived of his day
in court must likewise fail. The essence of due process is that a party is given a reasonable
opportunity to be heard and submit any evidence one may have in support of one's defense. Where a
party was afforded an opportunity to participate in the proceedings but failed to do so, he cannot
complain of deprivation of due process. If the opportunity is not availed of, it is deemed waived or
forfeited without violating the constitutional guarantee. 23
We now proceed to the main issue of whether the trial and appellate courts erred in ruling that
respondent's evidence sufficiently proved that her son Christian Paulo is the illegitimate child of
petitioner.
Under Article 175 of the Family Code of the Philippines, illegitimate filiation may be
established in the same way and on the same evidence as legitimate children.
Article 172 of the Family Code of the Philippines states:
The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
(Underscoring supplied.)
Respondent presented the Certificate of Live Birth 24 (Exhibit "A-1") of Christian Paulo Salas
in which the name of petitioner appears as his father but which is not signed by him. Admittedly, it was
only respondent who filled up the entries and signed the said document though she claims it was
petitioner who supplied the information she wrote therein.
We have held that a certificate of live birth purportedly identifying the putative father is not
competent evidence of paternity when there is no showing that the putative father had a hand in the
preparation of the certificate. 25 Thus, if the father did not sign in the birth certificate, the placing of his
name by the mother, doctor, registrar, or other person is incompetent evidence of
paternity. 26 Neither can such birth certificate be taken as a recognition in a public instrument 27 and
it has no probative value to establish filiation to the alleged father. 28
As to the Baptismal Certificate 29 (Exhibit "B") of Christian Paulo Salas also indicating
petitioner as the father, we have ruled that while baptismal certificates may be considered public
documents, they can only serve as evidence of the administration of the sacraments on the dates so
specified. They are not necessarily competent evidence of the veracity of entries therein with respect
to the child's paternity. 30
The rest of respondent's documentary evidence consists of handwritten notes and letters,
hospital bill and photographs taken of petitioner and respondent inside their rented apartment unit.
Pictures taken of the mother and her child together with the alleged father are inconclusive
evidence to prove paternity. 31 Exhibits "E" and "F" 32 showing petitioner and respondent inside the
rented apartment unit thus have scant evidentiary value. The Statement of Account 33 (Exhibit "C")
from the Good Samaritan General Hospital where respondent herself was indicated as the payee is
likewise incompetent to prove that petitioner is the father of her child notwithstanding petitioner's
admission in his answer that he shouldered the expenses in the delivery of respondent's child as an
act of charity.
As to the handwritten notes 34 (Exhibits "D" to "D-13") of petitioner and respondent showing
their exchange of affectionate words and romantic trysts, these, too, are not sufficient to establish
Christian Paulo's filiation to petitioner as they were not signed by petitioner and contained no
statement of admission by petitioner that he is the father of said child. Thus, even if these notes were
authentic, they do not qualify under Article 172 (2)  vis-à -vis  Article 175 of the Family Code which
admits as competent evidence of illegitimate filiation an admission of filiation in a private handwritten
instrument signed by the parent concerned. 35
Petitioner's reliance on our ruling in Lim v. Court of Appeals 36 is misplaced. In the said case,
the handwritten letters of petitioner contained a clear admission that he is the father of private
respondent's daughter and were signed by him. The Court therein considered the totality of evidence
which established beyond reasonable doubt that petitioner was indeed the father of private
respondent's daughter. On the other hand, in Ilano v. Court of Appeals,  37 the Court sustained the
appellate court's finding that private respondent's evidence to establish her filiation with and paternity
of petitioner was overwhelming, particularly the latter's public acknowledgment of his amorous
relationship with private respondent's mother, and private respondent as his own child through acts
and words, her testimonial evidence to that effect was fully supported by documentary evidence. The
Court thus ruled that respondent had adduced sufficient proof of continuous possession of status of a
spurious child. aEIADT
Here, while the CA held that Christian Paulo Salas could not claim open and continuous
possession of status of an illegitimate child, it nevertheless considered the testimonial evidence
sufficient proof to establish his filiation to petitioner.
An illegitimate child is now also allowed to establish his claimed filiation by "any other means
allowed by the Rules of Court and special laws," like his baptismal certificate, a judicial admission, a
family Bible in which his name has been entered, common reputation respecting his pedigree,
admission by silence, the testimonies of witnesses, and other kinds of proof admissible under Rule
130 of the Rules of Court. 38 Reviewing the records, we find the totality of respondent's evidence
insufficient to establish that petitioner is the father of Christian Paulo.
The testimonies of respondent and Murillo as to the circumstances of the birth of Christian
Paulo, petitioner's financial support while respondent lived in Murillo's apartment and his regular visits
to her at the said apartment, though replete with details, do not approximate the "overwhelming
evidence, documentary and testimonial" presented in Ilano. In that case, we sustained the appellate
court's ruling anchored on the following factual findings by the appellate court which was quoted at
length in the ponencia:
It was Artemio who made arrangement for the delivery of Merceditas (sic)
at the Manila Sanitarium and Hospital. Prior to the delivery, Leoncia underwent
prenatal examination accompanied by Artemio (TSN, p. 33, 5/17/74). After delivery,
they went home to their residence at EDSA in a car owned and driven by Artemio
himself (id.  p. 36).
Merceditas (sic) bore the surname of "Ilano" since birth without any
objection on the part of Artemio, the fact that since Merceditas (sic) had her
discernment she had always known and called Artemio as her "Daddy" (TSN, pp.
28-29, 10/18/74); the fact that each time Artemio was at home, he would play with
Merceditas (sic), take her for a ride or restaurants to eat, and sometimes sleeping
with Merceditas (sic) (id. p. 34) and does all what a father should do for his child —
bringing home goodies, candies, toys and whatever he can bring her which a child
enjoys which Artemio gives to Merceditas (sic) (TSN, pp. 38-39, 5/17/74) are
positive evidence that Merceditas (sic) is the child of Artemio and recognized by
Artemio as such. Special attention is called to Exh. "E-7" where Artemio was telling
Leoncia the need for a "frog test" to know the status of Leoncia.
Plaintiff pointed out that the support by Artemio for Leoncia and Merceditas
(sic) was sometimes in the form of cash personally delivered to her by Artemio, thru
Melencio, thru Elynia (Exhs. "E-2" and "E-3", and "D-6"), or thru Merceditas (sic)
herself (TSN, p. 40, 5/17/74) and sometimes in the form of a check as the Manila
 Banking Corporation Check No. 81532 (Exh. "G") and the signature appearing
therein which was identified by Leoncia as that of Artemio because Artemio often
gives her checks and Artemio would write the check at home and saw Artemio sign
the check (TSN, p. 49, 7/18/73). Both Artemio and Nilda admitted that the check
and signature were those of Artemio (TSN, p. 53, 10/17/77; TSN, p. 19, 10/9/78).
During the time that Artemio and Leoncia were living as husband and wife,
Artemio has shown concern as the father of Merceditas (sic). When Merceditas
(sic) was in Grade 1 at the St. Joseph Parochial School, Artemio signed the Report
Card of Merceditas (sic) (Exh. "H") for the fourth and fifth grading period(s) (Exhs.
"H-1" and "H-2") as the parent of Merceditas (sic). Those signatures of Artemio
[were] both identified by Leoncia and Merceditas (sic) because Artemio signed
Exhs. "H-1" and "H-2" at their residence in the presence of Leoncia, Merceditas
(sic) and of Elynia (TSN, p. 57, 7/18/73; TSN, p. 28, 10/1/73). . . . .
xxx xxx xxx
When Artemio run as a candidate in the Provincial Board of Cavite[,]
Artemio gave Leoncia his picture with the following dedication: "To Nene, with best
regards, Temiong". (Exh. "I"). (pp. 19-20, Appellant's Brief)
The mere denial by defendant of his signature is not sufficient to offset the
totality of the evidence indubitably showing that the signature thereon belongs to
him. The entry in the Certificate of Live Birth that Leoncia and Artemio was falsely
stated therein as married does not mean that Leoncia is not appellee's daughter.
This particular entry was caused to be made by Artemio himself in order to avoid
embarrassment. 39
In sum, we hold that the testimonies of respondent and Murillo, by themselves are not
competent proof of paternity and the totality of respondent's evidence failed to establish Christian
Paulo's filiation to petitioner.
Time and again, this Court has ruled that a high standard of proof is required to establish
paternity and filiation. An order for recognition and support may create an unwholesome situation or
may be an irritant to the family or the lives of the parties so that it must be issued only if paternity or
filiation is established by clear and convincing evidence. 40
Finally, we note the Manifestation and Motion 41 filed by petitioner's counsel informing this
Court that petitioner had died on May 6, 2010.
The action for support having been filed in the trial court when petitioner was still alive, it is
not barred under Article 175 (2) 42 of the Family Code. We have also held that the death of the
putative father is not a bar to the action commenced during his lifetime by one claiming to be his
illegitimate child. 43 The rule on substitution of parties provided in Section 16, Rule 3 of the 1997
Rules of Civil Procedure, thus applies.
SEC. 16. Death of party; duty of counsel.  — Whenever a party to a
pending action dies, and the claim is not thereby extinguished, it shall be the duty of
his counsel to inform the court within thirty (30) days after such death of the fact
thereof, and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with his duty shall be a ground for
disciplinary action.
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or administrator and
the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives
to appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party,
or if the one so named shall fail to appear within the specified period, the court may
order the opposing party, within a specified time to procure the appointment of an
executor or administrator for the estate of the deceased and the latter shall
 immediately appear for and on behalf of the deceased. The court charges in
procuring such appointment, if defrayed by the opposing party, may be recovered
as costs.
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated July 18,
2006 and Resolution dated October 19, 2007 of the Court of Appeals in CA-G.R. CV No. 64379 are
hereby REVERSED and SET ASIDE. Civil Case No. 2124-AF of the Regional Trial Court of
Cabanatuan City, Branch 26 is DISMISSED.
No pronouncement as to costs.
SO ORDERED. cHAaCE
Sereno, C.J., Leonardo-de Castro, Bersamin and Reyes, JJ., concur.

|||  (Salas v. Matusalem, G.R. No. 180284, [September 11, 2013], 717 PHIL 731-752)

THIRD DIVISION

[G.R. No. 138493. June 15, 2000.]

TEOFISTA BABIERA,  petitioner, vs. PRESENTACION B. CATOTAL, respondent.

Pablito C. Pielago, Sr.  for petitioner.

Dulcesimo Tampus  for respondent.

SYNOPSIS

Respondent filed with the Regional Trial Court of Lanao del Norte a petition for the
cancellation of the entry of birth of Teofista Babiera in the Civil Registry of Iligan City. The case was
docketed as Special Proceedings No. 3046. Respondent asserted that she was the only surviving
child of the late spouses Eugenio Babiera and Hermogena Carinosa. Flora Guinto, the natural mother
of herein petitioner and the housemaid of the late spouses, caused the registration of the facts of birth
of her child, without the consent of the spouses, by simulating that the petitioner was the child of said
spouses. After trial on the merits, the trial court rendered a decision declaring the birth certificate of
petitioner null and void and ordering the local civil registrar to cancel from the registry the questioned
birth certificate. On appeal, the appellate court affirmed the lower court's decision and, accordingly,
dismissed the appeal for lack of merit. Aggrieved by the decision, petitioner filed a petition for review
on certiorari questioning the decision rendered by the trial and appellate courts.
The Supreme Court found the petition devoid of merit. The Court ruled that the present case
alleged and showed that Hermogena did not give birth to petitioner. In other words, the prayer herein
is not to declare that petitioner is an illegitimate child of Hermogena but to establish that the former is
not the latter's child at all. Verily, the present action did not impugn petitioner's filiation to spouses
Eugenio and Hermogena Babiera because there is no blood relation to impugn in the first place. In
sum, the Court found no reason to reverse or modify the factual findings of the trial and appellate
court that petitioner was not the child of respondent's parents. Accordingly, the petition was denied
and the assailed decision was affirmed.

SYLLABUS
 1. CIVIL LAW; FAMILY CODE; ARTICLE 171 OF THE FAMILY CODE; NOT APPLICABLE IN
CASE AT BAR. — Article 171 of the Family Code is not applicable to the present case. A close
reading of this provision shows that it applies to instances in which the father impugns the legitimacy
of his wife's child. The provision, however, presupposes that the child was the undisputed offspring of
the mother. The present case alleges and shows that Hermogena did not give birth to petitioner. In
other words, the prayer herein is not to declare that petitioner is an illegitimate child of Hermogena,
but to establish that the former is not the latter's child at all. Verily, the present action does not impugn
petitioner's filiation to Spouses Eugenio and Hermogena Babiera, because there is no blood relation
to impugn in the first place.
2. ID.; PRESCRIPTION; ACTION TO NULLIFY THE BIRTH CERTIFICATE DOES NOT
PRESCRIBE. — The present action involves the cancellation of petitioner's Birth Certificate; it does
not impugn her legitimacy. Thus, the prescriptive period set forth in Article 170 of the Family
Code does not apply. Verily, the action to nullify the Birth Certificate does not prescribe, because it
was allegedly void ab initio.
3. REMEDIAL LAW; EVIDENCE; OFFICIAL DOCUMENT ENJOYS PRESUMPTION OF
REGULARITY; CASE AT BAR; EXCEPTION. — While it is true that an official document such as
petitioner's Birth Certificate enjoys the presumption of regularity, the specific facts attendant in the
case at bar, as well as the totality of the evidence presented during trial, sufficiently negate such
presumption. First, there were already irregularities regarding the Birth Certificate itself. It was not
signed by the local civil registrar. More important, the Court of Appeals observed that the mother's
signature therein was different from her signatures in other documents presented during the
trial. Second, the circumstances surrounding the birth of petitioner show that Hermogena is not the
former's real mother. For one, there is no evidence of Hermogena's pregnancy, such as medical
records and doctor's prescriptions, other than the Birth Certificate itself. In fact, no witness was
presented to attest to the pregnancy of Hermogena during that time. Moreover, at the time of her
supposed birth, Hermogena was already 54 years old. Even if it were possible for her to have given
birth at such a late age, it was highly suspicious that she did so in her own home, when her advanced
age necessitated proper medical care normally available only in a hospital. ISHaCD

DECISION

PANGANIBAN,  J  p:

A birth certificate may be ordered cancelled upon adequate proof that it is fictitious. Thus, void
is a certificate which shows that the mother was already fifty-four years old at the time of the child's
birth and which was signed neither by the civil registrar nor by the supposed mother. Because her
inheritance rights are adversely affected, the legitimate child of such mother is a proper party in the
proceedings for the cancellation of the said certificate. LexLib
Statement of the Case
Submitted for this Court's consideration is a Petition for Review on Certiorari 1 under Rule 45
of the Rules of Court, seeking reversal of the March 18, 1999 Decision 2 of the Court of
Appeals 3 (CA) in CA-GR CV No. 56031. Affirming the Regional Trial Court of Lanao del Norte in
Special Proceedings No. 3046, the CA ruled as follows: cdphil
"IN VIEW HEREOF, the appealed decision is hereby AFFIRMED.
Accordingly, the instant appeal is DISMISSED for lack of merit. Costs against the
defendant-appellant, TEOFISTA BABIERA, a.k.a. Teofista Guinto." 4
The dispositive portion of the affirmed RTC Decision reads:
"WHEREFORE, in view of the foregoing findings and pronouncements of
the Court, judgment is hereby rendered, to wit[:]
1) Declaring the Certificate of Birth of respondent Teofista Guinto as null and void
'ab initio';
 2) Ordering the respondent Local Civil Registrar of Iligan to cancel from the registry
of live birth of Iligan City BIRTH CERTIFICATE recorded as Registry No.
16035;
Furnish copies of this decision to the Local Civil Registrar of Iligan City, the
City Prosecutor, counsel for private respondent Atty. Tomas Cabili and to counsel
for petitioner.
SO ORDERED."
The Facts
The undisputed facts are summarized by the Court of Appeals in this wise:
"Presentacion B. Catotal (hereafter referred to as PRESENTACION) filed
with the Regional Trial Court of Lanao del Norte, Branch II, Iligan City, a petition for
the cancellation of the entry of birth of Teofista Babiera (hereafter referred to as
TEOFISTA) in the Civil Registry of Iligan City. The case was docketed as Special
Proceedings No. 3046.
"From the petition filed, PRESENTACION asserted 'that she is the only
surviving child of the late spouses Eugenio Babiera and Hermogena Cariñosa, who
died on May 26, 1996 and July 6, 1990 respectively; that on September 20, 1996 a
baby girl was delivered by 'hilot' in the house of spouses Eugenio and Hermogena
Babiera and without the knowledge of said spouses, Flora Guinto, the mother of the
child and a housemaid of spouses Eugenio and Hermogena Babiera, caused the
registration/recording of the facts of birth of her child, by simulating that she was the
child of the spouses Eugenio, then 65 years old and Hermogena, then 54 years old,
and made Hermogena Babiera appear as the mother by forging her signature x x
x ; that petitioner, then 15 years old, saw with her own eyes and personally
witnessed Flora Guinto give birth to Teofista Guinto, in their house, assisted by
'hilot'; that the birth certificate x x x of Teofista Guinto is void ab initio, as it was
totally a simulated birth, signature of informant forged, and it contained false
entries, to wit: a) The child is made to appear as the legitimate child of the late
spouses Eugenio Babiera and Hermogena Cariñosa, when she is not; b) The
signature of Hermogena Cariñosa, the mother, is falsified/forged. She was not the
informant; c) The family name BABIERA is false and unlawful and her correct family
name is GUINTO, her mother being single; d) Her real mother was Flora Guinto
and her status, an illegitimate child; The natural father, the carpenter, did not sign it;
that the respondent Teofista Babiera's birth certificate is void ab initio, and it is
patently a simulation of birth, since it is clinically and medically impossible for the
supposed parents to bear a child in 1956 because: a) Hermogena Cariñosa
Babiera, was already 54 years old; b) Hermogena's last child birth was in the year
1941, the year petitioner was born; c) Eugenio was already 65 years old, that the
void and simulated birth certificate of Teofista Guinto would affect the hereditary
rights of petitioner who inherited the estate of cancelled and declared void and
theretofore she prays that after publication, notice and hearing, judgment [be]
render[ed] declaring x x x the certificate of birth of respondent Teofista Guinto as
declared void, invalid and ineffective and ordering the respondent local civil
registrar of Iligan to cancel from the registry of live birth of Iligan City BIRTH
CERTIFICATE recorded as Registry No. 16035.
"Finding the petition to be sufficient in form and substance, the trial court
issued an order directing the publication of the petition and the date of hearing
thereof 'in a newspaper, the Local Civil Registrar of Iligan City, the office of the City
Prosecutor of Iligan City and TEOFISTA.
"TEOFISTA filed a motion to dismiss on the grounds that 'the petition states
no cause of action, it being an attack on the legitimacy of the respondent as the
child of the spouses Eugenio Babiera and Hermogena Cariñosa Babiera; that
plaintiff has no legal capacity to file the instant petition pursuant to Article 171 of the
Family Code; and finally that the instant petition is barred by prescription in
 accordance with Article 170 of the Family Code.' The trial court denied the motion
to dismiss.
"Subsequently, 'Attys. Padilla, Ulindang and Padilla appeared and filed an
answer/opposition in behalf of private respondent Teofista Babiera. [who] was later
on substituted by Atty. Cabili as counsel for private respondent.'
"In the answer filed, TEOFISTA averred 'that she was always known as
Teofista Babiera and not Teofista Guinto; that plaintiff is not the only surviving child
of the late spouses Eugenio Babiera and Hermogena C. Babiera, for the truth of the
matter [is that] plaintiff Presentacion B. V. Catotal and [defendant Teofista Babiera
are sisters of the full-blood. Her Certificate of Birth, signed by her mother
Hermogena Babiera, x x x Certificate of Baptism, x x x Student's Report Card x x x
all incorporated in her answer, are eloquent testimonies of her filiation. By way of
special and affirmative defenses, defendant/respondent contended that the petition
states no cause of action, it being an attack on the legitimacy of the respondent as
the child of the spouses Eugenio Babiera and Hermogena Cariñosa Babiera; that
plaintiff has no legal capacity to file the instant petition pursuant to Article 171 of the
Family Code; and finally that the instant petition is barred by prescription in
accordance with Article 170 of the Family Code." 5
Ruling of the Court of Appeals
The Court of Appeals held that the evidence adduced during trial proved that petitioner was
not the biological child of Hermogena Babiera. It also ruled that no evidence was presented to show
that Hermogena became pregnant in 1959. It further observed that she was already 54 years old at
the time, and that her last pregnancy had occurred way back in 1941. The CA noted that the
supposed birth took place at home, notwithstanding the advanced age of Hermogena and its
concomitant medical complications. Moreover, petitioner's Birth Certificate was not signed by the local
civil registrar, and the signature therein, which was purported to be that of Hermogena, was different
from her other signatures.
The CA also deemed inapplicable Articles 170 and 171 of the Family Code, which stated that
only the father could impugn the child's legitimacy, and that the same was not subject to a collateral
attack. It held that said provisions contemplated a situation wherein the husband or his heirs asserted
that the child of the wife was not his. In this case, the action involved the cancellation of the child's
Birth Certificate for being void ab initio on the ground that the child did not belong to either the father
or the mother. LibLex
Hence, this appeal. 6
Issues
Petitioner presents the following assignment of errors:
"1) Respondent (plaintiff in the lower court  a quo) does not have the legal capacity
to file the special proceeding of appeal under CA G.R No. CV-56031
subject matter of this review on certiorari;
2) The special proceeding on appeal under CA GR No CV-56031 is improper and is
barred by [the] statute of limitation (prescription); [and]
3) The Honorable Court of Appeals, the fifteenth division utterly failed to hold, that
the ancient public record of petitioner's birth is superior to the self-serving
oral testimony of respondent." 7
The Court's Ruling
The Petition is not meritorious.
First Issue:
Subject of the Present Action
Petitioner contends that respondent has no standing to sue, because Article 171 8 of
the Family Code states that the child's filiation can be impugned only by the father or, in special
circumstances, his heirs. She adds that the legitimacy of a child is not subject to a collateral attack.
 This argument is incorrect. Respondent has the requisite standing to initiate the present
action. Section 2, Rule 3 of the Rules of Court, provides that a real party in interest is one "who stands
to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the
suit." 9 The interest of respondent in the civil status of petitioner stems from an action for partition
which the latter filed against the former. 10 The case concerned the properties inherited by
respondent from her parents.
Moreover, Article 171 of the Family Code is not applicable to the present case. A close
reading of this provision shows that it applies to instances in which the father impugns the legitimacy
of his wife's child. The provision, however, presupposes that the child was the undisputed offspring of
the mother. The present case alleges and shows that Hermogena did not give birth to petitioner. In
other words, the prayer herein is not to declare that petitioner is an illegitimate child of Hermogena,
but to establish that the former is not the latter's child at all. Verily, the present action does not impugn
petitioner's filiation to Spouses Eugenio and Hermogena Babiera, because there is no blood relation
to impugn in the first place. cda
In Benitez-Badua v.  Court of Appeals, 11 the Court ruled thus:
"Petitioner's insistence on the applicability of Articles 164, 166, 170 and
171 of the Family Code to the case at bench cannot be sustained. These articles
provide:
xxx xxx xxx
"A careful reading of the above articles will show that they do not
contemplate a situation, like in the instant case, where a child is alleged not to be
the child of nature or biological child of a certain couple. Rather, these articles
govern a situation where a husband (or his heirs) denies as his own a child of his
wife. Thus, under Article 166, it is the husband who can impugn the legitimacy of
said child by proving: (1) it was physically impossible for him to have sexual
intercourse, with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child; (2) that for biological or other scientific
reasons, the child could not have been his child; (3) that in case of children
conceived through artificial insemination, the written authorization or ratification by
either parent was obtained through mistake, fraud, violence, intimidation or undue
influence. Articles 170 and 171 reinforce this reading as they speak of the
prescriptive period within which the husband or any of his heirs should file the
action impugning the legitimacy of said child. Doubtless then, the appellate court
did not err when it refused to apply these articles to the case at bench. For the case
at bench is not one where the heirs of the late Vicente are contending that
petitioner is not his child by Isabel. Rather, their clear submission is that petitioner
was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs.  Intermediate
Appellate Court, 166 SCRA 451, 457 cited in the impugned decision
is apropos, viz:
'Petitioners' recourse to Article 263 of the New Civil Code [now Art.
170 of the Family Code] is not well-taken. This legal provision refers to an
action to impugn legitimacy. It is inapplicable to this case because this is
not an action to impugn the legitimacy of a child, but an action of the private
respondents to claim their inheritance as legal heirs of their childless
deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an
illegitimate child of the deceased, but that she is not the decedent's child at
all. Being neither [a] legally adopted child, nor an acknowledged natural
child, nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a
legal heir of the deceased.'" 12 (Italics supplied.)
Second Issue:  Prescription
Petitioner next contends that the action to contest her status as a child of the late Hermogena
Babiera has already prescribed. She cites Article 170 of the Family Code which provides the
prescriptive period for such action:
"ARTICLE. 170. The action to impugn the legitimacy of the child shall be
brought within one year from the knowledge of the birth or its recording in the civil
 register, if the husband or, in a proper case, any of his heirs, should reside in the
city or municipality where the birth took place or was recorded.
"If the husband or, in his default, all of his heirs do not reside at the place of
birth as defined in the first paragraph or where it was recorded, the period shall be
two years if they should reside in the Philippines; and three years if abroad. If the
birth of the child has been concealed from or was unknown to the husband or his
heirs, the period shall be counted from the discovery or knowledge of the birth of
the child or of the fact of registration of said birth, whichever is earlier." LibLex
This argument is bereft of merit. The present action involves the cancellation of petitioner's
Birth Certificate; it does not impugn her legitimacy. Thus, the prescriptive period set forth in Article 170
of the Family Code does not apply. Verily, the action to nullify the Birth Certificate does not prescribe,
because it was allegedly void ab initio. 13
Third Issue:
Presumption in Favor of the Birth Certificate
Lastly, petitioner argues that the evidence presented, especially Hermogena's testimony that
petitioner was not her real child, cannot overcome the presumption of regularity in the issuance of the
Birth Certificate.
While it is true that an official document such as petitioner's Birth Certificate enjoys the
presumption of regularity, the specific facts attendant in the case at bar, as well as the totality of the
evidence presented during trial, sufficiently negate such presumption. First, there were already
irregularities regarding the Birth Certificate itself. It was not signed by the local civil registrar. 14 More
important, the Court of Appeals observed that the mother's signature therein was different from her
signatures in other documents presented during the trial.
Second, the circumstances surrounding the birth of petitioner show that Hermogena is not the
former's real mother. For one, there is no evidence of Hermogena's pregnancy, such as medical
records and doctor's prescriptions, other than the Birth Certificate itself. In fact, no witness was
presented to attest to the pregnancy of Hermogena during that time. Moreover, at the time of her
supposed birth, Hermogena was already 54 years old. Even if it were possible for her to have given
birth at such a late age, it was highly suspicious that she did so in her own home, when her advanced
age necessitated proper medical care normally available only in a hospital.
The most significant piece of evidence, however, is the deposition of Hermogena Babiera
which states that she did not give birth to petitioner, and that the latter was not hers nor her husband
Eugenio's. The deposition reads in part: cdasia
"q. Who are your children?
a Presentation and Florentino Babiera.
q Now, this Teofista Babiera claims that she is your legitimate child with your
husband Eugenio Babiera, what can you say about that?
a She is not our child.
xxx xxx xxx
q Do you recall where she was born?
a In our house because her mother was our house helper.
q Could you recall for how long if ever this Teofista Babiera lived with you in your
residence?
a Maybe in 1978 but she [would] always go ou[t] from time to time.
q Now, during this time, do you recall if you ever assert[ed] her as your daughter
with your husband?
a No, sir." 15
 Relying merely on the assumption of validity of the Birth Certificate, petitioner has presented
no other evidence other than the said document to show that she is really Hermogena's child. Neither
has she provided any reason why her supposed mother would make a deposition stating that the
former was not the latter's child at all.
All in all, we find no reason to reverse or modify the factual finding of the trial and the
appellate courts that petitioner was not the child of respondent's parents.
WHEREFORE, the Petition is hereby DENIED and the assailed Decision AFFIRMED. Costs
against petitioner.
SO ORDERED.
Melo, Purisima and Gonzaga-Reyes, JJ.,concur.
Vitug, J., is abroad on official business.

|||  (Babiera v. Catotal, G.R. No. 138493, [June 15, 2000], 389 PHIL 34-44)

THIRD DIVISION
 [G.R. No. 162571. June 15, 2005.]

ARNEL L. AGUSTIN,  petitioner,vs.HON. COURT OF APPEALS AND MINOR

MARTIN JOSE PROLLAMANTE, REPRESENTED BY HIS MOTHER/GUARDIAN
FE ANGELA PROLLAMANTE,  respondents.

DECISION

CORONA, J  p:

At issue in this petition for certiorari 1 is whether or not the Court of Appeals (CA) gravely
erred in exercising its discretion, amounting to lack or excess of jurisdiction, in issuing a
decision 2 and resolution 3 upholding the resolution and order of the trial court, 4 which denied
petitioner's motion to dismiss private respondents' complaint for support and directed the parties to
submit themselves to deoxyribonucleic acid (DNA) paternity testing.
Respondents Fe Angela and her son Martin Prollamante sued Martin's alleged biological
father, petitioner Arnel L. Agustin, for support and support  pendente lite before the Regional Trial
Court (RTC) of Quezon City, Branch 106. 5
In their complaint, respondents alleged that Arnel courted Fe in 1992, after which they
entered into an intimate relationship. Arnel supposedly impregnated Fe on her 34th birthday on
November 10, 1999. Despite Arnel's insistence on abortion, Fe, decided otherwise and gave birth to
their child out of wedlock, Martin, on August 11, 2000 at the Capitol Medical Hospital in Quezon City.
The baby's birth certificate was purportedly signed by Arnel as the father. Arnel shouldered the pre-
natal and hospital expenses but later refused Fe's repeated requests for Martin's support despite his
adequate financial capacity and even suggested to have the child committed for adoption. Arnel also
denied having fathered the child.
On January 19, 2001 while Fe was carrying five-month old Martin at the Capitol Hills Golf and
Country Club parking lot, Arnel sped off in his van, with the open car door hitting Fe's leg. This
incident was reported to the police. In July 2001, Fe was diagnosed with leukemia and has, since
then, been undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for support. 6
In his amended answer, Arnel denied having sired Martin because his affair and intimacy with
Fe had allegedly ended in 1998, long before Martin's conception. He claimed that Fe had at least one
other secret lover. Arnel admitted that their relationship started in 1993 but "he never really fell in love
with (Fe) not only because (she) had at least one secret lover, a certain Jun, but also because she
proved to be scheming and overly demanding and possessive. As a result, theirs was a stormy on-
and-off affair. What started as a romantic liaison between two consenting adults eventually turned out
to be a case of fatal attraction where (Fe) became so obsessed with (Arnel), to the point of even
entertaining the idea of marrying him, that she resorted to various devious ways and means to
alienate (him) from his wife and family. . . . Unable to bear the prospect of losing his wife and children,
Arnel terminated the affair although he still treated her as a friend such as by referring potential
customers to the car aircon repair shop" 7 where she worked. Later on Arnel found out that Fe had
another erstwhile secret lover. In May 2000, Arnel and his entire family went to the United States for a
vacation. Upon their return in June 2000, Arnel learned that Fe was telling people that he had
impregnated her. Arnel refused to acknowledge the child as his because their "last intimacy was
sometime in 1998." 8 Exasperated, Fe started calling Arnel's wife and family. On January 19, 2001,
Fe followed Arnel to the Capitol Hills Golf and Country Club parking lot to demand that he
acknowledge Martin as his child. According to Arnel, he could not get through Fe and the discussion
became so heated that he had no "alternative but to move on but without bumping or hitting any part
of her body." 9 Finally, Arnel claimed that the signature and the community tax certificate (CTC)
attributed to him in the acknowledgment of Martin's birth certificate were falsified. The CTC
erroneously reflected his marital status, as single when he was actually married and that his birth year
was 1965 when it should have been 1964. 10
 In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having sired Martin but
expressed willingness to consider any proposal to settle the case. 11
On July 23, 2002, Fe and Martin moved for the issuance of an order directing all the parties to
submit themselves to DNA paternity testing pursuant to Rule 28 of the Rules of Court. 12
Arnel opposed said motion by invoking his constitutional right against self-incrimination. 13 He
also moved to dismiss the complaint for lack of cause of action, considering that his signature on the
birth certificate was a forgery and that, under the law, an illegitimate child is not entitled to support if
not recognized by the putative father. 14 In his motion, Arnel manifested that he had filed criminal
charges for falsification of documents against Fe (I.S. Nos. 02-5723 and 02-7192) and a petition for
cancellation of his name appearing in Martin's birth certificate (docketed as Civil Case No. Q-02-
46669). He attached the certification of the Philippine National Police Crime Laboratory that his
signature in the birth certificate was forged. EaHcDS
The trial court denied the motion to dismiss the complaint and ordered the parties to submit
themselves to DNA paternity testing at the expense of the applicants. The Court of Appeals affirmed
the trial court.
Thus, this petition.
In a nutshell, petitioner raises two issues: (1) whether a complaint for support can be
converted to a petition for recognition and (2) whether DNA paternity testing can be ordered in a
proceeding for support without violating petitioner's constitutional right to privacy and right against
self-incrimination. 15
The petition is without merit. cdjur2005
First of all, the trial court properly denied the petitioner's motion to dismiss because the
private respondents' complaint on its face showed that they had a cause of action against the
petitioner. The elements of a cause of action are: (1) the plaintiff's primary right and the defendant's
corresponding primary duty, and (2) the delict or wrongful act or omission of the defendant, by which
the primary right and duty have been violated. The cause of action is determined not by the prayer of
the complaint but by the facts alleged. 16
In the complaint, private respondents alleged that Fe had amorous relations with the
petitioner, as a result of which she gave birth to Martin out of wedlock. In his answer, petitioner
admitted that he had sexual relations with Fe but denied that he fathered Martin, claiming that he had
ended the relationship long before the child's conception and birth. It is undisputed and even admitted
by the parties that there existed a sexual relationship between Arnel and Fe. The only remaining
question is whether such sexual relationship produced the child, Martin. If it did, as respondents have
alleged, then Martin should be supported by his father Arnel. If not, petitioner and Martin are strangers
to each other and Martin has no right to demand and petitioner has no obligation to give support.
Preliminaries aside, we now tackle the main issues.
Petitioner refuses to recognize Martin as his own child and denies the genuineness and
authenticity of the child's birth certificate which he purportedly signed as the father. He also claims
that the order and resolution of the trial court, as affirmed by the Court of Appeals, effectively
converted the complaint for support to a petition for recognition, which is supposedly proscribed by
law. According to petitioner, Martin, as an unrecognized child, has no right to ask for support and must
first establish his filiation in a separate suit under Article 283 17 in relation to Article 265 18 of the Civil
Code and Section 1, Rule 105 19 of the Rules of Court.
The petitioner's contentions are without merit.
The assailed resolution and order did not convert the action for support into one for
recognition but merely allowed the respondents to prove their cause of action against petitioner who
had been denying the authenticity of the documentary evidence of acknowledgement. But even if the
assailed resolution and order effectively integrated an action to compel recognition with an action for
support, such was valid and in accordance with jurisprudence. In Tayag v. Court of Appeals, 20 we
allowed the integration of an action to compel recognition with an action to claim one's inheritance:
...In Paulino,we held that an illegitimate child, to be entitled to support and
successional rights from the putative or presumed parent, must prove his filiation to
 the latter. We also said that it is necessary to allege in the complaint that the
putative father had acknowledged and recognized the illegitimate child because
such acknowledgment is essential to and is the basis of the right to inherit. There
being no allegation of such acknowledgment, the action becomes one to compel
recognition which cannot be brought after the death of the putative father. The ratio
decidendi in Paulino,therefore, is not the absence of a cause of action for failure of
the petitioner to allege the fact of acknowledgment in the complaint, but the
prescription of the action. cEDaTS
Applying the foregoing principles to the case at bar, although petitioner
contends that the complaint filed by herein private respondent merely alleges that
the minor Chad Cuyugan is an illegitimate child of the deceased and is actually a
claim for inheritance, from the allegations therein the same may be considered as
one to compel recognition. Further, that the two causes of action, one to compel
recognition and the other to claim inheritance, may be joined in one complaint is
not new in our jurisprudence.
As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al.(43
Phil. 763. [1922]) wherein we said:
 
The question whether a person in the position of the present
plaintiff can in any event maintain a complex action to compel recognition
as a natural child and at the same time to obtain ulterior relief in the
character of heir, is one which in the opinion of this court must be answered
in the affirmative, provided always that the conditions justifying the joinder
of the two distinct causes of action are present in the particular case. In
other words, there is no absolute necessity requiring that the action to
compel acknowledgment should have been instituted and prosecuted to a
successful conclusion prior to the action in which that same plaintiff seeks
additional relief in the character of heir.Certainly, there is nothing so
peculiar to the action to compel acknowledgment as to require that a rule
should be here applied different from that generally applicable in other
cases. ...
The conclusion above stated, though not heretofore explicitly
formulated by this court, is undoubtedly to some extent supported by our
prior decisions. Thus, we have held in numerous cases, and the doctrine
must be considered well settled, that a natural child having a right to
compel acknowledgment, but who has not been in fact legally
acknowledged, may maintain partition proceedings for the division of the
inheritance against his coheirs ...;and the same person may intervene in
proceedings for the distribution of the estate of his deceased natural father,
or mother ...In neither of these situations has it been thought necessary for
the plaintiff to show a prior decree compelling acknowledgment. The
obvious reason is that in partition suits and distribution proceedings the
other persons who might take by inheritance are before the court; and the
declaration of heirship is appropriate to such proceedings. (Emphasis
supplied)
Although the instant case deals with support rather than inheritance, as in Tayag,the basis or
rationale for integrating them remains the same. Whether or not respondent Martin is entitled to
support depends completely on the determination of filiation. A separate action will only result in a
multiplicity of suits, given how intimately related the main issues in both cases are. To
paraphrase Tayag,the declaration of filiation is entirely appropriate to these proceedings.
On the second issue, petitioner posits that DNA is not recognized by this Court as a
conclusive means of proving paternity. He also contends that compulsory testing violates his right to
privacy and right against self-incrimination as guaranteed under the 1987 Constitution. These
contentions have no merit.
 Given that this is the very first time that the admissibility of DNA testing as a means for
determining paternity has actually been the focal issue in a controversy, a brief historical sketch of our
past decisions featuring or mentioning DNA testing is called for.
In the 1995 case of People v. Teehankee 21 where the appellant was convicted of murder on
the testimony of three eyewitnesses, we stated as an obiter dictum that "while eyewitness
identification is significant, it is not as accurate and authoritative as the scientific forms of identification
evidence such as the fingerprint or the DNA test result (emphasis supplied)."
Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In  Pe
Lim v. Court Appeals, 22 promulgated in 1997, we cautioned against the use of DNA because "DNA,
being a relatively new science, (had) not as yet been accorded official recognition by our courts.
Paternity (would) still have to be resolved by such conventional evidence as the relevant incriminating
acts, verbal and written, by the putative father."
In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as
enunciated in Tijing v. Court of Appeals:23
A final note. Parentage will still be resolved using conventional methods
unless we adopt the modern and scientific ways available. Fortunately, we have
now the facility and expertise in using DNA test for identification and parentage
testing. The University of the Philippines Natural Science Research Institute (UP-
NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing
using short tandem repeat (STR) analysis. The analysis is based on the fact that
the DNA of a child/person has two (2) copies, one copy from the mother and the
other from the father. The DNA from the mother, the alleged father and child are
analyzed to establish parentage. Of course, being a novel scientific technique, the
use of DNA test as evidence is still open to challenge. Eventually, as the
appropriate case comes, courts should not hesitate to rule on the admissibility of
DNA evidence. For it was said, that courts should apply the results of science when
competently obtained in aid of situations presented, since to reject said result into
deny progress. AHDaET
The first real breakthrough of DNA as admissible and authoritative evidence in Philippine
jurisprudence came in 2002 with our en banc decision in People v. Vallejo 24 where the rape and
murder victim's DNA samples from the bloodstained clothes of the accused were admitted in
evidence. We reasoned that "the purpose of DNA testing (was) to ascertain whether an association
exist(ed) between the evidence sample and the reference sample. The samples collected (were)
subjected to various chemical processes to establish their profile."
A year later, in People v. Janson, 25 we acquitted the accused charged with rape for lack of
evidence because "doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a
complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had DNA
or other scientific evidence to still our doubts!"
In 2004, in Tecson, et al. v. COMELEC 26 where the Court en banc was faced with the issue
of filiation of then presidential candidate Fernando Poe Jr.,we stated:
In case proof of filiation or paternity would be unlikely to satisfactorily
establish or would be difficult to obtain, DNA testing, which examines genetic codes
obtained from body cells of the illegitimate child and any physical residue of the
long dead parent could be resorted to. A positive match would clear up filiation or
paternity. In Tijing vs. Court of Appeals,this Court has acknowledged the strong
weight of DNA testing. ...
Moreover in our en banc decision in People v. Yatar, 27 we affirmed the conviction of the
accused for rape with homicide, the principal evidence for which included DNA test results. We did a
lengthy discussion of DNA, the process of DNA testing and the reasons for its admissibility in the
context of our own Rules of Evidence:
Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic
information in all living organisms. A person's DNA is the same in each cell and it
does not change throughout a person's lifetime; the DNA in a person's blood is the
same as the DNA found in his saliva, sweat, bone, the root and shaft of hair,
 earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most importantly,
because of polymorphisms in human genetic structure, no two individuals have the
same DNA, with the notable exception of identical twins.
xxx xxx xxx
In assessing the probative value of DNA evidence, courts should
consider, inter alia,the following factors: how the samples were collected, how they
were handled, the possibility of contamination of the samples, the procedure
followed in analyzing the samples, whether proper standards and procedures were
followed in conducting the tests, and the qualification of the analyst who conducted
the tests.
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly
qualified by the prosecution as an expert witness on DNA print or identification
techniques. Based on Dr. de Ungria's testimony, it was determined that the gene
type and DNA profile of appellant are identical to that of the extracts subject of
examination. The blood sample taken from the appellant showed that he was of the
following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11,
which are identical with semen taken from the victim's vaginal canal. Verily, a DNA
match exists between the semen found in the victim and the blood sample given by
the appellant in open court during the course of the trial.
Admittedly, we are just beginning to integrate these advances in science
and technology in the Philippine criminal justice system, so we must be cautious as
we traverse these relatively uncharted waters. Fortunately, we can benefit from the
wealth of persuasive jurisprudence that has developed in other jurisdictions.
Specifically, the prevailing doctrine in the U.S. has proven instructive.
In Daubert v. Merrell Dow (509 U.S. 579 (1993);125 L. Ed. 2d 469) it was
ruled that pertinent evidence based on scientifically valid principles could be used
as long as it was relevant and reliable. Judges, under Daubert,were allowed greater
discretion over which testimony they would allow at trial, including the introduction
of new kinds of scientific techniques. DNA typing is one such novel
procedure. SATDEI
Under Philippine law, evidence is relevant when it relates directly to a fact
in issue as to induce belief in its existence or non-existence. Applying
the Daubert test to the case at bar, the DNA evidence obtained through PCR
testing and utilizing STR analysis, and which was appreciated by the court a quo is
relevant and reliable since it is reasonably based on scientifically valid principles of
human genetics and molecular biology.
Significantly, we upheld the constitutionality of compulsory DNA testing and the admissibility
of the results thereof as evidence. In that case, DNA samples from semen recovered from a rape
victim's 'vagina were used to positively identify the accused Joel "Kawit" Yatar as the rapist. Yatar
claimed that the compulsory extraction of his blood sample for DNA testing, as well as the testing
itself, violated his right against self-incrimination, as embodied in both Sections 12 and 17 of Article III
of the Constitution. We addressed this as follows:
 
The contention is untenable. The kernel of the right is not against all
compulsion, but against testimonial compulsion. The right against self-incrimination
is simply against the legal process of extracting from the lips of the accused an
admission of guilt. It does not apply where the evidence sought to be excluded is
not an incrimination but as part of object evidence.
Over the years, we have expressly excluded several kinds of object evidence taken from the
person of the accused from the realm of self-incrimination. These include
photographs, 28 hair, 29 and other bodily substances. 30 We have also declared as constitutional
several procedures performed on the accused such as pregnancy tests for women accused of
adultery, 31 expulsion of morphine from one's mouth 32 and the tracing of one's foot to determine its
identity with bloody footprints. 33 In Jimenez v. Cañizares, 34 we even authorized the examination of
a woman's genitalia, in an action for annulment filed by her husband, to verify his claim that she was
impotent, her orifice being too small for his penis. Some of these procedures were, to be sure, rather
invasive and involuntary, but all of them were constitutionally sound. DNA testing and its results, per
our ruling in Yatar, 35 are now similarly acceptable.
Nor does petitioner's invocation of his right to privacy persuade us. In Ople v.
Torres, 36 where we struck down the proposed national computerized identification system embodied
in Administrative Order No. 308 we said:
In no uncertain terms, we also underscore that the right to privacy does not
bar all incursions into individual privacy. The right is not intended to stifle scientific
and technological advancements that enhance public service and the common
good....Intrusions into the right must be accompanied by proper safeguards that
enhance public service and the common good.
Historically, it has mostly been in the areas of legality of searches and seizures, 37 and the
infringement of privacy of communication 38 where the constitutional right to privacy has been
critically at issue. Petitioner's case involves neither and, as already stated, his argument that his right
against self-incrimination is in jeopardy holds no water. His hollow invocation of his constitutional
rights elicits no sympathy here for the simple reason that they are not in any way being violated. If, in
a criminal case, an accused whose very life is at stake can be compelled to submit to DNA testing, we
see no reason why, in this civil case, petitioner herein who does not face such dire consequences
cannot be ordered to do the same.
DNA paternity testing first came to prominence in the United States, where it yielded its first
official results sometime in 1985. In the decade that followed, DNA rapidly found widespread general
acceptance. 39 Several cases decided by various State Supreme Courts reflect the total assimilation
of DNA testing into their rules of procedure and evidence.
The case of Wilson v. Lumb 40 shows that DNA testing is so commonly accepted that, in
some instances, ordering the procedure has become a ministerial act. The Supreme Court of St.
Lawrence County, New York allowed a party who had already acknowledged paternity to
subsequently challenge his prior acknowledgment. The Court, pointed out that, under the law,
specifically Section 516 of the New York Family Court Act, the Family Court examiner had the duty,
upon receipt of the challenge, to order DNA tests: 41
§ 516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity
executed pursuant to section one hundred eleven-k of the social services law or
section four thousand one hundred thirty-five-b of the public health law shall
establish the paternity of and liability for the support of a child pursuant to this act.
Such acknowledgment must be reduced to writing and filed pursuant to section four
thousand one hundred thirty-five-b of the public health law with the registrar of the
district in which the birth occurred and in which the birth certificate has been filed.
No further judicial or administrative proceedings are required to ratify an
unchallenged acknowledgment of paternity. aATCDI
(b) An acknowledgment of paternity executed pursuant to section one
hundred eleven-k of the social services law or section four thousand one hundred
thirty-five-b of the public health law may be rescinded by either signator's filing of a
petition with the court to vacate the acknowledgment within the earlier of sixty days
of the date of signing the acknowledgment or the date of an administrative or a
judicial proceeding (including a proceeding to establish a support order) relating to
the child in which either signator is a party. For purposes of this section, the "date of
an administrative or a judicial proceeding" shall be the date by which the
respondent is required to answer the petition. After the expiration of sixty days of
the execution of the acknowledgment, either signator may challenge the
acknowledgment of paternity in court only on the basis of fraud, duress, or material
mistake of fact, with the burden of proof on the party challenging the voluntary
acknowledgment. Upon receiving a party's challenge to an acknowledgment, the
court shall order genetic marker tests or DNA tests for the determination of the
child's paternity and shall make a finding of paternity, if appropriate, in accordance
with this article.Neither signator's legal obligations, including the obligation for child
support arising from the acknowledgment, may be suspended during the challenge
 to the acknowledgment except for good cause as the court may find. If a party
petitions to rescind an acknowledgment and if the court determines that the alleged
father is not the father of the child, or if the court finds that an acknowledgment is
invalid because it was executed on the basis of fraud, duress, or material mistake
of fact, the court shall vacate the acknowledgment of paternity and shall
immediately provide a copy of the order to the registrar of the district in which the
child's birth certificate is filed and also to the putative father registry operated by the
department of social services pursuant to section three hundred seventy-two-c of
the social services law. In addition, if the mother of the child who is the subject of
the acknowledgment is in receipt of child support services pursuant to title six-A of
article three of the social services law, the court shall immediately provide a copy of
the order to the child support enforcement unit of the social services district, that
provides the mother with such services.
(c) A determination of paternity made by any other state, whether
established through the parents' acknowledgment of paternity or through an
administrative or judicial process, must be accorded full faith and credit, if and only
if such acknowledgment meets the requirements set forth in section 452(a)(7) of the
social security act. (emphasis supplied)
DNA testing also appears elsewhere in the New York Family Court Act: 42
§532. Genetic marker and DNA tests; admissibility of records or reports of
test results; costs of tests.
a) The court shall advise the parties of their right to one or more genetic
marker tests or DNA tests and, on the court's own motion or the motion of any
party, shall order the mother, her child and the alleged father to submit to one or
more genetic marker or DNA tests of a type generally acknowledged as reliable by
an accreditation body designated by the secretary of the federal department of
health and human services and performed by a laboratory approved by such an
accreditation body and by the commissioner of health or by a duly qualified
physician to aid in the determination of whether the alleged father is or is not the
father of the child. No such test shall be ordered, however, upon a written finding
by the court that it is not in the best interests of the child on the basis of res
judicata, equitable estoppel, or the presumption of legitimacy of a child born to a
married woman.The record or report of the results of any such genetic marker or
DNA test ordered pursuant to this section or pursuant to section one hundred
eleven-k of the social services law shall be received in evidence by the court
pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice
law and rules where no timely objection in writing has been made thereto and that if
such timely objections are not made, they shall be deemed waived and shall not be
heard by the court. If the record or report of the results of any such genetic marker
or DNA test or tests indicate at least a ninety-five, percent probability of paternity,
the admission of such record or report shall create a rebuttable presumption of
paternity, and shall establish, if unrebutted, the paternity of and liability for the
support of a child pursuant to this article and article four of this act. HEITAD
(b) Whenever the court directs a genetic marker or DNA test pursuant to
this section, a, report made as provided in subdivision (a) of this section may be
received in evidence pursuant to rule forty-five, hundred eighteen of the civil
practice law and rules if offered by any party.
(c) The cost of any test ordered pursuant to subdivision (a) of this section
shall be, in the first instance, paid by the moving party. If the moving party is
financially unable to pay such cost, the court may direct any qualified public health
officer to conduct such test, if practicable; otherwise, the court may direct payment
from the funds of the appropriate local social services district. In its order of
disposition, however, the court may direct that the cost of any such test be
apportioned between the parties according to their respective abilities to pay or be
assessed against the party who does not prevail on the issue of paternity, unless
such party is financially unable to pay. (emphasis supplied)
  
In R.E. v. C.E.W., 43 a decision of the Mississippi Supreme Court, DNA tests were used to
prove that H.W. previously thought to be an offspring of the marriage between A.C.W. and C.E.W.,
was actually the child of R.E. with whom C.E.W. had, the time of conception, maintained an
adulterous relationship.
In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G., 44 the 4th
Department of the New York Supreme Court's Appellate Division allowed G.G., who had been
adjudicated as T.M.H.'s father by default, to have the said judgment vacated, even after six years,
once he had shown through a genetic marker test that he was not the child's father. In this case,. G.G.
only, requested the tests after the Department of Social Services, six years after G.G. had been
adjudicated as T.M.H.'s father, sought an increase in his support obligation to her.
In Greco v. Coleman, 45 the Michigan Supreme Court while ruling on the constitutionality of a
provision of law allowing non-modifiable support agreements pointed out that it was because of the
difficulty of determining paternity before the advent of DNA testing that such support agreements were
necessary:
As a result of DNA testing, the accuracy with which paternity can be proven
has increased significantly since the parties in this lawsuit entered into their support
agreement ...(current testing methods can determine the probability of paternity to
99.999999% accuracy).However, at the time the parties before us entered into the
disputed agreement, proving paternity was a very significant obstacle to an
illegitimate child's access to child support. The first reported results of modern DNA
paternity testing did not occur until 1985. ("In fact, since its first reported results in
1985, DNA matching has progressed to 'general acceptance in less than a
decade'").Of course, while prior blood-testing methods could exclude some males
from being the possible father of a child, those methods could not affirmatively
pinpoint a particular male as being the father. Thus, when the settlement
agreement between the present parties was entered in 1980, establishing paternity
was a far more difficult ordeal than at present. Contested paternity actions at that
time were often no more than credibility contests. Consequently, in every,
contested paternity action, obtaining child support depended not merely on whether
the putative father was, in fact, the child's biological father, but rather on whether
the mother could prove to a court of law that she was only sexually involved with
one man — the putative father. Allowing parties the option of entering into private
agreements in lieu of proving paternity eliminated the risk that the mother would be
unable meet her burden of proof. ITSacC
It is worth noting that amendments to Michigan's Paternity law have included the use of DNA
testing: 46
§722.716 Pretrial proceedings; blood or tissue typing determinations as to
mother, child, and alleged father; court order; refusal to submit to typing or
identification profiling; qualifications of person conducting typing or identification
profiling; compensation of expert; result of typing or identification profiling; filing
summary report; objection; admissibility; presumption; burden of proof; summary
disposition.
Sec. 6.
(1) In a proceeding under this act before trial, the court, upon application
made by or on behalf of either party, or on its own motion, shall order that the
mother, child, and alleged father submit to blood or tissue typing determinations,
which may include, but are not limited to, determinations of red cell antigens, red
cell isoenzymes, human leukocyte antigens, serum proteins, or DNA identification
profiling, to determine whether the alleged father is likely to be, or is not, the father
of the child. If the court orders a blood or tissue typing or DNA identification
profiling to be conducted and a party refuses to submit to the typing or DNA
identification profiling, in addition to any other remedies available, the court may do
either of the following:
 (a) Enter a default judgment at the request of the appropriate party.
(b) If a trial is held, allow the disclosure of the fact of the refusal unless
good cause is shown for not disclosing the fact of refusal.
(2) A blood or tissue typing or DNA identification profiling shall be
conducted by a person accredited for paternity determinations by a nationally
recognized scientific organization, including, but not limited to, the American
association of blood banks.
xxx xxx xxx
(5) If the probability of paternity determined by the qualified person
described in subsection (2) conducting the blood or tissue typing or DNA
identification profiling is 99% or higher, and the DNA identification profile and
summary report are admissible as provided in subsection (4) paternity is presumed.
If the results of the analysis of genetic testing material from 2 or more persons
indicate a probability of paternity greater than 99%,the contracting laboratory shall
conduct additional genetic paternity testing until all but 1 of the putative fathers is
eliminated, unless the dispute involves 2 or more putative fathers who have
identical DNA.
(6) Upon the establishment of the presumption of paternity as provided in
subsection (5),either party may move for summary disposition under the court rules
this section does not abrogate the right of either party to child support from the date
of birth of the child if applicable under section 7. (emphasis supplied)
In Rafferty vs. Perkins, 47 the Supreme Court of Mississippi ruled that DNA test results
showing paternity were sufficient to overthrow the presumption of legitimacy of a child born during the
course of a marriage:
The presumption of legitimacy having been rebutted by the results of the
blood test eliminating Perkins as Justin's father, even considering the evidence in
the light most favorable to Perkins, we find that no reasonable jury could find that
Easter is not Justin's father based upon the 99.94% probability of paternity
concluded by the DNA testing.
In S.J.F. and J.C.F. v. R.C.W., 48 the North Dakota Supreme Court upheld an order for
genetic testing given by the Court of Appeals, even after trial on the merits had concluded without
such order being given. Significantly, when J.C.F., the mother, first filed the case for paternity and
support with the District Court, neither party requested genetic testing. It was only upon appeal from
dismissal of the case that the appellate court remanded the case and ordered the testing, which the
North Dakota Supreme Court upheld. CacISA
The case of Kohl v. Amundson, 49 decided by the Supreme Court of South Dakota,
demonstrated that even default judgments of paternity could be vacated after the adjudicated father
had, through DNA testing, established non-paternity. In this case Kohl, having excluded himself as the
father of Amundson's child through DNA testing, was able to have the default judgment against him
vacated. He then obtained a ruling ordering Amundson to reimburse him for the amounts withheld
from his wages for child support. The Court said "(w)hile Amundson may have a remedy against the
father of the child, she submit(ted) no authority that require(d) Kohl to support her child. Contrary to
Amundson's position, the fact that a default judgment was entered, but subsequently vacated, (did)
not foreclose Kohl from obtaining a money judgment for the amount withheld from his wages."
In M.A.S v. Mississippi Dept. of Human Services, 50 another case decided by the Supreme
Court of Mississippi; it was held that even if paternity was established through an earlier agreed order
of filiation, child support and visitation orders could still be vacated once DNA testing established
someone other than the named individual to be the biological father. The Mississippi High Court
reiterated this doctrine in Williams v. Williams.51
The foregoing considered we find no grave abuse of discretion on the part of the public
respondent for upholding the orders of the trial court which both denied the petitioner's motion to
dismiss and ordered him to submit himself for DNA testing. Under Rule 65 of the 1997 Rules of Civil
Procedure, the remedy of certiorari is only available "when any tribunal, board or officer has acted
without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy in the
ordinary course of law." 52 In Land Bank of the Philippines v. the Court of Appeals 53 where we
dismissed a special civil action for certiorari under Rule 65 we discussed at length the nature of such
a petition and just what was meant by "grave abuse of discretion":
Grave abuse of discretion implies such capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction or, in other words, where the
power is exercised in an arbitrary manner by reason of passion, prejudice, or
personal hostility, and it must be so patent or gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law. IcEaST
The special civil action for certiorari is a remedy designed for the correction
of errors of jurisdiction and not errors of judgment. The raison d'etre for the rule is
when a court exercises its jurisdiction, an error committed while so engaged does
not deprive it of the jurisdiction being exercised when the error is committed. If it
did, every error committed by a court would deprive it of its jurisdiction and every
erroneous judgment would be a void judgment. In such a scenario, the
administration of justice would not survive. Hence, where the issue or question
involved affects the wisdom or legal soundness of the decision — not the
jurisdiction of the court to render said decision — the same is beyond the province
of a special civil action for certiorari.
The proper recourse of the aggrieved party from a decision of the CA is a
petition for review on certiorari under Rule 45 of the Revised Rules of Court. On the
other hand, if the error subject of the recourse is one of jurisdiction, or the act
complained of was perpetrated by a quasi-judicial officer or agency with grave
abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy
available to the aggrieved party is a petition for certiorari under Rule 65 of the said
Rules. (emphasis supplied)
In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or
personal hostility that would amount to grave abuse of discretion on the part of the Court of Appeals.
The respondent court acted entirely within its jurisdiction in promulgating its decision and resolution,
and any error made would have only been an error in judgment. As we have discussed, however, the
decision of the respondent court, being firmly anchored in law and jurisprudence, was correct.
EPILOGUE
For too long, illegitimate children have been marginalized by fathers who choose to deny their
existence. The growing sophistication of DNA testing technology finally provides a much needed
equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA
testing and have repeatedly expressed as much in the past. This case comes at a perfect time when
DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We
therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of
determining paternity.
WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Court of Appeals'
decision dated January 28, 2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in toto.
Costs against petitioner.
Panganiban, Sandoval-Gutierrez, Carpio Morales and Garcia, JJ., concur.

|||  (Agustin v. Court of Appeals, G.R. No. 162571, [June 15, 2005], 499 PHIL 307-332)
 THIRD DIVISION

[G.R. No. 153798. September 2, 2005.]

BELEN SAGAD ANGELES,  petitioner, vs. ALELI "CORAZON" ANGELES

MAGLAYA, respondent.

Estelito P. Mendoza  for petitioner.

Villaraza & Angcangco Law Offices  for respondent.

SYLLABUS
1. CIVIL LAW; FAMILY CODE; PATERNITY AND FILIATION; LEGITIMATE CHILD;
ELUCIDATED. — A legitimate child is a product of, and, therefore, implies a valid and lawful
marriage. Remove the element of lawful union and there is strictly no legitimate filiation between
parents and child. Article 164 of the Family Code cannot be more emphatic on the matter: "Children
conceived or born during the marriage of the parents are legitimate."
2. ID.; ID.; ID.; PRESUMPTION OF LEGITIMACY MAY BE AVAILED ONLY UPON
CONVINCING PROOF OF THE FACTUAL BASIS THEREFOR. — A party in whose favor the legal
presumption exists may rely on and invoke such legal presumption to establish a fact in issue. He
need not introduce evidence to prove that fact. For, a presumption is prima facie proof of the fact
presumed. However, it cannot be over-emphasized, that while a fact thus prima facie established by
legal presumption shall, unless overthrown, stand as proved, the presumption of legitimacy under
Article 164 of the Family Code may be availed only upon convincing proof of the factual basis
therefor, i.e., that the child's parents were legally married and that his/her conception or birth occurred
during the subsistence of that marriage. Else, the presumption of law that a child is legitimate does
not arise.
 3. ID.; ID.; ID.; CANNOT BE ESTABLISHED WHEN THERE IS NO PROOF OF LAWFUL
MARRIAGE BETWEEN THE PARENTS OF THE CHILD; CASE AT BAR. — In the case at bench, the
Court of Appeals, in its decision under review, did not categorically state from what facts established
during the trial was the presumption of respondent's supposed legitimacy arose. But even if perhaps it
wanted to, it could not have possibly done so. For, save for respondent's gratuitous assertion and an
entry in her certificate of birth, there is absolutely no proof of the decedent's marriage to respondent's
mother, Genoveva Mercado. To stress, no marriage certificate or marriage contract — doubtless the
best evidence of Francisco's and Genoveva's marriage, if one had been solemnized — was offered in
evidence. No priest, judge, mayor, or other solemnizing authority was called to the witness box to
declare that he solemnized the marriage between the two. None of the four (4) witnesses respondent
presented could say anything about, let alone affirm, that supposed marriage. . . . In all, no evidence
whatsoever was presented of the execution of the Francisco Angeles-Genoveva Mercado marriage
contract; when and where their marriage was solemnized; the identity of the solemnizing officer; the
persons present, and like significant details.
4. ID.; ID.; ID.; MODES BY WHICH THE LEGITIMATE FILIATION OF A CHILD CAN BE
ESTABLISHED. — We can concede, because Article 172 of the Family Code appears to say so, that
the legitimate filiation of a child can be established by any of the modes therein defined even without
direct evidence of the marriage of his/her supposed parents. Said Article 172 reads: Art. 172. The
filiation of legitimate children is established by any of the following: 1. The record of birth appearing in
the civil register or a final judgment; or 2. An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent concerned. In the absence of the foregoing
evidence, the legitimate filiation shall be proved by: 1. The open and continuous possession of the
status of a legitimate child; or 2. Any other means allowed by the Rules of Court and special laws.
5. ID.; ID.; ID.; A BIRTH CERTIFICATE TO BE CONSIDERED AS VALIDATING PROOF OF
PATERNITY AND AS AN INSTRUMENT OF RECOGNITION MUST BE SIGNED BY THE FATHER
AND MOTHER JOINTLY, OR BY THE MOTHER ALONE IF THE FATHER REFUSES. — The reason
is as simple as it is elementary: the Birth Certificate presented was not signed by Francisco against
whom legitimate filiation is asserted. Not even by Genoveva. It was signed by the attending physician,
one Rebecca de Guzman, who certified to having attended the birth of a child. Such certificate, albeit
considered a public record of a private document is, under Section 23, Rule 132 of the Rules of Court,
evidence only of the fact which gave rise to its execution: the fact of birth of a child. Jurisprudence
teaches that a birth certificate, to be considered as validating proof of paternity and as an instrument
of recognition, must be signed by the father and mother jointly, or by the mother alone if the father
refuses. Dr. Arturo Tolentino, commenting on the probative value of the entries in a certificate of birth,
wrote: . . . if the alleged father did not intervene in the making of the birth certificate, the putting of his
name by the mother or doctor or registrar is void; the signature of the alleged father is necessary.
6. ID.; ID.; ID.; THE LEGITIMATE FILIATION OF A CHILD IS A MATTER FIXED BY LAW
ITSELF. — It cannot be overemphasized that the legitimate filiation of a child is a matter fixed by law
itself. It cannot, as the decision under review seems to suggest, be made dependent on the
declaration of the attending physician or midwife, or that of the mother of the newborn child. For then,
an unwed mother, with or without the participation of a doctor or midwife, could veritably invest
legitimate status to her offspring through the simple expedient of writing the putative father's name in
the appropriate space in the birth certificate. A long time past, this Court cautioned against according
a similar unsigned birth certificate prima facie evidentiary value of filiation: Give this certificate
evidentiary relevancy, and we thereby pave the way for any scheming unmarried mother to extort
money for her child (and herself) from any eligible bachelor or affluent pater familias. How? She
simply causes the midwife to state in the birth certificate that the newborn babe is her legitimate
offspring with that individual and the certificate will be accepted for registration. And any lawyer with
sufficient imagination will realize the exciting possibilities from such mischief of such prima facie
evidence — when and if the "father" dies in ignorance of the fraudulent design.
7. REMEDIAL LAW; CIVIL PROCEDURE; EFFECT OF FINAL JUDGMENT; RES JUDICATA;
APPLIED IN CASE AT BAR. — In the light of the ruling of the Court of Appeals in CA-G.R. SP No.
47832, as affirmed with finality by this Court in G.R. No. 163124, there can be no serious objection to
applying in this case the rule on conclusiveness of judgment, one of two (2) concepts embraced in the
res judicata principle. Following the rule on conclusiveness of judgment, herein respondent is
precluded from claiming that she is the legitimate daughter of Francisco and Genoveva Mercado. In
fine, the issue of herein respondent's legitimate filiation to Francisco and the latter's marriage to
Genoveva, having been judicially determined in a final judgment by a court of competent jurisdiction,
has thereby become res judicata and may not again be resurrected or litigated between herein
petitioner and respondent or their privies in a subsequent action, regardless of the form of the latter.
8. ID.; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE OF DECEASED PERSONS;
SPECIAL ADMINISTRATOR; THE SURVIVING SPOUSE IS PREFERRED OVER THE NEXT OF
KIN OF THE DECEDENT. — [I]t should be noted that on the matter of appointment of administrator of
the estate of the deceased, the surviving spouse is preferred over the next of kin of the decedent.
When the law speaks of the "next of kin", the difference is to those who are entitled, under the statute
of distribution, to the decedent's property; one whose relationship is such that he is entitled to share in
the estate as distributed, or in short, an heir. In resolving, therefore, the issue of whether an applicant
for letters of administration is a next of kin or an heir of the decedent, the probate court perforce has
to determine and pass upon the issue of filiation. A separate action will only result in a multiplicity of
suits. Upon this consideration, the trial court acted within bounds when it looked into and pass upon
the claimed relationship of respondent to the late Francisco Angeles.

DECISION

GARCIA, J  p:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Belen
Sagad Angeles seeks to set aside the Decision dated May 29, 2002 1 of the Court of Appeals in CA
G.R. CV No. 66037, reversing an earlier Order of the Regional Trial Court at Caloocan City which
dismissed the petition for the settlement of the intestate estate of Francisco Angeles, thereat
commenced by the herein respondent Aleli "Corazon" Angeles-Maglaya.
The legal dispute between the parties started when, on March 25, 1998, in the Regional Trial
Court (RTC) at Caloocan City, respondent filed a petition 2 for letters of administration and her
appointment as administratrix of the intestate estate of Francisco M. Angeles (Francisco, hereinafter).
In the petition, docketed as Special Proceedings No. C-2140 and raffled to Branch 120 of the court,
respondent alleged, among other things, the following:
1. That Francisco, a resident of 71 B. Serrano St., Grace Park, Caloocan, died intestate on
January 21, 1998 in the City of Manila, leaving behind four (4) parcels of land and a building, among
other valuable properties;
2. That there is a need to appoint an administrator of Francisco's estate;
3. That she (respondent) is the sole legitimate child of the deceased and Genoveva Mercado,
and, together with petitioner, Belen S. Angeles, decedent's wife by his second marriage, are the
surviving heirs of the decedent; and
4. That she has all the qualifications and none of the disqualifications required of an
administrator.
Petitioner opposed the basic petition and prayed that she, instead of respondent, be made the
administratrix of Francisco's estate. 3 In support of her opposition and plea, petitioner alleged having
married Francisco on August 7, 1948 before Judge Lucio M. Tianco of the Municipal Court of Rizal, a
union which was ratified two (2) months later in religious rites at the Our Lady of Grace Parish in
Caloocan City, and that Francisco represented in their marriage contract that he was single at that
time. Petitioner also averred that respondent could not be the daughter of Francisco for, although she
was recorded as Francisco's legitimate daughter, the corresponding birth certificate was not signed by
him. Pressing on, petitioner further alleged that respondent, despite her claim of being the legitimate
child of Francisco and Genoveva Mercado, has not presented the marriage contract between her
supposed parents or produced any acceptable document to prove such union. And evidently to
debunk respondent's claim of being the only child of Francisco, petitioner likewise averred that she
and Francisco had, during their marriage, legally adopted Concesa A. Yamat, et al. Petitioner thus
urged that she, being the surviving spouse of Francisco, be declared as possessed of the superior
right to the administration of his estate. CTHaSD
 In her reply to opposition, respondent alleged, inter alia, that per certification of the
appropriate offices, the January to December 1938 records of marriages of the Civil Registrar of
Bacolor, Pampanga where the alleged 1938 Francisco-Genoveva wedding took place, were
destroyed. In the same reply, respondent dismissed as of little consequence the adoption adverted to
owing to her having interposed with the Court of Appeals a petition to nullify the decree of adoption
entered by the RTC at Caloocan. 4
Issues having been joined, trial ensued. Respondent, as petitioner a quo, commenced the
presentation of her evidence by taking the witness stand. She testified having been born on
November 20, 1939 as the legitimate child of Francisco M. Angeles and Genoveva Mercado, who
died in January 1988. 5 She also testified having been in open and continuous possession of the
status of a legitimate child. Four (4) other witnesses testified on her behalf, namely: Tomas
Angeles, 6 Francisco Yaya, 7 Jose O. Carreon 8 and Paulita Angeles de la Cruz. 9 Respondent also
offered in evidence her birth certificate which contained an entry stating that she was born at the Mary
Johnston Hospital, Tondo, Manila, to Francisco Angeles and Genoveva Mercado and whereon the
handwritten word "Yes" appears on the space below the question "Legitimate? (Legitimo?)"; pictures
taken during respondent's wedding as bride to Atty. Guillermo T. Maglaya; and a copy of her marriage
contract. Likewise offered were her scholastic and government service records.
After respondent rested her case following her formal offer of exhibits, petitioner filed a
"Motion to Dismiss" under Section 1(g), Rule 16 of the Rules of Court. In it, she prayed for the
dismissal of the petition for letters of administration on the ground that the petition failed "to state or
prove a cause of action", it being her stated position that "[P]etitioner [Corzaon], by her evidence,
failed to establish her filiation vis-à-vis the decedent, i.e., that she is in fact a legitimate child of
Francisco M. Angeles." 10
To the motion to dismiss, respondent interposed an opposition, followed by petitioner's reply,
to which respondent countered with a rejoinder.
Eventually, in an Order dated July 12, 1999, 11 the trial court, on its finding that respondent
failed to prove her filiation as legitimate child of Francisco, dismissed the petition, thus:
WHEREFORE, the instant petition is hereby ordered DISMISSED for
failure of the [respondent] to state a cause of action in accordance with Section 1(g)
of Rule 16 of the 1997 Rules of Civil of Procedure. (Word in bracket added)
Respondent then moved for reconsideration, which motion was denied by the trial court in its
Order of December 17, 1999. 12 Therefrom, respondent went on appeal to the Court of Appeals
where her recourse was docketed as CA-G.R. CV No. 66037.
As stated at the threshold hereof, the Court of Appeals, in its assailed Decision dated May 29,
2002, 13 reversed and set aside the trial court's order of dismissal and directed it to appoint
respondent as administratrix of the estate of Francisco, to wit:
WHEREFORE, the appealed order of dismissal is REVERSED. The Trial
Court is hereby ordered to appoint petitioner-appellant Aleli "Corazon" Angeles as
administratrix of the intestate estate of Francisco Angeles.
SO ORDERED.
The appellate court predicated its ruling on the interplay of the following main premises:
1. Petitioner's Motion to Dismiss filed with the trial court, albeit premised on the alleged failure
of the underlying petition for letter of administration to state or prove a cause of action, actually
partakes of a demurrer to evidence under Section 1 of Rule 33; 14
2. Petitioner's motion being a demurrer, it follows that she thereby waived her right to present
opposing evidence to rebut respondent's testimonial and documentary evidence; and
3. Respondent has sufficiently established her legitimate filiation with the deceased
Francisco.
Hence, petitioner's instant petition for review on certiorari, on the submission that the Court of
Appeals erred: (1) in reversing the trial court's order of dismissal; 15 (2) in treating her motion to
dismiss as a demurrer to evidence; (3) in holding that respondent is a legitimate daughter of
Francisco; and (4) in decreeing respondent's appointment as administratrix of Francisco's intestate
estate.
We resolve to grant the petition.
The principal issue tendered in this case boils down to the question of whether or not
respondent is the legitimate child of decedent Francisco M. Angeles and Genoveva Mercado. The
Court of Appeals resolved the issue in the affirmative and, on the basis of such determination, ordered
the trial court to appoint respondent as administratrix of Francisco's estate.
We are unable to lend concurrence to the appellate court's conclusion on the legitimate status
of respondent, or, to be precise, on her legitimate filiation to the decedent. A legitimate child is a
product of, and, therefore, implies a valid and lawful marriage. Remove the element of lawful union
and there is strictly no legitimate filiation between parents and child. Article 164 of the Family
Code cannot be more emphatic on the matter: "Children conceived or born during the marriage of the
parents are legitimate."
In finding for respondent, the Court of Appeals, citing and extensibly quoting from Tison vs.
Court of Appeals, 16 stated that since petitioner "opted not to present any contrary evidence", the
presumption on respondent's legitimacy stands "unrebutted." 17
Following is an excerpt from Tison:
It seems that both the court a quo and respondent appellate court have
regrettably overlooked the universally recognized presumption on legitimacy. There
is no presumption of the law more firmly established and founded on sounder
morality and more convincing than the presumption that children born in
wedlock are legitimate. And well-settled is the rule that the issue of legitimacy
cannot be attacked collaterally.
The rationale for this rule has been explained in this wise:
'The presumption of legitimacy in the Family Code . . . actually
fixes a status for the child born in wedlock, and that civil status cannot
be attacked collaterally. . . .
xxx xxx xxx
'Upon the expiration of the periods provided in Article 170 [of
the Family Code], the action to impugn the legitimacy of a child can no
longer be bought. The status conferred by the presumption, therefore,
becomes fixed, and can no longer be questioned. The obvious intention of
the law is to prevent the status of a child born in wedlock from being in a
state of uncertainty. It also aims to force early action to settle any doubt as
to the paternity of such child so that the evidence material to the matter . . .
may still be easily available.'
xxx xxx xxx
'Only the husband can contest the legitimacy of a child born to his
wife . . . .' (Words in bracket added; Emphasis ours)
Contextually, the correct lesson of Tison, which the appellate court evidently misapplied, is
that: (a) a child is presumed legitimate only if conceived or born in wedlock; and (b) the presumptive
legitimacy of such child cannot be attacked collaterally. cAIDEa
A party in whose favor the legal presumption exists may rely on and invoke such legal
presumption to establish a fact in issue. He need not introduce evidence to prove that fact. 18 For, a
presumption is prima facie proof of the fact presumed. However, it cannot be over-emphasized, that
while a fact thus  prima facie established by legal presumption shall, unless overthrown, stand as
proved, 19 the presumption of legitimacy under Article 164 of the Family Code 20 may be availed only
upon convincing proof of the factual basis therefor, i.e., that the child's parents were legally married
and that his/her conception or birth occurred during the subsistence of that marriage. Else, the
presumption of law that a child is legitimate does not arise. HScCEa
 In the case at bench, the Court of Appeals, in its decision under review, did not categorically
state from what facts established during the trial was the presumption of respondent's supposed
legitimacy arose. But even if perhaps it wanted to, it could not have possibly done so. For, save for
respondent's gratuitous assertion and an entry in her certificate of birth, there is absolutely no proof of
the decedent's marriage to respondent's mother, Genoveva Mercado. To stress, no marriage
certificate or marriage contract — doubtless the best evidence of Francisco's and Genoveva's
marriage, if one had been solemnized 21 — was offered in evidence. No priest, judge, mayor, or other
solemnizing authority was called to the witness box to declare that he solemnized the marriage
between the two. None of the four (4) witnesses respondent presented could say anything about, let
alone affirm, that supposed marriage. At best, their testimonies proved that respondent was
Francisco's daughter. For example, Tomas Angeles and Paulita Angeles de la Cruz testified that they
know respondent to be their cousin because his (Tomas') father and her (Paulita's) mother, who are
both Francisco's siblings, told them so. 22 And one Jose Carreon would testify seeing respondent in
1948 in Francisco's house in Caloocan, the same Francisco who used to court Genoveva before the
war. 23 In all, no evidence whatsoever was presented of the execution of the Francisco Angeles-
Genoveva Mercado marriage contract; when and where their marriage was solemnized; the identity of
the solemnizing officer; the persons present, and like significant details.
While perhaps not determinative of the issue of the existence of marriage between Francisco
and Genoveva, we can even go to the extent of saying that respondent has not even presented a
witness to testify that her putative parents really held themselves out to the public as man-and-wife.
Clearly, therefore, the Court of Appeals erred in crediting respondent with the legal presumption of
legitimacy which, as above explained, should flow from a lawful marriage between Francisco and
Genevova. To reiterate, absent such a marriage, as here, there is no presumption of legitimacy and,
therefore, there was really nothing for petitioner to rebut.
Parenthetically, for all her unyielding stance that her mother and Francisco Angeles were
married in 1938, respondent never, thru the years, even question what would necessarily be a
bigamous Francisco-Belen Sagad marriage. Ironical as it may seem, respondent herself undermined
her very own case. As it were, she made certain judicial admission negating her own assertion — as
well as the appellate court's conclusion — that Francisco was legally married to Genoveva. As may
be recalled, respondent had declared that her mother Genoveva died in 1988, implying, quite clearly,
that when Francisco contracted marriage with petitioner Belen S. Angeles in 1948, Genoveva and
Francisco were already "spouses". Now, then, if, as respondent maintained despite utter lack of
evidence, that Genoveva Mercado and Francisco were married in 1938, it follows that the marriage of
Francisco to petitioner Belen Angeles in 1948, or prior to Genoveva's death, would necessarily have
to be bigamous, hence void, 24 in which case petitioner could not be, as respondent alleged in her
petition for letters of administration, a "surviving spouse" of the decedent. We quote the pertinent
allegation:
4. The surviving heirs of decedent are the petitioner [Corazon] herself
who is 58 years old, and BELEN S. Angeles, the surviving spouse of
deceased Francisco M. Angeles by his second marriage, who is about 77 years old
. . . .YEARS OLD . . . " (Emphasis and word in bracket added)
We can concede, because Article 172 of the Family Code appears to say so, that the
legitimate filiation of a child can be established by any of the modes therein defined even without
direct evidence of the marriage of his/her supposed parents. Said article 172 reads:
Art. 172. The filiation of legitimate children is established by any of the
following:
1. The record of birth appearing in the civil register or a final judgments; or
2. An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
1. The open and continuous possession of the status of a legitimate child;
or
2. Any other means allowed by the Rules of Court and special laws.
 Here, respondent presented, in support of her claim of legitimacy, a copy of her Birth
Certificate dated November 23, 1939 issued by the Civil Registrar of the City of Manila (Exh. "E"). In
it, her birth was recorded as the legitimate child of Francisco Angeles and Genoveva Mercado. And
the word "married" is written in the certificate to indicate the union of Francisco and Genoveva.
Petitioner, however, contends, citing jurisprudence, that "[I]t was error for the Court of
Appeals to have ruled . . . that [respondent's] Birth Certificate indubitably  establishes that she is the
legitimate daughter of Francisco and Genoveva who are legally married".
The contention commends itself for concurrence. The reason is as simple as it is elementary:
the Birth Certificate presented was not signed by Francisco against whom legitimate filiation is
asserted. Not even by Genoveva. It was signed by the attending physician, one Rebecca De Guzman,
who certified to having attended the birth of a child. Such certificate, albeit considered a public record
of a private document is, under Section 23, Rule 132 of the Rules of Court, evidence only of the fact
which gave rise to its execution: the fact of birth of a child. 25 Jurisprudence teaches that a birth
certificate, to be considered as validating proof of paternity and as an instrument of recognition, must
be signed by the father and mother jointly, or by the mother alone if the father refuses. 26 Dr. Arturo
Tolentino, commenting on the probative value of the entries in a certificate of birth, wrote:
. . . if the alleged father did not intervene in the making of the birth
certificate, the putting of his name by the mother or doctor or registrar is void; the
signature of the alleged father is necessary. 27
The conclusion reached by the Court of Appeals that the Birth Certificate of respondent,
unsigned as it were by Francisco and Genoveva, establishes — and "indubitably" at that — not only
respondent's filiation to Francisco but even her being a legitimate daughter of Francisco and
Genoveva, taxes credulity to the limit. In a very real sense, the appellate court regarded such
certificate as defining proof of filiation, and not just filiation but of legitimate filiation, by inferring from it
that Francisco and Genoveva are legally married. In the apt words of petitioner, the appellate court,
out of a Birth Certificate signed by a physician who merely certified having attended "the birth of a
child who was born alive at 3:50 P.M.", created "a marriage that of 'Francisco and Genoveva', and
filiation (that said child) is the daughter of 'Francisco'" 28
It cannot be over-emphasized that the legitimate filiation of a child is a matter fixed by law
itself. 29 It cannot, as the decision under review seems to suggest, be made dependent on the
declaration of the attending physician or midwife, or that of the mother of the newborn child. For then,
an unwed mother, with or without the participation of a doctor or midwife, could veritably invest
legitimate status to her offspring through the simple expedient of writing the putative father's name in
the appropriate space in the birth certificate. A long time past, this Court cautioned against according
a similar unsigned birth certificate prima facie evidentiary value of filiation:
Give this certificate evidential relevancy, and we thereby pave the way for
any scheming unmarried mother to extort money for her child (and herself) from
any eligible bachelor or affluent pater familias. How? She simply causes the
midwife to state in the birth certificate that the newborn babe is her legitimate
offspring with that individual and the certificate will be accepted for registration . . . .
And any lawyer with sufficient imagination will realize the exciting possibilities from
such mischief of such prima facie evidence — when and if the "father" dies in
ignorance of the fraudulent design . . . 30
Just like her Birth Certificate, respondent can hardly derive comfort from her marriage
contract to Atty. Maglaya and from her student and government records which indicated or purported
to show that Francisco Angeles is her father. The same holds true for her wedding pictures which
showed Francisco giving respondent's hands in marriage. These papers or documents, unsigned as
they are by Francisco or the execution of which he had no part, are not sufficient evidence of filiation
or recognition. 31 And needless to stress, they cannot support a finding of the legitimate union of
Francisco and Genoveva. cITaCS
 
The argument may be advanced that the aforesaid wedding pictures, the school and service
records and the testimony of respondent's witnesses lend support to her claim of enjoying open and
continuous possession of the status of a child of Francisco. The Court can even concede that
respondent may have been the natural child of Francisco with Genoveva. Unfortunately, however, that
angle is not an, or at issue in the case before us. For, respondent peremptorily predicated her petition
for letters of administration on her being a legitimate child of Francisco who was legally married to her
mother, Genoveva, propositions which we have earlier refuted herein.
If on the foregoing score alone, this Court could very well end this disposition were it not for
another compelling consideration which petitioner has raised and which we presently take judicially
notice of.
As may be recalled, respondent, during the pendency of the proceedings at the trial court,
filed with the Court of Appeals a petition for the annulment of the decision of the RTC Caloocan
granting the petition of spouses Francisco Angeles and petitioner Belen S. Angeles for the adoption of
Concesa A. Yamat and two others. In that petition, docketed with the appellate court as CA-G.R. SP
No. 47832 and captioned "Aleli 'Corazon' Angeles Maglaya vs. Hon Jaime T. Hamoy, Consesa A.
Yamat, Teodora A. Santos, Franco Angeles and Belen S. Angeles", respondent alleged that as
legitimate daughter of Francisco, she should have been notified of the adoption proceedings.
Following a legal skirmish, the Court of Appeals referred the aforementioned annulment case
to RTC, Caloocan for reception of evidence. Eventually, in a Decision 32 dated December 17, 2003,
the Court of Appeals dismissed CA-G.R. SP No. 47832 on the ground, inter alia, that herein
respondent is not, contrary to her claim, a "legitimate daughter" of Francisco, nor "a child of a lawful
wedlock between Francisco M. Angeles and Genoveva Y. Mercado". Wrote the appellate court in that
case:
Petitioner [Aleli "Corazon Maglaya] belabors with repetitious persistence
the argument that she is a legitimate child or the only daughter of Francisco M.
Angeles and Genoveva Y. Mercado . . . .
In the case at bench, other than the self-serving declaration of the
petitioner, there is nothing in the record to support petitioner's claim that she is
indeed a legitimate child of the late Francisco M. Angeles and Genoveva Y.
Mercado. . . . In other words, Francisco M. Angeles was never married before or at
anytime prior to his marriage to Belen Sagad, contrary to the claim of petitioner that
Francisco M. Angeles and Genoveva Y. Mercado were married in 1938
While petitioner may have submitted certifications to the effect that the
records of marriages during the war years . . . were totally destroyed, no secondary
evidence was presented by petitioner to prove the existence of the marriage
between Francisco M. Angeles and Genoveva Y. Mercado, even as no witness was
presented to confirm the celebration of such marriage . . . .
Petitioner presented pictures. . . . However, it is already settled law that
photographs are not sufficient evidence of filiation or acknowledgment.
To be sure, very little comfort is provided by petitioner's birth certificate and
even her marriage contract. . . . Reason: These documents were not signed by
Francisco . . . . Equally inconsequential are petitioner's school records . . . . all
these lacked the signatures of both Francisco and Genoveva . . . .
xxx xxx xxx
Having failed to prove that she is the legitimate daughter or acknowledged
natural child of the late Francisco M. Angeles, petitioner cannot be a real party in
interest in the adoption proceedings, as her consent thereto is not essential or
required. (Emphasis in the original; words in bracket added)
Significantly, the aforesaid December 17, 2003 Decision of the appellate court in CA-G.R. SP
No. 47832 was effectively affirmed by this Court via its Resolution dated August 9, 2004 in G.R. No.
163124, denying Aleli "Corazon" Maglaya's petition for Review on Certiorari, 33 and Resolution dated
October 20, 2004, 34 denying with "FINALITY" her motion for reconsideration. Another Resolution
dated January 24, 2005 resolved to "NOTE WITHOUT ACTION" Maglaya's second motion for
reconsideration.
 In the light of the ruling of the Court of Appeals in CA-G.R. SP No. 47832, as affirmed with
finality by this Court in G.R. No. 163124, there can be no serious objection to applying in this case the
rule on conclusiveness of judgment, 35 one of two (2) concepts embraced in the res judicata principle.
Following the rule on conclusiveness of judgment, herein respondent is precluded from claiming that
she is the legitimate daughter of Francisco and Genoveva Mercado. In fine, the issue of herein
respondent's legitimate filiation to Francisco and the latter's marriage to Genoveva, having been
judicially determined in a final judgment by a court of competent jurisdiction, has thereby become res
judicata and may not again be resurrected or litigated between herein petitioner and respondent or
their privies in a subsequent action, regardless of the form of the latter. 36
Lest it be overlooked, the same ruling of the appellate court in CA-G.R. SP No. 47832, as
sustained by this Court in G.R. No. 163124, virtually confirms the ratio of the trial court's order of
dismissal in Special Proceedings (SP) No. C-2140, i.e, that respondent failed to establish that she is
in fact a legitimate child of Francisco. Accordingly, the question of whether or not the  Motion to
Dismiss 37 interposed by herein petitioner, as respondent in SP No. C-2140, is in the nature of a
demurrer to evidence has become moot and academic. It need not detain us any minute
further. acAIES
Finally, it should be noted that on the matter of appointment of administrator of the estate of
the deceased, the surviving spouse is preferred over the next of kin of the decedent. 38 When the law
speaks of "next of kin", the reference is to those who are entitled, under the statute of distribution, to
the decedent's property; 39 one whose relationship is such that he is entitled to share in the estate as
distributed, 40 or, in short, an heir. In resolving, therefore, the issue of whether an applicant for letters
of administration is a next of kin or an heir of the decedent, the probate court perforce has to
determine and pass upon the issue of filiation. A separate action will only result in a multiplicity of
suits. Upon this consideration, the trial court acted within bounds when it looked into and pass upon
the claimed relationship of respondent to the late Francisco Angeles.
WHEREFORE, the herein assailed decision of the Court of Appeals is hereby REVERSED
and SET ASIDE, and the order of the trial court dismissing Special Proceedings No. C-2140
REINSTATED.
No costs.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur.

|||  (Angeles v. Maglaya, G.R. No. 153798, [September 2, 2005], 506 PHIL 347-365)
 SECOND DIVISION

[G.R. No. 104376. February 23, 1994.]

ARTEMIO G. ILANO,  petitioner, vs.  THE COURT OF APPEALS and

MERCEDITAS (sic) S. ILANO, represented by her mother, LEONCIA DE LOS
SANTOS, respondent.

DECISION

NOCON, J p:

After the great flood, man was commanded to go forth, be fertile, multiply and fill the earth.
Others did not heed the sequence of this command because they multiply first and then go.
Corollarily, it is now commonplace for an abandoned illegitimate offspring to sue his father for
recognition and support.
The antecedent facts are narrated in the trial court's decision, as follows:
Leoncia first met petitioner Artemio G. Ilano while she was working as secretary to Atty.
Mariano C. Virata. Petitioner was one of the clients of Atty. Virata. On several occasions, she and
petitioner took lunch together. In less that a year's time, she resigned from her work.
Sometime in 1957, Leoncia, then managing a business of her own as Namarco distributor,
met petitioner again who was engaged in the same business and they renewed acquaintances. Since
then, he would give her his unsold allocation of goods. Later, he courted her more than four years.
Their relationship became intimate and with his promise of marriage, they eloped to Guagua,
Pampanga in April, 1962. They stayed at La Mesa Apartment, located behind the Filipinas Telephone
Company branch office, of which he is the president and general manager. He came home to her
three or four times a week. LLphil
The apartment was procured by Melencio Reyes, Officer-in-Charge of the Filipinas Telephone
Company branch office. He also took care of the marketing and paid rentals, lights and water
bills. 1 Unable to speak the local dialect, Leoncia was provided also by Melencio with a maid by a
name of Nena. Petitioner used to give her P700.00 a month for their expenses at home.
 In June, 1962, Leoncia, who was conceiving at that time, was fetched by petitioner and they
transferred to San Juan St., Pasay City. In October, 1962, she delivered a still-born female child at the
Manila Sanitarium. The death certificate was signed by petitioner. 2 Thereafter, while they were living
at Highway 54, Makati, private respondent Merciditas S. Ilano was born on December 30, 1963 also
at the Manila Sanitarium. Her birth was recorded as Merciditas de los Santos Ilano, child of Leoncia
Aguinaldo de los Santos and Artemio Geluz Ilano. 3 Leoncia submitted receipts issued by the Manila
Sanitarium to show that she was confined there from December 30, 1963 until January 2, 1964 under
the name of Mrs. Leoncia Ilano. 4
The support by petitioner for Leoncia and Merciditas was sometimes in the form of cash
personally delivered by him, thru Melencio, thru Elynia (niece of Leoncia) 5 or thru Merciditas
herself; 6 and sometimes in the form of a check like Manila Banking Corporation Check No.
81532, 7 the signature appearing thereon having been identified by Leoncia as that of petitioner
because he often gives her checks which he issues at home and saw him sign the checks. 8 Both
petitioner and his daughter admitted that the check and the signature are those of the former. 9
During the time that petitioner and Leoncia were living as husband and wife, he showed
concern as the father of Merciditas. When Merciditas was in Grade I at the St. Joseph Parochial
School, he signed her Report Card for the fourth and fifth grading periods 10 as her parent. Those
signatures were both identified by Leoncia and Merciditas because he signed them in their residence
in their presence and of Elynia. 11 Since Merciditas started to have discernment, he was already the
one whom she recognized as her Daddy. 12 He treated her as a father would to his child. He would
bring home candies, toys, and anything a child enjoys. He would take her for a drive, eat at
restaurants, and even cuddle her to sleep. 13
When petitioner ran as a candidate in the Provincial Board of Cavite, he gave Leoncia his
picture with the following dedication: "To Nene, with best regards, Temiong." 14
In May, 1963, Ruth Elynia Mabanglo, niece of Leoncia, lived with Leoncia and petitioner. She
accompanied her aunt when she started having labor pains in the morning of December 30, 1963.
Petitioner arrived after five o'clock in the afternoon. When the nurse came to inquire about the child,
Leoncia was still unconscious so it was from petitioner that the nurse sought the information.
Inasmuch as it was already past seven o'clock in the evening, the nurse promised to return the
following morning for his signature. However, he left an instruction to give the birth certificate to
Leoncia for her signature, as he was leaving early the following morning.
Prior to the birth of Merciditas, Elynia used to accompany her aunt and sometimes with
petitioner in his car to the Manila Sanitarium for prenatal check-up. At times, she used to go to his
office at 615 Sales St., Sta. Cruz, Manila, upon his instructions to get money as support and
sometimes he would send notes of explanation if he cannot come which she in turn gave to her
aunt. 15 They stayed at 112 Arellano St., then at Sta. Cruz, Manila in 1966 before they finally
transferred to Gagalangin in 1967. Petitioner lived with them up to June, 1971 when he stopped
coming home.
Petitioner's defense was a total and complete denial of any relationship with Leoncia and
Merciditas. He disowned the handwritten answers and signatures opposite column 16 of the death
certificate of a female child surnamed Ilano, although in column 13 thereof opposite father's name the
typewritten name, Artemio G. Ilano, appears. He also denied the following: all the notes alleged to
have been received from him by Elynia for delivery to Leoncia; the signatures appearing in Merciditas'
Report Card; and being the source of a photo of himself with a handwritten dedication. He admitted
that Manila Banking Corporation Check No. 81532 including the signature is his. He was sick on
December 30, 1963 and was hospitalized on January 7, 1964. 16 He does not understand why this
case was filed against him. 17
Melencio admitted that he was the one who procured the apartment for Leoncia, leased it in
his name, paid the rentals and bought the necessities therefor. He and Leoncia lived together and
shared the same bed. They later transferred to San Juan St., Pasay City and to Highway 54, Makati.
He stopped visiting her in March or April, 1963 because he planned to get married with another which
he eventually did in September, 1963. LexLib
Diosdado Datu, fish vendor, usually delivered to the apartment fishes ordered by Melencio
which were received by Leoncia.
 Nilda Ilano Ramos, daughter of petitioner, does not know Leoncia; neither has she been
brought to their family home in Imus, Cavite. On December 30, 1963, her father was at their home
because he got sick on December 25, 1963 and was advised to have a complete bed rest. Her father
was hospitalized on January 7, 1964. She denied that her father was at the Manila Sanitarium on
December 30, 1963; that he fetched a certain woman on January 2, 1964, at the Manila Sanitarium
because he was at their home at that time; and that her father lived with a certain woman in 1963 up
to June, 1971 because all this time he was living with them in Imus, Cavite. He was working and
reporting to the office everyday and when he goes to Guagua or Manila on business, her mother or
brother goes with him.
Victoria J. Ilano, petitioner's wife, further corroborated the previous testimonies about
petitioner's sickness on December 30, 1963 and hospitalization on January 7, 1964. It could not be
true that her husband, during the years 1963 to 1968, lived three (3) times a week with a certain
Leoncia de los Santos because her husband never slept out of their house and that in his capacity as
President and Chairman of the Board of the Filipinas Telephone Company he does not go to Guagua
even once a year because they have a branch manager, Melencio Reyes. LLpr
After weighing the contradictory testimonies and evidence of the parties the trial court was not
fully satisfied that petitioner is the father of Merciditas, on the basis of the following:
1) petitioner and Leoncia were not in cohabitation during the period of Merciditas' conception;
2) testimony of Melencio that he frequented the apartment where Leoncia was living, took
care of all the bills and shared the same bed with her;
3) the birth certificate of Merciditas was not signed by petitioner;
4) petitioner denied his signature in the monthly report card of Merciditas; and
5) there is no clear and sufficient in showing that support was given by petitioner to
Merciditas.
Thus it rendered judgment on April 24, 1981 dismissing the complaint. 18
Fortunately for private respondent, respondent Court of Appeals did not share the same view
as the trial court. A review of the testimonial and documentary evidence adduced by private
respondent led respondent court to the firm conclusion that petitioner is her father, entitling her to
support. The dispositive portion of its decision dated December 17, 1991 reads:
"WHEREFORE, the Decision appealed from is REVERSED and judgment
is hereby rendered declaring plaintiff MERCEDITAS S. ILANO as the duly
acknowledged and recognized illegitimate child of defendant ARTEMIO G. ILANO
with all the rights appurtenant to such status. prcd
Defendant is directed to pay the plaintiff support in arrears at the rate of
EIGHT HUNDRED (P800.00) PESOS a month from the date of the filing of the
complaint on August 16, 1972 up to August 15, 1975; ONE THOUSAND
(P1,000.00) PESOS a month from August 16, 1975 to August 15, 1978; ONE
THOUSAND THREE HUNDRED (P1,300.00) PESOS a month from August 16,
1978 to August 15, 1981; and ONE THOUSAND FIVE HUNDRED (P1,500.00) a
month from August 16, 1981 up to the time she reached the age of majority on
December 30, 1984.
Defendant is further ordered to pay the plaintiff the sum of P10,000.00 as
attorney's fees plus the costs.
SO ORDERED. " 19
The motion for reconsideration was denied in the resolution dated February 26, 1992. 20
Hence, the present petition.
We shall resolve the following pertinent errors allegedly committed by respondent court:
1) in awarding "back support" even in the absence of recognition or of a judgment declaring
petitioner father of Merciditas with finality;
 2) in not ruling that an adulterous child cannot file an action for recognition; and
3) in deciding matters of substance manifestly against established decisions of this Court.
Petitioner argues that since the complaint against him has been dismissed by the trial court,
therefore was absolutely no obligation on his part to give support to Merciditas. It would have been
only from the date of the judgment of the trial court that support should have commenced, if so
granted. Under the law in force when the complaint was filed, an adulterous child cannot maintain an
action for compulsory recognition. In order that the birth certificate may constitute a voluntary
recognition, it must be signed by the father. Equivocal act, such as signing under the caption "parent"
in the report card, is not sufficient. Merciditas has never been to the family home of petitioner at Imus,
Cavite; nor introduced to his family; nor brought around town by him, treated as his child, introduced
to other people as his child, led people to believe that she was part of his family.
The petition utterly lacks merit. llcd
Under the then prevailing provisions of the Civil Code, illegitimate children or those who are
conceived and born out of wedlock were generally classified into two groups: (1) Natural, whether
actual or by fiction, were those born outside of lawful wedlock of parents who, at the time of
conception of the child, were not disqualified by any impediment to marry each other (Article 119, old
Civil Code; Article 269, new Civil Code) and (2) Spurious, whether incestuous, adulterous or illicit,
were those born of parents who, at the time of conception, were disqualified to marry each other on
account of certain legal impediments. 21 Since petitioner had a subsisting marriage to another at the
time Merciditas was conceived, 22 she is a spurious child. In this regard, Article 287 of the Civil Code
provides that illegitimate children other than natural in accordance with Article 269 23 and other than
natural children by legal fiction are entitled to support and such successional rights as are granted in
the Civil Code. The Civil Code has given these rights to them because the transgressions of social
conventions committed by the parents should not be visited upon them. They were born with a social
handicap and the law should help them to surmount the disadvantages facing them through the
misdeeds of their parents. 24 However, before Article 287 can be availed of, there must first be a
recognition of paternity 25 either voluntarily or by court action. This arises from the legal principle that
an unrecognized spurious child like a natural child has no rights from his parents or to their estate
because his rights spring not from the filiation or blood relationship but from his acknowledgement by
the parent. In other words, the rights of an illegitimate child arose not because he was the true or real
child of his parents but because under the law, he had been recognized or acknowledged as such a
child. 26 The relevant law on the matter is Article 283 of the Civil Code, which provides:
"Art. 283. In any of the following cases, the father is obliged to recognize
the child as his natural child:
(1) In cases of rape, abduction or seduction, when the period of the offense
coincides more or less with that of the conception; prcd
(2) When the child is in continuous possession of status of a child of the
alleged father by the direct acts of the latter or of his family;
(3) When the child was conceived during the time when the mother
cohabited with the supposed father;
(4) When the child has in favor any evidence or proof that the defendant is
his father."
While the aforementioned provision speaks of the obligation of the father to recognize the child as
his natural child, for the purpose of the present case, petitioner is obliged to recognize Merciditas
as his spurious  child. This provision should be read in conjunction with Article 289 of the Civil
Code which provides:
"Art. 289. Investigation of the paternity or maternity of (other illegitimate)
children . . . is permitted under the circumstances specified in articles 283 and 284."
In reversing the decision of the trial court, respondent court found, as it is likewise our finding,
that private respondent's evidence to establish her filiation with and the paternity of petitioner is too
overwhelming to be ignored or brushed aside by the highly improbable and fatally flawed testimony of
Melencio and the inherently weak denials of petitioner:
 "Significantly, the Court a quo believed that plaintiffs mother and defendant
carried an intimate relations. It nonetheless was not satisfied that defendant is the
father of the plaintiff because it is not convinced that her mother and defendant
were in cohabitation during the period of her conception, and took into account the
testimony of Melencio S. Reyes who frequented the apartment where Leoncia de
los Santos was living and who positively testified that he took care of all the bills
and that he shared the same bed with plaintiffs mother. Cdpr
The court a quo completely ignored the fact that the apartment at Guagua
was rented by the defendant, and that Melencio Reyes, who was a mere employee
and godson of the defendant with a monthly salary of P560.00 was a mere
subaltern of the latter, and only frequented the place upon instruction of the
defendant to take care of the needs of the plaintiff.
As pointed out by appellant, Leoncia and Artemio stayed in an apartment at
the back of the Guagua Telephone System owned by and of which Artemio was the
General Manager (TSN, p. 46, 8/18/73) and Melencio was the Officer-in-Charge in
the absence of Artemio whose residence and main office was in Cavite. There, for
the first time, Leoncia met Melencio (TSN, pp. 3-4, 1/25/74). The apartment in
Guagua was rented in the name of Melencio. As Leoncia does not speak the
Pampango dialect (TSN, p. 50, 8/18/73), Artemio gave Leoncia the instruction to
call upon Melencio for whatever Leoncia needs (TSN, pp. 11-12, 1/25/74). Thus, it
was Melencio who procured all the supplies and services needed in the apartment
for which procurement Melencio gives to Leoncia the corresponding receipts of
payment for liquidations of cash advances Artemio or the Guagua Telephone
System or Leoncia herself, gives to Melencio (Exhs. A, A-1 to 14; TSN, p. 32,
8/13/73; TSN, pp. 7, 12 and 14, 1/25/74). LibLex
At the Guagua apartment, Artemio would visit Leoncia three or four times a
week and sleeps there (TSN, p. 47, 8/13/73). Artemio was giving Leoncia an
allowance of P700.00 a month (TSN, p. 38, 7/18/73).
Leoncia got pregnant and Artemio found it difficult to commute between
Cavite and Guagua so that in June 1962, Artemio transferred Leoncia to Calle San
Juan, Pasay City (TSN, pp. 19-20, 7/18/73) where they were known as husband
and wife (id. p. 41). In leaving Guagua for San Juan, Pasay City, Leoncia was
fetched by Artemio in a car driven by Artemio himself. (pp. 9-11, Appellant's Brief)
Even as Artemio and Leoncia lived and transferred to several places
heretofore mentioned, Melencio continued to be a trusted man Friday of Artemio
who would deliver notes (Exhs. "F", "F-1" and "F-3") and money from Artemio to
Leoncia. For reference, among the notes identified by Leoncia as having come from
defendant were the following:
'Exh. "F-1"
'Dear Ne,
Magsimula akong makausap ni Gracing ay nagkaroon ako ng diferencia sa
paa at ngayon ay masakit pa.
'Si Miling ay ngayon lamang nakarating dito kung hindi ka aalis diyan ay si
Miling na lamang ang utusan mo sa Makati kung may Kailangan ka dian. prLL
Sgn.'
'Mayroon akong nakitang bahay na mayayari malapit sa municipio ng
Makati. Ipakikita ko sa iyo kung papayag ka.
'Sabihin mo kay Miling kung hindi ka aalis diyan bukas ay pupunta ako.
'Walang makitang bahay sa San Juan.
Sgn.'
 Exh. "F-2"
'Ne, sa Viernes ay pupunta ako dian marami akong ginagawa.
Sgn.'
Exh. "F-3"
'Ne, si Miling ay bukas pupunta dito ay sa tanghali ay pupunta ako diyan
(11:30 am) Wala akong pera ngayon kaya bukas na, Sigurado yon.
Sgn.'
Exh. "F-4"
'Dear Ne, Pacencia ka na at hindi ako nakapaglalakad gawa ng mataas
ang dugo, kaya minsan-minsan lamang ako makapunta sa oficena.'
'Ibigay mo ang bayad sa bahay sa Sabado ng umaga, pipilitin kong
makarating dian sa Jueves.
Sgn.'
"The address 'Ne' in the beginning of these notes refer to Leoncia whose
nickname is 'Nene' but which Artemio shortens to 'Ne'. Miling is the nickname of
Melencio. The 'Gracing' mentioned in Exh. 'F-1' refers to Gracia delos Santos, a
sister-in-law of Leoncia who was with Artemio when Leoncia was removed from the
hospital during the birth of Merciditas.' (pp. 17-19, Appellant's Brief). These tiny bits
of evidence when pieced together ineluctably gives lie to defendants' diversionary
pretense that it was with Melencio S. Reyes with whom the mother lived with during
her period of conception.
The attempt of Melencio S. Reyes to show that he was the lover of Leoncia
being in the apartment and sharing the same bedroom and the same bed hardly
inspires brief. prLL
xxx xxx xxx.
Undoubtedly, the role played by Melencio S. Reyes in the relationship
between Leoncia and appellant (sic) was that of a man Friday although appellant
(sic) would not trust him to the hilt and unwittingly required him to submit to Leoncia
an accounting of his expenditures (Exhs. A, A-1 to A-14) for cash advances given
to him by Leoncia, Artemio or Guagua Telephone System which would not have
been the case, if it were true that there was an intimate relationship between him
and plaintiff's mother.
Evidently, following the instruction of his employer and Godfather, Melencio
foisted on the court a quo  the impression that he was the lover and paramour of
Leoncia but since there was really no such relationship, he could not state the place
in San Juan or Highway 54 where he took Leoncia, nor how long they stayed there
belying his pretence (sic) of an intimate relationship with plaintiff's mother. 27
Having discredited the testimonies of petitioner and Melencio, respondent court then applied
paragraph (2) of Article 283:
The court a quo did not likewise consider the evidence as sufficient to
establish that plaintiff was in continuous possession of status of a child in view of
the denial by appellee of his paternity, and there is no clear and sufficient evidence
that the support was really given to plaintiff's mother. The belated denial of paternity
after the action has been filed against the putative father is not the denial that would
destroy the paternity of the child which had already been recognized by defendant
by various positive acts clearly evidencing that he is plaintiff's father. A recognition
once validly made is irrevocable. It cannot be withdrawn. A mere change of mind
would be incompatible with the stability of the civil status of person, the
permanence of which affects public interest. Even when the act in which it is made
should be revocable, the revocation of such act will not revoke the recognition itself
(1 Tolentino, pp. 579-580, 1983 Ed.).
To be sure, to establish 'the open and continuous possession of the status
of an illegitimate child,' it is necessary to comply with certain jurisprudential
requirements. 'Continuous' does not, however, mean that the concession of status
shall continue forever but only that it shall not be of an intermittent character while it
continues (De Jesus v. Syquia, 58 Phil. 866). The possession of such status means
that the father has treated the child as his own, directly and not through others,
spontaneously and without concealment though without publicity (since the relation
is illegitimate) (J.B.L. Reyes and R.C. Puno, Outline of Philippine Civil Law, Vol. 1,
1964 ed., pp. 269-270 citing Coquia, CA 50, O.G. 3701) There must be a showing
of the permanent intention of the supposed father to consider the child as his own,
by continuous and clear manifestation of paternal affection and care. (Tolentino,
Civil Code of the Philippines, Vol. 1, 1983 ed., p. 602). (Mendoza vs. Court of
Appeals, G.R. No. 86302, September 24, 1991.) LLjur
It was Artemio who made arrangement for the delivery of Merciditas (sic) at
the Manila Sanitarium and Hospital. Prior to the delivery, Leoncia underwent
prenatal examination by Artemio (TSN, p. 33, 5/17/74). After delivery, they went
home to their residence at EDSA in a car owned and driven by Artemio himself (id.
p. 36)
Merciditas (sic) bore the surname of 'Ilano' since birth without any objection
of the part of Artemio, the fact that since Merciditas (sic) had her discernment she
had always known and called Artemio as her 'Daddy' (TSN, pp. 28-29, 10/18/74);
the fact that each time Artemio was at home, he would play with Merciditas (sic),
take her for a ride or restaurants to eat, and sometimes sleeping with Merciditas
(sic) (id. p. 34) and does all what a father should do for his child — bringing home
goodies, candies, toys and whatever he can bring her which a child enjoys which
Artemio gives Merciditas (sic) (TSN, pp. 38-39, 5/17/74) are positive evidence that
Merciditas (sic) is the child of Artemio and recognized by Artemio as such. Special
attention is called to Exh. "E-7" where Artemio was telling Leoncia the need for a
'frog test' to know the status of Leoncia.
Plaintiff pointed out that the support by Artemio for Leoncia and Merciditas
(sic) was sometimes in the form of cash personally delivered to her by Artemio, thru
Elynia (Exhs. "E-2" and "E-3", and "D-6"), or thru Merciditas (sic) herself (TSN, p.
40, 5/17/74) and sometimes in the form of a check as the Manila Banking
Corporation Check No. 81532 (Exh. "G") and the signature appearing therein which
was identified by Leoncia as that of Artemio because Artemio often gives her
checks and Artemio would write the check at home and saw Artemio sign the check
(TSN, p. 49, 7/18/73). Both Artemio and Nilda admitted that the check and
signature were those of Artemio (TSN, p. 53, 10/17/77; TSN, p. 19, 10/9/78). prcd
During the time that Artemio and Leoncia were living as husband and wife,
Artemio has shown concern as the father of Merciditas (sic). When Merceditas (sic)
was in Grade 1 at the St. Joseph Parochial School, Artemio signed the Report Card
of Merciditas (sic) (Exh. "H") for the fourth and fifth grading period(s) (Exh. "H-1"
and "H-2") as the parent of Merciditas (sic). Those signatures of Artemio where
both identified by Leoncia and Merciditas (sic) because Artemio signed Exh. "H-1"
and "H-2" at their residence in the presence of Leoncia, Merceditas (sic) and Elynia
(TSN, P. 57, 7/18/73; TSN, p. 28, 10/1/73). . . .
xxx xxx xxx
When Artemio run as a candidate in the Provincial Board of Cavite, Artemio
gave Leoncia his picture with the following dedication: 'To Nene, with best regards,
Temiong". (Exh. "I"). (pp. 19-20, Appellant's Brief)
The mere denial by defendant of his signature is not sufficient to offset the
totality of the evidence indubitably showing that the signature thereon belongs to
him. The entry in the Certificate of Live Birth that Leoncia and Artemio was falsely
 stated therein as married does not mean that Leoncia is not appellee's daughter.
This particular entry was caused to be made by Artemio himself in order to avoid
embarrassment. cdrep
It is difficult to believe that plaintiffs mother, who is a mere dressmaker, had
long beforehand diabolically conceived of a plan to make it appear that defendant,
who claims to be a total stranger, was the father of her child, and in the process
falsified the latter's signatures and handwriting." 28
Granting ex gratia argumenti that private respondent's evidence is not sufficient proof of
continuous possession of status of a spurious child, respondent court applied next paragraph (4) of
Article 283:
". . . plaintiffs testimonial and documentary evidence . . . (is) too replete with
details that are coherent, logical and natural which cannot be categorized as mere
fabrications of an inventive and malicious mind of which Leoncia de los Santos was
not shown to possess.
The natural, logical and coherent evidence of plaintiff from the genesis of
the relationship between Leoncia and appellee, their living together as husband and
wife in several places, the birth of the first still-born child, the circumstances of
plaintiff's birth, the acts of appellee in recognizing and supporting plaintiff, find
ample support from the testimonial and documentary evidence which leaves no
room to reasonably doubt his paternity which may not be infirmed by his belated
denials.
Notably, the court a quo did not consider plaintiffs evidence as lacking in
credibility but did not deem as convincing proof that defendant is the father since
the Certificate of Live Birth was not signed by appellee and since the monthly report
card is not sufficient to establish recognition, considering the denial of the
defendant of his signature appearing thereon.
While defendant's signature does not appear in the Certificate of Live Birth,
the evidence indubitably disclose(s) that Leoncia gave birth on December 30, 1963
to Merciditas (sic) at 4:27 p.m. at the Manila Sanitarium. Artemio arrived at about
5:00 (TSN, p. 25, 5/17/74). At about 7:00 p.m., a nurse came (id. p. 26) who made
inquiries about the biodata of the born child. The inquiries were directed to Artemio
in the presence of Elynia who heard the answers of Artemio which the nurse took
down in a sheet of paper (id. p. 28). The inquiries were about the name of the
father, mother and child. After the interview the nurse told them that the information
has to be recorded in the formal form and has to be signed by Artemio (id. p. 30)
but because there is no office, as it was past 7:00 p.m., the nurse would just return
in the morning for Artemio's signature. Artemio gave the instruction to the nurse to
give the biodata to Leoncia for her signature as he was leaving very early the
following morning as in fact Artemio left at 5:00 a.m. of December 31, 1963 (id. p.
33). Artemio stayed in the hospital in the evening of December 30, 1963 (id. p. 26).
As pointed out in Castro vs. Court of Appeals, 173 SCRA 656: prLL
'The ruling in Roces vs. Local Civil Registrar of Manila (102 Phil.
1050 [1958] and Berciles v. Government Service Insurance System (128
SCRA 53 [1984] that if the father did not sign in the birth certificate, the
placing of his name by the mother, doctor, register, or other person is
incompetent evidence of paternity does not apply to this case because it
was Eustaquio himself who went to the municipal building and gave all the
data about his daughter's birth. . . .'
. . . the totality of the evidence, as pointed to above, is more than sufficient
to establish beyond reasonable doubt that appellee is the father of the plaintiff
Merciditas (sic) Ilano.
As elucidated in Mendoza vs. Court of Appeals, Supra:
xxx xxx xxx
 '. . . although Teopista has failed to show that she was in open and
continuous possession of the status of an illegitimate child of Casimiro, we find that
she has nevertheless established that status by another method. prcd
'What both the trial court and the respondent did not take into account is
that an illegitimate child is allowed to establish his claimed filiation by "any other
means allowed by the Rules of Court and special laws," according to the Civil
Code, . . . . Such evidence may consist of his baptismal certificate, a judicial
admission, a family Bible in which his name has been entered, common reputation
respecting his pedigree, admission by silence, the testimonies of witnesses, and
other kinds of proof admissible under Rule 130 of the Rules of Court.'" 29
The last paragraph of Article 283 contains a blanket provision that practically covers all the other
cases in the preceding paragraphs. "Any other evidence or proof" that the defendant is the father
is broad enough to render unnecessary the other paragraphs of this article. When the evidence
submitted in the action for compulsory recognition is not sufficient to meet requirements of the first
three paragraphs, it may still be enough under the last paragraph. 30 This paragraph permits
hearsay and reputation evidence, as provided in the Rules of Court, with respect to illegitimate
filiation. 31
As a necessary consequence of the finding that private respondent is the spurious child of
petitioner, she is entitled to support. In awarding support to her, respondent court took into account
the following:
"The obligation to give support shall be demandable from the time the
person who has a right to recover the same needs it for maintenance, but it shall
not be paid except from the date of judicial or extrajudicial demand. (Article 203,
Family Code of the Philippines.) prcd
The complaint in this case was filed on August 14, 1972. Plaintiff, having
been born on December 30, 1963, was about nine (9) years old at the time and was
already of school age spending about P400.00 to P500.00 a month for her school
expenses alone, while defendant was earning about P10,000.00 a month. She
attained the age of majority on December 30, 1984 (Article 234, Supra). She is
therefore entitled to support in arrears for a period of twelve (12) years, four (4)
months and fourteen (14) days, which is hereby fixed at P800.00 a month for the
first three (3) years; and considering the declining value of the peso as well as her
needs as she grows older, at a graduated increase of P1,000.00 a month for the
next three (3) years; P1,300.00 a month for the succeeding three (3) year; and
P1,500.00 a month for the last three (3) years, four (4) months and fourteen (14)
days until she attained the age of majority.
This being an action for legal support, the award of attorney's fees is
appropriate under Article 2208 (6) of the Civil Code. Moreover, the court deems it
just and equitable under the given facts and circumstances that attorney's fees and
expenses of litigation should be recovered." 32
We concur with the foregoing disposition, in the absence of proof that it was arrived at
arbitrarily. LibLex
The other allegation of petitioner that the appeal was prosecuted almost ten years after the
decision of the trial court was rendered does not deserve any consideration because it appears that it
is being raised for the first time in this petition. 33
WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals dated
December 17, 1991 and its resolution dated February 26, 1992 are AFFIRMED.
SO ORDERED.
Narvasa, C  .J ., Padilla, Regalado and  Puno, JJ ., concur.

|||  (Ilano v. Court of Appeals, G.R. No. 104376, [February 23, 1994], 300 PHIL 242-260)
 FIRST DIVISION

[G.R. No. 148220. June 15, 2005.]

ROSENDO HERRERA,  petitioner,vs.ROSENDO ALBA, minor, represented by

his mother ARMI A. ALBA, and HON. NIMFA CUESTA-VILCHES, Presiding
Judge, Branch 48, Regional Trial Court, Manila,  respondents.

DECISION

CARPIO,  J p:

The Case
This is a petition for review 1 to set aside the Decision 2 dated 29 November 2000 of the
Court of Appeals ("appellate court") in CA-G.R. SP No. 59766. The appellate court affirmed two
Orders 3 issued by Branch 48 of the Regional Trial Court of Manila ("trial court") in SP No. 98-88759.
The Order dated 3 February 2000 directed Rosendo Herrera ("petitioner") to submit to
deoxyribonucleic acid ("DNA") paternity testing, while the Order dated 8 June 2000 denied petitioner's
motion for reconsideration.
The Facts
On 14 May 1998, then thirteen-year-old Rosendo Alba ("respondent"),represented by his
mother Armi Alba, filed before the trial court a petition for compulsory recognition, support and
damages against petitioner. On 7 August 1998, petitioner filed his answer with counterclaim where he
denied that he is the biological father of respondent. Petitioner also denied physical contact with
respondent's mother.
Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the
proceedings. To support the motion, respondent presented the testimony of Saturnina C. Halos, Ph.D.
When she testified, Dr. Halos was an Associate Professor at De La Salle University where she taught
Cell Biology. She was also head of the University of the Philippines Natural Sciences Research
Institute ("UP-NSRI"),a DNA analysis laboratory. She was a former professor at the University of the
Philippines in Diliman, Quezon City, where she developed the Molecular Biology Program and taught
Molecular Biology. In her testimony, Dr. Halos described the process for DNA paternity testing and
asserted that the test had an accuracy rate of 99.9999% in establishing paternity. 4
Petitioner opposed DNA paternity testing and contended that it has not gained acceptability.
Petitioner further argued that DNA paternity testing violates his right against self-incrimination.
The Ruling of the Trial Court
In an Order dated 3 February 2000, the trial court granted respondent's motion to conduct
DNA paternity testing on petitioner, respondent and Armi Alba. Thus:
In view of the foregoing,the motion of the petitioner is GRANTED and the
relevant individuals, namely: the petitioner, the minor child, and respondent are
directed to undergo DNA paternity testing in a laboratory of their common choice
within a period of thirty (30) days from receipt of the Order, and to submit the
results thereof within a period of ninety (90) days from completion. The parties are
further reminded of the hearing set on 24 February 2000 for the reception of other
evidence in support of the petition.
IT IS SO ORDERED. 5 (Emphasis in the original)
Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He asserted that
"under the present circumstances, the DNA test [he] is compelled to take would be inconclusive,
irrelevant and the coercive process to obtain the requisite specimen ...,unconstitutional."
In an Order dated 8 June 2000, the trial court denied petitioner's motion for reconsideration. 6
On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under Rule
65 of the 1997 Rules of Civil Procedure. He asserted that the trial court rendered the Orders dated 3
February 2000 and 8 June 2000 "in excess of, or without jurisdiction and/or with grave abuse of
discretion amounting to lack or excess of jurisdiction." Petitioner further contended that there is "no
appeal nor any [other] plain, adequate and speedy remedy in the ordinary course of law." Petitioner
maintained his previous objections to the taking of DNA paternity testing. He submitted the following
grounds to support his objection:
1. Public respondent misread and misapplied the ruling in Lim vs. Court of
Appeals (270 SCRA 2). HASTCa
2. Public respondent ruled to accept DNA test without considering the limitations
on, and conditions precedent for the admissibility of DNA testing and
ignoring the serious constraints affecting the reliability of the test as
admitted by private respondent's "expert" witness.
3. Subject Orders lack legal and factual support, with public respondent relying on
scientific findings and conclusions unfit for judicial notice and unsupported
by experts in the field and scientific treatises.
 4. Under the present circumstances the DNA testing petitioner [is] compelled to
take will be inconclusive, irrelevant and the coercive process to obtain the
requisite specimen from the petitioner, unconstitutional. 7
The Ruling of the Court of Appeals
On 29 November 2000, the appellate court issued a decision denying the petition and
affirming the questioned Orders of the trial court. The appellate court stated that petitioner merely
desires to correct the trial court's evaluation of evidence. Thus, appeal is an available remedy for an
error of judgment that the court may commit in the exercise of its jurisdiction. The appellate court also
stated that the proposed DNA paternity testing does not violate his right against self-incrimination
because the right applies only to testimonial compulsion. Finally, the appellate court pointed out that
petitioner can still refute a possible adverse result of the DNA paternity testing. The dispositive portion
of the appellate court's decision reads:
WHEREFORE, foregoing premises considered, the Petition is hereby
DENIED DUE COURSE, and ordered dismissed, and the challenged orders of the
Trial Court AFFIRMED, with costs to Petitioner.
SO ORDERED. 8
Petitioner moved for reconsideration, which the appellate court denied in its Resolution dated
23 May 2001. 9
Issues
Petitioner raises the issue of whether a DNA test is a valid probative tool in this jurisdiction to
determine filiation. Petitioner asks for the conditions under which DNA technology may be integrated
into our judicial system and the prerequisites for the admissibility of DNA test results in a paternity
suit. 10
Petitioner further submits that the appellate court gravely abused its discretion when it
authorized the trial court "to embark in [sic] a new procedure ...to determine filiation despite the
absence of legislation to ensure its reliability and integrity, want of official recognition as made clear
in Lim vs. Court of Appeals and the presence of technical and legal constraints in respect of [sic] its
implementation." 11 Petitioner maintains that the proposed DNA paternity testing violates his right
against self-incrimination. 12
The Ruling of the Court
The petition has no merit.
Before discussing the issues on DNA paternity testing, we deem it appropriate to give an
overview of a paternity suit and apply it to the facts of this case. We shall consider the requirements of
the Family Code and of the Rules of Evidence to establish paternity and filiation.
An Overview of the Paternity and Filiation Suit
Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal
right associated with paternity, such as citizenship, 13 support (as in the present case), or inheritance.
The burden of proving paternity is on the person who alleges that the putative father is the biological
father of the child. There are four significant procedural aspects of a traditional paternity action which
parties have to face: a prima facie case,affirmative defenses, presumption of legitimacy, and physical
resemblance between the putative father and child. 14
A prima facie case exists if a woman declares that she had sexual relations with the putative
father. In our jurisdiction, corroborative proof is required to carry the burden forward and shift it to the
putative father. 15
There are two affirmative defenses available to the putative father. The putative father may
show incapability of sexual relations with the mother, because of either physical absence or
impotency. 16 The putative father may also show that the mother had sexual relations with other men
at the time of conception.
A child born to a husband and wife during a valid marriage is presumed legitimate.  17 The
child's legitimacy may be impugned only under the strict standards provided by law. 18
 Finally, physical resemblance between the putative father and child may be offered as part of
evidence of paternity. Resemblance is a trial technique unique to a paternity proceeding. However,
although likeness is a function of heredity, there is no mathematical formula that could quantify how
much a child must or must not look like his biological father. 19 This kind of evidence appeals to the
emotions of the trier of fact.
In the present case, the trial court encountered three of the four aspects. Armi Alba,
respondent's mother, put forward a  prima facie case when she asserted that petitioner is respondent's
biological father. Aware that her assertion is not enough to convince the trial court, she offered
corroborative proof in the form of letters and pictures. Petitioner, on the other hand, denied Armi
Alba's assertion. He denied ever having sexual relations with Armi Alba and stated that respondent is
Armi Alba's child with another man. Armi Alba countered petitioner's denial by submitting pictures of
respondent and petitioner side by side, to show how much they resemble each other.
Paternity and filiation disputes can easily become credibility contests. We now look to the law,
rules, and governing jurisprudence to help us determine what evidence of incriminating acts on
paternity and filiation are allowed in this jurisdiction. TEHIaD
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as follows:
 
ART. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
xxx xxx xxx
ART. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130
provide:
SEC. 39. Act or declaration about pedigree.— The act or declaration of a
person deceased, or unable to testify, in respect to the pedigree of another person
related to him by birth or marriage, may be received in evidence where it occurred
before the controversy, and the relationship between the two persons is shown by
evidence other than such act or declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the relatives. It embraces also
facts of family history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree.— The
reputation or tradition existing in a family previous to the controversy, in respect to
the pedigree of any one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by consanguinity or affinity.
Entries in family bibles or other family books or charts, engraving on rings, family
portraits and the like, may be received as evidence of pedigree.
 This Court's rulings further specify what incriminating acts are acceptable as evidence to
establish filiation. In Pe Lim v. CA, 20 a case petitioner often cites, we stated that the issue of
paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal
and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition
by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any
authentic writing. To be effective, the claim of filiation must be made by the putative father himself and
the writing must be the writing of the putative father. 21 A notarial agreement to support a child whose
filiation is admitted by the putative father was considered acceptable evidence. 22 Letters to the
mother vowing to be a good father to the child and pictures of the putative father cuddling the child on
various occasions, together with the certificate of live birth, proved filiation. 23 However, a student
permanent record, a written consent to a father's operation, or a marriage contract where the putative
father gave consent, cannot be taken as authentic writing. 24 Standing alone, neither a certificate of
baptism 25 nor family pictures 26 are sufficient to establish filiation.
So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and filiation to
incriminating acts alone. However, advances in science show that sources of evidence of paternity
and filiation need not be limited to incriminating acts. There is now almost universal scientific
agreement that blood grouping tests are conclusive on non-paternity, although inconclusive on
paternity. 27
In Co Tao v. Court of Appeals, 28 the result of the blood grouping test showed that the
putative father was a "possible father" of the child. Paternity was imputed to the putative father after
the possibility of paternity was proven on presentation during trial of facts and circumstances other
than the results of the blood grouping test.
In Jao v. Court of Appeals, 29 the child, the mother, and the putative father agreed to submit
themselves to a blood grouping test. The National Bureau of Investigation ("NBI") conducted the test,
which indicated that the child could not have been the possible offspring of the mother and the
putative father. We held that the result of the blood grouping test was conclusive on the non-paternity
of the putative father.
The present case asks us to go one step further. We are now asked whether DNA analysis
may be admitted as evidence to prove paternity.
DNA Analysis as Evidence
DNA is the fundamental building block of a person's entire genetic make-up. DNA is found in
all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a
person's DNA profile can determine his identity. 30
DNA analysis is a procedure in which DNA extracted from a biological sample obtained from
an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the
individual from whom the sample is taken. This DNA profile is unique for each person, except for
identical twins. 31 We quote relevant portions of the trial court's 3 February 2000 Order with approval:
Everyone is born with a distinct genetic blueprint
called DNA (deoxyribonucleic acid).It is exclusive to an individual (except in the
rare occurrence of identical twins that share a single, fertilized egg),and DNA is
unchanging throughout life. Being a component of every cell in the human body, the
DNA of an individual's blood is the very DNA in his or her skin cells, hair follicles,
muscles, semen, samples from buccal swabs, saliva, or other body parts. TcHCDE
The chemical structure of DNA has four bases. They are known
as A (adenine),G (guanine),C (cystosine) and T (thymine).The order in which the
four bases appear in an individual's DNA determines his or her physical makeup.
And since DNA is a double-stranded molecule, it is composed of two specific paired
bases, A-T  or T-A and G-C or C-G.These are called "genes."
Every gene has a certain number of the above base pairs distributed in a
particular sequence. This gives a person his or her genetic code. Somewhere in the
DNA framework, nonetheless, are sections that differ. They are known
as "polymorphic loci," which are the areas analyzed in DNA typing (profiling, tests,
fingerprinting, or analysis/DNA fingerprinting/genetic tests or fingerprinting).In other
words, DNA typing simply means determining the "polymorphic loci."
 How is DNA typing performed? From a DNA sample obtained or extracted,
a molecular biologist may proceed to analyze it in several ways. There are five (5)
techniques to conduct DNA typing. They are: the RFLP (restriction fragment length
polymorphism);"reverse dot blot" or HLA DQ a/Pm loci which was used in 287
cases that were admitted as evidence by 37 courts in the U.S. as of November
1994; mtDNA process; VNTR (variable number tandem repeats);and the most
recent which is known as the PCR-([polymerase] chain reaction) based STR (short
tandem repeats) method which, as of 1996, was availed of by most forensic
laboratories in the world. PCR is the process of replicating or copying DNA in an
evidence sample a million times through repeated cycling of a reaction involving the
so-called DNA polymerize enzyme. STR,on the other hand, takes measurements in
13 separate places and can match two (2) samples with a reported theoretical error
rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, "matches" are determined.
To illustrate, when DNA or fingerprint tests are done to identify a suspect in a
criminal case, the evidence collected from the crime scene is compared with the
"known" print. If a substantial amount of the identifying features are the same, the
DNA or fingerprint is deemed to be a match.But then, even if only one feature of
the DNA or fingerprint is different,it is deemed not to have come from the
suspect.
As earlier stated, certain regions of human DNA show variations between
people. In each of these regions, a person possesses two genetic types called
"allele",one inherited from each parent. In [a] paternity test, the forensic scientist
looks at a number of these variable regions in an individual to produce a DNA
profile. Comparing next the DNA profiles of the mother and child, it is possible to
determine which half of the child's DNA was inherited from the mother. The other
half must have been inherited from the biological father. The alleged father's profile
is then examined to ascertain whether he has the DNA types in his profile, which
match the paternal types in the child. If the man's DNA types do not match that of
the child, the man is excluded as the father. If the DNA types match, then he is not
excluded as the father. 32 (Emphasis in the original)
Although the term "DNA testing" was mentioned in the 1995 case of People v. Teehankee,
Jr., 33 it was only in the 2001 case of Tijing v. Court of Appeals 34 that more than a passing mention
was given to DNA analysis. In Tijing,we issued a writ of habeas corpus against respondent who
abducted petitioners' youngest son. Testimonial and documentary evidence and physical
resemblance were used to establish parentage. However, we observed that:
Parentage will still be resolved using conventional methods unless we
adopt the modern and scientific ways available. Fortunately, we have now the
facility and expertise in using DNA test for identification and parentage testing. The
University of the Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing using short
tandem repeat (STR) analysis. ...For it was said, that courts should apply the
results of science when completely obtained in aid of situations presented, since to
reject said result is to deny progress. Though it is not necessary in this case to
resort to DNA testing, in [the] future it would be useful to all concerned in the
prompt resolution of parentage and identity issues.
 
Admissibility of
DNA Analysis as Evidence
The 2002 case of People v. Vallejo 35 discussed DNA analysis as evidence. This may be
considered a 180 degree turn from the Court's wary attitude towards DNA testing in the 1997 Pe
Lim case, 36 where we stated that "DNA, being a relatively new science, ...has not yet been accorded
official recognition by our courts." In Vallejo,the DNA profile from the vaginal swabs taken from the
rape victim matched the accused's DNA profile. We affirmed the accused's conviction of rape with
homicide and sentenced him to death. We declared:
 In assessing the probative value of DNA evidence, therefore, courts should
consider, among other things, the following data: how the samples were collected,
how they were handled, the possibility of contamination of the samples, the
procedure followed in analyzing the samples, whether the proper standards and
procedures were followed in conducting the tests, and the qualification of the
analyst who conducted the tests. 37
Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002, there was
no longer any question on the validity of the use of DNA analysis as evidence. The Court moved from
the issue of according "official recognition" to DNA analysis as evidence to the issue of observance of
procedures in conducting DNA analysis.
In 2004, there were two other cases that had a significant impact on jurisprudence on DNA
testing: People v. Yatar 38 and In re: The Writ of Habeas Corpus for Reynaldo de Villa. 39 In Yatar,a
match existed between the DNA profile of the semen found in the victim and the DNA profile of the
blood sample given by appellant in open court. The Court, following Vallejo's footsteps, affirmed the
conviction of appellant because the physical evidence, corroborated by circumstantial evidence,
showed appellant guilty of rape with homicide. In De Villa,the convict-petitioner presented DNA test
results to prove that he is not the father of the child conceived at the time of commission of the rape.
The Court ruled that a difference between the DNA profile of the convict-petitioner and the DNA profile
of the victim's child does not preclude the convict-petitioner's commission of rape. TIHDAa
In the present case, the various pleadings filed by petitioner and respondent refer to two
United States cases to support their respective positions on the admissibility of DNA analysis as
evidence: Frye v. U.S. 40 and Daubert v. Merrell Dow Pharmaceuticals. 41 In Frye v. U.S.,the trial
court convicted Frye of murder. Frye appealed his conviction to the Supreme Court of the District of
Columbia. During trial, Frye's counsel offered an expert witness to testify on the result of a systolic
blood pressure deception test 42 made on defendant. The state Supreme Court affirmed Frye's
conviction and ruled that "the systolic blood pressure deception test has not yet gained such standing
and scientific recognition among physiological and psychological authorities as would justify the courts
in admitting expert testimony deduced from the discovery, development, and experiments thus far
made." The Frye standard of general acceptance states as follows:
Just when a scientific principle or discovery crosses the line between the
experimental and demonstrable stages is difficult to define. Somewhere in this
twilight zone the evidential force of the principle must be recognized, and while
courts will go a long way in admitting expert testimony deduced from a well
recognized scientific principle or discovery, the thing from which the deduction is
made must be sufficiently established to have gained general acceptance in the
particular field in which it belongs.
In 1989, State v. Schwartz 43 modified the Frye standard. Schwartz was charged with
stabbing and murder. Bloodstained articles and blood samples of the accused and the victim were
submitted for DNA testing to a government facility and a private facility. The prosecution introduced
the private testing facility's results over Schwartz's objection. One of the issues brought before the
state Supreme Court included the admissibility of DNA test results in a criminal proceeding. The state
Supreme Court concluded that:
While we agree with the trial court that forensic DNA typing has gained
general acceptance in the scientific community, we hold that admissibility of specific
test results in a particular case hinges on the laboratory's compliance with
appropriate standards and controls, and the availability of their testing data and
results. 44
In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc. 45 further modified the Frye-
Schwartz standard. Daubert was a product liability case where both the trial and appellate courts
denied the admissibility of an expert's testimony because it failed to meet the Frye standard of
"general acceptance." The United States Supreme Court ruled that in federal trials, the Federal Rules
of Evidence have superseded the Frye standard. Rule 401 defines relevant evidence, while Rule 402
provides the foundation for admissibility of evidence. Thus:
 Rule 401. "Relevant evidence" is defined as that which has any "tendency
to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.
Rule 402. All relevant evidence is admissible, except as otherwise provided
by the Constitution of the United States, by Act of Congress, by these rules, or by
other rules prescribed by the Supreme Court pursuant to statutory authority.
Evidence which is not relevant is not admissible.
Rule 702 of the Federal Rules of Evidence governing expert testimony provides:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
Daubert cautions that departure from the Frye standard of general acceptance does not mean
that the Federal Rules do not place limits on the admissibility of scientific evidence. Rather, the judge
must ensure that the testimony's reasoning or method is scientifically valid and is relevant to the
issue. Admissibility would depend on factors such as (1) whether the theory or technique can be or
has been tested; (2) whether the theory or technique has been subjected to peer review and
publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards
controlling the technique's operation; and (5) whether the theory or technique is generally accepted in
the scientific community.
Another product liability case, Kumho Tires Co. v. Carmichael, 46 further modified
the Daubert standard. This led to the amendment of Rule 702 in 2000 and which now reads as
follows:
If scientific, technical or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case.
We now determine the applicability in this jurisdiction of these American cases. Obviously,
neither the Frye-Schwartz standard nor the Daubert-Kumho standard is controlling in the
Philippines. 47 At best, American jurisprudence merely has a persuasive effect on our
decisions. Here, evidence is admissible when it is relevant to the fact in issue and is not otherwise
excluded by statute or the Rules of Court. 48 Evidence is relevant when it has such a relation to the
fact in issue as to induce belief in its existence or non-existence. 49 Section 49 of Rule 130, which
governs the admissibility of expert testimony, provides as follows:
The opinion of a witness on a matter requiring special knowledge, skill,
experience or training which he is shown to possess may be received in evidence.
This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence.
Indeed, even evidence on collateral matters is allowed "when it tends in any reasonable degree to
establish the probability or improbability of the fact in issue." 50
Indeed, it would have been convenient to merely refer petitioner to our decisions in Tijing,
Vallejo and Yatar to illustrate that DNA analysis is admissible as evidence. In our jurisdiction, the
restrictive tests for admissibility established by Frye-Schwartz and Daubert-Kumho go into the weight
of the evidence. EHDCAI
Probative Value of
DNA Analysis as Evidence
Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving
credence to DNA analysis as evidence. We reiterate our statement in Vallejo:
In assessing the probative value of DNA evidence, therefore, courts should
consider, among other things, the following data: how the samples were collected,
 how they were handled, the possibility of contamination of the samples, the
procedure followed in analyzing the samples, whether the proper standards and
procedures were followed in conducting the tests, and the qualification of the
analyst who conducted the tests. 51
We also repeat the trial court's explanation of DNA analysis used in paternity cases:
In [a] paternity test, the forensic scientist looks at a number of these
variable regions in an individual to produce a DNA profile. Comparing next the DNA
profiles of the mother and child, it is possible to determine which half of the child's
DNA was inherited from the mother. The other half must have been inherited from
the biological father. The alleged father's profile is then examined to ascertain
whether he has the DNA types in his profile, which match the paternal types in the
child. If the man's DNA types do not match that of the child, the man
is excluded as the father. If the DNA types match, then he is not excluded as the
father. 52
 
It is not enough to state that the child's DNA profile matches that of the putative father. A
complete match between the DNA profile of the child and the DNA profile of the putative father
does not necessarily establish paternity. For this reason, following the highest standard adopted
in an American jurisdiction, 53 trial courts should require at least 99.9% as a minimum value of
the Probability of Paternity ("W") prior to a paternity inclusion. W is a numerical estimate for the
likelihood of paternity of a putative father compared to the probability of a random match of two
unrelated individuals. An appropriate reference population database, such as the Philippine
population database, is required to compute for W. Due to the probabilistic nature of paternity
inclusions, W will never equal to 100%.However, the accuracy of W estimates is higher when the
putative father, mother and child are subjected to DNA analysis compared to those conducted
between the putative father and child alone. 54
DNA analysis that excludes the putative father from paternity should be conclusive proof of
non-paternity. If the value of W is less than 99.9%,the results of the DNA analysis should be
considered as corroborative evidence. If the value of W is 99.9% or higher, then there
is refutable presumption of paternity. 55 This refutable presumption of paternity should be subjected
to the Vallejo standards.
Right Against
Self-Incrimination
Section 17, Article 3 of the 1987 Constitution provides that "no person shall be compelled to
be a witness against himself." Petitioner asserts that obtaining samples from him for DNA testing
violates his right against self-incrimination. Petitioner ignores our earlier pronouncements that the
privilege is applicable only to testimonial evidence. Again, we quote relevant portions of the trial
court's 3 February 2000 Order with approval:
Obtaining DNA samples from an accused in a criminal case or from the
respondent in a paternity case, contrary to the belief of respondent in this action,
will not violate the right against self-incrimination. This privilege applies only to
evidence that is "communicative" in essence taken under duress (People vs.
Olvis,154 SCRA 513, 1987).The Supreme Court has ruled that the right against
self-incrimination is just a prohibition on the use of physical or moral compulsion to
extort communication (testimonial evidence) from a defendant, not an exclusion of
evidence taken from his body when it may be material. As such, a defendant can
be required to submit to a test to extract virus from his body (as cited in People vs.
Olvis, Supra);the substance emitting from the body of the accused was received as
evidence for acts of lasciviousness (US vs. Tan Teng,23 Phil. 145);morphine forced
out of the mouth was received as proof (US vs. Ong Siu Hong,36 Phil. 735);an
order by the judge for the witness to put on pair of pants for size was allowed
(People vs. Otadora,86 Phil. 244);and the court can compel a woman accused of
adultery to submit for pregnancy test (Villaflor vs. Summers,41 Phil. 62),since the
gist of the privilege is the restriction on "testimonial compulsion." 56
 The policy of the Family Code to liberalize the rule on the investigation of the paternity and
filiation of children, especially of illegitimate children, is without prejudice to the right of the putative
parent to claim his or her own defenses. 57 Where the evidence to aid this investigation is obtainable
through the facilities of modern science and technology, such evidence should be considered subject
to the limits established by the law, rules, and jurisprudence.
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals
dated 29 November 2000 in CA-G.R. SP No. 59766. We also AFFIRM the Orders dated 3 February
2000 and 8 June 2000 issued by Branch 48 of the Regional Trial Court of Manila in Civil Case No.
SP-98-88759. IaEACT
SO ORDERED.
Davide, Jr.,C.J.,Quisumbing, Ynares-Santiago and Azcuna, JJ., concur.

|||  (Herrera v. Alba, G.R. No. 148220, [June 15, 2005], 499 PHIL 185-206)

SECOND DIVISION

[G.R. No. 123115. August 25, 1998.]

PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. NIXON

MALAPO, accused-appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; DISPUTABLE PRESUMPTION; AN INFANT CAN BE

CONSIDERED A FULL-TERM BABY IF IT WEIGHS MORE THAN 2,275 GRAMS EVEN IF IT IS
BORN BEFORE THE THIRTY-SEVENTH WEEK. — A textbook on pediatrics states that "Infants
delivered before the thirty-seventh week of gestation with a birth weight of less than 2,500 grams
(American) or 2,275 grams (Filipino) are considered premature." An infant can therefore be
considered a full-term baby if it weighs more than 2, 275 grams even if it is born before the thirty-
seventh week, which is less than 9.3 months. HSaEAD
2. ID.; ID.; ID.; THE ACCUSED IS PRESUMED TO BE THE FATHER OF THE CHILD IF IT
IS CONCEIVED WITHIN 120 DAYS FROM THE COMMISSION OF RAPE; CASE AT BAR. — In the
case at bar, it can be inferred that conception occurred at or about the time that accused-appellant is
alleged to have committed the crime, i.e., within 120 days from the commission of the offense in
September 1991. Pursuant to Art. 166 of the Family Code, accused-appellant can overcome the
presumption that Amalia's child was begotten as a result of her having been raped in September 1991
only if he can show either that it was physically impossible for him to have sexual intercourse because
of impotence or serious illness which absolutely prevents him from having sexual intercourse or that
Amalia had sexual intercourse with another man. However, accused-appellant has not shown either of
these.
3. CRIMINAL LAW; RAPE; CHILD AS A PRODUCT THEREOF IS ENTITLED FOR
SUPPORT. — The testimony of Amalia, as corroborated by Nenita No and Bernadita Marquinez,
leaves no doubt in our mind that accused-appellant is the father of the child. Therefore, in accordance
with Art. 345 of the Revised Penal Code, accused-appellant should be ordered to pay support.
4. ID.; ID.; IMPREGNATION OF A WOMAN IS NOT AN ELEMENT THEREOF. — In any
event, the impregnation of a woman is not an element of rape. Proof that the child was fathered but
another man does not show that accused-appellant is not guilty, considering the positive testimony of
Amalia that accused-appellant had abused her.
5. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF THE TRIAL
COURT DESERVE GREAT RESPECT. — Indeed , the findings of the trial court deserve the great
respect usually accorded the findings of triers of facts who had the opportunity of observing the
demeanor of witnesses while testifying Amalia's inability to recall the exact date she was raped cannot
affect her credibility, especially considering her condition of feeblemindedness.
6. ID.; ID.; ALIBI; INHERENTLY A WEAK DEFENSE; CASE AT BAR. — For alibi is inherently
a weak defense which cannot prevail over the positive identification of the accused. Furthermore, his
claim that he was elsewhere at the time of the crime is belied by his own witness, Santos Ramos, who
admitted that he and accused-appellant took turns going home to their families in Salvacion. By
testifying that he did not go home in September 1991, Santos, by implication, admitted that it was
accused-appellant's turn to go home in that month.
7. CRIMINAL LAW; RAPE; THE VICTIM HAS THE RIGHT TO RECOVER CIVIL
INDEMNITY. — In conclusion, we hold that the trial court correctly found accused-appellant guilty of
rape. However it failed to order accused appellant to pay indemnity. After reciting that, in all criminal
cases, unless the offended party reserves the right to institute a separate civil action, she has a right
to recover civil indemnity, the trial court awarded the complainant in this case moral damages only. As
we have explained in a number of cases, the indemnity provided in criminal law as civil liability is the
equivalent of actual or compensatory damages in civil law. It is, therefore, separate and distinct from
any award of moral damages. As currently fixed, the indemnity for rape is P50,000.00. However, as
we have recently held in People vs. Victor, if rape is committed or is qualified by any of the
circumstances which under the law (R.A. No. 4111 and R.A. No. 7659) would justify the imposition of
the death penalty, the indemnity shall be in an amount not less than P75,000.00. acHITE
8. ID.; ID.; ID.; AUTOMATICALLY GRANTED WITHOUT ANY PROOF. — Since in this case
the rape is not qualified, the indemnity should be P50,000. This is in addition to the amount of
P50,000.00 awarded by the trial court as moral damages. It should be added that the latter amount is
automatically granted in rape cases without need of any proof. It is assumed that the offended party
has suffered moral injuries entitling her to the award of such damages.

DECISION

MENDOZA, J  p:
 This is an appeal from the decision rendered on June 23, 1995 by the Regional Trial Court of
Iriga City, Branch 36, convicting accused-appellant Nixon Malapo of rape and sentencing him to suffer
the penalty of reclusion perpetua and to pay the victim Amalia Trinidad the sum of P50,000.00 in
moral damages.
The information 1 against accused-appellant alleged:
The undersigned Assistant City Prosecutor of Iriga City, upon sworn
complaint originally filed by the offended party hereto attached, hereby accuses one
NIXON MALAPO of Salvacion, Iriga City of the crime of RAPE, committed as
follows:
That sometime on the month of September, 1991 at Salvacion,
Iriga City, Philippines, and within the jurisdiction of this Honorable Court,
the said accused, entered the house of one Nenita I. No, aunt of
Complainant AMALIA TRINIDAD who was then and there alone, and by
means of force and intimidation, did, then and there willfully, unlawfully and
feloniously succeeded in having carnal knowledge of said Amalia Trinidad
against her will and consent and as a result she has become pregnant and
delivered a baby at the Iriga City Puericulture Center.
CONTRARY TO LAW.
Three witnesses testified against him: complainant Amalia Trinidad; Amalia's guardian, Nenita
No; and a guidance counselor and first cousin of Nenita No, Bernardita Marquinez.
Nenita No identified accused-appellant as her long-time neighbor. She testified that Amalia
Trinidad had been under her care and custody since 1978 when Amalia was just seven years old. She
said Amalia was able to finish the sixth grade of her primary education. 2 It appears that Amalia is a
retardate who was a former ward of the Elsie Gaches Village institution. Mrs. Nenita No and her
husband were given custody of Amalia on November 19, 1978 on the basis of the following
psychological evaluation:
Amalia is seemingly an example of a pseudoretardate. She might have
been deprived of intellectual stimulations which explains her lag in cognitive
development. She is still categorized within the normal classification of children.
She must continue attending the center's special school to catch-up for whatever
educational deficiency she may have. 3
Mrs. No told the court that, sometime during the first week of September 1991, Amalia was
left alone in their house at Salvacion, Iriga City, as she and her husband taught in school, while their
four natural children attended classes. 4
At around 10:30 in the morning of that day, when Mrs. No came home from her class, she
found accused-appellant Malapo in the yard of her house. Accused-appellant was in haste. She
stopped him and asked why he was in a hurry, to which accused-appellant replied he had gathered
firewood. This puzzled Mrs. No as they had no firewood at the back of their house. Mrs. No said she
found Amalia inside their house crying. Mrs. No tried to find out why Amalia was crying, but she would
not say anything. On May 18, 1992, Amalia finally told Mrs. No's cousin, Bernardita Marquinez, that
she had been raped by accused-appellant. 5
Taking the witness stand, Amalia Trinidad recounted how at around 9:30 in the morning in
September 1991, while she was alone at home, accused-appellant Nixon Malapo entered their house.
Amalia was then cooking. Upon seeing accused-appellant, she tried to run away, but Malapo caught
her hand and brought her to the dining room. The accused-appellant then caused her to fall on the
floor, covered her mouth, and forcibly removed her short pants and undergarment. Next, he removed
his pants, lay on top of her, and forced his sexual organ into her private part, causing lacerations and
bleeding in her vagina. Amalia said she tried to punch the accused-appellant and to remove his hand
from her mouth, but he was too strong for her. After he had succeeded in having sexual intercourse
with her, accused-appellant left after warning her that he would kill her if she reported the incident to
Mrs. No or to anyone else. 6
For this reason, Amalia said, when Mrs. No asked why she was crying, she did not tell her
what had happened to her. She confirmed that it was only when she was about to give birth to her
baby on May 18, 1992 that she told Bernardita Marquinez that she had been raped by accused-
appellant. Amalia pointed to accused-appellant in court as the person who had raped her. She
testified that, prior to the date of the alleged crime, she did not harbor any ill will or grudge against
him, 7 but, as a result of her abuse, she said she suffered from wounded feelings which made her cry
very often. 8
The last witness for the prosecution was Bernardita Marquinez, a resident of Iriga City and
guidance counselor of the University of Saint Anthony. She was presented to corroborate the
testimonies of Mrs. No and the victim regarding the events on May 18, 1992 and afterward. 9
Accused-appellant Nixon Malapo testified on his behalf, basically claiming alibi as his
defense. He presented as witnesses Felipe Edroso and Santos Ramos to corroborate his claim that
he and Ramos worked together as duck watchers hired by Edroso in San Jose, Buhi, Camarines Sur,
about fifteen kilometers away from Salvacion, Iriga City, from July 1991 until January 1992. 10
Accused-appellant alleged that Amalia three times failed to identify him: When Amalia was
brought before the barangay captain's office to confront accused-appellant, Amalia failed to identify
him despite Mrs. No's effort to make her point to him. Amalia again failed to identify him as her
alleged assailant when they were taken to the police headquarters and, still later, before Prosecutor
Jose Tagum of the Iriga City Prosecutor's office. 11
Accused-appellant submitted as documentary evidence a medical certificate 12 showing that
the alleged victim gave birth to a full-term male baby on May 18, 1992. He argues that if Amalia had
been raped in September of 1991, she could not have been delivered of her baby on May 18, 1992.
On June 23, 1995, the trial court rendered its decision finding accused-appellant guilty. The
dispositive portion of its decision reads:
WHEREFORE, premises considered, the Court finds the accused, NIXON
MALAPO, guilty beyond reasonable doubt of the crime of rape defined and
penalized under Article 335 of the Revised Penal Code before its amendment
by Rep. Act No. 7659, as charged in the information, and hereby sentences the
said accused to suffer the penalty of reclusion perpetua; that said accused is further
ordered to indemnify the private offended party, AMALIA TRINIDAD, of the sum of
P50,000.00 as moral damages, and to pay the costs.
SO ORDERED.
Hence, this appeal. Accused-appellant's sole contention is this:
As, according to Exhibit l-A, the baby was a full term baby, it is unlikely, nay
unbelievable, that same baby was the fruit of the alleged rape perpetrated
sometime in September 1991, because from September 15, 1991 (assuming that
the rape took place on September 15, 1991, there being no evidence as to when in
September 1991 the rape took place) to May 18, 1992 when the baby was born, is
a period of only eight (8) months and three (3) days, contrary to the Certificate
(Exh. 1 and l-A) that the baby was full term when delivered.
Consequently, that the appellant had raped the complaining witness in
September 1991 and, as a result, she became pregnant and gave birth to her baby
on May 18, 1992 is simply improbable; hence, obviously a lie.
It could therefore be that the baby of the complaining witness was fathered
by another man; hence, there is serious doubt that the appellant had raped same
complaining witness in September 1991 causing her to become pregnant and to
deliver a baby on May 18, 1992.
It cannot be argued that the victim must have been already pregnant when
she was allegedly raped because there is no evidence to this effect. The
information and the prosecution evidence are to the effect that the baby was the
fruit of the alleged rape. 13
The contention has no merit.
 A textbook on pediatrics states that "Infants delivered before the thirty-seventh week of
gestation with a birth weight of less than 2,500 grams (American) or 2,275 grams (Filipino) are
considered premature." 14 An infant can therefore be considered a full-term baby if it weighs more
than 2,275 grams even if it is born before the thirty-seventh week which is less than 9.3 months. Since
according to the medical certificate (Exh. 1) Amalia's baby weighed 2.4 kilograms or 2,400 grams, it
was a full-term baby even if it was born before the normal gestation period.
Article 166 of the Family Code provides:
Legitimacy of a child may be impugned only on the following grounds:
(1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days which immediately
preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual
intercourse with his wife;
(b) the fact that the husband and wife were living separately in
such a way that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented
sexual intercourse;
(2) That it is proved that for biological or other scientific reasons, the child
could not have been that of the husband, except in the instance provided in the
second paragraph of Article 164; . . .
In the case at bar, it can be inferred that conception occurred at or about the time that
accused-appellant is alleged to have committed the crime, i.e., within 120 days from the commission
of the offense in September 1991. 15 Pursuant to Art. 166 of the Family Code, accused-appellant can
overcome the presumption that Amalia's child was begotten as a result of her having been raped in
September 1991 only if he can show either that it was physically impossible for him to have sexual
intercourse because of impotence or serious illness which absolutely prevents him from having sexual
intercourse or that Amalia had sexual intercourse with another man. However, accused-appellant has
not shown either of these.
The testimony of Amalia, as corroborated by Nenita No and Bernardita Marquinez, leaves no
doubt in our mind that accused-appellant is the father of the child. Therefore, in accordance with Art.
345 of the Revised Penal Code, accused-appellant should be ordered to pay support.
In any event, the impregnation of a woman is not an element of rape. Proof that the child was
fathered by another man does not show that accused-appellant is not guilty, considering the positive
testimony of Amalia that accused-appellant had abused her. As held in People v. Alib; 16
. . . Under Article 335 of the Revised Penal Code, rape is committed by
having carnal knowledge of a woman under any of the following circumstances:
(1) By using force or intimidation;
(2) When the woman is deprived of reason or otherwise
unconscious; and
(3) When the woman is under twelve years of age, even though
neither of the circumstances mentioned in the two next preceding
paragraphs shall be present.
It is therefore quite clear that the pregnancy of the victim is not required.
For the conviction of an accused, it is sufficient that the prosecution establish
beyond reasonable doubt that he had carnal knowledge of the offended party and
that he had committed such act under any of the circumstances enumerated above.
Carnal knowledge is defined as the act of a man having sexual bodily connections
with a woman;
Indeed, the findings of the trial court deserve the great respect usually accorded the findings
of triers of facts who had the opportunity of observing the demeanor of the witnesses while testifying.
Amalia's inability to recall the exact date she was raped cannot affect her credibility, especially
considering her condition of feeblemindedness. In People v. Quiñones, 17 which involved the rape of
a 25-year old retardate who also could not recount when she was raped by the accused in that case,
this Court held:
[T]he date of the occurrence of the rape is not an essential element in the
commission of the rape. That is why the Amended Information reads: "[t]hat on or
about the 5th of June 1989 . . ." Suffice it to say that it was shown that rape under
Art. 335, par. (2), of the Revised Penal Code was committed, and that the evidence
presented established beyond a ray of doubt that accused-appellant was
responsible therefor. 18
It is noteworthy that in this appeal accused-appellant does not reiterate his original defense
that in September 1991 he was not in Salvacion, Iriga because he was then tending a duck farm in
San Jose, Buhi, Camarines, Sur, fifteen kilometers away. For alibi is inherently a weak defense which
cannot prevail over the positive identification of the accused. 19 Furthermore, his claim that he was
elsewhere at the time of the crime is belied by his own witness, Santos Ramos, who admitted that he
and accused-appellant took turns going home to their families in Salvacion. By testifying that he did
not go home in September 1991, Santos, by implication, admitted that it was accused-appellant's turn
to go home in that month. Santos Ramos testified:
Q But the fact is, you and Nixon Malapo did never leave the ducks you were
tending to from the time that they were brought at Salay in July up to the
time you left in January, 1992?
A Sometimes, one of us also leave.
Q And when one of you leave, where do you go?
A We go home to our house, sir.
Q And will you tell the Court how many times you went home between July, 1991 to
January, 1992?
A About five (5) times, sir?
Q When were these five (5) times?
A I went home in October and December.
Q You said five (5) times — you said you went home five (5) times, in October and
December only?
A Yes, sir.
Q You did not go home in August?
A No, sir.
Q You did not also go home in September?
A No, sir. 20
Answering questions from the trial judge, he said:
Q During that period between July, 1991 to January, 1992, do you remember if
Nixon Malapo also visited?
A Yes, Your Honor.
Q Do you remember how many times did he visit his family during that period?
A Yes, Your Honor, the same number of times that I went home.
Q He went home on those days when you were on duty?
A Yes, Your Honor. 21
In addition to the foregoing, Felipe Edroso, the other defense witness, testified:
 PROS. CANUTO:
Q In September 1991 he [accused-appellant] also used to leave San Jose, Salay,
and visited his family in Salvacion, stayed there for about a day and then
returned to his work in San Jose, Salay?
A Yes, Sir.
Q And in October 1991, he also would leave San Jose Salay, to visit his family in
Salvacion and stayed with his family for about a day and then returned [to]
his work in San Jose, Salay?
A Yes, Sir.
Q Now, in 1991 do you know whether Nixon Malapo was married or not?
A Yes, Sir.
Q Did they have children at that time?
A Yes, Sir.
Q And you will agree with me that this could be the reason of [sic] the fact that he
already had his wife; had his family that he did not continuously stay in
Buhi, for three (3) months, but that he would leave San Jose, Salay and
visited his family once in a while in Salvacion during that time/period?
A Very seldom, Sir. 22
In conclusion, we hold that the trial court correctly found accused-appellant guilty of rape.
However, it failed to order accused-appellant to pay indemnity. After reciting that, in all criminal cases,
unless the offended party reserves the right to institute a separate civil action, she has a right to
recover civil indemnity, the trial court awarded the complainant in this case moral damages only. As
we have explained in a number of cases, 23 the indemnity provided in criminal law as civil liability is
the equivalent of actual or compensatory damages in civil law. It is, therefore, separate and distinct
from any award of moral damages. As currently fixed, the indemnity for rape is P50,000.00. However,
as we have recently held in People v. Victor, 24 if rape is committed or is qualified by any of the
circumstances which under the law (R.A. No. 4111 and R.A. No. 7659) would justify the imposition of
the death penalty, the indemnity shall be in an amount not less than P75,000.00.
Since in this case the rape is not qualified, the indemnity should be P50,000.00. This is in
addition to the amount of P50,000.00 awarded by the trial court as moral damages. It should be
added that the latter amount is automatically granted in rape cases without need of any proof. It is
assumed that the offended party has suffered moral injuries entitling her to the award of such
damages. As we explained in the recent case of People v. Prades: 25
The conventional requirement of allegata et probata in civil procedure and
for essentially civil cases should be dispensed with in criminal prosecutions for rape
with the civil aspect included therein, since no appropriate pleadings are filed
wherein such allegations can be made.
Corollarily, the fact that complainant has suffered the trauma of mental,
physical and psychological sufferings which constitute the bases for moral
damages are too obvious to still require the recital thereof at the trial by the victim,
since the Court itself even assumes and acknowledges such agony on her part as a
gauge of her credibility. What exists by necessary implication as being ineludibly
present in the case need not go through the superfluity of still being proved through
a testimonial charade.
Mention was earlier made that since Amalia's baby was begotten as a result of the rape,
accused-appellant is liable for support. Under Art. 345 of the Revised Penal Code, in addition to the
indemnification of the offended party, persons guilty of rape must in every case support the offspring.
Although said article also provides for the acknowledgment of the child unless the offender is married,
this Court has already ruled that:
 Article 176 of the Family Code confers parental authority over illegitimate
children on the mother, and likewise provides for their entitlement to support in
conformity with the Family Code. As such, there is no further need for the
prohibition against acknowledgment of the offspring by an offender who is married
which would vest parental authority in him. Therefore, under Article 345 of
the Revised Penal Code, the offender in a rape case who is married can only be
sentenced to indemnify the victim and support the offspring, if there be any. In the
instant case then, the accused should also be ordered to support his illegitimate
offspring, Tracy Jhuen Nieto, with Marie Elena Nieto, but in light of Article 201 of
the Family Code, the amount and terms thereof are to be determined by the trial
court only after due notice and hearing. 26
Therefore, given the fact that Amalia's child is conclusively the illegitimate child of the
accused-appellant, 27 the acknowledgment in this instance should be understood to refer only to the
filiation of the child. 28
WHEREFORE, the decision of the Regional Trial Court is AFFIRMED, with the
MODIFICATION that the accused-appellant is ordered to pay complainant Amalia Trinidad the sum of
P50,000.00 as indemnity, in addition to the amount of P50,000.00 granted by the trial court as moral
damages, as well as to acknowledge the filiation of complainant's offspring and to give support, the
amount of which shall be determined by the trial court. Accordingly, the records of this case are
hereby REMANDED to the Regional Trial Court for the fixing of the amount of support.
SO ORDERED.
Melo, Puno and Martinez, JJ ., concur.
Regalado, J ., on official leave.

|||  (People v. Malapo, G.R. No. 123115, [August 25, 1998], 356 PHIL 75-89)

FIRST DIVISION

[G.R. No. 86302. September 24, 1991.]

 CASIMIRO MENDOZA, petitioner, vs. HON. COURT OF APPEALS and
TEOPISTA TORING TUÑACAO, respondents.

Bienvenido R. Saniel, Jr. for petitioner.

Domingo Antigua & Associates for private respondent.

DECISION

CRUZ, J  p:

The private respondent claimed she was the illegitimate daughter of Casimiro Mendoza, but the latter
denied her claim. He denied it to his dying day. The trial court believed him and dismissed her
complaint for compulsory recognition. The appellate court did not and reversed the judgment of the
court below. Now the issue is before us on certiorari.
The complaint was filed on August 21, 1981, in the Regional Trial Court in Cebu City. Teopista Toring
Tuñacao, the herein private respondent, alleged that she was born on August 20, 1930, to Brigida
Toring, who was then single, and defendant Casimiro Mendoza, married at that time to Emiliana
Barrientos. She averred that Mendoza recognized her as an illegitimate child by treating her as such
and according her the rights and privileges of a recognized illegitimate child. LexLib
Casimiro Mendoza, then already 91 years old, specifically denied the plaintiff's allegations and set up
a counterclaim for damages and attorney's fees.
Amplifying on her complaint, Teopista testified that it was her mother who told her that her father was
Casimiro. She called him Papa Miroy. She lived with her mother because Casimiro was married but
she used to visit him at his house. When she married Valentin Tuñacao, Casimiro bought a passenger
truck and engaged him to drive it so he could have a livelihood. Casimiro later sold the truck but gave
the proceeds of the sale to her and her husband. In 1977, Casimiro allowed her son, Lolito Tuñacao,
to build a house on his lot and later he gave her money to buy her own lot from her brother, Vicente
Toring. On February 14, 1977, Casimiro opened a joint savings account with her as a co-depositor at
the Mandaue City branch of the Philippine Commercial and Industrial Bank. Two years later,
Margarita Bate, Casimiro's adopted daughter, took the passbook from her, but Casimiro ordered it
returned to her after admonishing Margarita. 1
Lolito Tuñacao corroborated his mother and said he considered Casimiro his grandfather because
Teopista said so. He would kiss his hand whenever they saw each other and Casimiro would give him
money. Casimiro used to invite him to his house and give him jack fruits. When his grandfather
learned that he was living on a rented lot, the old man allowed him to build a house on the former's
land. 2
Two other witnesses testified for Teopista, namely, Gaudencio Mendoza and Isaac Mendoza, both
relatives of Casimiro.
Gaudencio said he was a cousin of Casimiro and knew Brigida Toring because she used to work with
him in a saltbed in Opao. Casimiro himself told him she was his sweetheart. Later, Gaudencio acted
as a go-between for their liaison, which eventually resulted in Brigida becoming pregnant in 1930 and
giving birth to Teopista. Casimiro handed him P20.00 to be given to Brigida at Teopista's baptism.
Casimiro also gave him P5.00 every so often to be delivered to Brigida. 3
Isaac testified that his uncle Casimiro was the father of Teopista because his father Hipolito,
Casimiro's brother, and his grandmother, Brigida Mendoza, so informed him. He worked on
Casimiro's boat and whenever Casimiro paid him his salary, he would also give him various amounts
from P2.00 to P10.00 to be delivered to Teopista. Isaac also declared that Casimiro intended to give
certain properties to Teopista. 4
Casimiro himself did not testify because of his advanced age, but Vicente Toring took the stand to
resist Teopista's claim.
Vicente, who professed to be Casimiro's only illegitimate child by Brigida Toring, declared that
Teopista's father was not Casimiro but a carpenter named Ondoy, who later abandoned her. Vicente
said that it was he who sold a lot to Teopista, and for a low price because she was his half-sister. It
was also he who permitted Lolito to build a house on Casimiro's lot. This witness stressed that when
Casimiro was hospitalized, Teopista never once visited her alleged father. 5
The last statement was shared by the other defense witness, Julieta Ouano, Casimiro's niece, who
also affirmed that Vicente Toring used to work as a cook in Casimiro's boat. She flatly declared she
had never met Teopista but she knew her husband, who was a mechanic. 6
The rules on compulsory recognition are embodied in Article 283 of the Civil Code, which has been
held to be applicable not only to natural children but also to spurious children. 7 The said article
provides:
Art. 283. In any of the following cases, the father is obliged to recognize the child as
his natural child: LLjur
(1) In cases of rape, abduction or seduction, when the period of the offense
coincides more or less with that of the conception;
(2) When the child is in continuous possession of status of a child of the alleged
father by the direct acts of the latter or of his family;
(3) When the child was conceived during the time when the mother cohabited with
the supposed father.
(4) When the child has in his favor any evidence or proof that the defendant is his
father.
This article has been substantially reproduced in the Family Code as follows:
Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 175. Illegitimate children may establish their illegitimate filiation in the same
way and on the same evidence as legitimate children.
In his remarkably well-written decision, Judge Leoncio P. Abarquez rejected the plaintiff's claim that
she was in continuous possession of the status of a child of the alleged father by the direct acts of the
latter or of his family. His Honor declared:
In this particular case the established evidence is that plaintiff continuously lived
with her mother, together with her sister Paulina. Neither the plaintiff nor her
husband had come to live with the defendant. At most, only their son, Lolito
Tuñacao was allowed to construct a small house in the land of the defendant, either
by the defendant himself, as claimed by the plaintiff, or by Vicente Toring, as
claimed by the witnesses of the defendant. The defendant never spent for the
support and education of the plaintiff. He did not allow the plaintiff to carry his
surname. The instances when the defendant gave money to the plaintiff were, more
or less, off-and-on or rather isolatedly periodic. They were made at considerable
intervals and were not given directly to the plaintiff but through a third person. Thus,
while it may be conceded that: a) the defendant's parents, as well as the plaintiff
himself, told Gaudencio Mendoza and Isaac Mendoza that Teopista is the daughter
of the defendant; b) that Teopista calls the defendant as "Papa Miroy"; c) that
Teopista would kiss defendant's hand when she met him; d) that the defendant
gave to her and her husband the income of the passenger truck as well as the
 proceeds of the sale thereof, all these acts, taken altogether, are not sufficient to
show that the plaintiff had possessed continuously the status of a recognized
illegitimate child.
On appeal, however, the respondent court 8 disagreed and arrived at its own conclusion as follows:
Contrary to the conclusion of the court a quo, We find that appellant has sufficiently
proven her continuous possession of such status. Although the court a quo did not
pass on the credibility of the various witnesses presented, We consider the
witnesses for the plaintiff as credible and unbiased. No proof was shown to render
them otherwise. There is no showing that Isaac and Gaudencio testified falsely.
They were disinterested parties with no ax to grind against the appellee or the
people actively acting in his behalf. In fact even the court a quo conceded to the
truthfulness of some of their testimonies.
By contrast, it continued, Vicente Toring was an interested party who was claiming to be the sole
recognized natural child of Casimiro and stood to lose much inheritance if Teopista's claim were
recognized. He had earlier filed theft charges against his own sister and libel charges against her
husband. As for Julieta Ouano, the respondent court found it difficult to believe that she had never
met Teopista although both of them have been living in the same barangay since birth. LLjur
The decision of the Court of Appeals was promulgated on August 11, 1988. A motion for
reconsideration was filed, and it was only from the opposition thereto of the private respondent that
Casimiro's counsel learned that his client had died on May 31, 1986. He immediately informed the
respondent court but the motion for reconsideration was denied without any substitution of parties
having been effected. The said counsel, now acting for Vicente Toring, then asked this Court to
substitute the latter for the deceased Casimiro Mendoza in the present petition.
The applicable provisions of the Rules of Court are Sections 16 and 17 of Rule 3, reading as follows:
Sec. 16. Duty of attorney upon death, incapacity or incompetency of party. —
Whenever a party to a pending case dies, becomes incapacitated or incompetent, it
shall be the duty of his attorney to inform the court promptly of such death,
incapacity or incompetency, and to give the name and residence of his executor,
guardian or other legal representative.
Sec. 17. Death of 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 to 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.
 
In the early case of Masecampo vs. Masecampo, 9 it was settled that:
The subsequent death of the father is not a bar to the action commenced during his
lifetime by one who pretended to be his natural son. It may survive against the
executor, administrator, or any other legal representative of the testate or intestate
succession.
Pursuant to the above rules and jurisprudence, we hereby allow the substitution of Casimiro
Mendoza pro haec vice and nunc pro tunc by Vicente Toring, who appears to be the former's
illegitimate son. This disposes of the private respondent's contention that the lawyer-client relationship
terminated with Casimiro's death and that Vicente has no personality now to substitute him.
Now to the merits.
We note that both the trial court and the respondent court, in arriving at their respective conclusions,
focused on the question of whether or not Teopista was in continuous possession of her claimed
status of an illegitimate child of Casimiro Mendoza. This was understandable because Teopista
herself had apparently based her claim on this particular ground as proof of filiation allowed under
Article 283 of the Civil Code.
To establish "the open and continuous possession of the status of an illegitimate child," it is necessary
to comply with certain jurisprudential requirements. "Continuous" does not mean that the concession
of status shall continue forever but only that it shall not be of an intermittent character while it
continues. 10 The possession of such status means that the father has treated the child as his own,
directly and not through others, spontaneously and without concealment though without publicity
(since the relation is illegitimate). 11 There must be a showing of the permanent intention of the
supposed father to consider the child as his own, by continuous and clear manifestation of paternal
affection and care. 12
With these guidelines in mind, we agree with the trial court that Teopista has not been in continuous
possession of the status of a recognized illegitimate child of Casimiro Mendoza, under both Article
283 of the Civil Code and Article 172 of the Family Code. cdphil
The plaintiff lived with her mother and not with the defendant although they were both residents of
Omapad, Mandaue City. It is true, as the respondent court observed, that this could have been
because defendant had a legitimate wife. However, it is not unusual for a father to take his illegitimate
child into his house to live with him and his legitimate wife, especially if the couple is childless, as in
this case. In fact, Vicente Toring, who also claimed to be an illegitimate child of Casimiro, lived with
the latter and his wife, apparently without objection from the latter. We also note that Teopista did not
use the surname of Casimiro although this is, of course, not decisive of one's status. No less
significantly, the regularity of defendant's act of giving money to the plaintiff through Gaudencio
Mendoza and Isaac Mendoza has not been sufficiently established. The trial court correctly concluded
that such instances were "off-and-on," not continuous and intermittent. Indeed, the plaintiffs testimony
on this point is tenuous as in one breath she said that her mother solely spent for her education and in
another that Casimiro helped in supporting her. 13
But although Teopista has failed to show that she was in open and continuous possession of the
status of an illegitimate child of Casimiro, we find that she has nevertheless established that status by
another method.
What both the trial court and the respondent court did not take into account is that an illegitimate child
is allowed to establish his claimed filiation by "any other means allowed by the Rules of Court and
special laws," according to the Civil Code, or "by evidence or proof in his favor that the defendant is
her father," according to the Family Code. Such evidence may consist of his baptismal certificate, a
judicial admission, a family Bible in which his name has been entered, common reputation respecting
his pedigree, admission by silence, the testimonies of witnesses, and other kinds of proof admissible
under Rule 130 of the Rules of Court. 14
The trial court conceded that "the defendant's parents, as well as the plaintiff himself, told Gaudencio
Mendoza and Isaac Mendoza, that Teopista was the daughter of the defendant." It should have
probed this matter further in light of Rule 130, Section 39, of the Rules of Court, providing as follows:
Sec. 39. Act or declaration about pedigree. — The act or declaration of a person
deceased, or unable to testify, in respect to the pedigree of another person related
to him by birth or marriage, may be received in evidence where it occurred before
the controversy, and the relationship between the two persons is shown by
evidence other than such act or declaration. The word pedigree" includes
relationship, family genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the relatives. It embraces also
facts of family history intimately connected with pedigree.
The statement of the trial court regarding Teopista's parentage is not entirely accurate. To set the
record straight, we will stress that it was only Isaac Mendoza who testified on this question of
pedigree, and he did not cite Casimiro's father. His testimony was that he was informed by his father
Hipolito, who was Casimiro's brother, and Brigida Mendoza, Casimiro's own mother, that Teopista
was Casimiro's illegitimate daughter. 15
Such acts or declarations may be received in evidence as an exception to the hearsay rule because it
is the best the nature of the case admits and because greater evils are apprehended from the
rejection of such proof than from its admission. 16 " Nevertheless, precisely because of its nature as
hearsay evidence, there are certain safeguards against its abuse. Commenting on this provision,
Francisco enumerates the following requisites that have to be complied with before the act or
declaration regarding pedigree may be admitted in evidence: Cdpr
1. The declarant is dead or unable to testify.
2. The pedigree must be in issue.
3. The declarant must be a relative of the person whose pedigree is in issue.
4. The declaration must be made before the controversy arose.
5. The relationship between the declarant and the person whose pedigree is in
question must be shown by evidence other than such declaration. 17
All the above requisites are present in the case at bar. The persons who made the declarations about
the pedigree of Teopista, namely, the mother of Casimiro, Brigida Mendoza, and his brother, Hipolito,
were both dead at the time of Isaac's testimony. The declarations referred to the filiation of Teopista
and the paternity of Casimiro, which were the very issues involved in the complaint for compulsory
recognition. The declarations were made before the complaint was filed by Teopista or before the
controversy arose between her and Casimiro. Finally, the relationship between the declarants and
Casimiro has been established by evidence other than such declaration, consisting of the extrajudicial
partition of the estate of Florencio Mendoza, in which Casimiro was mentioned as one of his heirs. 18
The said declarations have not been refuted. Casimiro could have done this by deposition if he was
too old and weak to testify at the trial of the case.
If we consider the other circumstances narrated under oath by the private respondent and her
witnesses, such as the financial doles made by Casimiro to Brigida Toring, the hiring of Teopista's
husband to drive the passenger truck of Casimiro, who later sold the vehicle and gave the proceeds of
the sale to Teopista and her husband, the permission he gave Lolito Tuñacao to build a house on his
land after he found that the latter was living on a rented lot, and, no less remarkably, the joint savings
account Casimiro opened with Teopista, we can reasonably conclude that Teopista was the
illegitimate daughter of Casimiro Mendoza.
We hold that by virtue of the above-discussed declarations, and in view of the other circumstances of
this case, Teopista Toring Tuñacao has proved that she is the illegitimate daughter of Casimiro
Mendoza and is entitled to be recognized as such. In so holding, we give effect to the policy of the
Civil code and the Family Code to liberalize the rule on the investigation of the paternity of illegitimate
children, without prejudice to the right of the alleged parent to resist the claimed status with his own
defenses, including evidence now obtainable through the facilities of modern medicine and
technology. LexLib
WHEREFORE, the petition is DENIED. Judgment is hereby rendered DECLARING Teopista Toring
Tuñacao to be the illegitimate child of the late Casimiro Mendoza and entitled to all the rights
appurtenant to such status. Costs against the petitioner.
SO ORDERED.
Narvasa, Griño-Aquino  and Medialdea, JJ., concur.

|||  (Mendoza v. Court of Appeals, G.R. No. 86302, [September 24, 1991], 278 PHIL 687-699)
 SECOND DIVISION

[G.R. No. 138961. March 7, 2002.]

WILLIAM LIYAO, JR.,represented by his mother Corazon

Garcia,  petitioner,vs.JUANITA TANHOTI-LIYAO, PEARL MARGARET L. TAN,
TITA ROSE L. TAN AND LINDA CHRISTINA LIYAO, respondents.

Castillo & Poblador for petitioner.

Quisumbing Ignacio Guia & Lambino Law Offices  for respondents.

SYNOPSIS

Petitioner, represented by his mother Corazon Garcia, filed an action for compulsory
recognition as the illegitimate son of the late William Liyao. Allegedly, Corazon is legally married to but
living separately from Ramon Yulo, that Corazon cohabited with the late William Liyao where a child,
herein petitioner, was then conceived and born. The issue is may petitioner impugn his own legitimacy
to be able to claim from the estate of his supposed father, William Liyao?
The Court ruled in the negative. The fact that Corazon had been living separately from her
husband at the time petitioner was conceived and born is of no moment. Physical impossibility for the
husband to have sexual intercourse with his wife, as a ground for impugning the legitimacy of the
child, may only be invoked by the husband or in proper cases, his heirs. The petition initiated by
Corazon Garcia as guardian ad litem of the then minor, herein petitioner, to compel recognition by
respondents of petitioner William Liyao, Jr.,as the illegitimate son of the late William Liyao, cannot
prosper. The settled rule is that a child born within a valid marriage is presumed legitimate even
though the mother may have declared against its legitimacy or may have been sentenced as an
adulteress. Petition was denied.
 SYLLABUS

1. CIVIL LAW; PERSONS AND FAMILY RELATIONS; PATERNITY AND FILIATION;

LEGITIMATE CHILDREN; DISCUSSED. — Under the New Civil Code, a child born and conceived
during a valid marriage is presumed to be legitimate. The presumption of legitimacy of children does
not only flow out from a declaration contained in the statute but is based on the broad principles of
natural justice and the supposed virtue of the mother. The presumption is grounded in a policy to
protect innocent offspring from the odium of illegitimacy. The presumption of legitimacy of the child,
however, is not conclusive and consequently, may be overthrown by evidence to the contrary. Hence,
Article 255 of the New Civil Code provides: Article 255. Children born after one hundred and eighty
days following the celebration of the marriage, and before three hundred days following its dissolution
or the separation of the spouses shall be presumed to be legitimate. Against this presumption no
evidence shall be admitted other than that of the physical impossibility of the husband's having
access to his wife within the first one hundred and twenty days of the three hundred which preceded
the birth of the child. This physical impossibility may be caused: 1) By the impotence of the husband;
2) By the fact that husband and wife were living separately in such a way that access was not
possible; 3) By the serious illness of the husband.  AaEcDS
2. ID.; ID.; ID.; ID.; IMPUGNING LEGITIMACY OF THE CHILD; GROUNDS; PHYSICAL
IMPOSSIBILITY FOR THE HUSBAND TO HAVE SEXUAL INTERCOURSE WITH HIS WIFE MAY
ONLY BE INVOKED BY THE HUSBAND OR HIS HEIRS. — The fact that Corazon Garcia had been
living separately from her husband, Ramon Yulo, at the time petitioner was conceived and born is of
no moment. While physical impossibility for the husband to have sexual intercourse with his wife is
one of the grounds for impugning the legitimacy of the child, it bears emphasis that the grounds for
impugning the legitimacy of the child mentioned in Article 255 of the Civil Code may only be invoked
by the husband, or in proper cases, his heirs under the conditions set forth under Article 262 of
the Civil Code.Impugning the legitimacy of the child is a strictly personal right of the husband, or in
exceptional cases, his heirs for the simple reason that he is the one directly confronted with the
scandal and ridicule which the infidelity of his wife produces and he should be the one to decide
whether to conceal that infidelity or expose it in view of the moral and economic interest involved. It is
only in exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these
cases, none — even his heirs — can impugn legitimacy; that would amount to an insult to his
memory. It is settled that a child born within a valid marriage is presumed legitimate even though the
mother may have declared against its legitimacy or may have been sentenced as an adulteress. We
cannot allow petitioner to maintain his present petition and subvert the clear mandate of the law that
only the husband, or in exceptional circumstances, his heirs, could impugn the legitimacy of a child
born in a valid and subsisting marriage. The child himself cannot choose his own filiation. If the
husband, presumed to be the father does not impugn the legitimacy of the child, then the status of the
child is fixed, and the latter cannot choose to be the child of his mother's alleged paramour. On the
other hand, if the presumption of legitimacy is overthrown, the child cannot elect the paternity of the
husband who successfully defeated the presumption. ACcDEa

DECISION

DE LEON, JR.,J p:

Before us is a petition for review on certiorari assailing the decision dated June 4, 1999 of the
Court of Appeals in CA-G.R. C.V. No. 45394 1 which reversed the decision of the Regional Trial Court
(RTC) of Pasig, Metro Manila, Branch 167 in declaring William Liyao, Jr. as the illegitimate (spurious)
son of the deceased William Liyao and ordering Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita
Rose L. Tan and Linda Christina Liyao to recognize and acknowledge William Liyao, Jr. as a
compulsory heir of the deceased William Liyao and entitled to all successional rights as such and to
pay the costs of the suit.
On November 29, 1976, William Liyao, Jr., represented by his mother Corazon G. Garcia,
filed Civil Case No. 24943 before the RTC of Pasig, Branch 167 which is an action for compulsory
recognition as "the illegitimate (spurious) child of the late William Liyao" against herein respondents,
Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao. 2 The
complaint was later amended to include the allegation that petitioner  "was in continuous possession
and enjoyment of the status of the child of said William Liyao," petitioner having been "recognized
and acknowledged as such child by the decedent during his lifetime." 3
The facts as alleged by petitioner are as follows:
Corazon G. Garcia is legally married to but living separately from Ramon M. Yulo for more
than ten (10) years at the time of the institution of the said civil case. Corazon cohabited with the late
William Liyao from 1965 up to the time of William's untimely demise on December 2, 1975. They lived
together in the company of Corazon's two (2) children from her subsisting marriage, namely: Enrique
and Bernadette, both surnamed Yulo, in a succession of rented houses in Quezon City and Manila.
This was with the knowledge of William Liyao's legitimate children, Tita Rose L. Tan and Linda
Christina Liyao-Ortiga, from his subsisting marriage with Juanita Tanhoti Liyao. Tita Rose and
Christina were both employed at the Far East Realty Investment, Inc. of which Corazon and William
were then vice president and president, respectively. IcTCHD
Sometime in 1974, Corazon bought a lot from Ortigas and Co. which required the signature of
her husband, Ramon Yulo, to show his consent to the aforesaid sale. She failed to secure his
signature and, had never been in touch with him despite the necessity to meet him. Upon the advice
of William Liyao, the sale of the parcel of land located at the Valle Verde Subdivision was registered
under the name of Far East Realty Investment, Inc.
On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the Cardinal Santos Memorial
Hospital. During her three (3) day stay at the hospital, William Liyao visited and stayed with her and
the new born baby, William, Jr. (Billy). All the medical and hospital expenses, food and clothing were
paid under the account of William Liyao. William Liyao even asked his confidential secretary, Mrs.
Virginia Rodriguez, to secure a copy of Billy's birth certificate. He likewise instructed Corazon to open
a bank account for Billy with the Consolidated Bank and Trust Company 4 and gave weekly amounts
to be deposited therein. 5 William Liyao would bring Billy to the office, introduce him as his good
looking son and had their pictures taken together. 6
During the lifetime of William Liyao, several pictures were taken showing, among others,
William Liyao and Corazon together with Billy's godfather, Fr. Julian Ruiz, William Liyao's legal staff
and their wives while on vacation in Baguio. 7 Corazon also presented pictures in court to prove that
that she usually accompanied William Liyao while attending various social gatherings and other
important meetings. 8 During the occasion of William Liyao's last birthday on November 22, 1975 held
at the Republic Supermarket, William Liyao expressly acknowledged Billy as his son in the presence
of Fr. Ruiz, Maurita Pasion and other friends and said, "Hey, look I am still young, I can still make a
good looking son." 9 Since birth, Billy had been in continuous possession and enjoyment of the status
of a recognized and/or acknowledged child of William Liyao by the latter's direct and overt acts.
William Liyao supported Billy and paid for his food, clothing and other material needs. However, after
William Liyao's death, it was Corazon who provided sole support to Billy and took care of his tuition
fees at La Salle, Greenhills. William Liyao left his personal belongings, collections, clothing, old
newspaper clippings and laminations at the house in White Plains where he shared his last moments
with Corazon.
Testifying for the petitioner, Maurita Pasion declared that she knew both Corazon G. Garcia
and William Liyao who were godparents to her children. She used to visit Corazon and William Liyao
from 1965-1975. The two children of Corazon from her marriage to Ramon Yulo, namely, Bernadette
and Enrique (Ike),together with some housemaids lived with Corazon and William Liyao as one family.
On some occasions like birthdays or some other celebrations, Maurita would sleep in the couple's
residence and cook for the family. During these occasions, she would usually see William Liyao in
sleeping clothes. When Corazon, during the latter part of 1974, was pregnant with her child Billy,
Maurita often visited her three (3) to four (4) times a week in Greenhills and later on in White Plains
where she would often see William Liyao. Being a close friend of Corazon, she was at the Cardinal
Santos Memorial Hospital during the birth of Billy. She continuously visited them at White Plains and
knew that William Liyao, while living with her friend Corazon, gave support by way of grocery supplies,
money for household expenses and matriculation fees for the two (2) older children, Bernadette and
Enrique. During William Liyao's birthday on November 22, 1975 held at the Republic Supermarket
Office, he was carrying Billy and told everybody present, including his two (2) daughters from his legal
marriage, "Look, this is my son, very guapo and healthy." 10 He then talked about his plan for the
baptism of Billy before Christmas. He intended to make it "engrande" and "make the bells of San
Sebastian Church ring." 11 Unfortunately, this did not happen since William Liyao passed away on
December 2, 1975. Maurita attended Mr. Liyao's funeral and helped Corazon pack his clothes. She
even recognized a short sleeved shirt of blue and gray 12 which Mr. Liyao wore in a photograph 13 as
well as another shirt of lime green 14 as belonging to the deceased. A note was also presented with
the following inscriptions: "To Cora, Love From William." 15 Maurita remembered having invited the
couple during her mother's birthday where the couple had their pictures taken while exhibiting
affectionate poses with one another. Maurita knew that Corazon is still married to Ramon Yulo since
her marriage has not been annulled nor is Corazon legally separated from her said husband.
However, during the entire cohabitation of William Liyao with Corazon Garcia, Maurita had not seen
Ramon Yulo or any other man in the house when she usually visited Corazon.
Gloria Panopio testified that she is the owner of a beauty parlor and that she knew that Billy is
the son of her neighbors, William Liyao and Corazon Garcia, the latter being one of her customers.
Gloria met Mr. Liyao at Corazon's house in Scout Delgado, Quezon City in the Christmas of 1965.
Gloria had numerous occasions to see Mr. Liyao from 1966 to 1974 and even more so when the
couple transferred to White Plains, Quezon City from 1974-1975. At the time Corazon was conceiving,
Mr. Liyao was worried that Corazon might have another miscarriage so he insisted that she just stay
in the house, play mahjong and not be bored. Gloria taught Corazon how to play mahjong and
together with Atty. Brillantes' wife and sister-in-law, had mahjong sessions among themselves. Gloria
knew that Mr. Liyao provided Corazon with a rented house, paid the salary of the maids and food for
Billy. He also gave Corazon financial support. Gloria knew that Corazon is married but is separated
from Ramon Yulo although Gloria never had any occasion to see Mr. Yulo with Corazon in the house
where Mr. Liyao and Corazon lived.
Enrique Garcia Yulo testified that he had not heard from his father, Ramon Yulo, from the
time that the latter abandoned and separated from his family. Enrique was about six (6) years old
when William Liyao started to live with them up to the time of the latter's death on December 2, 1975.
Mr. Liyao was very supportive and fond of Enrique's half brother, Billy. He identified several pictures
showing Mr. Liyao carrying Billy at the house as well as in the office. Enrique's testimony was
corroborated by his sister, Bernadette Yulo, who testified that the various pictures showing Mr. Liyao
carrying Billy could not have been superimposed and that the negatives were in the possession of her
mother, Corazon Garcia.
Respondents, on the other hand, painted a different picture of the story.
Linda Christina Liyao-Ortiga stated that her parents, William Liyao and Juanita Tanhoti-Liyao,
were legally married. 16 Linda grew up and lived with her parents at San Lorenzo Village, Makati,
Metro Manila until she got married; that her parents were not separated legally or in fact and that
there was no reason why any of her parents would institute legal separation proceedings in court. Her
father lived at their house in San Lorenzo Village and came home regularly. Even during out of town
business trips or for conferences with the lawyers at the office, her father would change his clothes at
home because of his personal hygiene and habits. Her father reportedly had trouble sleeping in other
people's homes. Linda described him as very conservative and a strict disciplinarian. He believed that
no amount of success would compensate for failure of a home. As a businessman, he was very
tough, strong, fought for what he believed in and did not give up easily. He suffered two strokes
before the fatal attack which led to his death on December 2, 1975. He suffered a stroke at the office
sometime in April-May 1974 and was attended by Dr. Santiago Co. He then stayed in the house for
two (2) to three (3) months for his therapy and acupuncture treatment. He could not talk, move, walk,
write or sign his name. In the meantime, Linda and her sister, Tita Rose Liyao-Tan, ran the office. She
handled the collection of rents while her sister referred legal matters to their lawyers. William Liyao
was bedridden and had personally changed. He was not active in business and had dietary
restrictions. Mr. Liyao also suffered a milder stroke during the latter part of September to October
1974. He stayed home for two (2) to three (3) days and went back to work. He felt depressed,
however, and was easily bored. He did not put in long hours in the office unlike before and tried to
spend more time with his family.
Linda testified that she knew Corazon Garcia is still married to Ramon Yulo. Corazon was not
legally separated from her husband and the records from the Local Civil Registrar do not indicate that
the couple obtained any annulment 17 of their marriage. Once in 1973, Linda chanced upon Ramon
Yulo picking up Corazon Garcia at the company garage. Immediately after the death of Linda's father,
Corazon went to Linda's office for the return of the former's alleged investments with the Far East
Realty Investment, Inc. including a parcel of land sold by Ortigas and Company. Linda added that
Corazon, while still a vice-president of the company, was able to take out documents, clothes and
several laminated pictures of William Liyao from the office. There was one instance when she was
told by the guards, "Mrs. Yulo is leaving and taking out things again." 18 Linda then instructed the
guards to bring Mrs. Yulo to the office upstairs but her sister, Tita Rose, decided to let Corazon Garcia
go. Linda did not recognize any article of clothing which belonged to her father after having been
shown three (3) large suit cases full of men's clothes, underwear, sweaters, shorts and pajamas.
Tita Rose Liyao-Tan testified that her parents were legally married and had never been
separated. They resided at No. 21 Hernandez Street, San Lorenzo Village, Makati up to the time of
her father's death on December 2, 1975. 19 Her father suffered two (2) minor cardio-vascular arrests
(CVA) prior to his death. During the first heart attack sometime between April and May 1974, his
speech and hands were affected and he had to stay home for two (2) to three (3) months under strict
medication, taking aldomet, serpadil and cifromet which were prescribed by Dr. Bonifacio Yap, for
high blood pressure and cholesterol level control. 20 Tita Rose testified that after the death of Mr.
Liyao, Corazon Garcia was paid the amount of One Hundred Thousand Pesos (P100,000.00)
representing her investment in the Far East Realty Investment Inc. Tita Rose also stated that her
family never received any formal demand that they recognize a certain William Liyao, Jr. as an
illegitimate son of her father, William Liyao. After assuming the position of President of the company,
Tita Rose did not come across any check signed by her late father representing payment to lessors as
rentals for the house occupied by Corazon Garcia. Tita Rose added that the laminated photographs
presented by Corazon Garcia are the personal collection of the deceased which were displayed at the
latter's office.
The last witness who testified for the respondents was Ramon Pineda, driver and bodyguard
of William Liyao from 1962 to 1974, who said that he usually reported for work at San Lorenzo Village,
Makati to pick up his boss at 8:00 o'clock in the morning. At past 7:00 o'clock in the evening, either
Carlos Palamigan or Serafin Villacillo took over as night shift driver. Sometime between April and May
1974, Mr. Liyao got sick. It was only after a month that he was able to report to the office. Thereafter,
Mr. Liyao was not able to report to the office regularly. Sometime in September 1974, Mr. Liyao
suffered from another heart attack. Mr. Pineda added that as a driver and bodyguard of Mr. Liyao, he
ran errands for the latter among which was buying medicine for him like capasid and aldomet. On
December 2, 1975, Mr. Pineda was called inside the office of Mr. Liyao. Mr. Pineda saw his employer
leaning on the table. He tried to massage Mr. Liyao's breast and decided later to carry and bring him
to the hospital but Mr. Liyao died upon arrival thereat. Mrs. Liyao and her daughter, Linda Liyao-Ortiga
were the first to arrive at the hospital.
Mr. Pineda also declared that he knew Corazon Garcia to be one of the employees of the
Republic Supermarket. People in the office knew that she was married. Her husband, Ramon Yulo,
would sometimes go to the office. One time, in 1974, Mr. Pineda saw Ramon Yulo at the office garage
as if to fetch Corazon Garcia. Mr. Yulo who was also asking about cars for sale, represented himself
as car dealer.
Witness Pineda declared that he did not know anything about the claim of Corazon. He freely
relayed the information that he saw Mr. Yulo in the garage of Republic Supermarket once in 1973 and
then in 1974 to Atty. Quisumbing when he went to the latter's law office. Being the driver of Mr. Liyao
for a number of years, Pineda said that he remembered having driven the group of Mr. Liyao, Atty.
Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio for a vacation together with the
lawyers' wives. During his employment, as driver of Mr. Liyao, he does not remember driving for
Corazon Garcia on a trip to Baguio or for activities like shopping.
On August 31, 1993, the trial court rendered a decision, the dispositive portion of which reads
as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendants as follows:
(a) Confirming the appointment of Corazon G. Garcia as the guardian ad litem of
the minor William Liyao, Jr.;
(b) Declaring the minor William Liyao, Jr. as the illegitimate (spurious) son of the
deceased William Liyao;
 (c) Ordering the defendants Juanita Tanhoti Liyao, Pearl Margaret L. Tan, Tita
Rose L. Tan and Christian Liyao, to recognize, and acknowledge the minor
William Liyao, Jr. as a compulsory heir of the deceased William Liyao,
entitled to all successional rights as such; and
(d) Costs of suit.  21
In ruling for herein petitioner, the trial court said it was convinced by preponderance of
evidence that the deceased William Liyao sired William Liyao, Jr. since the latter was conceived at the
time when Corazon Garcia cohabited with the deceased. The trial court observed that herein
petitioner had been in continuous possession and enjoyment of the status of a child of the deceased
by direct and overt acts of the latter such as securing the birth certificate of petitioner through his
confidential secretary, Mrs. Virginia Rodriguez; openly and publicly acknowledging petitioner as his
son; providing sustenance and even introducing herein petitioner to his legitimate children.
The Court of Appeals, however, reversed the ruling of the trial court saying that the law favors
the legitimacy rather than the illegitimacy of the child and "the presumption of legitimacy is thwarted
only on ethnic ground and by proof that marital intimacy between husband and wife was physically
impossible at the period cited in Article 257 in relation to Article 255 of the Civil Code." The appellate
court gave weight to the testimonies of some witnesses for the respondents that Corazon Garcia and
Ramon Yulo who were still legally married and have not secured legal separation, were seen in each
other's company during the supposed time that Corazon cohabited with the deceased William Liyao.
The appellate court further noted that the birth certificate and the baptismal certificate of William
Liyao, Jr. which were presented by petitioner are not sufficient to establish proof of paternity in the
absence of any evidence that the deceased, William Liyao, had a hand in the preparation of said
certificates and considering that his signature does not appear thereon. The Court of Appeals stated
that neither do family pictures constitute competent proof of filiation. With regard to the passbook
which was presented as evidence for petitioner, the appellate court observed that there was nothing in
it to prove that the same was opened by William Liyao for either petitioner or Corazon Garcia since
William Liyao's signature and name do not appear thereon. ETIDaH
His motion for reconsideration having been denied, petitioner filed the present petition.
It must be stated at the outset that both petitioner and respondents have raised a number of
issues which relate solely to the sufficiency of evidence presented by petitioner to establish his claim
of filiation with the late William Liyao. Unfortunately, both parties have consistently overlooked the real
crux of this litigation: May petitioner impugn his own legitimacy to be able to claim from the estate of
his supposed father, William Liyao?
We deny the present petition.
Under the New Civil Code, a child born and conceived during a valid marriage is presumed to
be legitimate. 22 The presumption of legitimacy of children does not only flow out from a declaration
contained in the statute but is based on the broad principles of natural justice and the supposed virtue
of the mother. The presumption is grounded in a policy to protect innocent offspring from the odium of
illegitimacy. 23
The presumption of legitimacy of the child, however, is not conclusive and consequently, may
be overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code 24 provides:
Article 255. Children born after one hundred and eighty days following the
celebration of the marriage, and before three hundred days following its dissolution
or the separation of the spouses shall be presumed to be legitimate.
Against this presumption no evidence shall be admitted other than that of
the physical impossibility of the husband having access to his wife within the first
one hundred and twenty days of the three hundred which preceded the birth of the
child.
This physical impossibility may be caused:
1)  By the impotence of the husband;
2)  By the fact that husband and wife were living separately in such a way that
access was not possible;
 3)  By the serious illness of the husband.
Petitioner insists that his mother, Corazon Garcia, had been living separately for ten (10)
years from her husband, Ramon Yulo, at the time that she cohabited with the late William Liyao and it
was physically impossible for her to have sexual relations with Ramon Yulo when petitioner was
conceived and born. To bolster his claim, petitioner presented a document entitled, "Contract of
Separation," 25 executed and signed by Ramon Yulo indicating a waiver of rights to any and all
claims on any property that Corazon Garcia might acquire in the future. 26
The fact that Corazon Garcia had been living separately from her husband, Ramon Yulo, at
the time petitioner was conceived and born is of no moment. While physical impossibility for the
husband to have sexual intercourse with his wife is one of the grounds for impugning the legitimacy of
the child, it bears emphasis that the grounds for impugning the legitimacy of the child mentioned in
Article 255 of the Civil Code may only be invoked by the husband, or in proper cases, his heirs under
the conditions set forth under Article 262 of the Civil Code.27 Impugning the legitimacy of the child is
a strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that he
is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces and
he should be the one to decide whether to conceal that infidelity or expose it in view of the moral and
economic interest involved. 28 It is only in exceptional cases that his heirs are allowed to contest such
legitimacy. Outside of these cases, none — even his heirs — can impugn legitimacy; that would
amount to an insult to his memory. 29
It is therefor clear that the present petition initiated by Corazon G. Garcia as guardian  ad
litem of the then minor, herein petitioner, to compel recognition by respondents of petitioner William
Liyao, Jr, as the illegitimate son of the late William Liyao cannot prosper. It is settled that a child born
within a valid marriage is presumed legitimate even though the mother may have declared against its
legitimacy or may have been sentenced as an adulteress. 30 We cannot allow petitioner to maintain
his present petition and subvert the clear mandate of the law that only the husband, or in exceptional
circumstances, his heirs, could impugn the legitimacy of a child born in a valid and subsisting
marriage. The child himself cannot choose his own filiation. If the husband, presumed to be the father
does not impugn the legitimacy of the child, then the status of the child is fixed, and the latter cannot
choose to be the child of his mother's alleged paramour. On the other hand, if the presumption of
legitimacy is overthrown, the child cannot elect the paternity of the husband who successfully
defeated the presumption. 31
Do the acts of Enrique and Bernadette Yulo, the undisputed children of Corazon Garcia with
Ramon Yulo, in testifying for herein petitioner amount to impugnation of the legitimacy of the latter?
We think not. As earlier stated, it is only in exceptional cases that the heirs of the husband are
allowed to contest the legitimacy of the child. There is nothing on the records to indicate that Ramon
Yulo has already passed away at the time of the birth of the petitioner nor at the time of the initiation
of this proceedings. Notably, the case at bar was initiated by petitioner himself through his mother,
Corazon Garcia, and not through Enrique and Bernadette Yulo. It is settled that the legitimacy of the
child can be impugned only in a direct action brought for that purpose, by the proper parties and
within the period limited by law. cACDaH
Considering the foregoing, we find no reason to discuss the sufficiency of the evidence
presented by both parties on the petitioner's claim of alleged filiation with the late William Liyao. In any
event, there is no clear, competent and positive evidence presented by the petitioner that his alleged
father had admitted or recognized his paternity.
WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of Appeals
in CA-G.R. CV No. 45394 is hereby AFFIRMED. No costs.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.

 |||  (Liyao, Jr. v. Tanhoti-Liyao, G.R. No. 138961, [March 7, 2002], 428 PHIL 628-643)

SECOND DIVISION
 [G.R. No. 159785. April 27, 2007.]

TEOFISTO I. VERCELES,  petitioner,vs.MARIA CLARISSA POSADA, in her own

behalf, and as mother of minor VERNA AIZA POSADA, CONSTANTINO
POSADA and FRANCISCA POSADA, respondents.

DECISION

QUISUMBING,  J p:

This petition for review seeks the reversal of the Decision 1 dated May 30, 2003 and the
Resolution 2 dated August 27, 2003 of the Court of Appeals in CA-G.R. CV No. 50557. The appellate
court had affirmed with modification the Judgment 3 dated January 4, 1995 of the Regional Trial Court
(RTC) of Virac, Catanduanes, Branch 42, in Civil Case No. 1401. The RTC held petitioner liable to
pay monthly support to Verna Aiza Posada since her birth on September 23, 1987 as well as moral
and exemplary damages, attorney's fees and costs of suit.
The facts in this case as found by the lower courts are as follows:
Respondent Maria Clarissa Posada (Clarissa),a young lass from the barrio of Pandan,
Catanduanes, sometime in 1986 met a close family friend, petitioner Teofisto I. Verceles, mayor of
Pandan. He then called on the Posadas and at the end of the visit, offered Clarissa a job.
Clarissa accepted petitioner's offer and worked as a casual employee in the mayor's office
starting on September 1, 1986. From November 10 to 15 in 1986, with companions Aster de Quiros,
Pat del Valle, Jaime and Jocelyn Vargas, she accompanied petitioner to Legaspi City to attend a
seminar on town planning. They stayed at the Mayon Hotel. acHETI
On November 11, 1986, at around 11:00 a.m.,petitioner fetched Clarissa from "My Brother's
Place" where the seminar was being held. Clarissa avers that he told her that they would have lunch
at Mayon Hotel with their companions who had gone ahead. When they reached the place her
companions were nowhere. After petitioner ordered food, he started making amorous advances on
her. She panicked, ran and closeted herself inside a comfort room where she stayed until someone
knocked. She said she hurriedly exited and left the hotel. Afraid of the mayor, she kept the incident to
herself. She went on as casual employee. One of her tasks was following-up barangay  road and
maintenance projects.
On December 22, 1986, on orders of petitioner, she went to Virac, Catanduanes, to follow up
funds for barangay projects. At around 11:00 a.m. the same day, she went to Catanduanes Hotel on
instructions of petitioner who asked to be briefed on the progress of her mission. They met at the
lobby and he led her upstairs because he said he wanted the briefing done at the restaurant at the
upper floor.
Instead, however, petitioner opened a hotel room door, led her in, and suddenly embraced
her, as he told her that he was unhappy with his wife and would "divorce" her anytime. He also
claimed he could appoint her as a municipal development coordinator. She succumbed to his
advances. But again she kept the incident to herself.
Sometime in January 1987, when she missed her menstruation, she said she wrote petitioner
that she feared she was pregnant. In another letter in February 1987, she told him she was pregnant.
In a handwritten letter dated February 4, 1987, he replied: EcDTIH
My darling Chris,
Should you become pregnant even unexpectedly, I should have no regret,
because I love you and you love me.
Let us rejoice a common responsibility — you and I shall take care of it and
let him/her see the light of this beautiful world.
 We know what to do to protect our honor and integrity.
Just relax and be happy, if true.
With all my love,
Ninoy
2/4/87 4
Clarissa explained petitioner used an alias "Ninoy" and addressed her as "Chris," probably
because of their twenty-five (25)-year age gap. In court, she identified petitioner's penmanship which
she claims she was familiar with as an employee in his office. HCITDc
Clarissa presented three other handwritten letters 5 sent to her by petitioner, two of which
were in his letterhead as mayor of Pandan. She also presented the pictures 6 petitioner gave her of
his youth and as a public servant, all bearing his handwritten notations at the back.
Clarissa avers that on March 3, 1987, petitioner, aware of her pregnancy, handed her a letter
and P2,000 pocket money to go to Manila and to tell her parents that she would enroll in a CPA
review course or look for a job. In June 1987, petitioner went to see her in Manila and gave her
another P2,000 for her delivery. When her parents learned of her pregnancy, sometime in July, her
father fetched her and brought her back to Pandan. On September 23, 1987, 7 she gave birth to a
baby girl, Verna Aiza Posada.
Clarissa's mother, Francisca, corroborated Clarissa's story. She said they learned of their
daughter's pregnancy through her husband's cousin. She added that she felt betrayed by petitioner
and shamed by her daughter's pregnancy.
The Posadas filed a Complaint for Damages coupled with Support Pendente Lite before the
RTC, Virac, Catanduanes against petitioner on October 23, 1987. 8
On January 4, 1995, the trial court issued a judgment in their favor, the dispositive portion of
which reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in
favor of the [respondents] and against the [petitioner] and ordering the
latter: EaHIDC
1. to pay a monthly support of P2,000.00 to Verna Aiza Posada since her
birth on September 23, 1987 as he was proved to be the natural
father of the above-named minor as shown by the exhibits and
testimonies of the [respondents];
2. to pay the amount of P30,000.00 as moral damages;
3. to pay the amount of P30,000.00 as exemplary damages;
4. to pay the sum of P10,000.00 as attorney's fees; and
5. to pay the costs of the suit.
SO ORDERED. 9
Verceles appealed to the Court of Appeals which affirmed the judgment with modification,
specifying the party to whom the damages was awarded. The dispositive portion of the Court of
Appeals' decision reads:
WHEREFORE,the appealed judgment is AFFIRMED with modification by
ordering [petitioner] Teofisto I. Verceles:
1. To pay a monthly support of P2,000.00 to Verna Aiza Posada from her
birth on September 23, 1987. ASaTHc
2. To pay [respondent] Maria Clarissa Posada the sum of P15,000.00 as
moral damages and [P]15,000.00 as exemplary damages.
 3. To pay [respondents] spouses Constantino and Francisca Posada the
sum of P15,000.00 as moral damages and P15,000.00 as
exemplary damages.
4. To pay each of the said three [respondents] P10,000.00 as attorney's
fees;and
5. To pay the costs of suit.
SO ORDERED. 10
Hence, this petition.
Petitioner now presents the following issues for resolution:
I.
WAS THERE ANY EVIDENCE ON RECORD TO PROVE THAT APPELLANT
VERCELES WAS THE FATHER OF THE CHILD?
II.
WOULD THIS ACTION FOR DAMAGES PROSPER?
III.
WOULD THE RTC COURT HAVE ACQUIRED JURISDICTION OVER THIS ISSUE
OF APPELLANT'S PATERNITY OF THE CHILD, WHICH IS MADE COLLATERAL
TO THIS ACTION FOR DAMAGES? 11 EcHAaS
In sum, the pertinent issues in this case are: (1) whether or not paternity and filiation can be
resolved in an action for damages with support pendente lite;(2) whether or not the filiation of Verna
Aiza Posada as the illegitimate child of petitioner was proven; and (3) whether or not respondents are
entitled to damages.
In his Memorandum, petitioner asserts that the fact of paternity and filiation of Verna Aiza
Posada has not been duly established or proved in the proceedings; that the award for damages and
attorney's fees has no basis; and that the issue of filiation should be resolved in a direct and not a
collateral action.
Petitioner argues he never signed the birth certificate of Verna Aiza Posada as father and that
it was respondent Clarissa who placed his name on the birth certificate as father without his consent.
He further contends the alleged love letters he sent to Clarissa are not admissions of paternity but
mere expressions of concern and advice. 12 As to the award for damages, petitioner argues Clarissa
could not have suffered moral damages because she was in pari delicto,being a willing participant in
the "consensual carnal act" between them. 13 In support of his argument that the issue on filiation
should have been resolved in a separate action, petitioner cited the case of Rosales v. Castillo
Rosales 14 where we held that the legitimacy of a child which is controversial can only be resolved in
a direct action. 15 cdasiajur
On the other hand, respondents in their Memorandum maintain that the Court of Appeals
committed no error in its decision. They reiterate that Clarissa's clear narration of the circumstances
on "how she was deflowered" by petitioner, the love letters and pictures given by petitioner to
Clarissa, the corroborating testimony of Clarissa's mother, the fact that petitioner proffered no
countervailing evidence, are preponderant evidence of paternity. They cited the case of De Jesus v.
Syquia 16 where we held that a conceived child can be acknowledged because this is an act
favorable to the child. 17 They also argue that damages should be awarded because petitioner
inveigled Clarissa to succumb to his sexual advances. 18
Could paternity and filiation be resolved in an action for damages? On this score, we find
petitioner's stance unmeritorious. The caption is not determinative of the nature of a pleading. In a
string of cases we made the following rulings. It is not the caption but the facts alleged which give
meaning to a pleading. Courts are called upon to pierce the form and go into the substance
thereof. 19 In determining the nature of an action, it is not the caption, but the averments in the
petition and the character of the relief sought, that are controlling. 20
 A perusal of the Complaint before the RTC shows that although its caption states "Damages
coupled with Support Pendente Lite," Clarissa's averments therein, her meeting with petitioner, his
offer of a job, his amorous advances, her seduction, their trysts, her pregnancy, birth of her child, his
letters, her demand for support for her child, all clearly establish a case for recognition of paternity.
We have held that the due recognition of an illegitimate child in a record of birth, a will, a statement
before a court of record,or in any authentic writing is, in itself, a consummated act of
acknowledgement of the child, and no further court action is required. In fact, any authentic writing is
treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not
require a separate action for judicial approval. 21
The letters of petitioner marked as Exhibits "A" to "D" are declarations that lead nowhere but
to the conclusion that he sired Verna Aiza. Although petitioner used an alias in these letters, the
similarity of the penmanship in these letters vis the annotation at the back of petitioner's fading
photograph as a youth is unmistakable. Even an inexperienced eye will come to the conclusion that
they were all written by one and the same person, petitioner, as found by the courts a quo. aSIDCT
We also note that in his Memorandum, petitioner admitted his affair with Clarissa, the
exchange of love letters between them, and his giving her money during her pregnancy. 22
Articles 172 and 175 of the Family Code are the rules for establishing filiation. They are as
follows:
Art. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent
concerned. cEaDTA
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and special
laws.
Art. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in which
case the action may be brought during the lifetime of the alleged parent.
The letters, one of which is quoted above, are private handwritten instruments of petitioner
which establish Verna Aiza's filiation under Article 172 (2) of the Family Code. In addition, the array of
evidence presented by respondents, the dates, letters, pictures and testimonies, to us, are convincing,
and irrefutable evidence that Verna Aiza is, indeed, petitioner's illegitimate child. cHDaEI
Petitioner not only failed to rebut the evidence presented, he himself presented no evidence
of his own. His bare denials are telling. Well-settled is the rule that denials, if unsubstantiated by clear
and convincing evidence, are negative and self-serving which merit no weight in law and cannot be
given greater evidentiary value over the testimony of credible witnesses who testify on affirmative
matters. 23
We, however, cannot rule that respondents are entitled to damages. Article 2219 24 of
the Civil Code which states moral damages may be recovered in cases of seduction is inapplicable in
this case because Clarissa was already an adult at the time she had an affair with petitioner.
Neither can her parents be entitled to damages. Besides, there is nothing in law or
jurisprudence that entitles the parents of a consenting adult who begets a love child to damages.
Respondents Constantino and Francisca Posada have not cited any law or jurisprudence to justify
awarding damages to them.
We, however, affirm the grant of attorney's fees in consonance with Article 2208 (2) 25 and
(11) 26 of the New Civil Code.
WHEREFORE, the assailed Decision dated May 30, 2003 and the Resolution dated August
27, 2003 of the Court of Appeals in CA-G.R. CV No. 50557 are AFFIRMED, with the MODIFICATION
that the award of moral damages and exemplary damages be DELETED. cdasiajur
SO ORDERED.
Carpio, Carpio-Morales, Tinga and Velasco, Jr.,JJ., concur.

  (Verceles v. Posada, G.R. No. 159785, [April 27, 2007], 550 PHIL 609-620)

SECOND DIVISION

[G.R. No. 187273. February 15, 2017.]

ROMEO F. ARA AND WILLIAM A. GARCIA, petitioners, vs. DRA. FELY S.

PIZARRO AND HENRY ROSSI, respondents.

DECISION

LEONEN, J  p:

For a claim of filiation to succeed, it must be made within the period allowed, and
supported by the evidence required under the Family Code.
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, asking that
the Court of Appeals Decision 1 dated August 1, 2008 and Resolution 2 dated March 16, 2009, in
CA-G.R. CV No. 00729 entitled "Romeo F. Ara, Ramon A. Garcia, William A. Garcia, and Henry
A. Rossi v. Dra. Fely S. Pizarro," which modified the Decision 3 of the Regional Trial Court in
Special Civil Action No. 337-03 entitled "Romeo F. Ara, Ramon A. Garcia, William A. Garcia and
Henry A. Rossi vs. Dra. Fely S. Pizarro" for Judicial Partition, be set aside.
Romeo F. Ara and William A. Garcia (petitioners), and Dra. Fely S. Pizarro and Henry A.
Rossi (respondents) all claimed to be children of the late Josefa A. Ara (Josefa), who died on
November 18, 2002. 4
Petitioners assert that Fely S. Pizarro (Pizarro) was born to Josefa and her then husband,
Vicente Salgado (Salgado), who died during World War II. 5 At some point toward the end of the
war, Josefa met and lived with an American soldier by the name of Darwin Gray (Gray). 6 Romeo
F. Ara (Ara) was born from this relationship. Josefa later met a certain Alfredo Garcia (Alfredo),
and, from this relationship, gave birth to sons Ramon Garcia (Ramon) and William A. Garcia
(Garcia). 7 Josefa and Alfredo married on January 24, 1952. 8 After Alfredo passed away, Josefa
met an Italian missionary named Frank Rossi, who allegedly fathered Henry Rossi (Rossi). 9
Respondent Pizarro claims that, to her knowledge, she is the only child of
Josefa. 10 Further, petitioner Garcia is recorded as a son of a certain Carmen Bucarin and Pedro
Garcia, as evidenced by a Certificate of Live Birth dated July 19, 1950; 11 and petitioner Ara is
recorded as a son of spouses Jose Ara and Maria Flores, evidenced by his Certificate of Live
Birth. 12
 Petitioners, together with Ramon and herein respondent Rossi (collectively, plaintiffs a
quo), verbally sought partition of the properties left by the deceased Josefa, which were in the
possession of respondent Pizarro. 13 The properties are enumerated as follows:
1. Lot and other improvements located at Poblacion, Valencia City, Bukidnon with
an area of One Thousand Two Hundred Sixty Eight (1,268) sq. m. in the
name of Josefa Salgado covered by Katibayan ng Original na Titulo No. T-
30333; CAIHTE
2. Tamaraw FX; and
3. RCBC Bank Passbook in the amount of One Hundred Eight Thousand Pesos
(Php108,000.00) bank deposit. 14
Respondent Pizarro refused to partition these properties. Thus, plaintiffs a quo referred
the dispute to the Barangay Lupon for conciliation and amicable settlement. 15
The parties were unable to reach an amicable settlement. 16 Thus, the Office of the
Barangay Captain issued a Certification to File Action dated April 3, 2003. 17
Plaintiffs a quo filed a Complaint dated April 9, 2003 18 for judicial partition of properties
left by the deceased Josefa, before the Regional Trial Court of Malaybalay City, Branch 9 (Trial
Court). In her Answer, respondent Pizarro averred that, to her knowledge, she was the only
legitimate and only child of Josefa. 19 She denied that any of the plaintiffs a quo were her
siblings, for lack of knowledge or information to form a belief on that matter. 20 Further, the late
Josefa left other properties mostly in the possession of plaintiffs a quo, which were omitted in the
properties to be partitioned by the trial court in Special Civil Action No. 337-03, enumerated in her
counterclaim (Additional Properties). 21
Respondent Pizarro filed her Pre-Trial Brief dated July 28, 2003, which contained a
proposed stipulation that the Additional Properties also form part of the estate of
Josefa. 22 Amenable to this proposal, plaintiffs a quo moved that the Additional Properties be
included in the partition, in a Motion to Include in the Partition the Proposed Stipulation dated
August 31, 2003. 23
At the pre-trial, Ara, Garcia, and Ramon claimed a property of respondent Rossi as part of
the estate of Josefa. This property was not alleged nor claimed in the original complaint. This
compelled respondent Rossi to engage the services of separate counsel, as the claim of his
property constituted a conflict of interest among the plaintiffs a quo. 24
In a Pre-trial Order issued by the Trial Court on October 1, 2003, the following facts were
admitted:
4. All the above mentioned fathers of the children in this case, Mr. Vicente Salgado,
Mr. Darwin Grey [sic] and Henry Rosi (sic), are all deceased. Josefa Ara
Salgado is also deceased having died on November 18, 2002.
5. The properties mentioned in Paragraph 9 of the counter-claim mentioned in the
Answer filed by the defendant thru counsel are also admitted by both
counsels to be part of the properties subject of this partition case.
6. The Katibayan ng Orihinal na Titulo attached thereto as ANNEXES "C"-"C-1",
are all admitted as the subject properties.
7. Some properties involved maybe covered by the land reform program of the
government and the parties have agreed that only the remainder thereof or
the proceeds of compensation shall be partitioned among them. All these
properties shall be properly determined during the inventory to be finally
submitted to the Court for approval.
8. All the foregoing properties were acquired after the death of Vicente Salgado and
presumably all the exclusive properties of Josefa Ara Salgado. 25
After trial, on February 20, 2006, the Trial Court, issued a Decision. The decretal portion
states:
WHEREFORE, the Court renders a DECISION as follows:
 1. Awarding the Baguio property to Henry Rossi, to be deducted from his
share;
2. Awarding the Valencia property covered by OCT No. T-30333;
Tamaraw FX and the RCBC Bank Deposit Passbook to defendant Fely S.
Pizarro, to be deducted from her share; and
3. With respect to the other properties that may not be covered by the
foregoing, the same are declared under the co-ownership of all the plaintiffs and
defendant and in equal shares.
SO ORDERED. 26
Respondent Pizarro appealed the Trial Court Decision, claiming it erred in finding
petitioners Ara and Garcia to be children of Josefa, and including them in the partition of
properties. 27
Petitioners Ara and Garcia, as well as respondent Rossi, also filed their own respective
appeals to the Trial Court Decision. Respondent Rossi questioned the inclusion of his property in
the inventory of properties of the late Josefa. 28 Petitioners questioned the awarding of particular
properties to, and deductions from the respective shares of, respondents Pizarro and Rossi. 29
The Court of Appeals, 30 on August 1, 2008, promulgated its Decision 31 and held that
only respondents Pizarro and Rossi, as well as plaintiff a quo Ramon, were the children of the late
Josefa, entitled to shares in Josefa's estate:
WHEREFORE, premises considered, the instant Appeals are
PARTIALLY GRANTED. The assailed Decision dated 20 February 2006, of the
court a quo, is hereby AFFIRMED with MODIFICATION. The legitimate children
of Josefa Ara, namely, Fely Pizarro and Ramon A. Garcia, are each entitled to
one (1) share, while Henry Rossi, the illegitimate child of Josefa Ara, is entitled to
one-half (1/2) of the share of a legitimate child, of the total properties of the late
Josefa Ara sought to be partitioned[.]
xxx xxx xxx
SO ORDERED. 32
In omitting petitioners from the enumeration of Josefa's descendants, the Court of
Appeals reversed the finding of the Trial Court. The Court of Appeals found that the Trial Court
erred in allowing petitioners to prove their status as illegitimate sons of Josefa after her death:
In holding that appellants William A. Garcia and Romeo F. Ara are the
illegitimate sons of Josefa Ara, the court a quo ratiocinated:
Without anymore discussing the validity of their
respective birth and baptismal certificates, there is sufficient
evidence to hold that all the plaintiffs are indeed the children of
the said deceased Josefa Ara for having possessed and enjoyed
the status of recognized illegitimate children pursuant to the first
paragraph of Article 175 of the Family Code which
provides: DETACa
"Illegitimate children may establish their filiation
in the same way and on the same evidence as legitimate
children"
in relation to the second paragraph No. (1) of Article 172 of the
same code (sic), which provides:
"In the absence of the foregoing evidence,
legitimate filiation shall be proven by:
(1) the open and continuous possession of the status of
a legitimate child."
All the plaintiffs and defendant were taken care of and
supported by their mother Josefa Ara, including their education,
since their respective birth and were all united and lived as one
family even up to the death and burial of their said mother,
 Josefa Ara. Their mother had acknowledged all of them as her
children throughout all her life directly, continuously,
spontaneously and without concealment. 33 (Emphasis omitted.)
Petitioners, together with Garcia, and respondent Rossi filed separate Motions for
Reconsideration, which were both denied by the Court of Appeals on March 16, 2009. 34
Petitioners bring this Petition for Review on Certiorari. 35
Respondents Pizarro and Rossi filed their respective Comments on the
Petition. 36 Petitioners filed a Reply to respondents' Comments, as well as a Motion to Submit
Parties to DNA Testing, 37 which this Court denied. Memoranda were submitted by all the parties.
Petitioners argue that the Court of Appeals erroneously applied Article 285 of the Civil
Code, which requires that an action for the recognition of natural children be brought during the
lifetime of the presumed parents, subject to certain exceptions. 38 Petitioners assert that during
Josefa's lifetime, Josefa acknowledged all of them as her children directly, continuously,
spontaneously, and without concealment. 39
Petitioners claim that the Court of Appeals did not apply the second paragraph of Article
172 of the Family Code, which states that filiation may be established even without the record of
birth appearing in the civil register, or an admission of filiation in a public or handwritten
document. 40
Further, petitioners aver that the Court of Appeals erred in its asymmetric application of
the rule on establishing filiation. Thus, the Court of Appeals erred in finding that respondent
Pizarro was a daughter of Josefa Ara and Vicente Salgado, asserting there was no basis for the
same. Petitioners claim that, in her Formal Offer of Exhibits dated May 26, 2005, respondent
Pizarro offered as evidence only a Certificate of Marriage of Salgado and Josefa to support her
filiation to Josefa. 41
On respondent Rossi, petitioners claim that there is no direct evidence to prove his
filiation to Josefa, except for his Baptismal Certificate, which was testified to only by respondent
Rossi. 42
The primordial issue for this Court to resolve is whether petitioners may prove their
filiation to Josefa through their open and continuous possession of the status of illegitimate
children, found in the second paragraph of Article 172 of the Family Code.
This Petition is denied.
I
On establishing the filiation of illegitimate children, the Family Code provides:
Article 175. Illegitimate children may establish their illegitimate filiation in
the same way and on the same evidence as legitimate children.
The action must be brought within the same period specified in Article
173, except when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged parent.
Articles 172 and 173 of the Family Code provide:
Article 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws. (265a,
266a, 267a)
 Article 173. The action to claim legitimacy may be brought by the child
during his or her lifetime and shall be transmitted to the heirs should the child die
during minority or in a state of insanity. In these cases, the heirs shall have a
period of five years within which to institute the action.
The action already commenced by the child shall survive notwithstanding
the death of either or both of the parties. (268a)
Thus, a person who seeks to establish illegitimate filiation after the death of a putative
parent must do so via a record of birth appearing in the civil register or a final judgment, or an
admission of legitimate filiation. In Uyguangco v. Court of Appeals: 43
The following provision is therefore also available to the private
respondent in proving his illegitimate filiation:
Article 172. The filiation of legitimate children is
established by any of the following:
xxx xxx xxx
In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and special
laws.
While the private respondent has admitted that he has none of the
documents mentioned in the first paragraph (which are practically the same
documents mentioned in Article 278 of the Civil Code except for the "private
handwritten instrument signed by the parent himself"), he insists that he has
nevertheless been "in open and continuous possession of the status of an
illegitimate child," which is now also admissible as evidence of filiation.
Thus, he claims that he lived with his father from 1967 until 1973,
receiving support from him during that time; that he has been using the surname
Uyguangco without objection from his father and the petitioners as shown in his
high school diploma, a special power of attorney executed in his favor by Dorotea
Uyguangco, and another one by Sulpicio Uyguangco; that he has shared in the
profits of the copra business of the Uyguangcos, which is a strictly family
business; that he was a director, together with the petitioners, of the Alu and
Sons Development Corporation, a family corporation; and that in the addendum
to the original extrajudicial settlement concluded by the petitioners he was given a
share in his deceased father's estate. aDSIHc
It must be added that the illegitimate child is now also allowed to
establish his claimed filiation by "any other means allowed by the Rules of
Court and special laws," like his baptismal certificate, a judicial admission, a
family Bible in which his name has been entered, common reputation respecting
his pedigree, admission by silence, the testimonies of witnesses, and other kinds
of proof admissible under Rule 130 of the Rules of Court.
The problem of the private respondent, however, is that, since he seeks
to prove his filiation under the second paragraph of Article 172 of the Family
Code, his action is now barred because of his alleged father's death in 1975. The
second paragraph of this Article 175 reads as follows:
The action must be brought within the same period
specified in Article 173, except when the action is based on the
second paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent.
It is clear that the private respondent can no longer be allowed at this
time to introduce evidence of his open and continuous possession of the status of
an illegitimate child or prove his alleged filiation through any of the means allowed
 by the Rules of Court or special laws. The simple reason is that Apolinario
Uyguangco is already dead and can no longer be heard on the claim of his
alleged son's illegitimate filiation. 44
Petitioners did not present evidence that would prove their illegitimate filiation to their
putative parent, Josefa, after her death as provided under Articles 172 and 175 of the  Family
Code.
To recall, petitioners submitted the following to establish their filiation:
(1)  Garcia's Baptismal Certificate listing Josefa as his mother, showing that the baptism
was conducted on June 1, 1958, and that Garcia was born on June 23, 1951; 45
(2)  Garcia's Certificate of Marriage, listing Josefa as his mother; 46
(3)  A picture of Garcia's wedding, with Josefa and other relatives; 47
(4)  Certificate of Marriage showing that Alfredo and Josefa were married on January 24,
1952; 48
(5)  Garcia's Certificate of Live Birth from Paniqui, Tarlac, issued on October 23,
2003, 49 under Registry No. 2003-1447, which is a late registration of his birth,
showing he was born on June 23, 1951 to Alfredo and Josefa; 50
(6)  A group picture of all the parties in the instant case. 51
(7)  In the Comment of Rossi to the Formal Offer of Exhibits of Pizarro, Rossi stated:
1.  That William Garcia and Romeo Flores Ara are half
brothers of Dr. Henry Rossi their mother being Josefa Ara, who
did not register them as her children for fear of losing her pension
from the U.S. Veterans Office; 52
(8)  Ara testified that he was a son of the late Josefa and Gray, and that his record of birth
was registered at camp Murphy, Quezon City; 53 and
(9)  Nelly Alipio, first degree cousin of Josefa, testified that Ara was a son of Josefa and
Gray. 54
None of the foregoing constitutes evidence under the first paragraph of Article 172 of
the Family Code.
Although not raised by petitioners, it may be argued that petitioner Garcia's Certificate of
Live Birth obtained in 2003 through a late registration of his birth is a record of birth appearing in
the civil register under Article 172 of the Family Code.
True, birth certificates offer prima facie evidence of filiation. To overthrow the presumption
of truth contained in a birth certificate, a high degree of proof is needed. 55 However, the
circumstances surrounding the delayed registration prevent us from according it the same weight
as any other birth certificate.
There is a reason why birth certificates are accorded such high evidentiary value. Act No.
3753, or An Act to Establish a Civil Register, provides:
Section 5.  Registration and Certification of Births. — The declaration of
the physician or midwife in attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration shall be exempt from
the documentary stamp tax and shall be sent to the local civil registrar not later
than thirty days after the birth, by the physician, or midwife in attendance at the
birth or by either parent of the newly born child.
In such declaration, the persons above mentioned shall certify to the
following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c)
names, citizenship, and religion of parents or, in case the father is not known, of
the mother alone; (d) civil status of parents; (e) place where the infant was born;
(f) and such other data may be required in the regulation to be issued.
 In the case of an exposed child, the person who found the same shall
report to the local civil registrar the place, date and hour of finding and other
attendant circumstances.
In case of an illegitimate child, the birth certificate shall be signed and
sworn to jointly by the parents of the infant or only the mother if the father
refuses. In the latter case, it shall not be permissible to state or reveal in the
document the name of the father who refuses to acknowledge the child, or to give
therein any information by which such father could be identified.
Any foetus having human features which dies after twenty four hours of
existence completely disengaged from the maternal womb shall be entered in the
proper registers as having been born and having died.
Further, Rule 21 of National Statistics Office Administrative Order No. 1-93, or
the Implementing Rules and Regulations of Act No. 3753, provides that a person's birth be
registered with the Office of the Civil Registrar-General by one of the following individuals:
Rule 21.  Persons Responsible to Report the Event. — (1) When the birth
occurred in a hospital or clinic or in a similar institution, the administrator thereof
shall be responsible in causing the registration of such birth. However, it shall be
the attendant at birth who shall certify the facts of birth.
(2)  When the birth did not occur in a hospital or clinic or in a similar
institution, the physician, nurse, midwife, "hilot", or anybody who attended to the
delivery of the child shall be responsible both in certifying the facts of birth and
causing the registration of such birth.
(3)  In default of the hospital/clinic administrator or attendant at birth,
either or both parents of the child shall cause the registration of the birth.
(4)  When the birth occurs aboard a vehicle, vessel or airplane while in
transit, registration of said birth shall be a joint responsibility of the driver, captain
or pilot and the parents, as the case may be.
Further, the birth must be registered within 30 days from the time of birth. 56 Thus,
generally, the rules require that facts of the report be certified by an attendant at birth, within 30
days from birth. The attendant is not only an eyewitness to the event, but also presumably would
have no reason to lie on the matter. The immediacy of the reporting, combined with the
participation of disinterested attendants at birth, or of both parents, tend to ensure that the report
is a factual reporting of birth. In other words, the circumstances in which registration is made
obviate the possibility that registration is caused by ulterior motives. The law provides in the case
of illegitimate children that the birth certificate shall be signed and sworn to jointly by the parents
of the infant or only by the mother if the father refuses. This ensures that individuals are not
falsely named as parents. ETHIDa
National Statistics Office Administrative Order No. 1-93 also contemplates that reports of
birth may be made beyond the 30-day period:
Rule 25.  Delayed Registration of Birth. — (1) The requirements are:
a)  if the person is less than eighteen (18) years old, the following shall be
required:
i)  four (4) copies of the Certificate of Live Birth duly accomplished
and signed by the proper parties;
ii)  accomplished Affidavit for Delayed Registration at the back of
the Certificate of Live Birth by the father, mother or
guardian, declaring therein, among other things, the
following:
> name of child;
> date and place of birth;
> name of the father if the child is illegitimate and has been
acknowledged by him;
 > if legitimate, the date and place of marriage of parents;
and
> reason for not registering the birth within thirty (30) days
after the date of birth.
In case the party seeking late registration of the birth of an
illegitimate child is not the mother, the party shall, in addition to the
foregoing facts, declare in a sworn statement the present
whereabouts of the mother.
iii)  any two of the following documentary evidences which may
show the name of the child, date and place of birth, and
name of mother (and name of father, if the child has been
acknowledged):
> baptismal certificate;
> school records (nursery, kindergarten, or preparatory);
> income tax return of parent/s;
> insurance policy;
> medical records; and
> others, such as barangay captain's certification.
iv)  affidavit of two disinterested persons who might have witnessed
or known the birth of the child. (46:1aa)
b)  If the person is eighteen (18) years old or above, he shall apply for late
registration of his birth and the requirements shall be:
i)  all the requirements for a child who is less than eighteen (18)
years old; and
ii)  Certificate of Marriage, if married. (46:1ba)
(2)  Delayed registration of birth, like ordinary registration made at the
time of birth, shall be filed at the Office of the Civil Registrar of the place where
the birth occurred. (46:3)
(3)  Upon receipt of the application for delayed registration of birth, the
civil registrar shall examine the Certificate of Live Birth presented whether it has
been completely and correctly filled up and all requirements complied with. (47a)
(4)  In the delayed registration of the birth of an alien, travel documents
showing the origin and nationality of the parents shall be presented in addition to
the requirements mentioned in Rule 25 (1). (49:2a)
Thus, petitioners submitted in evidence a delayed registration of birth of Garcia, pursuant
to this rule. Petitioners point out that a hearing on the delayed registration was held at the Office
of the Municipal Civil Registrar of Paniqui, Tarlac. No one appeared to oppose the delayed
registration, despite a notice of hearing posted at the Office of the Civil Registrar. 57
It is analogous to cases where a putative father's name is written on a certificate of live
birth of an illegitimate child, without any showing that the putative father participated in preparing
the certificate. In Fernandez v. Court of Appeals: 58
Fourth, the certificates of live birth (Exh. "A"; Exh. "B") of the petitioners
identifying private respondent as their father are not also competent evidence on
the issue of their paternity. Again, the records do not show that private
respondent had a hand in the preparation of said certificates. In rejecting these
certificates, the ruling of the respondent court is in accord with our
pronouncement in Roces vs. Local Civil Registrar, 102 Phil. 1050 (1958), viz.:
". . . Section 5 of Act No. 3793 and Article 280 of the Civil
Code of the Philippines explicitly prohibited, not only the naming
of the father or the child born outside wedlock, when the birth
 certificates, or the recognition, is not filed or made by him,
but, also, the statement of any information or circumstances by
which he could be identified. Accordingly, the Local Civil
Registrar had no authority to make or record the paternity of an
illegitimate child upon the information of a third person and the
certificate of birth of an illegitimate child, when signed only by the
mother of the latter, is incompetent evidence of fathership of said
child.
We reiterated this rule in Berciles, op. cit., when we held that "a birth
certificate not signed by the alleged father therein indicated is not competent
evidence of paternity." 59 (Emphasis in the original).
In Berciles v. Government Service Insurance System: 60
The evidence considered by the Committee on Claims Settlement as
basis of its finding that Pascual Voltaire Berciles is an acknowledged natural child
of the late Judge Pascual Berciles is the birth certificate of said Pascual Voltaire
Berciles marked Exh. "6". We have examined carefully this birth certificate and
We find that the same is not signed by either the father or the mother; We find no
participation or intervention whatsoever therein by the alleged father, Judge
Pascual Berciles. Under our jurisprudence, if the alleged father did not intervene
in the birth certificate, the putting of his name by the mother or doctor or registrar
is null and void. Such registration would not be evidence of paternity. (Joaquin P.
Roces et al. vs. Local Civil Registrar of Manila, 102 Phil. 1050). The mere
certificate by the registrar without the signature of the father is not proof of
voluntary acknowledgment on his part (Dayrit vs. Piccio, 92 Phil. 729). A birth
certificate does not constitute recognition in a public instrument. (Pareja vs.
Pareja, et al., 95 Phil. 167). A birth certificate, to evidence acknowledgment,
must, under Section 5 of Act 3753, bear the signature under oath of the
acknowledging parent or parents. (Vidaurrazaga vs. Court of Appeals and
Francisco Ruiz, 91 Phil. 492).
xxx xxx xxx
In the case of Mendoza, et al. vs. Mella, 17 SCRA 788, the Supreme
Court speaking through Justice Makalintal who later became chief Justice,
said: cSEDTC
It should be noted, however, that a Civil Registry
Law was passed in 1930 (Act No. 3753) containing provisions for
the registration of births, including those of illegitimate parentage;
and the record of birth under such law, if sufficient in contents for
the purpose, would meet the requisites for voluntary recognition
even under Article 131. Since Rodolfo was born in 1935, after the
registry law was enacted, the question here really is whether or
not his birth certificate (Exhibit 1), which is merely a certified copy
of the registry record, may be relied upon as sufficient proof of
his having been voluntarily recognized. No such reliance, in our
judgment, may be placed upon it. While it contains the names of
both parents, there is no showing that they signed the original, let
alone swore to its contents as required in Section 5 of Act No.
3753 (Vidaurrazaga vs. Court of Appeals, 91 Phil. 493; In re
Adoption of Lydia Duran, 92 Phil. 729). For all that might have
happened, it was not even they or either of them who furnished
the data to be entered in the civil register. Petitioners say that in
any event the birth certificate is in the nature of a public
document wherein voluntary recognition of a natural child may
also be made, according to the same Article 131. True enough,
but in such a case there must be a clear statement in the
document that the parent recognizes the child as his or her own
(Madridejo vs. De Leon, 55 Phil. 1); and in Exhibit 1 no such
 statement appears. The claim of voluntary recognition is without
basis." 61
Further, in People v. Villar, 62 this Court sustained the Trial Court's rejection of a delayed
registration of birth as conclusive evidence of the facts stated therein:
In the resolution of the sole assignment of error we find as well-taken and
accordingly adopt as our own the lower court's ratiocination, thus:
After going over the evidence in support of the alleged
minority of the accused Francisco Villar when he committed the
crime on or about August 24, 1977, the Court finds that Exhibit 1
and the testimonies of the defense witnesses can not have more
probative value than the written statement of Francisco Villar,
Exhibit E. It is to be noted that Exhibit 1 is a delayed registration
of a supposed birth accomplished and submitted only on January
12, 1979 to the Local Civil Registrar of Caloocan City by the
witness Leonor Villar, long after the offense was committed and
after the prosecution finally rested its case on November 21,
1978, thus exposing the basis of Exhibit 1 to be resting on a
slender and shaky foundation, and more so, in the absence of
explanation from the defense of the reason for said late
registration. Hence, the Court rejects Exhibit 1. . . .
The appellant invokes Art. 410 of the Civil Code which reads:
Art. 410. The books making up the civil register and all
documents relating thereto shall be considered public documents
and shall be prima facie evidence of the facts herein contained.
Suffice it to say that the above-quoted provision makes the information
given in Exhibit 1 only prima facie but not conclusive evidence. This must be so
because the Local Civil Registrar merely receives the information submitted to
him; he does not inquire into its veracity. Moreover, to regard as conclusive the
content of a certificate of live birth can lead to absurd results. Supposing that
Leonor had given John F. Kennedy as the father of Francisco, are we to accept
that as an incontestable fact? In the light of the circumstances already narrated
concerning the preparation and submission of Exhibit 1, the lower court
committed no error in disregarding it. 63
A delayed registration of birth, made after the death of the putative parent, is tenuous
proof of filiation.
Thus, we are unable to accord petitioner Garcia's delayed registration of birth the same
evidentiary weight as regular birth certificates.
Even without a record of birth appearing in the civil register or a final judgment, filiation
may still be established after the death of a putative parent through an admission of filiation in a
public document or a private handwritten instrument, signed by the parent
concerned. 64 However, petitioners did not present in evidence any admissions of filiation.
An admission is an act, declaration, or omission of a party on a relevant fact, which may
be used in evidence against him. 65
The evidence presented by petitioners such as group pictures with Josefa and petitioners'
relatives, and testimonies do not show that Josefa is their mother. They do not contain any acts,
declarations, or omissions attributable directly to Josefa, much less ones pertaining to her filiation
with petitioners. Although petitioner Garcia's Baptismal Certificate, Certificate of Marriage, and
Certificate of Live Birth obtained via late registration all state that Josefa is his mother, they do not
show any act, declaration, of omission on the part of Josefa. Josefa did not participate in making
any of them. The same may be said of the testimonies presented. Although Josefa may have
been in the photographs, the photographs do not show any filiation. By definition, none of the
evidence presented constitutes an admission of filiation under Article 172 of the Family Code.
II
 The Trial Court bypassed the issue of the birth certificates and did not consider the first
paragraph of Article 172 of the Family Code. Instead, it ruled only on the open and continuous
possession of status of filiation:
Without anymore discussing the validity of their respective birth and
baptismal certificates, there is sufficient evidence to hold that all the plaintiffs are
indeed the children of the said deceased Josefa Ara for having possessed and
enjoyed the status of recognized illegitimate children pursuant to the first
paragraph of Article 175 of the Family Code[.]
xxx xxx xxx
All the plaintiffs and defendant were taken care of and supported by their
mother Josefa Ara, including their education, since their respective birth and were
all united and lived as one family even up to the death and burial of their said
mother, Josefa Ara. Their mother had acknowledged all of them as her children
throughout all her life directly, continuously, spontaneously and without
concealment. 66
Thus, the Court of Appeals found that the Trial Court had erred in allowing petitioners to
prove their illegitimate filiation through the open and continuous possession of the status of
illegitimate children after the death of the putative parent:
However, the trial court's finding cannot be sustained. Even granting for
the sake of argument that appellants Romeo F. Ara and William Garcia did enjoy
open and continuous possession of the status of an illegitimate child, still, they
should have proven this during the lifetime of the putative parent. Article 285 of
the  Civil Code provides the period for filing and (sic) action for recognition as
follows:
ART. 285. The action for the recognition of natural
children may be brought only during the lifetime of the presumed
parents, except in the following cases: SDAaTC
(1)  If the father or mother died during the minority of the child, in
which case the latter may file the action before the
expiration of four years from the attainment of his majority;
(2  If after the death of the father or of the mother a document
should appear of which nothing had been heard and in
which either or both parents recognize the child.
In this case, the action must be commenced within four
years from the finding of the document.
The two exceptions provided under the foregoing provision, have
however been omitted by Articles 172, 173 and 175 of the Family Code, which
We quote:
xxx xxx xxx
The law is very clear. If filiation is sought to be proved under the second
paragraph of Article 172 of the Family Code, the action must be brought during
the lifetime of the alleged parent. It is evident that appellants Romeo F. Ara and
William Garcia can no longer be allowed at this time to introduce evidence of their
open and continuous possession of the status of an illegitimate child or prove
their alleged filiation through any of the means allowed by the Rules of Court or
special laws. The simple reason is that Josefa Ara is already dead and can no
longer be heard on the claim of her alleged sons' illegitimate filiation. 67
The Court of Appeals did not adopt the Trial Court's appreciation of evidence. It ruled
that, because petitioners' putative parent Josefa had already passed away, petitioners were
proscribed from proving their filiation under the second paragraph of Article 172 of the  Family
Code.
The Court of Appeals properly did not give credence to the evidence submitted by
petitioners regarding their status.
 Josefa passed away in 2002. 68 After her death, petitioners could no longer be allowed to
introduce evidence of open and continuous illegitimate filiation to Josefa. The only evidence
allowed under the law would be a record of birth appearing in the civil register or a final judgment,
or an admission of legitimate filiation in a public document or a private signed, handwritten
instruction by Josefa.
An alleged parent is the best person to affirm or deny a putative descendant's filiation.
Absent a record of birth appearing in a civil register or a final judgment, an express admission of
filiation in a public document, or a handwritten instrument signed by the parent concerned, a
deceased person will have no opportunity to contest a claim of filiation.
In truth, it is the mother and in some cases, the father, who witnesses the actual birth of
their children. Descendants normally only come to know of their parents through nurture and
family lore. When they are born, they do not have the consciousness required to be able to claim
personal knowledge of their parents. It thus makes sense for the parents to be present when
evidence under the second paragraph of Article 172 is presented.
The limitation that an action to prove filiation as an illegitimate child be brought within the
lifetime of an alleged parent acknowledges that there may be other persons whose rights should
be protected from spurious claims. This includes other children, legitimate and illegitimate, whose
statuses are supported by strong evidence of a categorical nature.
Respondent Pizarro has submitted petitioners' certificates of live birth to further disprove
petitioners' filiation with Josefa. A Certificate of Live Birth issued in Paniqui, Tarlac on July 19,
1950 shows that Garcia's parents are Pedro Garcia and Carmen Bugarin 69 while another
Certificate of Live Birth issued in petitioner Ara's birthplace, Bauang, La Union, shows that he is
the son of spouses Jose Ara and Maria Flores. 70
The Court of Appeals gave credence to these birth certificates submitted by respondent
Pizarro:
The trustworthiness of public documents and the value given to the
entries made therein could be grounded on 1) the sense of official duty in the
preparation of the statement made, 2) the penalty which is usually affixed to a
breach of that duty, 3) the routine and disinterested origin of most such
statements, and 4) the publicity of record which makes more likely the prior
exposure of such errors as might have occurred.
Therefore, this Court upholds the birth certificates of William Garcia and
Romeo F. Ara, as issued by the Civil Registry, in line with Legaspi v. Court of
Appeals, where the High Court ruled that the evidentiary nature of public
documents must be sustained in the absence of strong, complete and conclusive
proof of its falsity or nullity. Consequently, appellants Romeo F. Ara and William
Garcia are deemed not to be the illegitimate sons of the late Josefa Ara. 71
Thus, the Court of Appeals made a determination on the evidence and found that the birth
certificates submitted by respondent Pizarro belong to petitioners Garcia and Ara. These birth
certificates name Carmen Bugarin 72 and Maria Flores, 73 as the respective mothers of
petitioners Garcia and Ara. Considering that these birth certificates do not name Josefa as a
parent of either petitioner, petitioners are properly determined not to be Josefa's children.
Petitioners point out that the Certificate of Birth does not contain petitioner Garcia's
correct birth date. They claim that the birth date of petitioner Garcia as recorded in his baptismal
certificate is June 23, 1951. This birth date is also reflected on his Certificate of Live Birth issued
by the Municipal Civil Registrar of Paniqui, Tarlac, as well as in the Notice of Hearing of the
delayed registration of birth certificate of petitioner Garcia. Thus, petitioners speculate that the
birth certificate submitted by respondent Pizarro is of a different "William Garcia":
Perhaps, defendant-appellant Fely Pizarro obtained a Certificate of Live Birth and
Cedula de Baotismo of a wrong person bearing the same name William Garcia
which always happened (sic) in our country considering that the family name
Garcia is very much common because in the said documents the birthdate of a
certain William Garcia was June 23, 1950 not June 23, 1951, the actual birth of
William Garcia. 74
 On this point, respondent Pizarro argues:
It may be noted that William Garcia obtained said Certificate more than six (6)
months after he, with his co-plaintiffs, had filed the case of judicial partition on 9
April 2003. Obviously, he found the need to apply for the late registration of his
birth when he learned from respondent's Answer that from her knowledge she is
the only child of Josefa Ara. Very likely, William Garcia already knew that he
already has a record of birth in the municipality of Paniqui, Tarlac, showing that
her mother was not Josefa Ara. 75
These are matters of appreciation of evidence, however, which cannot be subject of
inquiry in a petition for review under Rule 45. Nonetheless, considering that there were two
reports of birth for William Garcia, and considering further that one of the reports was made
only after initiating a case which would directly use said report, we cannot find error in the Court of
Appeals' decision to disregard the delayed registration.
Finally, petitioners' claim that there was no basis for the Court of Appeals to find that
respondents are the children of Josefa is untenable. Respondents' filiation with Josefa was not
put in question before the Trial Court. Even petitioners admitted in their Complaint that
respondents were Josefa's children. 76 Further, on appeal, no party questioned the Trial Court's
determination that respondents Pizarro and Rossi were the children of Josefa. Consequently, the
Court of Appeals did not err in sustaining these findings without requiring further proof.
WHEREFORE, the petition for review on certiorari is DENIED. The August 1, 2008
Decision and the March 16, 2009 Resolution of the Court of Appeals in CA-G.R. CV No. 00729
are AFFIRMED.
SO ORDERED.
Carpio, Peralta, Mendoza and  Jardeleza, JJ., concur.

|||  (Ara v. Pizarro, G.R. No. 187273, [February 15, 2017], 805 PHIL 759-786)
 THIRD DIVISION

[G.R. No. 148311. March 31, 2005.]

IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA

GARCIA

HONORATO B. CATINDIG,  petitioner,

DECISION

SANDOVAL-GUTIERREZ, J  p:

May an illegitimate child, upon adoption by her natural father, use the surname of her natural
mother as her middle name? This is the issue raised in the instant case.
The facts are undisputed.
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition 1 to adopt his
minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among others, that
Stephanie was born on June 26, 1994; 2 that her mother is Gemma Astorga Garcia; that Stephanie
has been using her mother's middle name and surname; and that he is now a widower and qualified
to be her adopting parent. He prayed that Stephanie's middle name Astorga be changed to "Garcia,"
her mother's surname, and that her surname “Garcia” be changed to "Catindig," his surname.
On March 23, 2001, 3 the trial court rendered the assailed Decision granting the adoption,
thus:
"After a careful consideration of the evidence presented by the petitioner,
and in the absence of any opposition to the petition, this Court finds that the
petitioner possesses all the qualifications and none of the disqualification provided
for by law as an adoptive parent, and that as such he is qualified to maintain, care
for and educate the child to be adopted; that the grant of this petition would
redound to the best interest and welfare of the minor Stephanie Nathy Astorga
Garcia. The Court further holds that the petitioner's care and custody of the child
since her birth up to the present constitute more than enough compliance with the
requirement of Article 35 of Presidential Decree No. 603.
WHEREFORE, finding the petition to be meritorious, the same is
GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all
obligations of obedience and maintenance with respect to her natural mother, and
for civil purposes, shall henceforth be the petitioner's legitimate child and legal heir.
 Pursuant to Article 189 of the Family Code of the Philippines, the minor shall be
known as STEPHANIE NATHY CATINDIG. TacESD
Upon finality of this Decision, let the same be entered in the Local Civil
Registrar concerned pursuant to Rule 99 of the Rules of Court.
Let copy of this Decision be furnished the National Statistics Office for
record purposes.
SO ORDERED." 4
On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration 5 praying
that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle
name.
On May 28, 2001, 6 the trial court denied petitioner's motion for reconsideration holding that
there is no law or jurisprudence allowing an adopted child to use the surname of his biological mother
as his middle name.
Hence, the present petition raising the issue of whether an illegitimate child may use the
surname of her mother as her middle name when she is subsequently adopted by her natural father.
Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a
consequence of adoption because: (1) there is no law prohibiting an adopted child from having a
middle name in case there is only one adopting parent; (2) it is customary for every Filipino to have as
middle name the surname of the mother; (3) the middle name or initial is a part of the name of a
person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a
proper name should not be violated; (5) permitting Stephanie to use the middle name "Garcia" (her
mother's surname) avoids the stigma of her illegitimacy; and; (6) her continued use of "Garcia" as her
middle name is not opposed by either the Catindig or Garcia families.
The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that
Stephanie should be permitted to use, as her middle name, the surname of her natural mother for the
following reasons:
First, it is necessary to preserve and maintain Stephanie's filiation with her natural mother
because under Article 189 of the Family Code, she remains to be an intestate heir of the latter. Thus,
to prevent any confusion and needless hardship in the future, her relationship or proof of that
relationship with her natural mother should be maintained.
Second, there is no law expressly prohibiting Stephanie to use the surname of her natural
mother as her middle name. What the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname
of the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the
Family Law Committees agreed that "the initial or surname of the mother should immediately precede
the surname of the father so that the second name, if any, will be before the surname of the
mother." 7
We find merit in the petition.
Use Of Surname Is Fixed By Law —
For all practical and legal purposes, a man's name is the designation by which he is known
and called in the community in which he lives and is best known. It is defined as the word or
combination of words by which a person is distinguished from other individuals and, also, as the label
or appellation which he bears for the convenience of the world at large addressing him, or in speaking
of or dealing with him. 8 It is both of personal as well as public interest that every person must have a
name. DCATHS
The name of an individual has two parts: (1) the given or proper name and (2) the surname or
family name. The given or proper name is that which is given to the individual at birth or at baptism, to
distinguish him from other individuals. The surname or family name is that which identifies the family
to which he belongs and is continued from parent to child. The given name may be freely selected by
the parents for the child, but the surname to which the child is entitled is fixed by law. 9
 Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the
use of surname 10 of an individual whatever may be his status in life, i.e., whether he may be
legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a
widow, thus:
"Art. 364. Legitimate and legitimated children shall principally use the
surname of the father.
Art. 365. An adopted child shall bear the surname of the adopter.
xxx xxx xxx
Art. 369. Children conceived before the decree annulling a voidable
marriage shall principally use the surname of the father.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's surname,
or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is his
wife, such as 'Mrs.'
Art. 371. In case of annulment of marriage, and the wife is the guilty party,
she shall resume her maiden name and surname. If she is the innocent spouse,
she may resume her maiden name and surname. However, she may choose to
continue employing her former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall continue
using her name and surname employed before the legal separation.
Art. 373. A widow may use the deceased husband's surname as though he
were still living, in accordance with Article 370.
Art. 374. In case of identity of names and surnames, the younger person
shall be obliged to use such additional name or surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between ascendants
and descendants, the word ‘Junior' can be used only by a son. Grandsons and
other direct male descendants shall either:
(1) Add a middle name or the mother's surname, or
(2) Add the Roman numerals II, III, and so on.
xxx xxx xxx"
Law Is Silent As To The Use Of
Middle Name —
As correctly submitted by both parties, there is no law regulating the use of a middle
name. Even Article 176 11 of the Family Code, as amended by Republic Act No. 9255, otherwise
known as "An Act Allowing Illegitimate Children To Use The Surname Of Their Father," is silent as to
what middle name a child may use. EAHDac
The middle name or the mother's surname is only considered in Article 375(1), quoted above,
in case there is identity of names and surnames between ascendants and descendants, in which
case, the middle name or the mother's surname shall be added.
Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of
the Civil Code merely provides that "an adopted child shall bear the surname of the adopter." Also,
Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the
matter, thus:
"(1) For civil purposes, the adopted shall be deemed to be a legitimate
child of the adopters and both shall acquire the reciprocal rights and obligations
arising from the relationship of parent and child, including the right of the adopted
to use the surname of the adopters;
xxx xxx xxx"
However, as correctly pointed out by the OSG, the members of the Civil Code and Family
Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname
of the child's mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and
Family Law Committees, the members approved the suggestion that the initial or surname of the
mother should immediately precede the surname of the father, thus:
"Justice Caguioa commented that there is a difference between the use by
the wife of the surname and that of the child because the father's surname
indicates the family to which he belongs, for which reason he would insist on the
use of the father's surname by the child but that, if he wants to, the child may also
use the surname of the mother.
 
Justice Puno posed the question: If the child chooses to use the surname
of the mother, how will his name be written? Justice Caguioa replied that it is up to
him but that his point is that it should be mandatory that the child uses the surname
of the father and permissive in the case of the surname of the mother.
Prof. Baviera remarked that Justice Caguioa's point is covered by the
present Article 364, which reads:
Legitimate and legitimated children shall principally use the surname of the
father.
Justice Puno pointed out that many names change through no choice of
the person himself precisely because of this misunderstanding. He then cited the
following example: Alfonso Ponce Enrile's correct surname is Ponce since the
mother's surname is Enrile but everybody calls him Atty. Enrile. Justice Jose
Gutierrez David's family name is Gutierrez and his mother's surname is David but
they all call him Justice David.
Justice Caguioa suggested that the proposed Article (12) be modified to
the effect that it shall be mandatory on the child to use the surname of the father
but he may use the surname of the mother by way of an initial or a middle name.
Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of
Surnames since in the proposed Article (10) they are just enumerating the rights of
legitimate children so that the details can be covered in the appropriate chapter.
xxx xxx xxx
Justice Puno remarked that there is logic in the simplification suggested by
Justice Caguioa that the surname of the father should always be last because there
are so many traditions like the American tradition where they like to use their
second given name and the Latin tradition, which is also followed by the Chinese
wherein they even include the Clan name.
xxx xxx xxx
Justice Puno suggested that they agree in principle that in the Chapter on
the Use of Surnames, they should say that initial or surname of the mother should
immediately precede the surname of the father so that the second name, if any, will
be before the surname of the mother. Prof. Balane added that this is really the
Filipino way. The Committee approved the suggestion." 12 (Emphasis
supplied) ETDSAc
 In the case of an adopted child, the law provides that "the adopted shall bear the surname of
the adopters." 13 Again, it is silent whether he can use a middle name. What it only expressly allows,
as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon
issuance of the decree of adoption. 14
The Underlying Intent of
Adoption Is In Favor of the
Adopted Child —
Adoption is defined as the process of making a child, whether related or not to the adopter,
possess in general, the rights accorded to a legitimate child. 15 It is a juridical act, a proceeding in
rem which creates between two persons a relationship similar to that which results from legitimate
paternity and filiation. 16 The modern trend is to consider adoption not merely as an act to establish a
relationship of paternity and filiation, but also as an act which endows the child with a legitimate
status. 17 This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the
Convention of the Rights of the Child initiated by the United Nations, accepted the principle that
adoption is impressed with social and moral responsibility, and that its underlying intent is geared to
favor the adopted child. 18 Republic Act No. 8552, otherwise known as the "Domestic Adoption Act of
1998," 19 secures these rights and privileges for the adopted. 20
One of the effects of adoption is that the adopted is deemed to be a legitimate child of the
adopter for all intents and purposes pursuant to Article 189 21 of the Family Code and Section
17 22 Article V of RA 8552. 23
Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the
rights provided by law to a legitimate child without discrimination of any kind, including the right to
bear the surname of her father and her mother, as discussed above. This is consistent with the
intention of the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it
is a Filipino custom that the initial or surname of the mother should immediately precede the surname
of the father.
Additionally, as aptly stated by both parties, Stephanie's continued use of her mother's
surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article
189(3) of the Family Code and Section 18 24 , Article V of RA 8552 (law on adoption) provide that the
adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or
claim her hereditary rights from her natural mother in the future.
Moreover, records show that Stephanie and her mother are living together in the house built
by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their
needs. Stephanie is closely attached to both her mother and father. She calls them "Mama" and
"Papa". Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mother's
surname as her middle name will not only sustain her continued loving relationship with her mother
but will also eliminate the stigma of her illegitimacy.
Liberal Construction of Adoption
Statutes In Favor Of Adoption —
It is a settled rule that adoption statutes, being humane and salutary, should be liberally
construed to carry out the beneficent purposes of adoption. 25 The interests and welfare of the
adopted child are of primary and paramount consideration, 26 hence, every reasonable intendment
should be sustained to promote and fulfill these noble and compassionate objectives of the law. 27
Lastly, Art. 10 of the New Civil Code provides that:
"In case of doubt in the interpretation or application of laws, it is presumed
that the lawmaking body intended right and justice to prevail."
This provision, according to the Code Commission, "is necessary so that it may tip the scales
in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of
the courts to avoid an injustice which may apparently be authorized by some way of interpreting the
law." 28
Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like
Stephanie, to use, as middle name her mother's surname, we find no reason why she should not be
allowed to do so.
 WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the
sense that Stephanie should be allowed to use her mother's surname "GARCIA" as her middle
name. cTSHaE
Let the corresponding entry of her correct and complete name be entered in the decree of
adoption.
SO ORDERED.
Panganiban, Corona, Carpio Morales and Garcia, JJ., concur.

|||  (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, [March 31,
2005], 494 PHIL 515-528)

FIRST DIVISION

[G.R. Nos. 168992-93. May 21, 2009.]

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

LIM,  petitioner.

IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM, MONINA P.

LIM,  petitioner.

DECISION

CARPIO,  J p:

The Case
This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set
aside the Decision 1 dated 15 September 2004 of the Regional Trial Court, General Santos City,
Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without
prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P. Lim.
The Facts
The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June
1974, she married Primo Lim (Lim). They were childless. Minor children, whose parents were
unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a
child of their own, petitioner and Lim registered the children to make it appear that they were the
children's parents. The children 2 were named Michelle P. Lim (Michelle) and Michael Jude P.
Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She
was born on 15 March 1977. 3 Michael was 11 days old when Ayuban brought him to petitioner's
clinic. His date of birth is 1 August 1983. 4
The spouses reared and cared for the children as if they were their own. They sent the
children to exclusive schools. They used the surname "Lim" in all their school records and
documents. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner
married Angel Olario (Olario), an American citizen. TcICEA
Thereafter, petitioner decided to adopt the children by availing of the amnesty 5 given
under Republic Act No. 8552 6 (RA 8552) to those individuals who simulated the birth of a child.
Thus, on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael
before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time
of the filing of the petitions for adoption, Michelle was 25 years old and already married, while
Michael was 18 years and seven months old.
Michelle and her husband gave their consent to the adoption as evidenced by their
Affidavits of Consent. 7 Michael also gave his consent to his adoption as shown in his Affidavit of
Consent. 8 Petitioner's husband Olario likewise executed an Affidavit of Consent 9 for the
adoption of Michelle and Michael.
In the Certification issued by the Department of Social Welfare and Development
(DSWD), Michelle was considered as an abandoned child and the whereabouts of her natural
parents were unknown. 10 The DSWD issued a similar Certification for Michael. 11
The Ruling of the Trial Court
On 15 September 2004, the trial court rendered judgment dismissing the petitions. The
trial court ruled that since petitioner had remarried, petitioner should have filed the petition jointly
with her new husband. The trial court ruled that joint adoption by the husband and the wife is
mandatory citing Section 7 (c), Article III of RA 8552 and Article 185 of the Family Code.
Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in
the Order dated 16 June 2005. In denying the motion, the trial court ruled that petitioner did not
fall under any of the exceptions under Section 7 (c), Article III of RA 8552. Petitioner's argument
that mere consent of her husband would suffice was untenable because, under the law, there are
additional requirements, such as residency and certification of his qualification, which the
husband, who was not even made a party in this case, must comply.
As to the argument that the adoptees are already emancipated and joint adoption is
merely for the joint exercise of parental authority, the trial court ruled that joint adoption is not only
for the purpose of exercising parental authority because an emancipated child acquires certain
rights from his parents and assumes certain obligations and responsibilities.
Hence, the present petition. DEAaIS
Issue
Petitioner appealed directly to this Court raising the sole issue of whether or not
petitioner, who has remarried, can singly adopt.
The Court's Ruling
Petitioner contends that the rule on joint adoption must be relaxed because it is the duty
of the court and the State to protect the paramount interest and welfare of the child to be adopted.
Petitioner argues that the legal maxim "dura lex sed lex" is not applicable to adoption cases. She
argues that joint parental authority is not necessary in this case since, at the time the petitions
were filed, Michelle was 25 years old and already married, while Michael was already 18 years of
age. Parental authority is not anymore necessary since they have been emancipated having
attained the age of majority.
We deny the petition.
Joint Adoption by Husband and Wife
It is undisputed that, at the time the petitions for adoption were filed, petitioner had
already remarried. She filed the petitions by herself, without being joined by her husband Olario.
We have no other recourse but to affirm the trial court's decision denying the petitions for
adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads:
SEC. 7. Who May Adopt. — The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil capacity and
legal rights, of good moral character, has not been convicted of any crime involving
moral turpitude, emotionally and psychologically capable of caring for children, at
least sixteen (16) years older than the adoptee, and who is in a position to support
and care for his/her children in keeping with the means of the family. The
requirement of sixteen (16) year difference between the age of the adopter and
adoptee may be waived when the adopter is the biological parent of the adoptee, or
is the spouse of the adoptee's parent;
 (b) Any alien possessing the same qualifications as above stated for
Filipino nationals: Provided, That his/her country has diplomatic relations with the
Republic of the Philippines, that he/she has been living in the Philippines for at least
three (3) continuous years prior to the filing of the application for adoption and
maintains such residence until the adoption decree is entered, that he/she has
been certified by his/her diplomatic or consular office or any appropriate
government agency that he/she has the legal capacity to adopt in his/her country,
and that his/her government allows the adoptee to enter his/her country as his/her
adopted son/daughter:  Provided, further, That the requirements on residency and
certification of the alien's qualification to adopt in his/her country may be waived for
the following:
(i) a former Filipino citizen who seeks to adopt a relative within the
fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her
Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt
jointly with his/her spouse a relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino spouses; or
(c) The guardian with respect to the ward after the termination of the
guardianship and clearance of his/her financial accountabilities. IcHTED
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the
other; or
(ii) if one spouse seeks to adopt his/her own illegitimate
son/daughter: Provided, however, That the other spouse has signified
his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the
illegitimate son/daughter of the other, joint parental authority shall be exercised by
the spouses. (Emphasis supplied)
The use of the word "shall" in the above-quoted provision means that joint adoption by the
husband and the wife is mandatory. This is in consonance with the concept of joint parental
authority over the child which is the ideal situation. As the child to be adopted is elevated to the
level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also
insures harmony between the spouses. 12
The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time
the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed
only by petitioner herself, without joining her husband, Olario, the trial court was correct in
denying the petitions for adoption on this ground.
Neither does petitioner fall under any of the three exceptions enumerated in Section 7.
First, the children to be adopted are not the legitimate children of petitioner or of her husband
Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner and
Olario are not legally separated from each other.
The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent
does not suffice. There are certain requirements that Olario must comply being an American
citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must
prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must
have been living in the Philippines for at least three continuous years prior to the filing of the
application for adoption; (3) he must maintain such residency until the adoption decree is entered;
(4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the
adopter's country as the latter's adopted child. None of these qualifications were shown and
proved during the trial.
 These requirements on residency and certification of the alien's qualification to adopt
cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives within
the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees
the legitimate children of petitioner.
Effects of Adoption
Petitioner contends that joint parental authority is not anymore necessary since the
children have been emancipated having reached the age of majority. This is untenable.
Parental authority includes caring for and rearing the children for civic consciousness and
efficiency and the development of their moral, mental and physical character and well-
being. 13 The father and the mother shall jointly exercise parental authority over the persons of
their common children. 14 Even the remarriage of the surviving parent shall not affect the parental
authority over the children, unless the court appoints another person to be the guardian of the
person or property of the children. 15
It is true that when the child reaches the age of emancipation — that is, when he attains
the age of majority or 18 years of age 16 — emancipation terminates parental authority over the
person and property of the child, who shall then be qualified and responsible for all acts of civil
life. 17 However, parental authority is merely just one of the effects of legal adoption. Article V
of RA 8552 enumerates the effects of adoption, thus:
ARTICLE V
EFFECTS OF ADOPTION
SEC. 16. Parental Authority. — Except in cases where the biological parent
is the spouse of the adopter, all legal ties between the biological parent(s) and the
adoptee shall be severed and the same shall then be vested on the adopter(s).
SEC. 17. Legitimacy. — The adoptee shall be considered the legitimate
son/daughter of the adopter(s) for all intents and purposes and as such is entitled to
all the rights and obligations provided by law to legitimate sons/daughters born to
them without discrimination of any kind. To this end, the adoptee is entitled to love,
guidance, and support in keeping with the means of the family.
SEC. 18. Succession. — In legal and intestate succession, the adopter(s)
and the adoptee shall have reciprocal rights of succession without distinction from
legitimate filiation. However, if the adoptee and his/her biological parent(s) had left
a will, the law on testamentary succession shall govern.
Adoption has, thus, the following effects: (1) sever all legal ties between the biological
parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2)
deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee
reciprocal rights and obligations arising from the relationship of parent and child, including but not
limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right
of the adopter and adoptee to be legal and compulsory heirs of each other. 18 Therefore, even if
emancipation terminates parental authority, the adoptee is still considered a legitimate child of the
adopter with all the rights 19 of a legitimate child such as: (1) to bear the surname of the father
and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and
other successional rights. Conversely, the adoptive parents shall, with respect to the adopted
child, enjoy all the benefits to which biological parents are entitled 20 such as support 21 and
successional rights. 22 DSETac
We are mindful of the fact that adoption statutes, being humane and salutary, hold the
interests and welfare of the child to be of paramount consideration. They are designed to provide
homes, parental care and education for unfortunate, needy or orphaned children and give them
the protection of society and family, as well as to allow childless couples or persons to experience
the joys of parenthood and give them legally a child in the person of the adopted for the
manifestation of their natural parental instincts. Every reasonable intendment should be sustained
to promote and fulfill these noble and compassionate objectives of the law.  23 But, as we have
ruled in  Republic v. Vergara: 24
 We are not unmindful of the main purpose of adoption statutes, which is the
promotion of the welfare of the children. Accordingly, the law should be construed
liberally, in a manner that will sustain rather than defeat said purpose. The law must
also be applied with compassion, understanding and less severity in view of the fact
that it is intended to provide homes, love, care and education for less fortunate
children. Regrettably, the Court is not in a position to affirm the trial court's decision
favoring adoption in the case at bar, for the law is clear and it cannot be
modified without violating the proscription against judicial legislation. Until
such time however, that the law on the matter is amended, we cannot sustain the
respondent-spouses' petition for adoption. (Emphasis supplied)
Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed
the petitions with her husband. We cannot make our own legislation to suit petitioner.
Petitioner, in her Memorandum, insists that subsequent events would show that joint
adoption could no longer be possible because Olario has filed a case for dissolution of his
marriage to petitioner in the Los Angeles Superior Court.
We disagree. The filing of a case for dissolution of the marriage between petitioner and
Olario is of no moment. It is not equivalent to a decree of dissolution of marriage. Until and unless
there is a judicial decree for the dissolution of the marriage between petitioner and Olario, the
marriage still subsists. That being the case, joint adoption by the husband and the wife is
required. We reiterate our ruling above that since, at the time the petitions for adoption were filed,
petitioner was married to Olario, joint adoption is mandatory.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September
2004 of the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258
and 1259. Costs against petitioner.
SO ORDERED. HcTSDa
Puno, C.J., Corona, Leonardo-de Castro and Bersamin, JJ., concur.

|||  (In re Lim, G.R. Nos. 168992-93, [May 21, 2009], 606 PHIL 82-94)
 SECOND DIVISION

[G.R. No. 188801. October 15, 2014.]

ROSARIO MATA CASTRO and JOANNE BENEDICTA CHARISSIMA M.

CASTRO, A.K.A. "MARIA SOCORRO M. CASTRO" and "JAYROSE M.
CASTRO," petitioners, vs. JOSE MARIA JED LEMUEL GREGORIO and ANA
MARIA REGINA GREGORIO,  respondents.

DECISION

LEONEN, J  p:

The policy of the law is clear. In order to maintain harmony, there must be a showing of notice
and consent. This cannot be defeated by mere procedural devices. In all instances where it appears
that a spouse attempts to adopt a child out of wedlock, the other spouse and other legitimate children
must be personally notified through personal service of summons. It is not enough that they be
deemed notified through constructive service.
This is a petition for review on certiorari 1 assailing the decision 2 of the Court of Appeals in
CA-G.R. SP No. 101021, which denied the petition for annulment of judgment filed by petitioners. The
petition before the appellate court sought to annul the judgment of the trial court that granted
respondents' decree of adoption. 3
The case originally stemmed from the adoption of Jose Maria Jed Lemuel Gregorio (Jed) and
Ana Maria Regina Gregorio (Regina) by Atty. Jose G. Castro (Jose). Jose is the estranged husband
of Rosario Mata Castro (Rosario) and the father of Joanne Benedicta Charissima M. Castro (Joanne),
also known by her baptismal name, "Maria Socorro M. Castro" and her nickname, "Jayrose."
Rosario alleged that she and Jose were married on August 5, 1962 in Laoag City. Their
marriage had allegedly been troubled. They had a child, Rose Marie, who was born in 1963, but
succumbed to congenital heart disease and only lived for nine days. Rosario allegedly left Jose after a
couple of months because of the incompatibilities between them. 4
Rosario and Jose, however, briefly reconciled in 1969. Rosario gave birth to Joanne a year
later. She and Jose allegedly lived as husband and wife for about a year even if she lived in Manila
and Jose stayed in Laoag City. Jose would visit her in Manila during weekends. Afterwards, they
separated permanently because Rosario alleged that Jose had homosexual tendencies. 5 She
insisted, however, that they "remained friends for fifteen (15) years despite their separation(.)" 6
 On August 1, 2000, Jose filed a petition 7 for adoption before the Regional Trial Court of
Batac, Ilocos Norte. In the petition, he alleged that Jed and Regina were his illegitimate children with
Lilibeth Fernandez Gregorio (Lilibeth), 8 whom Rosario alleged was his erstwhile housekeeper. 9 At
the time of the filing of the petition, Jose was 70 years old. 10
According to the Home Study Report 11 conducted by the Social Welfare Officer of the trial
court, Jose belongs to a prominent and respected family, being one of the three children of former
Governor Mauricio Castro. He was also a well-known lawyer in Manila and Ilocos Norte. 12 The report
mentioned that he was once married to Rosario, but the marriage did not produce any children.  13 It
also stated that he met and fell in love with Lilibeth in 1985, and Lilibeth was able to bear him two
children, Jed on August 1987, and Regina on March 1989. 14 Under "Motivation for Adoption," the
social welfare officer noted: SEAHID
Since, he has no child with his marriaged [sic] to Rosario Mata, he was not
able to fulfill his dreams to parent a child. However, with the presence of his 2
illegitimate children will fulfill his dreams [sic] and it is his intention to legalize their
relationship and surname. . . . 15
At the time of the report, Jose was said to be living with Jed and Regina temporarily in Batac,
Ilocos Norte. 16 The children have allegedly been in his custody since Lilibeth's death in July 1995. 17
On October 16, 2000, the trial court approved the adoption, 18 having ruled that "[n]o
opposition had been received by this Court from any person including the government which was
represented by the Office of the Solicitor General." 19 A certificate of finality 20 was issued on
February 9, 2006.
Meanwhile, on July 3, 2006, Rosario, through her lawyer, Atty. Rene V. Saguisag, filed a
complaint for disbarment against Jose with the Integrated Bar of the Philippines. 21 In her complaint,
she alleged that Jose had been remiss in providing support for their daughter, Joanne, for the past 36
years. 22 She alleged that she single-handedly raised and provided financial support to Joanne while
Jose had been showering gifts to his driver and alleged lover, Larry R. Rentegrado (Larry), and even
went to the extent of adopting Larry's two children, Jed and Regina, without her and Joanne's
knowledge and consent. 23 She also alleged that Jose made blatant lies to the trial court by alleging
that Jed and Regina were his illegitimate children with Larry's wife, Lilibeth, to cover up for his
homosexual relationship with Larry. 24
In his answer before the Integrated Bar of the Philippines, Jose denies being remiss in his
fatherly duties to Joanne during her minority. He alleged that he always offered help, but it was often
declined. 25 He also alleged that he adopted Jed and Regina because they are his illegitimate
children. He denied having committed any of the falsification alluded to by Rosario. He also stated
that he had suffered a stroke in 1998 that left him paralyzed. He alleged that his income had been
diminished because several properties had to be sold to pay for medical treatments. 26 He then
implored the Integrated Bar of the Philippines to weigh on the case with "justice and equity." 27
On October 8, 2006, Jose died in Laoag City, Ilocos Norte. 28
On October 18, 2007, Rosario and Joanne filed a petition for annulment of judgment
under Rule 47 of the Rules of Civil Procedure with the Court of Appeals, seeking to annul the October
16, 2000 decision of the trial court approving Jed and Regina's adoption. 29
In their petition, Rosario and Joanne allege that they learned of the adoption sometime in
2005. 30 They allege that Rosario's affidavit of consent, marked by the trial court as "Exh. K,"  31 was
fraudulent. 32 They also allege that Jed and Regina's birth certificates showed different sets of
information, such as the age of their mother, Lilibeth, at the time she gave birth. They argue that one
set of birth certificates states the father to be Jose and in another set of National Statistic Office
certificates shows the father to be Larry, Jose's driver and alleged lover. 33 It was further alleged that
Jed and Regina are not actually Jose's illegitimate children but the legitimate children of Lilibeth and
Larry who were married at the time of their birth. 34
On May 26, 2009, the Court of Appeals denied the petition.
While admittedly, no notice was given by the trial court to Rosario and Joanne of the
adoption, the appellate court ruled that there is "no explicit provision in the rules that the spouse and
legitimate child of the adopter . . . should be personally notified of the hearing." 35
 The appellate court "abhor[red] the mind baffling scheme employed by [Jose] in obtaining an
adoption decree in favor of [his illegitimate children] to the prejudice of the interests of his legitimate
heirs" 36 but stated that its hands were bound by the trial court decision that had already attained
"finality and immutability." 37
The appellate court also ruled that the alleged fraudulent information contained in the different
sets of birth certificates required the determination of the identities of the persons stated therein and
was, therefore, beyond the scope of the action for annulment of judgment. The alleged fraud was also
perpetrated during the trial and could not be classified as extrinsic fraud, which is required in an action
for annulment of judgment. 38
When Rosario and Joanne's motion for reconsideration was denied on July 10, 2009, 39 they
filed this petition.
The issue before this court is whether the Court of Appeals erred in denying the petition for
annulment for failure of petitioners to (1) show that the trial court lacked jurisdiction and (2) show the
existence of extrinsic fraud.
In their petition, petitioners argue that the appellate court erred in its application of the law on
extrinsic fraud as ground to annul a judgment. 40 They argue that because of the fabricated consent
obtained by Jose and the alleged false information shown in the birth certificates presented as
evidence before the trial court, 41 they were not given the opportunity to oppose the petition since the
entire proceedings were concealed from them. 42
Petitioners also argue that the appellate court misunderstood and misapplied the law on
jurisdiction despite the denial of due process, notice, and non-inclusion of indispensable
parties. 43 They argue that the adoption of illegitimate children requires the consent, not only of the
spouse, but also the legitimate children 10 years or over of the adopter, and such consent was never
secured from Joanne. 44
Respondents, however, argue in their comment that petitioners could not have been deprived
of their day in court since their interest was "amply protected by the participation and representation of
the Solicitor General through the deputized public prosecutor." 45 CHATcE
Respondents also argue that there was constructive notice through publication for three
consecutive weeks in a newspaper of general circulation, which constitutes not only notice to them but
also notice to the world of the adoption proceedings. 46 They argue that since the alleged fraud was
perpetrated during the trial, it cannot be said to be extrinsic fraud but intrinsic fraud, which is not a
ground for annulment of judgment. 47 They also argue that petitioners were not indispensable parties
because adoption is an action in rem and, as such, the only indispensable party is the state. 48
The petition is granted.
Annulment of judgment under Rule
47 of the Rules of Civil Procedure
Under Rule 47, Section 1 of the Rules of Civil Procedure, a party may file an action with the
Court of Appeals to annul judgments or final orders and resolutions in civil actions of Regional Trial
Courts. This remedy will only be available if "the ordinary remedies of new trial, appeal, petition for
relief or other appropriate remedies are no longer available through no fault of the
petitioner." 49 aHATDI
In Dare Adventure Farm Corporation v. Court of Appeals: 50
A petition for annulment of judgment is a remedy in equity so exceptional in
nature that it may be availed of only when other remedies are wanting, and only if
the judgment, final order or final resolution sought to be annulled was rendered by
a court lacking jurisdiction or through extrinsic fraud. Yet, the remedy, being
exceptional in character, is not allowed to be so easily and readily abused by
parties aggrieved by the final judgments, orders or resolutions. The Court has thus
instituted safeguards by limiting the grounds for the annulment to lack of jurisdiction
and extrinsic fraud, and by prescribing in Section 1 of Rule 47 of the Rules of Court
that the petitioner should show that the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are no longer available through no
 fault of the petitioner. A petition for annulment that ignores or disregards any of the
safeguards cannot prosper.
The attitude of judicial reluctance towards the annulment of a judgment,
final order or final resolution is understandable, for the remedy disregards the time-
honored doctrine of immutability and unalterability of final judgments, a solid corner
stone in the dispensation of justice by the courts. The doctrine of immutability and
unalterability serves a two-fold purpose, namely: (a) to avoid delay in the
administration of justice and thus, procedurally, to make orderly the discharge of
judicial business; and (b) to put an end to judicial controversies, at the risk of
occasional errors, which is precisely why the courts exist. As to the first, a judgment
that has acquired finality becomes immutable and unalterable and is no longer to
be modified in any respect even if the modification is meant to correct an erroneous
conclusion of fact or of law, and whether the modification is made by the court that
rendered the decision or by the highest court of the land. As to the latter,
controversies cannot drag on indefinitely because fundamental considerations of
public policy and sound practice demand that the rights and obligations of every
litigant must not hang in suspense for an indefinite period of time. 51 (Emphasis
supplied)
Because of the exceptional nature of the remedy, there are only two grounds by which
annulment of judgment may be availed of: extrinsic fraud, which must be brought four years from
discovery, and lack of jurisdiction, which must be brought before it is barred by estoppel or laches. 52
Lack of jurisdiction under this rule means lack of jurisdiction over the nature of the action or
subject matter, or lack of jurisdiction over the parties. 53 Extrinsic fraud, on the other hand, is "[that
which] prevents a party from having a trial or from presenting his entire case to the court, or [that
which] operates upon matters pertaining not to the judgment itself but to the manner in which it is
procured." 54
The grant of adoption over respondents should be annulled as the trial court did not validly
acquire jurisdiction over the proceedings, and the favorable decision was obtained through extrinsic
fraud.
Jurisdiction over adoption
proceedings vis-à-vis the law on
adoption
Petitioners argue that they should have been given notice by the trial court of the adoption, as
adoption laws require their consent as a requisite in the proceedings.
Petitioners are correct.
It is settled that "the jurisdiction of the court is determined by the statute in force at the time of
the commencement of the action.'' 55 As Jose filed the petition for adoption on August 1, 2000, it
is Republic Act No. 8552 56 which applies over the proceedings. The law on adoption requires that
the adoption by the father of a child born out of wedlock obtain not only the consent of his wife but
also the consent of his legitimate children.
Under Article III, Section 7 of Republic Act No. 8552, the husband must first obtain the
consent of his wife if he seeks to adopt his own children born out of wedlock:
ARTICLE III
ELIGIBILITY
SEC. 7. Who May Adopt. — The following may adopt:
xxx xxx xxx
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,
however, That the other spouse has signified his/her consent thereto; or
 (iii) if the spouses are legally separated from each other. . . (Emphasis supplied)
The provision is mandatory. As a general rule, the husband and wife must file a joint petition
for adoption. The rationale for this is stated in In Re: Petition for Adoption of Michelle P. Lim: 57
The use of the word "shall" in the above-quoted provision means that joint
adoption by the husband and the wife is mandatory. This is in consonance with the
concept of joint parental authority over the child which is the ideal situation. As the
child to be adopted is elevated to the level of a legitimate child, it is but natural to
require the spouses to adopt jointly. The rule also insures harmony between the
spouses. 58
The law provides for several exceptions to the general rule, as in a situation where a spouse
seeks to adopt his or her own children born out of wedlock. In this instance, joint adoption is not
necessary. However, the spouse seeking to adopt must first obtain the consent of his or her spouse.
In the absence of any decree of legal separation or annulment, Jose and Rosario remained
legally married despite their de facto separation. For Jose to be eligible to adopt Jed and Regina,
Rosario must first signify her consent to the adoption. Jose, however, did not validly obtain Rosario's
consent. His submission of a fraudulent affidavit of consent in her name cannot be considered
compliance of the requisites of the law. Had Rosario been given notice by the trial court of the
proceedings, she would have had a reasonable opportunity to contest the validity of the affidavit.
Since her consent was not obtained, Jose was ineligible to adopt.
The law also requires the written consent of the adopter's children if they are 10 years old or
older. In Article III, Section 9 of Republic Act No. 8552:
SEC. 9. Whose Consent is Necessary to the Adoption. — After being
properly counseled and informed of his/her right to give or withhold his/her approval
of the adoption, the written consent of the following to the adoption is hereby
required:
xxx xxx xxx
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the
adopter(s) and adoptee, if any; (Emphasis supplied)
The consent of the adopter's other children is necessary as it ensures harmony among the
prospective siblings. It also sufficiently puts the other children on notice that they will have to share
their parent's love and care, as well as their future legitimes, with another person.
It is undisputed that Joanne was Jose and Rosario's legitimate child and that she was over 10
years old at the time of the adoption proceedings. Her written consent, therefore, was necessary for
the adoption to be valid.
To circumvent this requirement, however, Jose manifested to the trial court that he and
Rosario were childless, thereby preventing Joanne from being notified of the proceedings. As her
written consent was never obtained, the adoption was not valid. EHcaDT
For the adoption to be valid, petitioners' consent was required by Republic Act No. 8552.
Personal service of summons should have been effected on the spouse and all legitimate children to
ensure that their substantive rights are protected. It is not enough to rely on constructive notice as in
this case. Surreptitious use of procedural technicalities cannot be privileged over substantive statutory
rights.
Since the trial court failed to personally serve notice on Rosario and Joanne of the
proceedings, it never validly acquired jurisdiction.
There was extrinsic fraud
The appellate court, in denying the petition, ruled that while fraud may have been committed
in this case, it was only intrinsic fraud, rather than extrinsic fraud. This is erroneous.
In People v. Court of Appeals and Socorro Florece: 59
 Extrinsic fraud refers to any fraudulent act of the prevailing party in litigation
committed outside of the trial of the case, whereby the defeated party is
prevented from fully exhibiting his side of the case by fraud or deception
practiced on him by his opponent, such as by keeping him away from court,
by giving him a false promise of a compromise, or where the defendant never had
the knowledge of the suit, being kept in ignorance by the acts of the plaintiff, or
where an attorney fraudulently or without authority connives at his
defeat. 60 (Emphasis supplied)
An action for annulment based on extrinsic fraud must be brought within four years from
discovery. 61 Petitioners alleged that they were made aware of the adoption only in 2005. The filing of
this petition on October 18, 2007 is within the period allowed by the rules.
The badges of fraud are present in this case.
First, the petition for adoption was filed in a place that had no relation to any of the parties.
Jose was a resident of Laoag City, Ilocos Norte. 62 Larry and Lilibeth were residents of Barangay 6,
Laoag City. 63 Jed and Regina were born in San Nicolas, Ilocos Norte. 64 Rosario and Joanne were
residents of Parañaque City, Manila. 65 The petition for adoption, however, was filed in the Regional
Trial Court of Batac, Ilocos Norte. 66 The trial court gave due course to the petition on Jose's bare
allegation in his petition that he was a resident of Batac, 67 even though it is admitted in the Home
Study Report that he was a practicing lawyer in Laoag City. 68
Second, using the process of delayed registration, 69 Jose was able to secure birth
certificates for Jed and Regina showing him to be the father and Larry as merely the
informant. 70 Worse still is that two different sets of fraudulent certificates were procured: one
showing that Jose and Lilibeth were married on December 4, 1986 in Manila, 71 and another wherein
the portion for the mother's name was not filled in at all. 72 The birth certificates of Jed and Regina
from the National Statistics Office, however, show that their father was Larry R. Rentegrado. 73 These
certificates are in clear contradiction to the birth certificates submitted by Jose to the trial court in
support of his petition for adoption.
Third, Jose blatantly lied to the trial court when he declared that his motivation for adoption
was because he and his wife, Rosario, were childless, 74 to the prejudice of their daughter, Joanne.
The consent of Rosario to the adoption was also disputed by Rosario and alleged to be fraudulent. 75
All these tactics were employed by Jose, not only to induce the trial court in approving his
petition, but also to prevent Rosario and Joanne from participating in the proceedings or opposing the
petition.
The appellate court erroneously classified the fraud employed by Jose as intrinsic on the
basis that they were "forged instruments or perjured testimonies" 76 presented during the trial. It failed
to understand, however, that fraud is considered intrinsic when the other party was either present at
the trial or was a participant in the proceedings when such instrument or testimony was presented in
court, thus:
[I]ntrinsic fraud refers to the acts of a party at a trial that prevented a fair
and just determination of the case, but the difference is that the acts or things, like
falsification and false testimony, could have been litigated and determined at the
trial or adjudication of the case. In other words, intrinsic fraud does not deprive the
petitioner of his day in court because he can guard against that kind of fraud
through so many means, including a thorough trial preparation, a skillful cross-
examination, resorting to the modes of discovery, and proper scientific or forensic
applications. Indeed, forgery of documents and evidence for use at the trial and
perjury in court testimony have been regarded as not preventing the participation of
any party in the proceedings, and are not, therefore, constitutive of extrinsic
fraud. 77 (Emphasis supplied)
When fraud is employed by a party precisely to prevent the participation of any other
interested party, as in this case, then the fraud is extrinsic, regardless of whether the fraud was
committed through the use of forged documents or perjured testimony during the trial.
Jose's actions prevented Rosario and Joanne from having a reasonable opportunity to
contest the adoption. Had Rosario and Joanne been allowed to participate, the trial court would have
hesitated to grant Jose's petition since he failed to fulfill the necessary requirements under the law.
There can be no other conclusion than that because of Jose's acts, the trial court granted the decree
of adoption under fraudulent circumstances.
The law itself provides for penal sanctions for those who violate its provisions. Under Article
VII, Section 21 of Republic Act No. 8552:
ARTICLE VII
VIOLATIONS AND PENALTIES
SEC. 21. Violations and Penalties. —
(a) The penalty of imprisonment ranging from six (6) years and one (1) day
to twelve (12) years and/or a fine not less than Fifty thousand
pesos (P50,000.00), but not more than Two hundred thousand
pesos (P200,000.00) at the discretion of the court shall be imposed
on any person who shall commit any of the following acts:
(i) obtaining consent for an adoption through coercion, undue influence,
fraud, improper material inducement, or other similar acts;
(ii) non-compliance with the procedures and safeguards provided by the
law for adoption; or
(iii) subjecting or exposing the child to be adopted to danger, abuse, or
exploitation.
(b) Any person who shall cause the fictitious registration of the birth of a
child under the name(s) of a person(s) who is not his/her biological
parent(s) shall be guilty of simulation of birth, and shall be
punished by prision mayor in its medium period and a fine not
exceeding Fifty thousand pesos (P50,000.00). (Emphasis supplied)
Unfortunately, Jose's death carried with it the extinguishment of any of his criminal
liabilities. 78 Republic Act No. 8552 also fails to provide any provision on the status of adoption
decrees if the adoption is found to have been obtained fraudulently. Petitioners also cannot invoke
Article VI, Section 19 of Republic Act No. 8552 79 since rescission of adoption can only be availed of
by the adoptee. Petitioners, therefore, are left with no other remedy in law other than the annulment of
the judgment.
The fraud employed in this case has been to Joanne's prejudice. There is reason to believe
that Joanne has grown up having never experienced the love and care of a father, her parents having
separated a year after her birth. She has never even benefited from any monetary support from her
father. Despite all these adversities, Joanne was able to obtain a medical degree from the University
of the Philippines College of Medicine 80 and is now working as a doctor in Canada. 81 These
accomplishments, however, are poor substitutes if the injustice done upon her is allowed to continue.
WHEREFORE, the petition is GRANTED. The decision dated October 16, 2000 of the
Regional Trial Court of Batac, Ilocos Norte, Branch 17 in SP. Proc. No. 3445-17 is
rendered NULL and VOID.
SO ORDERED.
Carpio, Del Castillo, Mendoza and Reyes, * JJ., concur.
 

|||  (Castro v. Gregorio, G.R. No. 188801, [October 15, 2014], 745 PHIL 523-542)
 FIRST DIVISION

[G.R. No. 125041. June 30, 2006.]

MA. BELEN B. MANGONON, for and in behalf of her minor children REBECCA
ANGELA DELGADO and REGINA ISABEL DELGADO, petitioner,vs.HON.
COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARA-SALONGA,
Presiding Judge, RTC-Makati, Branch 149, FEDERICO C. DELGADO and
FRANCISCO C. DELGADO,  respondents.

DECISION

CHICO-NAZARIO,  J p:

Before Us is a Petition for Review on Certiorari assailing the Decision 1 of the Court of

Appeals dated 20 March 1996, affirming the Order, dated 12 September 1995 2 of the Regional Trial
Court (RTC), Branch 149, Makati, granting support  pendente lite to Rebecca Angela (Rica) and
Regina Isabel (Rina),both surnamed Delgado.
The generative facts leading to the filing of the present petition are as follows:
On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in behalf of her then minor
children Rica and Rina, a Petition for Declaration of Legitimacy and Support, with application for
support pendente lite with the RTC Makati. 3 In said petition, it was alleged that on 16 February 1975,
petitioner and respondent Federico Delgado were civilly married by then City Court Judge Eleuterio
Agudo in Legaspi City, Albay. At that time, petitioner was only 21 years old while respondent Federico
was only 19 years old. As the marriage was solemnized without the required consent per Article 85 of
the New Civil Code, 4 it was annulled on 11 August 1975 by the Quezon City Juvenile and Domestic
Relations Court. 5
On 25 March 1976, or within seven months after the annulment of their marriage, petitioner
gave birth to twins Rica and Rina. According to petitioner, she, with the assistance of her second
husband Danny Mangonon, raised her twin daughters as private respondents had totally abandoned
them. At the time of the institution of the petition, Rica and Rina were about to enter college in the
United States of America (USA) where petitioner, together with her daughters and second husband,
had moved to and finally settled in. Rica was admitted to the University of Massachusetts (Amherst)
while Rina was accepted by the Long Island University and Western New England College. Despite
their admissions to said universities, Rica and Rina were, however, financially incapable of pursuing
collegiate education because of the following:
 i) The average annual cost for college education in the US is about
US$22,000/year, broken down as follows:
Tuition Fees US$13,000.00
Room & Board 5,000.00
Books 1,000.00
Yearly Transportation &  
Meal Allowance 3,000.00
  ————
Total US$ 22,000.00
or a total of US$44,000.00, more or less, for both Rica and Rina
ii) Additionally, Rica and Rina need general maintenance support each in
the amount of US$3,000.00 per year or a total of US$6,000 per year.
iii) Unfortunately, petitioner's monthly income from her 2 jobs is merely
US$1,200 after taxes which she can hardly give general support to Rica and Rina,
much less their required college educational support.
iv) Neither can petitioner's present husband be compelled to share in the
general support and college education of Rica and Rina since he has his own son
with petitioner and own daughter (also in college) to attend to.
v) Worse, Rica and Rina's petitions for Federal Student Aid have been
rejected by the U.S. Department of Education. 6
Petitioner likewise averred that demands 7 were made upon Federico and the latter's father,
Francisco, 8 for general support and for the payment of the required college education of Rica and
Rina. The twin sisters even exerted efforts to work out a settlement concerning these matters with
respondent Federico and respondent Francisco, the latter being generally known to be financially
well-off. 9 These demands, however, remained unheeded. Considering the impending deadline for
admission to college and the opening of classes, petitioner and her then minor children had no choice
but to file the petition before the trial court. ASICDH
Petitioner also alleged that Rica and Rina are her legitimate daughters by respondent
Federico since the twin sisters were born within seven months from the date of the annulment of her
marriage to respondent Federico. However, as respondent Federico failed to sign the birth certificates
of Rica and Rina, it was imperative that their status as legitimate children of respondent Federico, and
as granddaughters of respondent Francisco, be judicially declared pursuant to Article 173 of
the Family Code. 10
As legitimate children and grandchildren, Rica and Rina are entitled to general and
educational support under Articles 174 11 and 195(b) 12 in relation to Articles 194(1 and 2) 13 and
199(c) 14 of the Family Code. Petitioner alleged that under these provisions, in case of default on the
part of the parents, the obligation to provide support falls upon the grandparents of the children; thus,
respondent Federico, or in his default, respondent Francisco should be ordered to provide general
and educational support for Rica and Rina in the amount of US$50,000.00, more or less, per year.
Petitioner also claimed that she was constrained to seek support pendente lite from private
respondents — who are millionaires with extensive assets both here and abroad — in view of the
imminent opening of classes, the possibility of a protracted litigation, and Rica and Rina's lack of
financial means to pursue their college education in the USA.
In his Answer, 15 respondent Francisco stated that as the birth certificates of Rica and Rina
do not bear the signature of respondent Federico, it is essential that their legitimacy be first
established as "there is no basis to claim support until a final and executory judicial declaration has
been made as to the civil status of the children." 16 Whatever good deeds he may have done to Rica
and Rina, according to respondent Francisco, was founded on pure acts of Christian charity. He,
likewise, averred that the order of liability for support under Article 199 of the  Family Code is not
concurrent such that the obligation must be borne by those more closely related to the recipient. In
this case, he maintained that responsibility should rest on the shoulders of petitioner and her second
husband, the latter having voluntarily assumed the duties and responsibilities of a natural father. Even
assuming that he is responsible for support, respondent Francisco contends that he could not be
made to answer beyond what petitioner and the father could afford.
On 24 May 1994, petitioner filed a Motion to Declare Defendant (respondent herein) Federico
in Default. 17 This was favorably acted upon by the trial court in the Order dated 16 June 1994. 18
On 5 August 1994, respondent Federico filed a Motion to Lift Order of Default alleging that the
summons and a copy of the petition were not served in his correct address. 19 Attached thereto was
his Answer 20 where he claimed that petitioner had no cause of action against him. According to him,
he left for abroad and stayed there for a long time "[w]ithin the first one hundred twenty (120) days of
the three hundred days immediately preceding March 25, 1976" and that he only came to know about
the birth of Rica and Rina when the twins introduced themselves to him seventeen years later. In
order not to antagonize the two, respondent Federico claimed he did not tell them that he could not be
their father. Even assuming that Rica and Rina are, indeed, his daughters, he alleged that he could
not give them the support they were demanding as he was only making P40,000.00 a month.
Finding sufficient ground in the motion filed by respondent Federico, the trial court lifted its
Order dated 16 June 1994 and admitted his Answer. 21
In the meantime, on 25 April 1994, petitioner filed an Urgent Motion to Set Application for
Support Pendente Lite for Hearing because Rica and Rina both badly needed immediate financial
resources for their education. 22 This Motion was opposed by respondent Francisco. 23 After both
parties submitted supplemental pleadings to bolster their respective positions, the trial court resolved
the motion in an Order dated 12 September 1995 in this wise:
WHEREFORE, in the light of the foregoing considerations, respondents are
hereby directed to provide a monthly support (pendente lite) of P5,000.00 each or a
total of P10,000.00 for the education of Rebecca Angela and Regina Isabel
Delgado to be delivered within the first five days of each month without need of
demand. 24
Unsatisfied with the Order of the trial court, petitioner brought the case to the Court of
Appeals via Petition for Certiorari.The Court of Appeals affirmed the holding of the trial court and
disposed the petition in the following manner:
WHEREFORE, the petition for certiorari is hereby DISMISSED and the
Order of the lower court dated September 12, 1995 is hereby AFFIRMED. 25
Petitioner's Motion for Reconsideration was denied through the Resolution of the Court of
Appeals dated 16 May 1996. 26
Petitioner is now before this Court claiming that the Decision of the Court of Appeals was
tainted with the following errors:
RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT
RESPONDENT JUDGE DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN
FIXING THE AMOUNT OF MONTHLY SUPPORT PENDENTE LITE GRANTED
TO PETITIONER'S CHILDREN AT A MEASLEY P5,000.00 PER CHILD.
I.
RESPONDENT COURT IGNORED EVIDENCE ON RECORD OF THE FINANCIAL
INCAPACITY OF RICA AND RINA'S PARENTS IN DEFAULT OF WHOM THE
OBLIGATION TO GIVE SUPPORT DEVOLVES ON THE GRANDFATHER.
II.
IT BEING ESTABLISHED THAT THE PERSON OBLIGED TO GIVE SUPPORT —
GRANDFATHER DON PACO — IS UNDOUBTEDLY CAPABLE OF GIVING THE
AMOUNT DEMANDED, RESPONDENT COURT ERRED IN NOT HOLDING THAT
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN
FIXING AN AMOUNT OF SUPPORT PENDENTE LITE THAT IS OBVIOUSLY
INADEQUATE TO SUPPORT THE EDUCATIONAL REQUIREMENTS OF THE
RECIPIENTS. 27
  
At the time of the filing of the present Petition, it is alleged that Rica had already entered
Rutgers University in New Jersey with a budget of US$12,500.00 for academic year 1994-1995. She
was able to obtain a tuition fee grant of US$1,190.00 and a Federal Stafford loan from the US
government in the amount of US$2,615.00. 28 In order to defray the remaining balance of Rica's
education for said school year, petitioner claims that she had to secure a loan under the Federal
Direct Student Loan Program. HEISca
Meanwhile, Rina entered CW Post, Long Island University, where she was expected to spend
US$20,000.00 for the school year 1994-1995. She was given a financial grant of US$6,000.00,
federal work study assistance of US$2,000.00, and a Federal Stafford loan of US$2,625.00. 29 Again,
petitioner obtained a loan to cover the remainder of Rina’s school budget for the year.
Petitioner concedes that under the law, the obligation to furnish support to Rica and Rina
should be first imposed upon their parents. She contends, however, that the records of this case
demonstrate her as well as respondent Federico's inability to give the support needed for Rica and
Rina's college education. Consequently, the obligation to provide support devolves upon respondent
Francisco being the grandfather of Rica and Rina.
Petitioner also maintains that as respondent Francisco has the financial resources to help
defray the cost of Rica and Rina's schooling, the Court of Appeals then erred in sustaining the trial
court's Order directing respondent Federico to pay Rica and Rina the amount of award P5,000.00
each as monthly support  pendente lite.
On the other hand, respondent Francisco argues that the trial court correctly declared that
petitioner and respondent Federico should be the ones to provide the support needed by their twin
daughters pursuant to Article 199 of the Family Code. He also maintains that aside from the financial
package availed of by Rica and Rina in the form of state tuition aid grant, work study program and
federal student loan program, petitioner herself was eligible for, and had availed herself of, the federal
parent loan program based on her income and properties in the USA. He, likewise, insists that
assuming he could be held liable for support, he has the option to fulfill the obligation either by paying
the support or receiving and maintaining in the dwelling here in the Philippines the person claiming
support. 30 As an additional point to be considered by this Court, he posits the argument that because
petitioner and her twin daughters are now US citizens, they cannot invoke the Family Code provisions
on support as "[l]aws relating to family rights and duties, or to the status, condition and legal capacity
of persons are binding upon citizens of the Philippines, even though living abroad." 31
Respondent Federico, for his part, continues to deny having sired Rica and Rina by reiterating
the grounds he had previously raised before the trial court. Like his father, respondent Federico
argues that assuming he is indeed the father of the twin sisters, he has the option under the law as to
how he would provide support. Lastly, he assents with the declaration of the trial court and the Court
of Appeals that the parents of a child should primarily bear the burden of providing support to their
offspring.
The petition is meritorious.
As a preliminary matter, we deem it necessary to briefly discuss the essence of
support pendente lite. The pertinent portion of the Rules of Court on the matter provides:
Rule 61
SUPPORT 'PENDENTE LITE'
SECTION 1. Application.— At the commencement of the proper action or
proceeding, or at any time prior to the judgment or final order, a verified application
for support  pendente lite may be filed by any party stating the grounds for the claim
and the financial conditions of both parties, and accompanied by affidavits,
depositions or other authentic documents in support thereof.
xxx xxx xxx
SEC. 4. Order.— The court shall determine provisionally the pertinent facts,
and shall render such orders as justice and equity may require, having due regard
to the probable outcome of the case and such other circumstances as may aid in
 the proper resolution of the question involved. If the application is granted, the court
shall fix the amount of money to be provisionally paid or such other forms of
support as should be provided, taking into account the necessities of the applicant
and the resources or means of the adverse party, and the terms of payment or
mode for providing the support. If the application is denied, the principal case shall
be tried and decided as early as possible.
Under this provision, a court may temporarily grant support pendente lite prior to the rendition
of judgment or final order. Because of its provisional nature, a court does not need to delve fully into
the merits of the case before it can settle an application for this relief. All that a court is tasked to do is
determine the kind and amount of evidence which may suffice to enable it to justly resolve the
application. It is enough that the facts be established by affidavits or other documentary evidence
appearing in the record. 32
After the hearings conducted on this matter as well as the evidence presented, we find that
petitioner was able to establish, by  prima facie proof, the filiation of her twin daughters to private
respondents and the twins' entitlement to support  pendente lite.In the words of the trial court —
By and large, the status of the twins as children of Federico cannot be
denied. They had maintained constant communication with their grandfather
Francisco. As a matter of fact, respondent Francisco admitted having wrote several
letters to Rica and Rina (Exhs. A, B, C, D, E, F, G, G-1 to G-30).In the said letters,
particularly at the bottom thereof, respondent Francisco wrote the names of Rica
and Rina Delgado.He therefore was very well aware that they bear the surname
Delgado. Likewise, he referred to himself in his letters as either "Lolo Paco" or
"Daddy Paco." In his letter of October 13, 1989 (Exh. G-21),he said "as the
grandfather, am extending a financial help of US$1,000.00." On top of this,
respondent Federico even gave the twins a treat to Hongkong during their visit to
the Philippines. Indeed, respondents, by their actuations, have shown beyond
doubt that the twins are the children of Federico. 33
Having addressed the issue of the propriety of the trial court's grant of support  pendente
lite in favor of Rica and Rina, the next question is who should be made liable for said award.
The pertinent provision of the Family Code on this subject states:
ART. 199. Whenever two or more persons are obliged to give support, the
liability shall devolve upon the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters.
An eminent author on the subject explains that the obligation to give support rests principally
on those more closely related to the recipient. However, the more remote relatives may be held to
shoulder the responsibility should the claimant prove that those who are called upon to provide
support do not have the means to do so. 34
In this case, both the trial court and the Court of Appeals held respondent Federico liable to
provide monthly support  pendente lite in the total amount of P10,000.00 by taking into consideration
his supposed income of P30,000.00 to P40,000.00 per month. We are, however, unconvinced as to
the veracity of this ground relied upon by the trial court and the Court of Appeals. ScAaHE
It is a basic procedural edict that questions of fact cannot be the proper subject of a petition
for review under Rule 45 of the 1997 Rules of Civil Procedure. The rule finds a more stringent
application where the Court of Appeals upholds the findings of fact of the trial court; in such a
situation, this Court, as the final arbiter, is generally bound to adopt the facts as determined by the
appellate and the lower courts. This rule, however, is not ironclad as it admits of the following
recognized exceptions: "(1) when the findings are grounded entirely on speculation, surmises or
conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when
there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5)
when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went
beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and
the appellee; (7) when the findings are contrary to that of the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are based; (9) when the facts set forth
in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent;
(10) when the findings of fact are premised on the supposed absence of evidence and contradicted by
the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant
facts not disputed by the parties, which, if properly considered, would justify a different
conclusion." 35 The case at bar falls within the seventh and eleventh exceptions.
The trial court gave full credence to respondent Federico's allegation in his Answer 36 and his
testimony 37 as to the amount of his income. We have, however, reviewed the records of this case
and found them bereft of evidence to support his assertions regarding his employment and his
earning. Notably, he was even required by petitioner's counsel to present to the court his income tax
return and yet the records of this case do not bear a copy of said document.  38 This, to our mind,
severely undermines the truthfulness of respondent Federico's assertion with respect to his financial
status and capacity to provide support to Rica and Rina.
 
In addition, respondent Francisco himself stated in the witness stand that as far as he knew,
his son, respondent Federico did not own anything —
"Atty. Lopez:
 I have here another letter under the letter head of Mr. & Mrs. Dany Mangonon,
dated October 19, 1991 addressed to Mr. Francisco Delgado signed by
"sincerely, Danny Mangonon, can you remember."
xxx xxx xxx
WITNESS:
A: I do remember this letter because it really irritated me so much that I threw it
away in a waste basket. It is a very demanding letter, that is what I do not
like at all.
ATTY. LOPEZ:
Q: It is stated in this letter that "I am making this request to you and not to your son,
Rico, for reasons we both are aware of." Do you know what reason that is?
A: Yes. The reason is that my son do not have fix employment and do not
have fix salary and income and they want to depend on the lolo.
xxx xxx xxx
Q: Would you have any knowledge if Federico owns a house and lot?
A: Not that I know. I do not think he has anything.
Q: How about a car?
A: Well, his car is owned by my company. 39
Respondent Federico himself admitted in court that he had no property of his own, thus:
Q: You also mentioned that you are staying at Mayflower Building and you further
earlier testified that this building belongs to Citadel Corporation. Do you
confirm that?
A: Yes, sir.
Q: What car are you driving, Mr. Witness?
A: I am driving a lancer, sir.
Q: What car, that registered in the name of the corporation?
 A: In the corporation, sir.
Q: What corporation is that?
A: Citadel Commercial, Inc.,sir.
Q: What properties, if any, are registered in your name, do you have any properties,
Mr. Witness?
A: None, sir." 40 (Emphasis supplied.)
Meanwhile, respondent Francisco asserts that petitioner possessed the capacity to give
support to her twin daughters as she has gainful employment in the USA. He even went as far as to
state that petitioner's income abroad, when converted to Philippine peso, was much higher than that
received by a trial court judge here in the Philippines. In addition, he claims that as she qualified for
the federal parent loan program, she could very well support the college studies of her daughters.
We are unconvinced. Respondent Francisco's assertion that petitioner had the means to
support her daughters' education is belied by the fact that petitioner was even forced by her financial
status in the USA to secure the loan from the federal government. If petitioner were really making
enough money abroad, she certainly would not have felt the need to apply for said loan. The fact that
petitioner was compelled to take out a loan is enough indication that she did not have enough money
to enable her to send her daughters to college by herself. Moreover, even Rica and Rina themselves
were forced by the circumstances they found themselves in to secure loans under their names so as
not to delay their entrance to college.
There being  prima facie evidence showing that petitioner and respondent Federico are the
parents of Rica and Rina, petitioner and respondent Federico are primarily charged to support their
children's college education. In view however of their incapacities, the obligation to furnish said
support should be borne by respondent Francisco. Under Article 199 of the Family Code, respondent
Francisco, as the next immediate relative of Rica and Rina, is tasked to give support to his
granddaughters in default of their parents. It bears stressing that respondent Francisco is the majority
stockholder and Chairman of the Board of Directors of Citadel Commercial, Incorporated, which owns
and manages twelve gasoline stations, substantial real estate, and is engaged in shipping, brokerage
and freight forwarding. He is also the majority stockholder and Chairman of the Board of Directors of
Citadel Shipping which does business with Hyundai of Korea. Apart from these, he also owns the
Citadel Corporation which, in turn, owns real properties in different parts of the country. He is likewise
the Chairman of the Board of Directors of Isla Communication Co. and he owns shares of stocks of
Citadel Holdings. In addition, he owns real properties here and abroad. 41 It having been established
that respondent Francisco has the financial means to support his granddaughters' education, he, in
lieu of petitioner and respondent Federico, should be held liable for support pendente lite. cEHSTC
Anent respondent Francisco and Federico's claim that they have the option under the law as
to how they could perform their obligation to support Rica and Rina, respondent Francisco insists that
Rica and Rina should move here to the Philippines to study in any of the local universities. After all,
the quality of education here, according to him, is at par with that offered in the USA. The applicable
provision of the Family Code on this subject provides:
Art. 204. The person obliged to give support shall have the option to fulfill
the obligation either by paying the allowance fixed, or by receiving and maintaining
in the family dwelling the person who has a right to receive support. The latter
alternative cannot be availed of in case there is a moral or legal obstacle thereto.
Under the abovecited provision, the obligor is given the choice as to how he could dispense
his obligation to give support. Thus, he may give the determined amount of support to the claimant or
he may allow the latter to stay in the family dwelling. The second option cannot be availed of in case
there are circumstances, legal or moral, which should be considered.
In this case, this Court believes that respondent Francisco could not avail himself of the
second option. From the records, we gleaned that prior to the commencement of this action, the
relationship between respondent Francisco, on one hand, and petitioner and her twin daughters, on
the other, was indeed quite pleasant. The correspondences exchanged among them expressed
profound feelings of thoughtfulness and concern for one another's well-being. The photographs
presented by petitioner as part of her exhibits presented a seemingly typical family celebrating
kinship. All of these, however, are now things of the past. With the filing of this case, and the
allegations hurled at one another by the parties, the relationships among the parties had certainly
been affected. Particularly difficult for Rica and Rina must be the fact that those who they had
considered and claimed as family denied having any familial relationship with them. Given all these,
we could not see Rica and Rina moving back here in the Philippines in the company of those who
have disowned them.
Finally, as to the amount of support  pendente lite, we take our bearings from the provision of
the law mandating the amount of support to be proportionate to the resources or means of the giver
and to the necessities of the recipient. 42 Guided by this principle, we hold respondent Francisco
liable for half of the amount of school expenses incurred by Rica and Rina as support  pendente
lite.As established by petitioner, respondent Francisco has the financial resources to pay this amount
given his various business endeavors.
Considering, however, that the twin sisters may have already been done with their education
by the time of the promulgation of this decision, we deem it proper to award support pendente lite in
arrears 43 to be computed from the time they entered college until they had finished their respective
studies.
The issue of the applicability of Article 15 of the Civil Code on petitioner and her twin
daughters raised by respondent Francisco is best left for the resolution of the trial court. After all, in
case it would be resolved that Rica and Rina are not entitled to support pendente lite, the court shall
then order the return of the amounts already paid with legal interest from the dates of actual
payment. 44
WHEREFORE, premises considered, this Petition is PARTIALLY GRANTED. The Decision of
the Court of Appeals dated 20 March 1996 and Resolution dated 16 May 1996 affirming the Order
dated 12 September 1995 of the Regional Trial Court, Branch 149, Makati, fixing the amount of
support pendente lite to P5,000.00 for Rebecca Angela and Regina Isabel, are hereby MODIFIED in
that respondent Francisco Delgado is hereby held liable for support  pendente lite in the amount to be
determined by the trial court pursuant to this Decision. Let the records of this case be remanded to the
trial court for the determination of the proper amount of support  pendente lite for Rebecca Angela and
Regina Isabel as well as the arrearages due them in accordance with this Decision within ten (10)
days from receipt hereof. Concomitantly, the trial court is directed to proceed with the trial of the main
case and the immediate resolution of the same with deliberate dispatch. The RTC Judge, Branch 149,
Makati, is further directed to submit a report of his compliance with the directive regarding the
support pendente lite within ten (10) days from compliance thereof.
SO ORDERED.
Ynares-Santiago, Austria-Martinez and Callejo, Sr.,JJ., concur.
Panganiban, C.J., is on official leave.

|||  (Mangonon v. Court of Appeals, G.R. No. 125041, [June 30, 2006], 526 PHIL 505-525)

EN BANC

[G.R. No. 29959. December 3, 1929.]

AURELIA DADIVAS DE VILLANUEVA,  plaintiff-appellant, vs.
RAFAEL VILLANUEVA, defendant-appellee.

Harvey & O'Brien,  for appellant.

Jose G. Generoso,  for appellee.
 SYLLABUS

1. HUSBAND AND WIFE; INFIDELITY OF HUSBAND; SEPARATE MAINTENANCE

FOR WIFE. — In order to entitle a wife to maintain a separate home and to require separate
maintenance from her husband, it is not necessary that the husband should bring a concubine
into the marital domicile. Repeated illicit relations with women outside of the marital establishment
are enough. The law is not so unreasonable as to require a wife to live in marital relations with a
husband whose propensity towards other women makes common habitation with him unbearable.

DECISION

STREET, J  p:

This action was instituted on May 27, 1927, in the Court of First Instance of the City of
Manila by Aurelia Dadivas de Villanueva against her husband, Rafael Villanueva, for the purpose
of obtaining separate maintenance and custody of the two younger minor children, Guillermo and
Sergio Villanueva, as well as a proper allowance for professional legal services rendered by the
plaintiff's attorneys in this action, as well as costs. Upon hearing the cause the trial court absolved
the defendants from the complaint and abrogated a prior order of the court for
maintenance pendente lite, with costs against the plaintiff. From this judgment the plaintiff
appealed.
The plaintiff, Aurelia Dadivas de Villanueva, was married to the defendant,
Rafael Villanueva, on July 16, 1905, in the City of Manila, where the pair have since resided. To
them have been born three children, namely, Antonio, Guillermo, and Sergio, who were, at the
time of the trial of this case in the lower court, aged respectively 18, 10 and 9 years. The grounds
on which separate maintenance is sought are infidelity and cruelty. With respect to the first of
these charges the proof shows that during the period of about ten years prior to the institution of
the action, the defendant was guilty of repeated acts of infidelity with four different women, and
even after the action was begun, he is shown to have had illicit relations with still another, an
incident which is incorporated in the case by means of the amended complaint. Though at all
times protesting against these irregularities in her husband's conduct, the plaintiff appears to have
exhibited forbearance; and she long continued in marital relations with him with a view to keeping
the family intact as well as wit hope of retrieving him from his erring course. In the end, however,
the incorrigible nature of the defendant in his relations with other women, coupled with a lack of
consideration and even brutality towards the plaintiff, caused her to withdraw from the domestic
hearth and to establish a separate abode for herself and two younger children. This final
separation occurred on April 20, 1927, about one month before the present action was begun.
The proof with respect to the charge of cruelty shows that the defendant has not
infrequently treated the plaintiff roughly and that he has at times directed abusive words to her
and challenged her to carry her troubles into court. The proof in support of this charge does not in
our opinion establish a case for separate maintenance, without relation to the graver charge of
conjugal infidelity; and if the case defended, for its solution, upon cruelty alone, the case could
doubtless be affirmed, in conformity with the doctrine stated in Arroyo vs. Vasquez  de Arroyo (42
Phil., 54), where the charges of cruelty were found to be unproved or insufficient. In that case,
however, we were able to record the fact that neither of the spouses had at any time been guilty
of conjugal infidelity, and that neither had, so far as the proof showed, even given just cause to
the other to suspect illicit relations with any person. In the case before us repeated acts of
conjugal infidelity on the part of the husband are proved, and he appears to be a recurrent, if not
an incurable offender against the sanctity of the marriage tie. This gives the wife an undeniable
right to relief.
The law is not so unreasonable as to require a wife to live in marital relations with a
husband whose incurable propensity towards other women makes common habitation with him
unbearable. Deeply rooted instincts of human nature sanction the separation in such case, and
the law is not so unreasonable as to require an acquiescence on the part of the injured party
which is beyond the capacity of nature. In order to entitle a wife to maintain a separate home and
 to require separate maintenance from her husband it is not necessary that the husband should
bring a concubine into the marital domicile. Perverse and illicit relations with women outside of the
marital establishment are enough. As was said by Justice Moreland in Goitia vs. Campos Rueda
(35 Phil., 252, 262), a husband cannot, by his own wrongful acts, relieve himself from the duty to
support his wife imposed by law; and where a husband by wrongful, illegal, and unbearable
conduct, drives his wife from the domicile fixed by him, he cannot take advantage of her
departure to abrogate the law applicable to the marital relations and repudiate his duties
thereunder.
In her complaint the plaintiff asks for an allowance of P750 per month, but we are of the
opinion that the sum of P500 per month will suffice, this being in addition to the use which she
makes for living quarters of a modest property belonging to the conjugal estate. During their
marital life the spouses have acquired real estate which, at the time of the trial, was assessed at
more than P85,000, and which at the same time was reasonably valued at more than P125,000.
In addition to this the defendant appears to be now earning a substantial salary in commercial
activities. The plaintiff is also entitled to an allowance for attorney's fees which we fix at P1,000
services rendered in the trial court and the same amount for services rendered in the trial court
and the same amount for services rendered in the trial court and the same amount for services for
attorneys' fees which we fix at P1,000 for services rendered in the trial court and the same
amount for services rendered in the trial court and the same amount for services rendered in this
court. It appears that the two younger children are now living with the plaintiff, and her right to
their custody will be disturbed. While this litigation was pending in the lover court the defendant
was required to pay the amount of P500 per month for maintenance of the plaintiff, under an
interlocutory order of June 15, 1927. But these payments ceased when the appealed decision
was promulgated on or about the end of March 1928. The plaintiff in this case is therefore entitled
to judgment at the rate of P500 per month beginning April 1, 1928, until judgment shall be
promulgated in this case, and from that date the defendant will be required to pay P500 per month
for maintenance as already suggested. The plaintiff will also be awarded the sum of P720 in
satisfaction of the amount paid out for the transcript necessary to this appeal.
The judgment is therefore reversed, and it is ordered that the plaintiff have and recover of
the defendant the sum of P2,000 for attorneys' fees, the sum of P720 for expenses of procuring
transcript, and the sum of P500 per month, beginning April 1, 1928, until the promulgation of this
decision, after which date the defendant is ordered to pay to the plaintiff by way of maintenance,
on or before the 10th day of each month, the sum of P500. So ordered, with costs against the
appellee.
Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
 

|||  (Villanueva v. Villanueva, G.R. No. 29959, [December 3, 1929], 54 PHIL 92-96)

FIRST DIVISION

[G.R. No. 7426. February 5, 1913.]

MARIA QUINTANA, plaintiff-appellee, vs. GELASIO LERMA, defendant-
appellant.

Singson, Ledesma & Lim,  and Tirso de Irureta Goyena for appellant.

Jose Ma. de Marcaida for appellee.
 SYLLABUS

1. HUSBAND AND WIFE; SEPARATION BY PRIVATE AGREEMENT. — An agreement

between husband and wife providing for a separation and a division of the conjugal property
between them is void unless provisions permitting such a separation and division are contained in
the marriage contract.
2. ADULTERY AS DEFENSE TO ACTION FOR SUPPORT. — Under the general
principles of the law as expressed in the Civil Code, a wife has a right of action against her
husband for support and maintenance; adultery by the wife is a good defense to such action.

DECISION

PER CURIAM, p:

This is an appeal from a judgment in favor of the plaintiff for a sum of money due upon a
contract between the plaintiff and defendant husband and wife, for support.

The action is by a wife against her husband for support. It is based upon a written
contract. The evidence shows that the parties were lawfully married in 1901 and that in February,
1905, they entered into a written agreement of separation whereby each renounced certain rights
as against the other and divided the conjugal property between them, the defendant undertaking
in consideration of the premises to pay the plaintiff within the first three days of each month the
sum of P20 for her support and maintenance.
In the original answer, the defendant set up as a special defense that the wife had
forfeited her right to support by committing adultery. This allegation was stricken out by the court
on motion, upon the ground that under the provisions of article 152 of the Civil Code the
commission of adultery is not recognized as a ground upon which the obligation to support
ceases. Notwithstanding that such special defense was stricken out by order of the court, the
defendant, after plaintiff had filed an amended complaint, inserted the same defense in his
answer to the amended complaint. The court upon the trial, however, refused to recognize such
defense or to permit any evidence to be introduced in support thereof, to which the defendant duly
excepted.
Article 1432 of the civil Code provides: "In default of express declarations in the marriage
contract, the separation of the property of the consorts, during marriage, shall only take place by
virtue of a judicial decree, except in the case provided by article 50."
Under this article the agreement in suit is void. The wife, however, has a right of action
against her husband for support under the provisions of the Civil Code and, although the contract
in question is void, her right of action does not for that reason fail.
We are of the opinion that the special defense of adultery set up by the defendant in his
answer both to the original and the amended complaint is a good defense, and if properly proved
and sustained will defeat the action.
The judgment of the court below is reversed and the cause remanded for a new trial, with
instructions to permit the interposition of the special defense of adultery and such amendments of
the complaint and answer as may be necessary to carry this judgment into effect. So ordered.
Arellano, C.J., Torres, Johnson, Moreland, and Trent, JJ., concur.
 

|||  (Quintana v. Lerma, G.R. No. 7426, [February 5, 1913], 24 PHIL 285-286)
 EN BANC

[G.R. No. 43794. August 9, 1935.]

LUIS FRANCISCO, petitioner, vs. FRANCISCO ZANDUETA, Judge of First

Instance of Manila, and EUGENIO LEOPOLDO FRANCISCO, represented by
his natural mother and curator ad litem, ROSARIO GOMEZ,  respondents.

J. E. Blanco for respondents.

SYLLABUS

1. PARENT AND CHILD; SUPPORT OF CHILD WHILE HIS CIVIL STATUS IS IN

LITIGATION. — In the present case the action for support is brought by a minor, through his
guardian ad litem, who alleges that he is the son of the petitioner; therefore it is necessary for him
to prove his civil status as such son. His alleged civil status being in litigation, it is evident that
nothing can be taken for granted upon the point in issue.
2. ID.; ID. — There is no law or reason which authorizes the granting of support to a
person who claims to be a son in the same manner as to a person who establishes by legal proof
that he is such son. In the latter case legal evidence raises a presumption of law, while in the
former there is no presumption, there is nothing but a mere allegation, a fact in issue, and a
simple fact in issue must not be confounded with an established right recognized by a final
judgment.
3. ID.; ID. — The civil status of sonship being denied and this civil status, from which the
right to support is derived, being in issue, it is apparent that no effect can be given to such a claim
until an authoritative declaration has been made as to the existence of the cause. It is also
evident that there is a substantial difference between the capacity of a person after the rendition
of a final judgment in which that person is declared to be in possession of the status of a son and
his capacity prior to such time when nothing exists other that his suit or claim to be declared in
possession of such a status.
4. ID.; ID.; JURISDICTION. — The Civil Code grants the right of support to a son. This
status not appearing by a final judgment, the respondent judge was without jurisdiction to order
the petitioner, as defendant in case No. 47238, to pay the plaintiff the sum of P30, or any other
amount, as monthly support, pendente lite.
5. ID.; ID.; ID.; CONSENT OF PARTIES. — In view of the lack of jurisdiction of the
respondent judge to grant the plaintiff support, pendente lite, it is evident that the attorney of the
defendant is case No. 47238 could not by his alleged consent to the granting of such support give
the trial judge jurisdiction to adjudicate such a claim against his client. It is a universal rule of law
 that parties cannot, by consent, give a court, as such, jurisdiction in a matter which is excluded by
the laws of the land.

DECISION

GODDARD,  J p:

This is an original petition for the writ of certiorari whereby the petitioner, Luis Francisco,
seeks to procure the abrogation of an order of the respondent judge, dated May 2, 1935, granting
the respondent, Eugenio Leopoldo Francisco, a monthly pension of P30 pendente lite.
It appears that the respondent, Eugenio Leopoldo Francisco, aged two years, through his
natural mother and guardian ad litem, Rosario Gomez, instituted an action for support against the
herein petitioner in the Court of First Instance of the City of Manila, case No. 47238. In that case it
is alleged that the therein plaintiff is the acknowledged son of Luis Francisco and as such is
entitled to support. The petitioner, as defendant in that case, answered by a general denial of
each and every material allegation contained in the complaint and as a special defense alleged
that he never acknowledged and could not have acknowledged the plaintiff as his son; that he
was not present at the baptism of the plaintiff and that he was married at the time it is alleged that
the plaintiff was born.
Notwithstanding this denial of paternity the respondent judge issued the order of May 2,
1935, petitioner moved for the reconsideration of that order on the ground that it was issued in
excess of jurisdiction in view of the fact that the civil status of the plaintiff was placed in issue by
the pleadings; that the plaintiff has no right to monthly support from the defendant until his status
as a child of the latter is finally determined in his favor and that as the guardian ad litem of the
plaintiff admits his lack of means to defray even the ordinary expenses of existence it would be
impossible for the defendant to recover whatever amount he may have advanced to plaintiff as
support pendente lite, should it finally be decided that he is not the father of the plaintiff.
The respondent judge, the Honorable Francisco Zandueta, denied that motion, hence the
institution of this special proceeding.
This court called upon the respondents to answer the petition. They filed a joint answer
and alleged, in substance, that case No. 47238 was set for trial the 29th of April, 1935, and that
the attorney for the defendant in that case filed a motion on April 22, 1935, in which he prayed
that the trial be transferred; that the hearing on this motion was set for April 27, 1935; that the
attorney for the minor filed a motion, on the day set for the hearing of the motion to transfer, in
which he prayed that said minor be granted the sum of P80 per month by way of
support,  pendente lite; that the guardian ad litem opposed the motion to transfer the trial and that
after discussion the attorney of the herein petitioner in order to secure a transfer agreed that his
client would pay the minor a pension of P30 per month during the pendency of that case, No.
47238. The answer of the respondents is supported by the affidavits of the respondent judge and
two deputy clerks of the Court of First Instance of Manila.
In petitioner's reply to respondents' answer, made under oath by the attorney for the
petitioner, in case No. 47238 and in this proceeding, it is alleged that the statements in paragraph
five of said answer and those in the affidavits, Exhibits A and B, as to the agreement of said
attorney to the payment of P30 as monthly support, are absolutely false.
In order to arrive at a proper solution of this case it is not necessary to consider the
dispute as to whether or not the attorney for the herein petitioner really agreed that his client
should pay P30 per month by way of support to the plaintiff,  pendente lite.
In the case of Yangco vs. Rohde (1 Phil., 404) the petitioner Yangco filed in this court a
petition for a writ of prohibition, alleging that a complaint had been filed, before the respondent
judge, by Victorina Obin against the petitioner praying that she be granted a divorce, a monthly
allowance for alimony and attorney's fees during the pendency of the suit; that the judge ordered
the petitioner to pay the plaintiff a monthly allowance of two hundred fifty Mexican pesos; that the
plaintiff in the said action owns no property and that the respondent judge acted in excess of his
jurisdiction in attempting to oblige the petitioner to pay Victorina Obin said allowance.
 In that case this court, speaking through Chief Justice Arellano, said:
"In the present case the action for the support or alimony is brought by a
woman who alleges that she is a wife; therefore it is necessary for her to prove
possession of the civil status of a spouse — that is, a marriage, without which one
has no right to the title of husband or wife, . . ..
"This evidence being lacking, and the civil status of marriage being in
litigation, it is evident that nothing can be taken for granted upon the point in issue.
There is no law or reason which authorizes the granting of alimony to a person who
claims to be a spouse in the same manner as to a person who conclusively
establishes by legal proof that he or she is such a spouse, and sues for divorce or
separation. In this case the legal evidence raises a presumption of law; in the
former there is no presumption, there is nothing but a mere allegation — a fact in
issue - and a simple fact in issue must not be confounded with an established right
recognized by a final judgment or based upon a legal presumption. The civil status
of marriage being denied, and this civil status, from which the right to support is
derived, being in issue, it is difficult to see how any effect can be given to such a
claim until an authoritative declaration has been made as to the existence of the
cause. It is evident that there is of necessity a substantial difference between the
capacity of a person is declared to be in possession of the status of marriage and
his capacity prior to such time when nothing exists other that his suit or claim to be
declared in possession of such status of marriage . . .."
Under article 143 of the Civil Code the following are bound to support each other: (1)
Husband and wife, (2) legitimate ascendants and descendants, (3) parents and acknowledged
natural children and the legitimate descendants of the latter, (4) parents and illegitimate children
not having the legal status of natural children and (5) brothers and sisters. In all these cases it is a
civil status or a juridical relation which is the basis of the action for support, the civil status of
marriage or that of relationship.
Paraphrasing the language used in the decision in the Yangco case it may be said that in
the present case the action for support is brought by a minor, through his guardian ad litem, who
alleges that he is the son of the petitioner; therefore it is necessary for him to prove his civil status
as such son. His alleged civil status being in litigation, it is evident that nothing can be taken for
granted upon the point in issue. There is no law or reason which authorizes the granting of
support to a person who establishes by legal proof that he is such son. In the latter case the legal
evidence raises a presumption of law, while in the former there is no presumption, there is nothing
but a mere allegation, a fact in issue, and a simple fact in issue must not be confounded with an
established right recognized by a final judgment. The civil status of sonship being denied and this
civil status, from which the right to support is derived, being in issue, it is apparent that no effect
can be given to such a claim until an authoritative declaration has been made as to the existence
of the cause. It is also evident that there is a substantial difference between the capacity of a
person after the rendition of a final judgment in which that person is declared to be in possession
of the status of a son and his capacity prior to such tine when nothing exists other than his suit or
claim to be declared in possession of such a status.
The Civil Code grants the right of support to a son. This status not appearing by a final
judgment, the respondent judge was without jurisdiction to order the petitioner, as defendant in
case No. 47238, to pay the plaintiff the sum of P30, or any other amount as monthly
support,  pendente lite.
In view of the lack of jurisdiction of the respondent judge to grant the plaintiff
support,  pendente lite, it is evident that the attorney of the defendant in case No, 47238 could not
by his alleged consent to the granting of such support give the trial judge jurisdiction to adjudicate
such a claim against his client.
"It is a universal rule of law that parties cannot, by consent, give a court, as
such, jurisdiction in a matter which is excluded by the laws of the land. In such a
case the question is not whether a competent court has obtained jurisdiction of a
party triable before it, but whether the court itself is competent under any
circumstances to adjudicate a claim against the defendant. And where there is want
of jurisdiction of the subject-matter, a judgment is void as to all persons, and
consent of parties can never impart to it the vitality which a valid judgment derives
 from the sovereign state, the court being constituted, by express provision of law,
as its agent to pronounce it decrees in controversies between its people." (7 R. C.
L., 1039.)
The writ prayed for is granted and the order of the respondent judge of May 2, 1935,
ordering the herein petitioner as defendant in case No. 47238 to pay the plaintiff in that case the
sum of P30 monthly, as support, pendente lite, is hereby declared null and void, without costs.
Avanceña, C.J., Villa-Real, Abad Santos, Hull, Imperial, Diaz and Recto, JJ.,  concurring.

Separate Opinions

VICKERS, J., concurring:

I concur in the result. I wish to state, however, that I do not agree with the rule laid down
in the case of Yangco vs. Rohde (1 Phil., 404). I think that a correct statement of the law is to be
found in the dissenting opinion of Justice Cooper. According to the doctrine of that case, if the
defendant denies in his answer fact of marriage, the court exceeds its jurisdiction in granting
alimony pendente lite. This puts it within the power of the defendant to prevent the plaintiff from
recovering alimony  pendente lite. This puts it within the power of the defendant to prevent the
plaintiff from recovering alimony pendente lite  in any case, notwithstanding the fact that the
plaintiff may present at the hearing of her petition conclusive evidence of the existence of the
marriage.
In the case at bar it does not appear that the mother of the child presented any evidence
to sustain her petition for support  pendente lite, although the trial judge stated in his order of May
2, 1935 that he found the petition to be well founded (bien fundada). Respondents now claim that
said order was based upon an agreement of defendant's attorney to the effect that if the trial of
the case was transferred defendant would pay P30 a month for the support of the child during the
pendency of the action. In my opinion we have no right to take into consideration the affidavits
presented in this court by the respondents for the purpose of showing that the order for the
payment of the support pendente lite was based on an agreement of defendant's attorney and
not on the reasons stated in the order in question; and since the plaintiff did not attempt to prove
that he was entitled to support pendente lite, the action of the respondent judge in ordering the
payment of support under those circumstances was arbitrary and a manifest abuse of his
discretion, for which the right of appeal is not an adequate remedy.
Malcolm and Butte, JJ.,  dissent.
 

|||  (Francisco v. Zandueta, G.R. No. 43794, [August 9, 1935], 61 PHIL 752-759)
 EN BANC

[G.R. No. 26062. December 31, 1926.]

JOSE V. RAMIREZ and ELOISA DE MARCAIDA,  plaintiffs-appellants, vs. J.

R.  REDFERN, defendant-appellee.

Cavanna, Aboitiz & Agan for appellants.

Thomas Cary Welch for appellee.

SYLLABUS

1. OBLIGATIONS; QUASI-CONTRACTS; HUSBAND AND WIFE; SUPPORT OF A

DEPENDENT BY A STRANGER; ARTICLE 1894 OF THE CIVIL CODE CONSTRUED. — For
one to recover under the provisions of article 1894 of the Civil Code, it must be alleged and
proved, first, that support has been furnished a dependent of one bound to give support but who
fails to do so; second, that the support was supplied by a stranger; and third, that the support was
given without the knowledge of the person charged with the duty. The negative qualification is
when the support is given without the expectation of recovering it.
2. ID; ID.; ID.; ID.; ID. — Before one can tender succor to the wife of another with an
expectation of recouping himself for the loan, the husband should be given an opportunity to
render the needful assistance.
3. ID; ID; ID.; ID.; ID. — Where a husband has been amply providing for his wife and
children in a foreign land but reduces the allowance because of financial reverses, a sister of his
wife and the sister's husband cannot recover for money furnished the wife without the knowledge
of the husband.
4. ID; ID.; ID.; ID.; ID.; "STRANGER," WHO IS. — Quaere as to whether a sister and her
husband are "strangers" within the meaning of the law.
 DECISION

MALCOLM,  J p:

This case calls for the application of article 1894 of the Civil Code to the facts.

The plaintiffs are Jose V. Ramirez and his wife, Eloisa de Marcaida. The defendant is J.
R. Redfern. Jose V. Ramirez and J. R. Redfern are brothers-in-law.
The action is brought by the plaintiffs to recover from the defendant the sums of œ600,
185, and 875 for alleged advances to the defendant's wife for her support and maintenance. The
answer is a general denial. The judgment of the trial court absolves the defendant from the
demands of the plaintiff, with costs against the plaintiffs.
In 1908, J. R. Redfern took his wife and three minor children to England and left them
there. He returned to the Philippines the following year. Beginning with 1910 and continuing until
1922, Mr. Redfern provided his wife with funds for her expenses as follows: 1910 — œ20 to œ30
per month and P1,000 for traveling expenses to the Philippines; 1911 — œ20 to œ30 per month;
1912 — œ20 to œ30 per month; 1913 — 20 to œ30 per month; 1914 œ345; 1915 — œ425; 1916
— œ590; 1917 — œ650; 1918 — œ660; 1919 — œ560; 1920 — œ600; 1921 — œ440; 1922 —
February to October, $8 per month when the wife returned to Manila. Mr. Redfern is now
furnishing his wife P300 per month for the support of herself and one child. The two grown sons
are employed and are earning their own living.
In 1920, while still in England, Mrs. Redfern obtained from her sister, Mrs. Ramirez, the
sum of œ600. Mrs. Redfern later secured an additional œ185 from her sister in England.
Mrs. Redfern did not make use of this money until 1922. Eight hundred seventy-five pesos were
advanced by Mr. and Mrs. Ramirez to Mrs. Redfern after the latter had returned to Manila.
The foregoing skeletonized statement of the case and of the facts is taken principally from
the decision rendered by Judge Harvey. His Honor's findings are entirely confirmed by the record.
There can be no vital difference of opinion as to any essential fact.
The result reached by the trial judge was this: "Under the facts and circumstances of this
case, the court is of the opinion that defendant was amply providing for his wife and children in
London, and that defendant is not liable to plaintiffs for the sums of money here sought to be
recovered, which were delivered to defendant's wife without his knowledge or consent and when
there was no necessity therefor." Said conclusion is assailed by the plaintiffs as appellants in an
argument on four errors.
The case falls squarely within the provisions of the first paragraph of article 1894 of the
Civil Code. This article provides: "When, without the knowledge of the person who is bound to
give support to a dependent, a stranger supplies it, the latter shall be entitled to recover the same
from the former, unless it appears that he gave it out of charity, and without the expectation of
recovering it." For one to recover under the provisions of article 1894 of the Civil Code, it must be
alleged and proved, first, that support has been furnished a dependent of one bound to give
support but who fails to do so; second, that the support was supplied by a stranger; and third, that
the support was given without the knowledge of the person charged with the duty. The negative
qualification is when the support is given without the expectation of recovering it.
With special reference to the combined facts and law, it may be conceded that Mr. and
Mrs. Ramirez did not supply Mrs. Redfern with money out of charity. The third requisite of the law
is also taken out of consideration since Mr. Redfern is the first to acknowledge that the money
was handed to his wife by Mr. and Mrs. Ramirez without his knowledge. We think, however, that
there is a failure of proof as to the first essential, and possibly the second essential, of the law.
The first requisite of the law has a legal introduction, but ends as a question of fact. The
husband and wife are mutually bound to support each other. By support is understood all that is
necessary for food, shelter, clothing and medical attendance, according to the social standing of
the family. Parents are also required to bring up and educate their children. But in this connection,
the point of interest is that the wife accepted assistance from another, when it is not shown that
she had ever made any complaint to her husband or any of his agents with regard to her
allowance. The testimony of the husband is uncontradicted that he had given his English agent
 instructions to furnish his wife with any reasonable sum she needed bearing in mind his financial
condition, but that she never took advantage of this offer. Mr. Redfern's reason for reducing the
allowance, he says, was his precarious financial situation in 1921 and 1922. Before one can
tender succor to the wife of another with an expectation of recouping himself for the loan, the
husband should be given an opportunity to render the needful assistance.
With reference also to the first requirement of the law above-mentioned, it is clear that
there is evidence in the record which corroborates the finding of the trial judge that the defendant
was amply providing for his wife and children in London. The only debatable question relates to
the year 1922 when the allowance was reduced to œ8 a month. But a wife's fortunes and a
husband's fortunes coincide. For children of proper age to be made to look after themselves, is
not always a hardship. As to the œ600 first advanced to Mrs. Redfern, this was not primarily for
support because she retained it for some time before using it.
What has been said makes superfluous a discussion of the novel question of whether a
sister and her husband are "strangers" within the meaning of the law. (There can be noted and
compared Pelayo vs. Lauron [1909], 12 Phil., 453, and Gorayeb  vs. Hashim [1922], R.G. No.
19284, 1 not reported.)
We are unable to say that reversible error was committed by the trial judge in rendering
judgment in favor of the defendant and against the plaintiffs. Accordingly, let the judgment
appealed from be affirmed, with costs against the appellants.
Avanceña, C.J., Street, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.
Footnotes
1.Promulgated October 24, 1922.
 

|||  (Ramirez v. Redfern, G.R. No. 26062, [December 31, 1926], 49 PHIL 849-853)
 FIRST DIVISION

[G.R. Nos. 175279-80. June 5, 2013.]

SUSAN LIM-LUA,  petitioner, vs. DANILO Y. LUA, respondent.

DECISION

VILLARAMA, JR.,  J p:

In this petition for review on certiorari under Rule 45, petitioner seeks to set aside the
Decision 1 dated April 20, 2006 and Resolution 2 dated October 26, 2006 of the Court of Appeals
(CA) dismissing her petition for contempt (CA-G.R. SP No. 01154) and granting respondent's petition
for certiorari (CA-G.R. SP No. 01315).
The factual background is as follows:
On September 3, 2003, 3 petitioner Susan Lim-Lua filed an action for the declaration of nullity
of her marriage with respondent Danilo Y. Lua, docketed as Civil Case No. CEB-29346 of the
Regional Trial Court (RTC) of Cebu City, Branch 14.
In her prayer for support  pendente lite for herself and her two children, petitioner sought the
amount of P500,000.00 as monthly support, citing respondent's huge earnings from salaries and
dividends in several companies and businesses here and abroad. 4
After due hearing, Judge Raphael B. Yrastorza, Sr. issued an Order 5 dated March 31, 2004
granting support  pendente lite, as follows:
From the evidence already adduced by the parties, the amount of Two
Hundred Fifty (P250,000.00) Thousand Pesos would be sufficient to take care of
the needs of the plaintiff. This amount excludes the One hundred thirty-five
(P135,000.00) Thousand Pesos for medical attendance expenses  needed by
plaintiff for the operation of both her eye[s] which is demandable upon the conduct
of such operation. The amounts already extended to the two (2) children, being a
commendable act of defendant, should be continued by him considering the vast
financial resources at his disposal. AaEcHC
According to Art. 203 of the Family Code, support is demandable from the
time plaintiff needed the said support but is payable only from the date of judicial
demand. Since the instant complaint was filed on 03 September 2003, the amount
of Two Hundred Fifty (P250,000.00) Thousand should be paid by defendant to
plaintiff retroactively to such date until the hearing of the support  pendente lite.
P250,000.00 x 7 corresponding to the seven (7) months that lapsed from
September, 2003 to March 2004 would tantamount to a total of One Million Seven
Hundred Fifty (P1,750,000.00) Thousand Pesos. Thereafter, starting the month of
April 2004, until otherwise ordered by this Court, defendant is ordered to pay a
 monthly support of Two Hundred Fifty Thousand (P250,000.00) Pesos payable
within the first five (5) days of each corresponding month  pursuant to the third
paragraph of Art. 203 of the Family Code of the Philippines. The monthly support of
P250,000.00 is without prejudice to any increase or decrease thereof that this Court
may grant plaintiff as the circumstances may warrant i.e., depending on the proof
submitted by the parties during the proceedings for the main action for support. 6
Respondent filed a motion for reconsideration, 7 asserting that petitioner is not entitled to
spousal support considering that she does not maintain for herself a separate dwelling from their
children and respondent has continued to support the family for their sustenance and well-being in
accordance with family's social and financial standing. As to the P250,000.00 granted by the trial court
as monthly support pendente lite, as well as the P1,750,000.00 retroactive support, respondent found
it unconscionable and beyond the intendment of the law for not having considered the needs of the
respondent.
In its May 13, 2004 Order, the trial court stated that the March 31, 2004 Order had become
final and executory since respondent's motion for reconsideration is treated as a mere scrap of paper
for violation of the three-day notice period under Section 4, Rule 15 of the  1997 Rules of Civil
Procedure, as amended, and therefore did not interrupt the running of the period to appeal.
Respondent was given ten (10) days to show cause why he should not be held in contempt of the
court for disregarding the March 31, 2004 order granting support  pendente lite. 8
His second motion for reconsideration having been denied, respondent filed a petition
for certiorari in the CA.
On April 12, 2005, the CA rendered its Decision, 9 finding merit in respondent's contention
that the trial court gravely abused its discretion in granting P250,000.00 monthly support to petitioner
without evidence to prove his actual income. The said court thus decreed:
WHEREFORE, foregoing premises considered, this petition is given due
course. The assailed Orders dated March 31, 2004, May 13, 2004, June 4, 2004
and June 18, 2004 of the Regional Trial Court, Branch 14, Cebu City issued in Civil
Case No. CEB No. 29346 entitled "Susan Lim Lua versus Danilo Y. Lua"  are
hereby nullified and set aside and instead a new one is entered ordering herein
petitioner:
a) to pay private respondent a monthly support pendente lite of
P115,000.00 beginning the month of April 2005 and every month
thereafter within the first five (5) days thereof; ASIETa
b) to pay the private respondent the amount of P115,000.00 a month
multiplied by the number of months starting from September 2003
until March 2005 less than the amount supposedly given by
petitioner to the private respondent as her and their two (2) children
monthly support; and
c) to pay the costs.
SO ORDERED. 10
Neither of the parties appealed this decision of the CA. In a Compliance 11 dated June 28,
2005, respondent attached a copy of a check he issued in the amount of P162,651.90 payable to
petitioner. Respondent explained that, as decreed in the CA decision, he deducted from the amount of
support in arrears (September 3, 2003 to March 2005) ordered by the CA — P2,185,000.00 — plus
P460,000.00 (April, May, June and July 2005), totalling P2,645,000.00, the advances given by him to
his children and petitioner in the sum of P2,482,348.16 (with attached photocopies of
receipts/billings).
In her Comment to Compliance with Motion for Issuance of a Writ of Execution, 12 petitioner
asserted that none of the expenses deducted by respondent may be chargeable as part of the
monthly support contemplated by the CA in CA-G.R. SP No. 84740.
On September 27, 2005, the trial court issued an Order 13 granting petitioner's motion for
issuance of a writ of execution as it rejected respondent's interpretation of the CA decision.
Respondent filed a motion for reconsideration and subsequently also filed a motion for inhibition of
Judge Raphael B. Yrastorza, Sr. On November 25, 2005, Judge Yrastorza, Sr. issued an
Order 14 denying both motions.
WHEREFORE, in view of the foregoing premises, both motions are
DENIED. Since a second motion for reconsideration is prohibited under the Rules,
this denial has attained finality; let, therefore, a writ of execution be issued in favor
of plaintiff as against defendant for the accumulated support in arrears pendente
lite.
Notify both parties of this Order.
SO ORDERED. 15
Since respondent still failed and refused to pay the support in arrears pendente lite, petitioner
filed in the CA a Petition for Contempt of Court with Damages, docketed as CA-G.R. SP No.
01154 ("Susan Lim Lua versus Danilo Y. Lua"). Respondent, on the other hand, filed CA-G.R. SP No.
01315, a Petition for Certiorari under Rule 65 of the Rules of Court ("Danilo Y. Lua versus Hon.
Raphael B. Yrastorza, Sr., in his capacity as Presiding Judge of Regional Trial Court of Cebu, Branch
14, and Susan Lim Lua"). The two cases were consolidated.
By Decision dated April 20, 2006, the CA set aside the assailed orders of the trial court, as
follows:
WHEREFORE, judgment is hereby rendered:
a) DISMISSING, for lack of merit, the case of Petition for Contempt of Court
with Damages filed by Susan Lim Lua against Danilo Y. Lua with
docket no. SP. CA-G.R. No. 01154; cDAITS
b) GRANTING Danilo Y. Lua's Petition for Certiorari docketed as SP. CA-
G.R. No. 01315. Consequently, the assailed Orders dated 27
September 2005 and 25 November 2005 of the Regional Trial
Court, Branch 14, Cebu City issued in Civil Case No. CEB-29346
entitled "Susan Lim Lua versus Danilo Y. Lua, are hereby
NULLIFIED and SET ASIDE, and instead a new one is entered:
i. ORDERING the deduction of the amount of PhP2,482,348.16
plus 946,465.64, or a total of PhP3,428,813.80 from the
current total support in arrears of Danilo Y. Lua to his wife,
Susan Lim Lua and their two (2) children;
ii. ORDERING Danilo Y. Lua to resume payment of his monthly
support of PhP115,000.00 pesos starting from the time
payment of this amount was deferred by him subject to the
deductions aforementioned.
iii. DIRECTING the issuance of a permanent writ of preliminary
injunction.
SO ORDERED. 16
The appellate court said that the trial court should not have completely disregarded the
expenses incurred by respondent consisting of the purchase and maintenance of the two cars,
payment of tuition fees, travel expenses, and the credit card purchases involving groceries, dry goods
and books, which certainly inured to the benefit not only of the two children, but their mother
(petitioner) as well. It held that respondent's act of deferring the monthly support adjudged in CA-
G.R. SP No. 84740 was not contumacious as it was anchored on valid and justifiable reasons.
Respondent said he just wanted the issue of whether to deduct his advances be settled first in view of
the different interpretation by the trial court of the appellate court's decision in CA-G.R. SP No. 84740.
It also noted the lack of contribution from the petitioner in the joint obligation of spouses to support
their children.
Petitioner filed a motion for reconsideration but it was denied by the CA.
 Hence, this petition raising the following errors allegedly committed by the CA:
I.
THE HONORABLE COURT ERRED IN NOT FINDING RESPONDENT GUILTY
OF INDIRECT CONTEMPT. cDAITS
II.
THE HONORABLE COURT ERRED IN ORDERING THE DEDUCTION OF THE
AMOUNT OF PHP2,482,348.16 PLUS 946,465.64, OR A TOTAL OF
PHP3,428,813.80 FROM THE CURRENT TOTAL SUPPORT IN ARREARS OF
THE RESPONDENT TO THE PETITIONER AND THEIR CHILDREN. 17
The main issue is whether certain expenses already incurred by the respondent may be
deducted from the total support in arrears owing to petitioner and her children pursuant to the
Decision dated April 12, 2005 in CA-G.R. SP No. 84740.
The pertinent provision of the Family Code of the Philippines provides:
Article 194. Support comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance, education and transportation, in keeping
with the financial capacity of the family.
The education of the person entitled to be supported referred to in the
preceding paragraph shall include his schooling or training for some profession,
trade or vocation, even beyond the age of majority. Transportation shall include
expenses in going to and from school, or to and from place of work. (Emphasis
supplied.)
Petitioner argues that it was patently erroneous for the CA to have allowed the deduction of
the value of the two cars and their maintenance costs from the support in arrears, as these items are
not indispensable to the sustenance of the family or in keeping them alive. She points out that in the
Decision in CA-G.R. SP No. 84740, the CA already considered the said items which it deemed
chargeable to respondent, while the monthly support  pendente lite (P115,000.00) was fixed on the
basis of the documentary evidence of respondent's alleged income from various businesses and
petitioner's testimony that she needed P113,000.00 for the maintenance of the household and other
miscellaneous expenses excluding  the P135,000.00 medical attendance expenses of petitioner.
Respondent, on the other hand, contends that disallowing the subject deductions would result
in unjust enrichment, thus making him pay for the same obligation twice. Since petitioner and the
children resided in one residence, the groceries and dry goods purchased by the children using
respondent's credit card, totalling P594,151.58 for the period September 2003 to June 2005 were not
consumed by the children alone but shared with their mother. As to the Volkswagen Beetle and BMW
316i respondent bought for his daughter Angelli Suzanne Lua and Daniel Ryan Lua, respectively,
these, too, are to be considered advances for support, in keeping with the financial capacity of the
family. Respondent stressed that being children of parents belonging to the upper-class society,
Angelli and Daniel Ryan had never in their entire life commuted from one place to another, nor do
they eat their meals at "carinderias". Hence, the cars and their maintenance are indispensable to the
children's day-to-day living, the value of which were properly deducted from the arrearages in
support pendente lite ordered by the trial and appellate courts. AEIDTc
As a matter of law, the amount of support which those related by marriage and family
relationship is generally obliged to give each other shall be in proportion to the resources or means of
the giver and to the needs of the recipient. 18 Such support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the
financial capacity of the family.
Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for
annulment of voidable marriage, or for legal separation, and at any time during the proceeding, the
court, motu proprio or upon verified application of any of the parties, guardian or designated
custodian, may temporarily grant support pendente lite prior to the rendition of judgment or final
order. 19 Because of its provisional nature, a court does not need to delve fully into the merits of the
case before it can settle an application for this relief. All that a court is tasked to do is determine the
kind and amount of evidence which may suffice to enable it to justly resolve the application. It is
enough that the facts be established by affidavits or other documentary evidence appearing in the
record. 20
In this case, the amount of monthly support  pendente lite for petitioner and her two children
was determined after due hearing and submission of documentary evidence by the parties. Although
the amount fixed by the trial court was reduced on appeal, it is clear that the monthly
support pendente lite of P115,000.00 ordered by the CA was intended primarily for the sustenance of
petitioner and her children, e.g., food, clothing, salaries of drivers and house helpers, and other
household expenses. Petitioner's testimony also mentioned the cost of regular therapy for her
scoliosis and vitamins/medicines.
ATTY. ZOSA:
xxx xxx xxx
Q How much do you spend for your food and your two (2) children every month?
A Presently, Sir?
ATTY. ZOSA:
Yes.
A For the food alone, I spend not over P40,000.00 to P50,000.00 a month for the
food alone. aAEHCI
xxx xxx xxx
ATTY. ZOSA:
Q What other expenses do you incur in living in that place?
A The normal household and the normal expenses for a family to have a decent
living, Sir.
Q How much other expenses do you incur?
WITNESS:
A For other expenses, is around over a P100,000.00, Sir.
Q Why do you incur that much amount?
A For the clothing for the three (3) of us, for the vitamins and medicines. And also I
am having a special therapy to straighten my back because I am scoliotic. I
am advised by the Doctor to hire a driver, but I cannot still afford it now.
Because my eyesight is not reliable for driving. And I still need another
househelp to accompany me whenever I go marketing because for my age,
I cannot carry anymore heavy loads.
xxx xxx xxx
ATTY. FLORES:
xxx xxx xxx
Q On the issue of the food for you and the two (2) children, you mentioned
P40,000.00 to P50,000.00?
A Yes, for the food alone.
Q Okay, what other possible expenses that you would like to include in those two
(2) items? You mentioned of a driver, am I correct?
A Yes, I might need two (2) drivers, Sir for me and my children.
Q Okay. How much would you like possibly to pay for those two (2) drivers?
 A I think P10,000.00 a month for one (1) driver. So I need two (2) drivers. And I
need another househelp. CaTcSA
Q You need another househelp. The househelp nowadays would charge you
something between P3,000.00 to P4,000.00. That's quite. . .
A Right now, my househelp is receiving P8,000.00. I need another which I will give
a compensation of P5,000.00.
xxx xxx xxx
Q Other than that, do you still have other expenses?
A My clothing.
COURT:
How about the schooling for your children?
WITNESS:
A The schooling is shouldered by my husband, Your Honor.
COURT:
Everything?
A Yes, Your Honor.
xxx xxx xxx
ATTY. FLORES:
Q Madam witness, let us talk of the present needs. . . . . What else, what specific
need that you would like to add so I can tell my client, the defendant.
WITNESS:
A I need to have an operation both of my eyes. I also need a special therapy for my
back because I am scoliotic, three (3) times a week.
Q That is very reasonable. [W]ould you care to please repeat that?
A Therapy for my scoliotic back and then also for the operation both of my eyes.
And I am also taking some vitamins from excel that will cost P20,000.00 a
month. AaSHED
Q Okay. Let's have piece by piece. Have you asked the Doctor how much would it
cost you for the operation of that scoliotic?
A Yes before because I was already due last year. Before, this eye will cost
P60,000.00 and the other eyes P75,000.00.
Q So for both eyes, you are talking of P60,000.00 plus P75,000.00 is P135,000.00?
A Yes.
xxx xxx xxx
Q You talk of therapy?
A Yes.
Q So how much is that?
A Around P5,000.00 a week. 21
As to the financial capacity of the respondent, it is beyond doubt that he can solely provide for
the subsistence, education, transportation, health/medical needs and recreational activities of his
children, as well as those of petitioner who was then unemployed and a full-time housewife. Despite
this, respondent's counsel manifested during the same hearing that respondent was willing to grant
the amount of only P75,000.00 as monthly support pendente lite both for the children and petitioner
as spousal support. Though the receipts of expenses submitted in court unmistakably show how
much respondent lavished on his children, it appears that the matter of spousal support was a
different matter altogether. Rejecting petitioner's prayer for P500,000.00 monthly support and finding
the P75,000.00 monthly support offered by respondent as insufficient, the trial court fixed the monthly
support pendente lite at P250,000.00. However, since the supposed income in millions of respondent
was based merely on the allegations of petitioner in her complaint and registration documents of
various corporations which respondent insisted are owned not by him but his parents and siblings, the
CA reduced the amount of support pendente lite to P115,000.00, which ruling was no longer
questioned by both parties.
Controversy between the parties resurfaced when respondent's compliance with the final CA
decision indicated that he deducted from the total amount in arrears (P2,645,000.00) the sum of
P2,482,348.16, representing the value of the two cars for the children, their cost of maintenance and
advances given to petitioner and his children. Respondent explained that the deductions were made
consistent with the  fallo of the CA Decision in CA-G.R. SP No. 84740 ordering him to pay
support pendente lite in arrears less the amount supposedly given by him to petitioner as her and
their two children's monthly support. ISTECA
The following is a summary of the subject deductions under Compliance dated June 28, 2005,
duly supported by receipts: 22
Car purchases for Angelli Suzanne - Php1,350,000.00
and Daniel Ryan - 613,472.86
Car Maintenance fees of Angelli Suzanne - 51,232.50
Credit card statements of Daniel Ryan - 348,682.28
Car Maintenance fees of Daniel Ryan - 118,960.52
    ———————————————
TOTAL - Php2,482,348.16
    ==============
After the trial court disallowed the foregoing deductions, respondent filed a motion for
reconsideration further asserting that the following amounts, likewise with supporting receipts, be
considered as additional advances given to petitioner and the children: 23
Medical expenses of Susan Lim-Lua   Php42,450.71
Dental Expenses of Daniel Ryan   11,500.00
Travel expenses of Susan Lim-Lua   14,611.15
Credit card purchases of Angelli Suzanne   408,891.08
Salon and travel expenses of Angelli Suzanne   87,112.70
School expenses of Daniel Ryan Lua   260,900.00
Cash given to Daniel and Angelli   121,000.00
    —————————————
TOTAL - Php946,465.64
—————————————
   
—
GRAND TOTAL - Php3,428,813.80
    =============
The CA, in ruling for the respondent said that all the foregoing expenses already incurred by
the respondent should, in equity, be considered advances which may be properly deducted from the
support in arrears due to the petitioner and the two children. Said court also noted the absence of
petitioner's contribution to the joint obligation of support for their children.
We reverse in part the decision of the CA.
Judicial determination of support pendente lite in cases of legal separation and petitions for
declaration of nullity or annulment of marriage are guided by the following provisions of the  Rule on
Provisional Orders. 24
Sec. 2. Spousal Support. — In determining support for the spouses, the
court may be guided by the following rules: IaHSCc
 (a) In the absence of adequate provisions in a written agreement between
the spouses, the spouses may be supported from the properties of the absolute
community or the conjugal partnership.
(b) The court may award support to either spouse in such amount and for
such period of time as the court may deem just and reasonable based on their
standard of living during the marriage.
(c) The court may likewise consider the following factors: (1) whether the
spouse seeking support is the custodian of a child whose circumstances make it
appropriate for that spouse not to seek outside employment; (2) the time necessary
to acquire sufficient education and training to enable the spouse seeking support to
find appropriate employment, and that spouse's future earning capacity; (3) the
duration of the marriage; (4) the comparative financial resources of the spouses,
including their comparative earning abilities in the labor market; (5) the needs and
obligations of each spouse; (6) the contribution of each spouse to the marriage,
including services rendered in home-making, child care, education, and career
building of the other spouse; (7) the age and health of the spouses; (8) the physical
and emotional conditions of the spouses; (9) the ability of the supporting spouse to
give support, taking into account that spouse's earning capacity, earned and
unearned income, assets, and standard of living; and (10) any other factor the court
may deem just and equitable.
(d) The Family Court may direct the deduction of the provisional support
from the salary of the spouse.
Sec. 3. Child Support. — The common children of the spouses shall be
supported from the properties of the absolute community or the conjugal
partnership.
Subject to the sound discretion of the court, either parent or both may be
ordered to give an amount necessary for the support, maintenance, and education
of the child. It shall be in proportion to the resources or means of the giver and to
the necessities of the recipient.
In determining the amount of provisional support, the court may likewise
consider the following factors: (1) the financial resources of the custodial and non-
custodial parent and those of the child; (2) the physical and emotional health of the
child and his or her special needs and aptitudes; (3) the standard of living the child
has been accustomed to; (4) the non-monetary contributions that the parents will
make toward the care and well-being of the child. cAISTC
The Family Court may direct the deduction of the provisional support from
the salary of the parent.
Since the amount of monthly support pendente lite as fixed by the CA was not appealed by
either party, there is no controversy as to its sufficiency and reasonableness. The dispute concerns
the deductions made by respondent in settling the support in arrears.
On the issue of crediting of money payments or expenses against accrued support, we find as
relevant the following rulings by US courts.
In Bradford v. Futrell, 25 appellant sought review of the decision of the Circuit Court which
found him in arrears with his child support payments and entered a decree in favor of appellee wife.
He complained that in determining the arrearage figure, he should have been allowed full credit for all
money and items of personal property given by him to the children themselves, even though he
referred to them as gifts. The Court of Appeals of Maryland ruled that in the suit to determine amount
of arrears due the divorced wife under decree for support of minor children, the husband (appellant)
was not entitled to credit for checks which he had clearly designated as gifts, nor was he entitled to
credit for an automobile given to the oldest son or a television set given to the children. Thus, if the
children remain in the custody of the mother, the father is not entitled to credit for money paid directly
to the children if such was paid without any relation to the decree.
 In the absence of some finding of consent by the mother, most courts
refuse to allow a husband to dictate how he will meet the requirements for support
payments when the mode of payment is fixed by a decree of court. Thus he will not
be credited for payments made when he unnecessarily interposed himself as a
volunteer and made payments direct to the children of his own accord. Wills v.
Baker, 214 S. W. 2d 748 (Mo. 1948); Openshaw v. Openshaw, 42 P. 2d 191 (Utah
1935). In the latter case the court said in part: "The payments to the children
themselves do not appear to have been made as payments upon alimony, but were
rather the result of his fatherly interest in the welfare of those children. We do not
believe he should be permitted to charge them to plaintiff. By so doing he would be
determining for Mrs. Openshaw the manner in which she should expend her
allowances. It is a very easy thing for children to say their mother will not give them
money, especially as they may realize that such a plea is effective in attaining their
ends. If she is not treating them right the courts are open to the father for
redress." 26
In Martin, Jr. v. Martin, 27 the Supreme Court of Washington held that a father, who is
required by a divorce decree to make child support payments directly to the mother, cannot claim
credit for payments voluntarily made directly to the children. However, special considerations of an
equitable nature may justify a court in crediting such payments on his indebtedness to the mother,
when such can be done without injustice to her. SAEHaC
The general rule is to the effect that when a father is required by a divorce
decree to pay to the mother money for the support of their dependent children and
the unpaid and accrued installments become judgments in her favor, he cannot, as
a matter of law, claim credit on account of payments voluntarily made directly to the
children.  Koon v. Koon, supra; Briggs v. Briggs, supra. However, special
considerations of an equitable nature may justify a court in crediting such
payments on his indebtedness to the mother, when that can be done without
injustice to her.  Briggs v. Briggs, supra. The courts are justifiably reluctant to lay
down any general rules as to when such credits may be allowed. 28 (Emphasis
supplied.)
Here, the CA should not have allowed all the expenses incurred by respondent to be credited
against the accrued support  pendente lite. As earlier mentioned, the monthly support pendente
lite granted by the trial court was intended primarily for food, household expenses such as salaries of
drivers and house helpers, and also petitioner's scoliosis therapy sessions. Hence, the value of two
expensive cars bought by respondent for his children plus their maintenance cost, travel expenses of
petitioner and Angelli, purchases through credit card of items other than groceries and dry goods
(clothing) should have been disallowed, as these bear no relation to the judgment awarding
support pendente lite. While it is true that the dispositive portion of the executory decision in CA-
G.R. SP No. 84740 ordered herein respondent to pay the support in arrears "less than the amount
supposedly given by petitioner to the private respondent as her and their two (2) children monthly
support," the deductions should be limited to those basic needs and expenses considered by the trial
and appellate courts. The assailed ruling of the CA allowing huge deductions from the accrued
monthly support of petitioner and her children, while correct insofar as it commends the generosity of
the respondent to his children, is clearly inconsistent with the executory decision in CA-G.R. SP No.
84740. More important, it completely ignores the unfair consequences to petitioner whose sustenance
and well-being, was given due regard by the trial and appellate courts. This is evident from the March
31, 2004 Order granting support pendente lite to petitioner and her children, when the trial court
observed:
While there is evidence to the effect that defendant is giving some forms of
financial assistance to his two (2) children via their credit cards and paying for their
school expenses, the same is, however, devoid of any form of spousal support to
the plaintiff, for, at this point in time, while the action for nullity of marriage is still to
be heard, it is incumbent upon the defendant, considering the physical and financial
condition of the plaintiff and the overwhelming capacity of defendant, to extend
support unto the latter. . . . 29
On appeal, while the Decision in CA-G.R. SP No. 84740 reduced the amount of monthly
support fixed by the trial court, it nevertheless held that considering respondent's financial resources,
it is but fair and just that he give a monthly support for the sustenance and basic necessities of
petitioner and his children. This would imply that any amount respondent seeks to be credited as
monthly support should only cover those incurred for sustenance and household expenses.
In the case at bar, records clearly show and in fact has been admitted by
petitioner that aside from paying the expenses of their two (2) children's schooling,
he gave his two (2) children two (2) cars and credit cards of which the expenses for
various items namely: clothes, grocery items and repairs of their cars
were chargeable to him which totaled an amount of more than One Hundred
Thousand (P100,000.00) for each of them and considering that as testified by the
private respondent that she needs the total amount of P113,000.00 for the
maintenance of the household and other miscellaneous expenses and considering
further that petitioner can afford to buy cars for his two (2) children, and to pay the
expenses incurred by them which are chargeable to him through the credit cards he
provided them in the amount of P100,000.00 each, it is but fair and just that the
monthly support  pendente lite for his wife, herein private respondent, be fixed as of
the present in the amount of P115,000.00 which would be sufficient enough to
take care of the household and other needs. This monthly support  pendente
lite  to private respondent in the amount of P115,000.00 excludes the amount of
One Hundred Thirty-Five (P135,000.00) Thousand Pesos for medical
attendance expenses needed by private respondent for the operation of both
her eye[s] which is demandable upon the conduct of such operation. Likewise, this
monthly support of P115,000.00 is without prejudice to any increase or decrease
thereof that the trial court may grant private respondent as the circumstances may
warrant i.e., depending on the proof submitted by the parties during the
proceedings for the main action for support.
The amounts already extended to the two (2) children, being a
commendable act of petitioner, should be continued by him considering the vast
financial resources at his disposal. 30 (Emphasis supplied.) HTaSEA
Accordingly, only the following expenses of respondent may be allowed as deductions from
the accrued support pendente lite for petitioner and her children:
Medical expenses of Susan Lim-Lua Php42,450.71
Dental Expenses of Daniel Ryan 11,500.00
Credit card purchases of Angelli 365,282.20
(Groceries and Dry Goods)  
Credit Card purchases of Daniel Ryan 228,869.38
  —————————————
TOTAL Php648,102.29
  ============
As to the contempt charge, we sustain the CA in holding that respondent is not guilty of
indirect contempt.
Contempt of court is defined as a disobedience to the court by acting in opposition to its
authority, justice, and dignity. It signifies not only a willful disregard or disobedience of the court's
order, but such conduct which tends to bring the authority of the court and the administration of law
into disrepute or, in some manner, to impede the due administration of justice. 31 To constitute
contempt, the act must be done willfully and for an illegitimate or improper purpose. 32 The good faith,
or lack of it, of the alleged contemnor should be considered. 33
Respondent admittedly ceased or suspended the giving of monthly support  pendente
lite  granted by the trial court, which is immediately executory. However, we agree with the CA that
respondent's act was not contumacious considering that he had not been remiss in actually providing
for the needs of his children. It is a matter of record that respondent continued shouldering the full
cost of their education and even beyond their basic necessities in keeping with the family's social
status. Moreover, respondent believed in good faith that the trial and appellate courts, upon equitable
grounds, would allow him to offset the substantial amounts he had spent or paid directly to his
children.
Respondent complains that petitioner is very much capacitated to generate income on her
own because she presently maintains a boutique at the Ayala Center Mall in Cebu City and at the
same time engages in the business of lending money. He also claims that the two children have
finished their education and are now employed in the family business earning their own
salaries. TCIHSa
Suffice it to state that the matter of increase or reduction of support should be submitted to
the trial court in which the action for declaration for nullity of marriage was filed, as this Court is not a
trier of facts. The amount of support may be reduced or increased proportionately according to the
reduction or increase of the necessities of the recipient and the resources or means of the person
obliged to support. 34 As we held in  Advincula v. Advincula: 35
. . .Judgment for support does not become final. The right to support is of
such nature that its allowance is essentially provisional; for during the entire period
that a needy party is entitled to support, his or her alimony may be modified or
altered, in accordance with his increased or decreased needs, and with the means
of the giver. It cannot be regarded as subject to final determination. 36
WHEREFORE, the petition is PARTLY GRANTED. The Decision dated April 20, 2006 of the
Court of Appeals in CA-G.R. SP Nos. 01154 and 01315 is hereby MODIFIED to read as follows:
"WHEREFORE, judgment is hereby rendered:
a) DISMISSING, for lack of merit, the case of Petition for Contempt of Court
with Damages filed by Susan Lim Lua against Danilo Y. Lua with
docket no. SP. CA-G.R. No. 01154;
b) GRANTING IN PART Danilo Y. Lua's Petition for Certiorari  docketed as
SP. CA-G.R. No. 01315. Consequently, the assailed Orders dated
27 September 2005 and 25 November 2005 of the Regional Trial
Court, Branch 14, Cebu City issued in Civil Case No. CEB-29346
entitled "Susan Lim Lua versus Danilo Y. Lua, are hereby
NULLIFIED and SET ASIDE, and instead a new one is entered:
i. ORDERING the deduction of the amount of Php648,102.29 from
the support pendente lite in arrears of Danilo Y. Lua to his
wife, Susan Lim Lua and their two (2) children;
ii. ORDERING Danilo Y. Lua to resume payment of his monthly
support of PhP115,000.00 pesos starting from the time
payment of this amount was deferred by him subject to the
deduction aforementioned. HSAcaE
iii. DIRECTING the immediate execution of this judgment.
SO ORDERED."
No pronouncement as to costs.
SO ORDERED.
Sereno, C.J., Leonardo-de Castro, Bersamin and Reyes, JJ., concur.

|||  (Lim-Lua v. Lua, G.R. Nos. 175279-80, [June 5, 2013], 710 PHIL 211-234)
 THIRD DIVISION

[G.R. No. 193707. December 10, 2014.]

NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO
NORJO VAN WILSEM,  petitioner, vs. ERNST JOHAN BRINKMAN VAN
WILSEM,  respondent.

DECISION

PERALTA, J  p:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of

Court seeking to reverse and set aside the Orders 1 dated February 19, 2010 and September 1,
2010, respectively, of the Regional Trial Court of Cebu City (RTC-Cebu), which dismissed the criminal
case entitled People of the Philippines v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal
Case No. CBU-85503, for violation of Republic Act (R.A.) No. 9262, otherwise known as the Anti-
Violence Against Women and Their Children Act of 2004.
The following facts are culled from the records:
Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem
contracted marriage in Holland on September 25, 1990. 2 On January 19, 1994, they were blessed
with a son named Roderigo Norjo Van Wilsem, who at the time of the filing of the instant petition was
sixteen (16) years of age. 3
Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree
issued by the appropriate Court of Holland. 4 At that time, their son was only eighteen (18) months
old. 5 Thereafter, petitioner and her son came home to the Philippines. 6 CHIaTc
According to petitioner, respondent made a promise to provide monthly support to their son in
the amount of Two Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or
less). 7 However, since the arrival of petitioner and her son in the Philippines, respondent never gave
support to the son, Roderigo. 8
Not long thereafter, respondent came to the Philippines and remarried in Pinamungahan,
Cebu, and since then, have been residing thereat. 9 Respondent and his new wife established a
business known as Paree Catering, located at Barangay Tajao, Municipality of Pinamungahan, Cebu
City. 10 To date, all the parties, including their son, Roderigo, are presently living in Cebu City. 11
On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from
respondent. However, respondent refused to receive the letter. 12
Because of the foregoing circumstances, petitioner filed a complaint-affidavit with the
Provincial Prosecutor of Cebu City against respondent for violation of Section 5, paragraph E (2)
of R.A. No. 9262 for the latter's unjust refusal to support his minor child with petitioner. 13 Respondent
submitted his counter-affidavit thereto, to which petitioner also submitted her reply-
affidavit. 14 Thereafter, the Provincial Prosecutor of Cebu City issued a Resolution recommending the
filing of an information for the crime charged against herein respondent.
 The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof, states
that: IcTEaC
That sometime in the year 1995 and up to the present, more or less, in the
Municipality of Minglanilla, Province of Cebu, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, did then and there wilfully,
unlawfully and deliberately deprive, refuse and still continue to deprive his son
RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor, of financial
support legally due him, resulting in economic abuse to the victim.
CONTRARY TO LAW. 15
Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order
against respondent. 16 Consequently, respondent was arrested and, subsequently, posted bail. 17
Petitioner also filed a Motion/Application of Permanent Protection Order to which respondent
filed his Opposition. 18 Pending the resolution thereof, respondent was arraigned. 19
Subsequently, without the RTC-Cebu having resolved the application of the protection order,
respondent filed a Motion to Dismiss on the ground of: (1) lack of jurisdiction over the offense
charged; and (2) prescription of the crime charged. 20
On February 19, 2010, the RTC-Cebu issued the herein assailed Order, 21 dismissing the
instant criminal case against respondent on the ground that the facts charged in the information do
not constitute an offense with respect to the respondent who is an alien, the dispositive part of which
states: aATEDS
WHEREFORE, the Court finds that the facts charged in the information do
not constitute an offense with respect to the accused, he being an alien, and
accordingly, orders this case DISMISSED.
The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his
provisional liberty is hereby cancelled (sic) and ordered released.
SO ORDERED.
Cebu City, Philippines, February 19, 2010. 22
Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent's
obligation to support their child under Article 195 23 of the Family Code, thus, failure to do so makes
him liable under R.A. No. 9262 which "equally applies to all persons in the Philippines who are obliged
to support their minor children regardless of the obligor's nationality." 24
On September 1, 2010, the lower court issued an Order 25 denying petitioner's Motion for
Reconsideration and reiterating its previous ruling. Thus:
. . . The arguments therein presented are basically a rehash of those
advanced earlier in the memorandum of the prosecution. Thus, the court hereby
reiterates its ruling that since the accused is a foreign national he is not subject to
our national law (The Family Code) in regard to a parent's duty and obligation to
give support to his child. Consequently, he cannot be charged of violating R.A.
9262 for his alleged failure to support his child. Unless it is conclusively established
that R.A. 9262 applies to a foreigner who fails to give support to his child,
notwithstanding that he is not bound by our domestic law which mandates a parent
to give such support, it is the considered opinion of the court that no  prima
facie case exists against the accused herein, hence, the case should be
dismissed. CScTDE
WHEREFORE, the motion for reconsideration is hereby DENIED for lack of
merit.
SO ORDERED.
Cebu City, Philippines, September 1, 2010. 26
Hence, the present Petition for Review on Certiorari raising the following issues:
 1. Whether or not a foreign national has an obligation to support his minor child
under Philippine law; and
2. Whether or not a foreign national can be held criminally liable under R.A. No.
9262 for his unjustified failure to support his minor child. 27
At the outset, let it be emphasized that We are taking cognizance of the instant petition
despite the fact that the same was directly lodged with the Supreme Court, consistent with the ruling
in Republic v. Sunvar Realty Development Corporation, 28 which lays down the instances when a
ruling of the trial court may be brought on appeal directly to the Supreme Court without violating the
doctrine of hierarchy of courts, to wit:
. . . Nevertheless, the Rules do not prohibit any of the parties from filing a
Rule 45 Petition with this Court, in case only questions of law are raised or
involved. This latter situation was one that petitioners found themselves in when
they filed the instant Petition to raise only questions of law. CScTED
In Republic v. Malabanan, the Court clarified the three modes of appeal
from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ of error
under Rule 41, whereby judgment was rendered in a civil or criminal action by the
RTC in the exercise of its original jurisdiction; (2) by a petition for review under Rule
42, whereby judgment was rendered by the RTC in the exercise of its appellate
jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court
under Rule 45. "The first mode of appeal is taken to the [Court of Appeals] on
questions of fact or mixed questions of fact and law. The second mode of appeal is
brought to the CA on questions of fact, of law, or mixed questions of fact and
law. The third mode of appeal is elevated to the Supreme Court only on
questions of law." (Emphasis supplied)
There is a question of law when the issue does not call for an examination
of the probative value of the evidence presented or of the truth or falsehood of the
facts being admitted, and the doubt concerns the correct application of law and
jurisprudence on the matter. The resolution of the issue must rest solely on what
the law provides on the given set of circumstances. 29
Indeed, the issues submitted to us for resolution involve questions of law — the response
thereto concerns the correct application of law and jurisprudence on a given set of facts,  i.e., whether
or not a foreign national has an obligation to support his minor child under Philippine law; and whether
or not he can be held criminally liable under R.A. No. 9262 for his unjustified failure to do so. DIEcHa
It cannot be negated, moreover, that the instant petition highlights a novel question of law
concerning the liability of a foreign national who allegedly commits acts and omissions punishable
under special criminal laws, specifically in relation to family rights and duties. The inimitability of the
factual milieu of the present case, therefore, deserves a definitive ruling by this Court, which will
eventually serve as a guidepost for future cases. Furthermore, dismissing the instant petition and
remanding the same to the CA would only waste the time, effort and resources of the courts. Thus, in
the present case, considerations of efficiency and economy in the administration of justice should
prevail over the observance of the hierarchy of courts.
Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless,
we do not fully agree with petitioner's contentions.
To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative
that the legal obligation to support exists.
Petitioner invokes Article 195 30 of the Family Code, which provides the parent's obligation to
support his child. Petitioner contends that notwithstanding the existence of a divorce decree issued in
relation to Article 26 of the Family Code, 31 respondent is not excused from complying with his
obligation to support his minor child with petitioner.
On the other hand, respondent contends that there is no sufficient and clear basis presented
by petitioner that she, as well as her minor son, are entitled to financial support. 32 Respondent also
added that by reason of the Divorce Decree, he is not obligated to petitioner for any financial
support. 33 AHaETS
 On this point, we agree with respondent that petitioner cannot rely on Article 195 34 of
the New Civil Code in demanding support from respondent, who is a foreign citizen, since Article
15 35 of the New Civil Code stresses the principle of nationality. In other words, insofar as Philippine
laws are concerned, specifically the provisions of the Family Code on support, the same only applies
to Filipino citizens. By analogy, the same principle applies to foreigners such that they are governed
by their national law with respect to family rights and duties. 36
The obligation to give support to a child is a matter that falls under family rights and duties.
Since the respondent is a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he
is subject to the laws of his country, not to Philippine law, as to whether he is obliged to give support
to his child, as well as the consequences of his failure to do so. 37
In the case of Vivo v. Cloribel, 38 the Court held that —
Furthermore, being still aliens, they are not in position to invoke the
provisions of the Civil Code of the Philippines, for that Code cleaves to the
principle that family rights and duties are governed by their personal law, i.e.,
the laws of the nation to which they belong even when staying in a foreign country
(cf. Civil Code, Article 15). 39
It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner's son
under Article 195 of the Family Code as a consequence of the Divorce Covenant obtained in
Holland. This does not, however, mean that respondent is not obliged to support petitioner's
son altogether. EHaASD
In international law, the party who wants to have a foreign law applied to a dispute or case
has the burden of proving the foreign law. 40 In the present case, respondent hastily concludes that
being a national of the Netherlands, he is governed by such laws on the matter of provision of and
capacity to support. 41 While respondent pleaded the laws of the Netherlands in advancing his
position that he is not obliged to support his son, he never proved the same.
It is incumbent upon respondent to plead and prove that the national law of the Netherlands
does not impose upon the parents the obligation to support their child (either before, during or after
the issuance of a divorce decree), because Llorente v. Court of Appeals, 42 has already enunciated
that:
True, foreign laws do not prove themselves in our jurisdiction and our
courts are not authorized to take judicial notice of them. Like any other fact, they
must be alleged and proved. 43
In view of respondent's failure to prove the national law of the Netherlands in his favor, the
doctrine of processual presumption shall govern. Under this doctrine, if the foreign law involved is not
properly pleaded and proved, our courts will presume that the foreign law is the same as our local or
domestic or internal law. 44 Thus, since the law of the Netherlands as regards the obligation to
support has not been properly pleaded and proved in the instant case, it is presumed to be the same
with Philippine law, which enforces the obligation of parents to support their children and penalizing
the non-compliance therewith. IASTDE
Moreover, while in Pilapil v. Ibay-Somera, 45 the Court held that a divorce obtained in a
foreign land as well as its legal effects may be recognized in the Philippines in view of the nationality
principle on the matter of status of persons, the Divorce Covenant presented by respondent does not
completely show that he is not liable to give support to his son after the divorce decree was issued.
Emphasis is placed on petitioner's allegation that under the second page of the aforesaid covenant,
respondent's obligation to support his child is specifically stated, 46 which was not disputed by
respondent.
We likewise agree with petitioner that notwithstanding that the national law of respondent
states that parents have no obligation to support their children or that such obligation is not
punishable by law, said law would still not find applicability, in light of the ruling in  Bank of America,
NT and SA v. American Realty Corporation, 47 to wit:
In the instant case, assuming arguendo that the English Law on the matter
were properly pleaded and proved in accordance with Section 24, Rule 132 of the
 Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-Gonzales,
said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to a
sound and established public policy of the forum, the said foreign law,
judgment or order shall not be applied.
Additionally, prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public policy and good customs
shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country. CAHTIS
The public policy sought to be protected in the instant case is the principle
imbedded in our jurisdiction proscribing the splitting up of a single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent —
If two or more suits are instituted on the basis of the same cause of
action, the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others.
Moreover, foreign law should not be applied when its application
would work undeniable injustice to the citizens or residents of the forum. To
give justice is the most important function of law; hence, a law, or judgment or
contract that is obviously unjust negates the fundamental principles of Conflict of
Laws. 48
Applying the foregoing, even if the laws of the Netherlands neither enforce a parent's
obligation to support his child nor penalize the non-compliance therewith, such obligation is still duly
enforceable in the Philippines because it would be of great injustice to the child to be denied of
financial support when the latter is entitled thereto.
We emphasize, however, that as to petitioner herself, respondent is no longer liable to
support his former wife, in consonance with the ruling in San Luis v. San Luis, 49 to wit: SHaIDE
As to the effect of the divorce on the Filipino wife, the Court ruled that she
should no longer be considered married to the alien spouse. Further, she should
not be required to perform her marital duties and obligations. It held:
To maintain, as private respondent does, that, under our laws,
petitioner has to be considered still married to private respondent and
still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together
with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with
possible rights to conjugal property. She should not be discriminated
against in her own country if the ends of justice are to be served.
(Emphasis added) 50
Based on the foregoing legal precepts, we find that respondent may be made liable under
Section 5 (e) and (i) of R.A. No. 9262 for unjustly refusing or failing to give support to petitioner's son,
to wit:
SECTION 5. Acts of Violence Against Women and Their Children. — The
crime of violence against women and their children is committed through any of the
following acts:
xxx xxx xxx
(e) Attempting to compel or compelling the woman or her child to
engage in conduct which the woman or her child has the right to desist
from or desist from conduct which the woman or her child has the right to
engage in, or attempting to restrict or restricting the woman's or her child's
freedom of movement or conduct by force or threat of force, physical or
other harm or threat of physical or other harm, or intimidation directed
 against the woman or child. This shall include, but not limited to, the
following acts committed with the purpose or effect of controlling or
restricting the woman's or her child's movement or conduct: DHSaCA
xxx xxx xxx
(2) Depriving or threatening to deprive the woman or her children of financial
support legally due her or her family, or deliberately providing the woman's
children insufficient financial support;
xxx xxx xxx
(i) Causing mental or emotional anguish, public ridicule or
humiliation to the woman or her child, including, but not limited to, repeated
verbal and emotional abuse, and denial of financial support or
custody of minor children of access to the woman's child/children. 51
Under the aforesaid special law, the deprivation or denial of financial support to the child is
considered an act of violence against women and children.
In addition, considering that respondent is currently living in the Philippines, we find strength
in petitioner's claim that the Territoriality Principle in criminal law, in relation to Article 14 of the New
Civil Code, applies to the instant case, which provides that:"[p]enal laws and those of public security
and safety shall be obligatory upon all who live and sojourn in Philippine territory, subject to the
principle of public international law and to treaty stipulations." On this score, it is indisputable that the
alleged continuing acts of respondent in refusing to support his child with petitioner is committed here
in the Philippines as all of the parties herein are residents of the Province of Cebu City. As such, our
courts have territorial jurisdiction over the offense charged against respondent. It is likewise irrefutable
that jurisdiction over the respondent was acquired upon his arrest. cdll
Finally, we do not agree with respondent's argument that granting, but not admitting, that
there is a legal basis for charging violation of R.A. No. 9262 in the instant case, the criminal liability
has been extinguished on the ground of prescription of crime 52 under Section 24 of R.A. No. 9262,
which provides that:
SECTION 24. Prescriptive Period. — Acts falling under Sections 5(a) to 5(f)
shall prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall
prescribe in ten (10) years.
The act of denying support to a child under Section 5 (e) (2) and (i) of R.A. No. 9262 is a
continuing offense, 53 which started in 1995 but is still ongoing at present. Accordingly, the crime
charged in the instant case has clearly not prescribed.
Given, however, that the issue on whether respondent has provided support to petitioner's
child calls for an examination of the probative value of the evidence presented, and the truth and
falsehood of facts being admitted, we hereby remand the determination of tis issue to the RTC-Cebu
which has jurisdiction over the case.
WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and
September 1, 2010, respectively, of the Regional Trial Court of the City of Cebu are
hereby REVERSED and SET ASIDE. The case is REMANDED to the same court to conduct further
proceedings based on the merits of the case. CEASaT
SO ORDERED.
Velasco, Jr., Villarama, Jr., Mendoza * and Reyes, JJ., concur.
 

|||  (Del Socorro v. Van Wilsem, G.R. No. 193707, [December 10, 2014], 749 PHIL 823-840)
 THIRD DIVISION

[G.R. No. 113054. March 16, 1995.]

LEOUEL SANTOS, SR.,  petitioner-appellant, vs.  COURT OF APPEALS, and

SPOUSES LEOPOLDO and OFELIA BEDIA, respondents-appellees.

Saleto J  . Erames for petitioner.

Manuel S. Gemarino for private respondent.

SYLLABUS

1. CIVIL LAW; FAMILY CODE; PARENTAL AUTHORITY; CONSTRUED. — The right of

custody accorded to parents springs from the exercise of parental authority. Parental authority
or patria potestas in Roman Law is the juridical institution whereby parents rightfully assume
control and protection of their unemancipated children to the extent required by the latter's needs.
It is a mass of rights and obligations which the law grants to parents for the purpose of the
children's physical preservation and development, as well as the cultivation of their intellect and
the education of their heart and senses. As regards parental authority, "there is no power, but a
task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of
the minor.
2. ID.; ID.; ID.; INALIENABLE AND MAY NOT BE TRANSFERRED OR RENOUNCED
EXCEPT IN CASES AUTHORIZED BY LAW. — Parental authority and responsibility are
inalienable and may not be transferred or renounced except in cases authorized by law. The right
attached to parental authority, being purely personal, the law allows a waiver of parental authority
only in cases of adoption, guardianship and surrender to a children's home or an orphan
institution. When a parent entrusts the custody of a minor to another, such as a friend or
 godfather, even in a document, what is given is merely temporary custody and it does not
constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law
still disallows the same.
3. ID.; ID.; ID.; GENERALLY EXERCISED JOINTLY BY THE FATHER AND MOTHER
OF THE UNEMANCIPATED CHILD. — The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to keep them in their custody and company.
The child's welfare is always the paramount consideration in all questions concerning his care and
custody. The law vests on the father and mother joint parental authority over the persons of their
common children. In case of absences 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.
4. ID.; ID.; ID.; ID.; IN THE ABSENCE OF THE LEGITIMATE MOTHER, THE
LEGITIMATE FATHER IS STILL PREFERRED OVER THE GRANDPARENTS; FACT OF
FATHER BEING A SOLDIER, NOT BAR TO ALLOWING HIM CUSTODY. — Private
respondents' demonstrated love and affection for the boy, notwithstanding, the legitimate father is
still preferred over the grandparents. The latter's wealth is not a deciding factor, particularly
because there is no proof that at the present time, petitioner is in no position to support the boy.
The fact that he was unable to provide financial support for his minor son from birth up to over
three years when he took the boy from his in-laws without permission, should not be sufficient
reason to strip him of his permanent right to the child's custody. While petitioner's previous
inattention is inexcusable and merits only the severest criticism, it cannot be construed as
abandonment. His appeal of the unfavorable decision against him and his efforts to keep his only
child in his custody may be regarded as serious efforts to rectify his past misdeeds. To award him
custody would help enhance the bond between parent and son. It would also give the father a
chance to prove his love for his son and for the son to experience the warmth and support which
a father can give. His being a soldier is likewise no bar to allowing him custody over the boy. So
many men in uniform who are assigned to different parts of the country in the service of the
nation, are still the natural guardians of their children. It is not just to deprive our soldiers of
authority, care and custody over their children merely because of the normal consequences of
their duties and assignments, such as temporary separation from their families. Petitioner's
employment of trickery in spiriting away his boy from his in-laws, though unjustifiable, is likewise
not a ground to wrest custody from him. Private respondents' attachment to the young boy whom
they have reared for the past three years is understandable. Still and all, the law considers the
natural love of a parent to outweigh that of the grandparents, such that only when the parent
present is shown to be unfit or unsuitable may the grandparents exercise substitute parental
authority, a fact which has not been proven here.

DECISION

ROMERO, J  p:

In this petition for review, we are asked to overturn the decision of the Court of
Appeals 1 granting custody of six-year old Leouel Santos, Jr. to his maternal grandparents and
not to his father, Santos, Sr. What is sought is a decision which should definitively settle the
matter of the care, custody and control of the boy. cdrep
Happily, unlike King Solomon, we need not merely rely on a "wise and understanding
heart," for there is man's law to guide us and that is, the Family Code.
The antecedent facts giving rise to the case at bench are as follows:
Petitioner Leouel Santos, Sr., an army lieutenant, and Julia Bedia a nurse by profession,
were married in Iloilo City in 1986. Their union begot only one child, Leouel Santos, Jr. who was
born July 18, 1987.
From the time the boy was released from the hospital until sometime thereafter, he had
been in the care and custody of his maternal grandparents, private respondents herein, Leopoldo
and Ofelia Bedia. LLjur
 Petitioner and wife Julia agreed to place Leouel, Jr., in the temporary custody of the
latter's parents, the respondent spouses Bedia. The latter alleged that they paid for all the hospital
bills, as well as the subsequent support of the boy because petitioner could not afford to do so.
The boy's mother, Julia Bedia-Santos, left for the United States in May 1988 to work.
Petitioner alleged that he is not aware of her whereabouts and his efforts to locate her in the
United States proved futile. Private respondents claim that although abroad, their daughter Julia
had been sending financial support to them for her son. prLL
On September 2, 1990, petitioner along with his two brothers, visited the Bedia
household, where three-year old Leouel, Jr., was staying. Private respondents contend that
through deceit and false pretensions, petitioner abducted the boy and clandestinely spirited him
away to his hometown in Bacong, Negros Oriental.
The spouses Bedia then filed a "Petition for Care, Custody and Control of Minor Ward
Leouel Santos, Jr.," before the Regional Trial Court of Iloilo City, with Santos, Sr. as
respondent. 2
After an ex-parte  hearing on October 8, 1990, the trial court issued an order on the same
day awarding custody of the child Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia
Bedia. 3
Petitioner appealed this Order to the Court of Appeals. 4 In its decision dated April 30,
1992, respondent appellate court affirmed the trial court's order. 5 His motion for reconsideration
having been denied, 6 petitioner now brings the instant petition for review for a reversal of the
appellate court's decision. prcd
The Court of Appeals erred, according to petitioner, in awarding custody of the boy to his
grandparents and not to himself. He contends that since private respondents have failed to show
that petitioner is an unfit and unsuitable father, substitute parental authority granted to the boy's
grandparents under Art. 214 of the Family Code is inappropriate.
Petitioner adds that the reasons relied upon by the private respondents in having custody
over the boy, are flimsy and insufficient to deprive him of his natural and legal right to have
custody.
On the other hand, private respondents aver that they can provide an air-conditioned
room for the boy and that petitioner would not be in a position to take care of his son since he has
to be assigned to different places. They also allege that the petitioner did not give a single
centavo for the boy's support and maintenance. When the boy was about to be released from the
hospital, they were the ones who paid the fees because their daughter and petitioner had no
money. Besides, Julia Bedia-Santos, their daughter, had entrusted the boy to them before she left
for the United States. Furthermore, petitioner's use of trickery and deceit in abducting the child in
1990, after being hospitably treated by private respondents, does not speak well of his fitness and
suitability as a parent.
The Bedias argue that although the law recognizes the right of a parent to his child's
custody, ultimately the primary consideration is what is best for the happiness and welfare of the
latter. As maternal grandparents who have amply demonstrated their love and affection for the
boy since his infancy, they claim to be in the best position to promote the child's welfare.
The issue to be resolved here boils down to who should properly be awarded custody of
the minor Leouel Santos, Jr. LLphil
The right of custody accorded to parents springs from the exercise of parental authority.
Parental authority or  patria potestas  in Roman Law is the juridical institution whereby parents
rightfully assume control and protection of their unemancipated children to the extent required by
the latter's needs. 7 It is a mass of rights and obligations which the law grants to parents for the
purpose of the children's physical preservation and development, as well as the cultivation of their
intellect and the education of their heart and senses.  8 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." 9
Parental authority and responsibility are inalienable and may not be transferred or
renounced except in cases authorized by law. 10 The right attached to parental authority, being
purely personal, the law allows a waiver of parental authority only in cases of adoption,
guardianship and surrender to a children's home or an orphan institution. 11 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. 12 Even if a definite renunciation is manifest, the law still disallows the same. 13
The father and mother, being the natural guardians of unemancipated children, are duty-
bound and entitled to keep them in their custody and company. 14 The child's welfare is always
the paramount consideration in all questions concerning his care and custody. 15
The law vests on the father and mother joint parental authority over the persons of their
common children. 16 In case of absence  or death of either parent,  the parent present shall
continue exercising parental authority. 17 Only in case of the parents' death, absence or
unsuitability may substitute parental authority be exercised by the surviving grandparent. 18 The
situation obtaining in the case at bench is one where the mother of the minor Santos, Jr., is
working in the United States while the father, petitioner Santos, Sr., is present. Not only are they
physically apart but are also emotionally separated. There has been no decree of legal separation
and petitioner's attempt to obtain an annulment of the marriage on the ground of psychological
incapacity of his wife has failed. 19
Petitioner assails the decisions of both the trial court and the appellate court to award
custody of his minor son to his parents-in-law, the Bedia spouses on the ground that under Art.
214 of the Family Code, substitute parental authority of the grandparents is proper only when both
parents are dead, absent or unsuitable. Petitioner's unfitness, according to him, has not been
successfully shown by private respondents. LLpr
The Court of Appeals held that although there is no evidence to show that petitioner
(Santos Sr.) is "depraved, a habitual drunkard or poor, he may nevertheless be considered, as he
is in fact so considered, to be unsuitable to be allowed to have custody of minor Leouel Santos,
Jr." 20
The respondent appellate court, in affirming the trial court's order of October 8, 1990,
adopted as its own the latter's observations, to wit:
"From the evidence adduced, this Court is of the opinion that it is to be (sic)
best interest of the minor Leouel Santos, Jr. that he be placed under the care,
custody, and control of his maternal grandparents the petitioners herein. The
petitioners have amply demonstrated their love and devotion to their grandson
while the natural father, respondent herein, has shown little interest in his welfare
as reflected by his conduct in the past. Moreover, the fact that petitioners are well-
off financially, should be carefully considered in awarding to them the custody of the
minor herein, lest the breaking of such ties with his maternal grandparents might
deprive the boy of an eventual college education and other material advantages.
(Consaul vs. Consaul, 63 N.Y.S. 688) Respondent had never given any previous
financial support to his son, while, upon the other hand, the latter receives so much
bounty from his maternal grandparents and his mother as well, who is now gainfully
employed in the United States. Moreover, the fact that respondent, as a military
personnel who has to shuttle from one assignment to another, and, in these
troubled times, may have pressing and compelling military duties which may
prevent him from attending to his son at times when the latter needs him most,
militates strongly against said respondent. Additionally, the child is sickly and
asthmatic and needs the loving and tender care of those who can provide for it." 21
We find the aforementioned considerations insufficient to defeat petitioner's parental
authority and the concomitant right to have custody over the minor Leouel Santos, Jr., particularly
since he has not been shown to be an unsuitable and unfit parent. Private respondents'
demonstrated love and affection for the boy, notwithstanding, the legitimate father is still preferred
over the grandparents. 22 The latter's wealth is not a deciding factor, particularly because there is
no proof that at the present time, petitioner is in no position to support the boy. The fact that he
was unable to provide financial support for his minor son from birth up to over three years when
he took the boy from his in-laws without permission, should not be sufficient reason to strip him of
his permanent right to the child's custody. While petitioner's previous inattention is inexcusable
and merits only the severest criticism, it cannot be construed as abandonment. His appeal of the
unfavorable decision against him and his efforts to keep his only child in his custody may be
regarded as serious efforts to rectify his past misdeeds. To award him custody would help
 enhance the bond between parent and son. It would also give the father a chance to prove his
love for his son and for the son to experience the warmth and support which a father can give. llcd
His being a soldier is likewise no bar to allowing him custody over the boy. So many men
in uniform who are assigned to different parts of the country in the service of the nation, are still
the natural guardians of their children. It is not just to deprive our soldiers of authority, care and
custody over their children merely because of the normal consequences of their duties and
assignments, such as temporary separation from their families.
Petitioner's employment of trickery in spiriting away his boy from his in-laws, though
unjustifiable, is likewise not a ground to wrest custody from him.
Private respondents' attachment to the young boy whom they have reared for the past
three years is understandable. Still and all, the law considers the natural love of a parent to
outweigh that of the grandparents, such that only when the parent present is shown to be unfit or
unsuitable may the grandparents exercise substitute parental authority, a fact which has not been
proven here. llcd
The strong bonds of love and affection possessed by private respondents as
grandparents should not be seen as incompatible with petitioner's right to custody over the child
as a father. Moreover, who is to say whether the petitioner's financial standing may improve in the
future?
WHEREFORE, the petition is GRANTED. The decision of the respondent Court of
Appeals dated April 30, 1992 as well as its Resolution dated November 13, 1992 are hereby
REVERSED and SET ASIDE. Custody over the minor Leouel Santos, Jr. is awarded to his
legitimate father, herein petitioner Leouel Santos, Sr.
SO ORDERED.
Feliciano, Melo, Vitug  and Francisco, JJ., concur.

|||  (Santos, Sr. v. Court of Appeals, G.R. No. 113054, [March 16, 1995], 312 PHIL 482-492)
 SECOND DIVISION

[G.R. No. 116773. January 16, 1997.]

TERESITA SAGALA-ESLAO,  petitioner, vs. COURT OF APPEALS and MARIA

PAZ CORDERO-OUYE, respondents.

Paulino P.  Santiago Jr.  for petitioner.

Restituto R. Villanueva for private respondent.

SYLLABUS

1. CIVIL LAW; FAMILY CODE; PARENTAL AUTHORITY; CONSTRUED. — In Santos, Sr.

vs. Court of Appeals, 242 SCRA 407, this Court stated, viz: ". . . [Parental authority] is a mass of
rights and obligations which the law grants to parents for the purpose of the children's physical
preservation and development, as well as the cultivation of their intellect and the education of their
heart and senses. As regards parental authority, 'there is no power, but a task; no complex of rights,
but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor.' "Parental authority
and responsibility are inalienable and may not be transferred or renounced except in cases authorized
by law. The right attached to parental authority, being purely personal, the allows a waiver of parental
authority only in cases of adoption, guardianship and surrender to a children's home or an orphan
institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather,
even in a document, what is given is merely temporary custody and it does not constitute a
renunciation of parental authority. Even if a definite renunciation of parental authority. Even if a
definite renunciation is manifest, the law still disallows the same. The father and mother, being the
natural guardians of unemancipated children, are duty-bound and entitled to keep them in their
custody and company. (Family Code). LexLib
2. ID.; ID.; ID.; WHEN WAIVER THEREOF MAY BE ALLOWED BY LAW. — Thus, instant
petition, when private respondent entrusted the custody of her minor child the petitioner, what she
gave to the latter was merely temporary custody and it did not constitute abandonment or renunciation
of parental authority, being purely personal, the law allows a waiver of parental authority only in cases
of adoption, guardianship and surrender to a children's home or an orphan institution which do not
appear in the case at bar.
3. ID.; ID.; ID.; AS A RULE, PARENTS HAVE THE NATURAL RIGHT TO THE CUSTODY OF
THEIR MINOR CHILDREN. — 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. (Skedas vs. Skalaroff, 84 RI 206, 122 A2d 444.) cdll

DECISION

TORRES, JR., J p:

Children begin by loving their parents. After a time they judge them. Rarely, if ever, do they
forgive them. 1 Indeed, parenthood is a riddle of no mean proportions except for its mission. Thus, a
mother's concern for her child's custody is undying — is a mother's love.
The right of the mother to the custody of her daughter is the issue in the case at bar.
In this petition for review, Teresita Sagala-Eclao seeks the reversal of the Court of Appeals
decision 2 dated March 25, 1994, which affirmed the trial court's judgment granting the petition of
Maria Paz Cordero-Ouye to recover the custody of her minor daughter from her mother-in-law,
Teresita Sagala-Eslao.
As found by the Court of Appeals, the facts of the case are as follows:
"From the evidence, it appears that on June 22, 1984, petitioner Maria Paz
Cordero-Ouye and Reynaldo Eslao were married; 3 after their marriage, the couple
stayed with respondent Teresita Eslao, mother of the husband, at 1825, Road 14,
Fabie Estate, Paco, Manila; that out of their marriage, two children were begotten,
namely, Leslie Eslao who was born on February 23, 1986 and Angelica Eslao who
was born on April 20, 1987; 4 in the meantime, Leslie was entrusted to the care and
custody of petitioner's mother in Sta. Ana, Pampanga, while Angelica stayed with
her parents at respondent' s house; on August 6, 1990, petitioner's husband
Reynaldo Eslao died; 5 petitioner intended to bring Angelica with her to Pampanga
but the respondent prevailed upon her to entrust the custody of Angelica to her,
respondent reasoning out that her son just died and to assuage her grief therefor,
she needed the company of the child to at least compensate for the loss of her late
son. In the meantime, the petitioner returned to her mother's house in Pampanga
where she stayed with Leslie.
"Subsequently, petitioner was introduced by her auntie to Dr. James
Manabu-Ouye, a Japanese-American, who is an orthodentist practicing in the
United States; their acquaintance blossomed into a meaningful relationship where
on March 18, 1992, the petitioner and Dr. James Ouye decided to get married; less
than ten months thereafter, or on January 15, 1993, the petitioner migrated to San
Francisco, California, USA, to join her new husband. At present, the petitioner is a
trainee at the Union Bank in San Francisco, while her husband is a progressive
practitioner of his profession who owns three cars, a dental clinic and earns
US$5,000 a month. On June 24, 1993, the petitioner returned to the Philippines to
be reunited with her children and bring them to the United States; the petitioner
then informed the respondent about her desire to take custody of Angelica and
explained that her present husband, Dr. James Ouye, expressed his willingness to
adopt Leslie and Angelica and to provide for their support and education; however,
respondent resisted the idea by way of explaining that the child was entrusted to
her when she was ten days old and accused the petitioner of having abandoned
Angelica. Because of the adamant attitude of the respondent, the petitioner then
sought the assistance of a lawyer, Atty. Mariano de Joya, Jr., who wrote a letter to
the respondent demanding for the return of the custody of Angelica to her natural
mother 6 and when the demand remain[ed] unheeded, the petitioner instituted the
present action." 7
 After the trial on the merits, the lower court rendered its decision, the dispositive portion of
which reads:
"WHEREFORE, finding the petition to be meritorious, the Court grants the
same and let the corresponding writ issue. As a corollary, respondent Teresita
Sagala-Eslao or anyone acting under her behalf is hereby directed to cause the
immediate transfer of the custody of the minor Angelica Cordero Eslao, to her
natural mother, petitioner Maria Paz Corder-Ouye.
"No pronouncement as to costs.
"SO ORDERED."
On appeal, the respondent court affirmed in full the decision of the trial court.
Hence, the instant petition by the minor's paternal grandmother, contending that the Court of
Appeals erred:
I
IN RULING THAT PRIVATE RESPONDENT MARIA PAZ CORDERO-OUYE, DID
NOT ABANDON MINOR, ANGELICA ESLAO, TO THE CASE AND CUSTODY OF
THE PETITIONER TERESITA SAGALA-ESLAO.
II
IN RULING THAT THERE WAS NO COMPELLING REASON TO SEPARATE
MINOR, ANGELICA ESLAO, FROM PRIVATE RESPONDENT MARIA PAZ
CORDERO-OUYE, IN FAVOR OF PETITIONER TERESITA SAGALA-ESLAO.
III
IN NOT FINDING THAT PETITIONER TERESITA SAGALA-ESLAO, IS FIT TO BE
GIVEN THE CUSTODY OF MINOR, ANGELICA ESLAO.
The petition is without merit.
Being interrelated, the issues shall be discussed jointly.
Petitioner argues that she would be deserving to take care of Angelica; that she had managed
to raise 12 children of her own herself; that she has the financial means to carry out her plans for
Angelica; that she maintains a store which earns a net income of about P500 a day, she gets 900 a
month as pension for the death of her husband, she rents out rooms in her house which she owns, for
which she earns a total of P6,000 a month, and that from her gross income of roughly P21,000, she
spends about P10,000 for the maintenance of her house.
Despite the foregoing, however, and petitioner's "genuine desire to remain with said child, that
would qualify her to have custody of Angelica," the trial court's disquisition, in consonance with the
provision that the child's welfare is always the paramount consideration in all questions concerning his
care and custody 8 convinced this Court to decide in favor of private respondent, thus:
"On the other hand, the side of the petitioner must also be presented here.
In this case, we see a picture of a real and natural mother who is —
'. . . legitimately, anxiously, and desperately trying to get back her
child in order to fill the void in her heart and existence. She wants to make
up for what she has failed to do for her boy during the period when she was
financially unable to help him and when she could not have him in her
house because of the objection of the father. Now that she has her own
home and is in a better financial condition, she wants her child back, and
we repeat that she has not and has never given him up definitely or with
any idea or permanence.' 9
"The petitioner herein is married to an Orthodontist who has a lucrative
practice or his profession in San Francisco, California, USA. The petitioner and her
present husband have a home of their own and they have three cars. The
 petitioner's husband is willing to adopt the petitioner's children. If the probability is
that they will be afforded a bright future. Contrast this situation with the one
prevailing in the respondent's [grandmother's] house. As admitted by the
respondent, four of the rooms in her house are being rented to other persons with
each room occupied by 4 to 5 persons. Added to these persons are the
respondent's 2 sons, Samuel and Alfredo, and their respective families (ibid., p. 54)
and one can just visualize the kind of atmosphere pervading thereat. And to
aggravate the situation, the house has only 2 toilets and 3 faucets. Finally,
considering that in all controversies involving the custody of minors, the foremost
criterion is the physical and moral well being of the child taking into account the
respective resources and social and moral well being of the child taking into
account the respective resources and social and moral situations of the contending
parties (Union III vs. Mariano, 101 SCRA 183), the Court is left with no other
recourse but to grant the writ prayed for." 10
Petitioner further contends that the respondent court erred in finding that there was no
abandonment committed by the private respondent; that while judicial declaration of abandonment of
the child in a case filed for the purpose is not here obtaining as mandated in Art. 229 of the Family
Code because petitioner failed to resort to such judicial action, it does not ipso facto follow that there
was in fact no abandonment committed by the private respondent. cdt
Petitioner also argues that it has been amply demonstrated during the trial that private
respondent had indeed abandoned Angelica to the care and custody of the petitioner; that during all
the time that Angelica stayed with petitioner, there were only three instances or occasions wherein the
private respondent Angelica on important occasions, such as her birthday, and neither did the former
giver her cards or gifts, "not even a single candy;" 11 that while private respondent claims otherwise
and that she visited Angelica "many times" and insists that she visited Angelica as often as four times
a month and gave her remembrances such as candies and clothes, she would not even remember
when the fourth birthday of Angelica was.
We are not persuaded by such averments.
In Santos, Sr. vs. Court of Appeals, 242 SCRA 407, 12 we stated, viz.:
". . . [Parental authority] is a mass of rights and obligations which the law
grants to parents for the purpose of the children's physical preservation and
development, as well as the cultivation of their intellect and the education of their
heart and senses. 13 As regards parental authority, 'there is no power, but a task;
no complex of rights, but a sum of duties; no sovereignty but a sum of duties; no
sovereignty but a sacred trust for the welfare of the minor.' 14
"Parental authority and responsibility are inalienable and may not be
transferred or renounced except in cases authorized by law. 15 The right attached
to parental authority, being purely personal, the law allows a waiver of parental
authority only in cases of adoption, guardianship and surrender to a children's
home or an orphan institution. 16 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. 17 Even if a definite renunciation is manifest, the law still disallows the
same. 18
"The father and mother, being the natural guardians of unemancipated
children, are duty-bound and entitled to keep them in their custody and
company." 19
Thus, in the instant petition, when private respondent entrusted the custody of her minor child
to the petitioner, what she gave to the latter was merely temporary custody and it did not constitute
abandonment or renunciation of parental authority. For the right attached to parental authority, being
purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship
and surrender to a children's home or an orphan institution which do not appear in the case at bar.
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 estate of
decisions of the courts, but derives from the nature of the parent relationship. 20
IN VIEW WHEREOF, the decision appealed from dated March 25, 1994 being in accordance
with law and the evidence, the same is hereby AFFIRMED  and the petition DISMISSED for lack of
merit.
SO ORDERED.
Regalado, Romero, Puno and Mendoza, JJ., concur.

|||  (Sagala-Eslao v. Court of Appeals, G.R. No. 116773, [January 16, 1997], 334 PHIL 286-294)

THIRD DIVISION

[G.R. No. 132223. June 19, 2001.]

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

Democrito C. Barcenas for petitioner.

Manuel P. Legaspi  for respondent.

SYNOPSIS
 Petitioner, a naturalized American citizen and a resident of Colorado, USA, filed in 1987 with
the Regional Trial Court a petition for guardianship over the persons and properties of minors Valerie
and Vincent, children of her now deceased son, Redeer, by his common-law wife, Helen, herein
respondent. Petitioner then left the country and has not returned. The Cebu RTC granted the petition
and appointed petitioner as guardian of the said minors. Respondent filed an opposition to the
proceedings, but the RTC rejected and denied her motion to remove and/or disqualify petitioner. On
appeal, the Court of Appeals reversed the trial court and ruled that since the law on parental authority
under the Civil Code or P.D. No. 603, and now the New Family Code, consider the parents, the father,
or in his absence, the mother, as natural guardian of her minor children and only for good reasons
may another person be named, respondent has preference over petitioner. Hence, the present
recourse. Meanwhile, Valerie having turned eighteen, the petition has become moot as to her.
The Court agreed 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, surviving grandparent, to be the
guardian of the minor Vincent and has the legal right to his custody. Only in case of death, absence or
unsuitability of the parent can the surviving grandparent exercise substitute parental authority.
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 their wards.

SYLLABUS

1. CIVIL LAW; FAMILY CODE; PARENTAL AUTHORITY; MOTHER SHOULD BE THE

GUARDIAN OF HER MINOR CHILD AND NOT THE LATTER'S GRANDMOTHER. — 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. 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, 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."
2. ID.; ID.; ID.; GRANDMOTHER CAN BE GUARDIAN OF MINOR ONLY BY WAY OF
SUBSTITUTE PARENTAL AUTHORITY; INSTANCES WHEN GRANDPARENT CAN EXERCISE
SUBSTITUTE PARENTAL AUTHORITY OVER MINOR GRANDCHILD. — Petitioner's claim to be the
guardian of said minor can only be realized by way of substitute parental authority pursuant to Article
214 of the Family Code. In Santos, Sr. vs. Court of Appeals, 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.
3. ID.; ID.; ID.; PETITIONER IN CASE AT BAR CANNOT QUALIFY AS A SUBSTITUTE
GUARDIAN; REASONS. — 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-16884 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.
4. REMEDIAL LAW; SPECIAL PROCEEDINGS; GUARDIANSHIP; 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. — 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, 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."
VITUG, J. concurring opinion:
1. CIVIL LAW; FAMILY CODE; PARENTAL AUTHORITY; PARENTS PLACED FIRST IN
RANK IN MATTERS THEREOF. — There is in law and jurisprudence a recognition of the deep ties
that bind parent and child. Parents are thus placed first in rank in matters of parental authority.
Substitute parental authority may be exercised by the grandparents only in case the parents have
died or are absent or declared unfit in proper proceedings for that purpose. Parental authority stands
to include the right and duty to the custody of the child, excepting only, of course, what might
otherwise be best for the child's welfare.
2. ID.; ID.; ID.; CHILD'S ILLEGITIMACY DOES NOT IN ANY WAY AFFECT ORDER OF
PRIORITY IN THE EXERCISE THEREOF. — When the law speaks of family relations, it must be
deemed to refer, unless the contrary is there indicated or the context of the law otherwise clearly
conveys, to both legitimate and illegitimate ties. The child's illegitimacy does not in any way affect the
order of priority in the exercise of parental authority. Indeed, Article 176 of the Family Code states that
an illegitimate child shall be under the parental authority of the mother who, consequentially, should
also be entitled to the custody of the child.

DECISION

SANDOVAL-GUTIERREZ, J  p:

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. DSIaAE
"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. SEcTHA
"3. The respondent (sic) Court of Appeals gravely erred when it disqualified
petitioner Bonifacia P. Vancil to be appointed as judicial guardian over the persons
and estate of subject minors despite the fact that she has all the qualifications and
 none of the disqualifications as judicial guardian, merely on the basis of her U.S.
citizenship which is clearly not a statutory requirement to become guardian."
At the outset, let it be stressed that in her "Manifestation/Motion," dated September 15, 1998,
respondent Helen Belmes stated that her daughter Valerie turned eighteen on September 2, 1998 as
shown by her Birth Certificate. 3 Respondent thus prayed that this case be dismissed with respect to
Valerie, she being no longer a proper subject of guardianship proceedings. The said
"Manifestation/Motion" was noted by this Court in its Resolution dated November 11, 1998.
Considering that Valerie is already of major age, this petition has become moot with respect
to her. Thus, only the first and third "legal points" raised by petitioner should be resolved.
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:
"ARTICLE 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. . . ."
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 authority pursuant to Article 214 of the Family Code, thus:
"ARTICLE 214. In case of death, absence or unsuitability of the parents,
substitute parental authority shall be exercised by the surviving grandparent. . . ."
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. aSHAIC
 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-
16884 6 filed by one Danilo R. Deen, will give her a second thought of staying here. Indeed, her
coming back to this country just to fulfill the duties of a guardian to Vincent for only two years is not
certain.
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.
Melo, Panganiban and Gonzaga-Reyes, JJ.,concur.
Vitug, J.,  see concurring opinion.

Separate Opinions

VITUG, J., concurring:

I share the opinion very well expressed by Madame Justice Angelina Sandoval-Gutierrez in
her ponencia.
There is in law and jurisprudence a recognition of the deep ties that bind parent and child.
Parents are thus placed first in rank in matters of parental authority. Substitute parental authority may
be exercised by the grandparents only in case the parents have died or are absent or declared unfit in
proper proceedings for that purpose. 1 Parental authority stands to include the right and duty to the
custody of the child, excepting only, of course, what might otherwise be best for the child's welfare.
When the law speaks of family relations, it must be deemed to refer, unless the contrary is
there indicated or the context of the law otherwise clearly conveys, to both legitimate and illegitimate
ties. The child's illegitimacy does not in any way affect the order of priority in the exercise of parental
authority. Indeed, Article 176 of the Family Code states that an illegitimate child shall be under the
parental authority of the mother who, consequentially, should also be entitled to the custody of the
child. 2

Footnotes

1.Rollo, pp. 43-44.

2.Rollo, p. 47.
 3.Rollo, p. 127.
4.266 SCRA 317 (1997).
5.242 SCRA 407 (1995).
6.Sentenced to suffer the penalty of imprisonment from 4 months and 1 day of prision
correccional as maximum and a fine of P3,000.00 with subsidiary imprisonment in case of
insolvency and to indemnify offended party in the sum of P200,000.00 as moral damages.
See p. 118, Rollo.
7.13 Phils. 212, 217 (1909).
Vitug, J., concurring:
1.Article 214, Family Code.
2.David vs. Court of Appeals, 250 SCRA 82.

|||  (Vancil v. Belmes, G.R. No. 132223, [June 19, 2001], 411 PHIL 359-368)

THIRD DIVISION

[G.R. No. 115640. March 15, 1995.]

REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners, vs. COURT OF

APPEALS and TERESITA MASAUDING, respondents.

Ponce Enrile Cayetano Reyes & Manalastas for petitioners.

Abesamis Medialdea & Abesamis Law Offices for private respondent.

SYLLABUS

1. CIVIL LAW; FAMILY RELATIONS; PARENTAL AUTHORITY; IN CASE OF SEPARATION;

CHOICE OF PARENTS, PARAMOUNT CRITERION IS THE CHILD'S INTEREST AND WELFARE.
— The task of choosing the parent to whom custody shall be awarded is not a ministerial function to
be determined by a simple determination of the age of a minor child. Whether a child is under or over
seven years of age, the paramount criterion must always be the child's interests. Discretion is given to
the court to decide who can best assure the welfare of the child, and award the custody on the basis
of that consideration. In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the rule that "in
all controversies regarding the custody of minors, the sole and foremost consideration is the physical,
education, social and moral welfare of the child concerned, taking into account the respective
resources and social and moral situations of the contending parents"; and in Medina vs. Makabali (27
SCRA 502 [1969]), where custody of the minor was given to a non-relative as against the mother,
then the country's leading civilist, Justice J.B.L. Reyes, explained its basis in this manner: . . . While
our law recognizes the right of a parent to the custody of her child. Courts must not lose sight of the
basic principle that "in all questions on the care, custody, education and property of children, the
latter's welfare shall be paramount" (Civil Code of the Philippines, Art. 363), and that for compelling
reasons, even a child under seven may be ordered separated from the mother (do.). This is as it
should be, for in the continual evolution of legal institutions, the patria potestas has been transformed
from the jus vitae ac necis (right of life and death) of the Roman law, under which the offspring was
virtually a chattel of his parents into a radically different institution, due to the influence of Christian
faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig Pena, now "there
is no power, but a task; no complex of rights (of parents) but a sum of duties; no sovereignty, but a
sacred trust for the welfare of the minor." As a result, the right of parents to the company and custody
of their children is but ancillary to the proper discharge of parental duties to provide the children with
adequate support, education, moral, intellectual and civic training and development (Civil Code, Art.
356). In ascertaining the welfare and best interests of the child, courts are mandated by the Family
Code to take into account all relevant considerations. If a child is under seven years of age, the law
presumes that the mother is the best custodian. The presumption is strong but it is not conclusive. It
can be overcome by "compelling reasons." If a child is over seven, his choice is paramount but, again,
the court is not bound by that choice. In its discretion, the court may find the chosen parent unfit and
award custody to the other parent, or even to a third party as it deems fit under the circumstances.
2. ID.; ID.; ID.; ID.; CHOICE OF CHILDREN OVER SEVEN (7) YEARS OF AGE;
ELUCIDATED. — Considerations involving the choice made by a child must be ascertained at the
time that either parent is given custody over the child. The matter of custody is not permanent and
unalterable. If the parent who was given custody suffers a future character change and becomes unfit,
the matter of custody can always be re-examined and adjusted (Unson III v. Navarro, supra, at p.
189). To be sure, the welfare, the best interests, the benefit, and the good of the child must be
determined as of the time that either parent is chosen to be the custodian. At the present time, both
children are over 7 years of age and are thus perfectly capable of making a fairly intelligent choice.
3. REMEDIAL LAW; EVIDENCE; EXPERT WITNESS; PURPOSE IS TO ASSIST THE
COURT IN DETERMINATION OF ISSUES BEFORE IT. — The professional integrity and
competence of the expert witnesses and the objectivity of the interviews were unshaken and
unimpeached. Their testimony remain uncontroverted. The examinations made by the experts were
conducted in late 1991, well over a year before the filing by Teresita of the habeas corpus petition in
December, 1992. Thus, the examinations were at that time not intended to support petitioners'
position in litigation, because there was then not even an impending possibility of one. That they were
subsequently utilized in the case a quo when it did materialize does not change the tenor in which
they were first obtained. Furthermore, such examinations, when presented to the court must be
construed to have been presented not to sway the court in favor of any of the parties, but to assist the
court in the determination of the issue before it. The persons who effected such examinations were
presented in the capacity of expert witnesses testifying on matters within their respective knowledge
and expertise.
4. ID.; ID.; ID.; TESTIMONIES; WEIGHT AND SUFFICIENCY. — In regard to testimony of
expert witnesses it was held in Salomon, et al. vs. Intermediate Appellate Court, et al. (185 SCRA 352
[1990]): . . . Although courts are not ordinarily bound by expert testimonies, they may place whatever
weight they choose upon such testimonies in accordance with the facts of the case. The relative
weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide,
considering the ability and character of the witness, his actions upon the witness stand, the weight
and process of the reasoning by which he has supported his opinion, his possible bias in favor of the
side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and
observation of the matters about which he testifies, and any other matters which reserve to illuminate
his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the
court in view of all the facts and circumstances in the case and when common knowledge utterly fails,
the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the
credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial
court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion.

DECISION

MELO, J  p:

This case concerns a seemingly void marriage and a relationship which went sour. The
innocent victims are two children born out of the same union. Upon this Court now falls the not too
welcome task of deciding the issue of who, between the father and mother, is more suitable and
better qualified in helping the children to grow into responsible, well-adjusted, and happy young
adulthood. cdll
 Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in
1976 in Iligan City where Reynaldo was employed by the National Steel Corporation and Teresita
was employed as a nurse in a local hospital. In 1977, Teresita left for Los Angeles, California to
work as a nurse. She was able to acquire immigrant status sometime later. In 1984, Reynaldo
was sent by his employer, the National Steel Corporation, to Pittsburgh, Pennsylvania as its
liaison officer and Reynaldo and Teresita then began to maintain a common law relationship of
husband and wife. On August 16, 1986, their daughter, Rosalind Therese, was born. On October
7, 1987, while they were on a brief vacation in the Philippines, Reynaldo and Teresita got married,
and upon their return to the United States, their second child, a son, this time, and given the name
Reginald Vince, was born on January 12, 1988. cdll
The relationship of the couple deteriorated until they decided to separate sometime in
1990. Teresita blamed Reynaldo for the break-up, stating he was always nagging her about
money matters. Reynaldo, on the other hand, contended that Teresita was a spendthrift, buying
expensive jewelry and antique furniture instead of attending to household expenses.
Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo,
Teresita left Reynaldo and the children and went back to California. She claims, however, that
she spent a lot of money on long distance telephone calls to keep in constant touch with her
children.
Reynaldo brought his children home to the Philippines, but because his assignment in
Pittsburgh was not yet completed, he was sent back by his company to Pittsburgh. He had to
leave his children with his sister, co-petitioner Guillerma Layug and her family.
Teresita claims that she did not immediately follow her children because Reynaldo filed a
criminal case for bigamy against her and she was afraid of being arrested. The judgment of
conviction in the bigamy case was actually rendered only on September 29, 1994. (Per Judge
Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210-222, Rollo). Teresita, meanwhile, decided
to return to the Philippines and on December 8, 1992 and filed the petition for a writ of habeas
corpus against herein two petitioners to gain custody over the children, thus starting the whole
proceedings now reaching this Court.
On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended
Teresita's parental authority over Rosalind and Reginald and declared Reynaldo to have sole
parental authority over them but with rights of visitation to be agreed upon by the parties and to be
approved by the Court. llcd
On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and
Ivay-Somera concurring, reversed the trial court's decision. It gave custody to Teresita and
visitation rights on weekends to Reynaldo.
Petitioners now come to this Court on a petition for review, in the main contending that
the Court of Appeals disregarded the factual findings of the trial court; that the Court of Appeals
further engaged in speculations and conjectures, resulting in its erroneous conclusion that
custody of the children should be given to respondent Teresita. prcd
 
We believe that respondent court resolved the question of custody over the children
through an automatic and blind application of the age proviso of Article 363 of the Civil Code
which reads:
Art. 363. In all questions on the care, custody, education and property of
the children, the latter's 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.
and of Article 213 of the Family Code which in turn 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.
The decision under review is based on the report of the Code Commission which drafted
Article 213 that a child below seven years still needs the loving, tender care that only a mother
can give and which, presumably, a father cannot give in equal measure. The commentaries of a
member of the Code Commission, former Court of Appeals Justice Alicia Sempio-Diy, in a
textbook on the Family Code, were also taken into account. Justice Diy believes that a child below
seven years should still be awarded to her mother even if the latter is a prostitute or is unfaithful to
her husband. This is on the theory that moral dereliction has no effect on a baby unable to
understand such action. (Handbook on the Family Code of the Philippines, 1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an abstract presumption of law rather than
an appreciation of relevant facts and the law which should apply to those facts. The task of
choosing the parent to whom custody shall be awarded is not a ministerial function to be
determined by a simple determination of the age of a minor child. Whether a child is under or over
seven years of age, the paramount criterion must always be the child's interests. Discretion is
given to the court to decide who can best assure the welfare of the child, and award the custody
on the basis of that consideration. In Unson III vs.  Navarro (101 SCRA 183 [1980]), we laid down
the rule that "in all controversies regarding the custody of minors, the sole and foremost
consideration is the physical, education, social and moral welfare of the child concerned, taking
into account the respective resources and social and moral situations of the contending parents";
and in Medina vs.  Makabali (27 SCRA 502 [1969]), where custody of the minor was given to a
non-relative as against the mother, then the country's leading civilist, Justice J.B.L. Reyes,
explained its basis in this manner:
. . . While our law recognizes the right of a parent to the custody of her
child, Courts must not lose sight of the basic principle that "in all questions on the
care, custody, education and property of children, the latter's welfare shall be
paramount" (Civil Code of the Philippines, Art. 363), and that for compelling
reasons, even a child under seven may be ordered separated from the mother
(do.). This is as it should be, for in the continual evolution of legal institutions,
the  patria potestas has been transformed from the  jus vitae ac necis (right of life
and death) of the Roman law, under which the offspring was virtually a chattel of his
parents, into a radically different institution, due to the influence of Christian faith
and doctrines. The obligational aspect is now supreme. As pointed out by Puig
Pena, now "there is no power, but a task; no complex of rights (of parents) but a
sum of duties; no sovereignty, but a sacred trust for the welfare of the minor."
As a result, the right of parents to the company and custody of their
children is but ancillary to the proper discharge of parental duties to provide the
children with adequate support, education, moral, intellectual and civic training and
development (Civil Code, Art. 356). prcd
(pp. 504-505.)
In ascertaining the welfare and best interests of the child, courts are mandated by the
Family Code to take into account all relevant considerations. If a child is under seven years of
age, the law presumes that the mother is the best custodian. The presumption is strong but it is
not conclusive. It can be overcome by "compelling reasons." If a child is over seven, his choice is
paramount but, again, the court is not bound by that choice. In its discretion, the court may find
the chosen parent unfit and award custody to the other parent, or even to a third party as it deems
fit under the circumstances.
In the present case, both Rosalind and Reginald are now over seven years of age.
Rosalind celebrated her seventh birthday on August 16, 1993 while Reginald reached the same
age on January 12, 1985. Both are studying in reputable schools and appear to be fairly intelligent
children, quite capable of thoughtfully determining the parent with whom they would want to live.
Once the choice has been made, the burden to the court to investigate if the parent thus chosen
is unfit to assume parental authority and custodial responsibility.
Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to
discover the choice of the children and rather than verifying whether that parent is fit or unfit,
respondent court simply followed statutory presumptions and general propositions applicable to
ordinary or common situations. The seven-year age limit was mechanically treated as an arbitrary
cut off period and not a guide based on a strong presumption.
A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are
more intent on emphasizing the "torture and agony" of a mother separated from her children and
the humiliation she suffered as a result of her character being made a key issue in court rather
than the feelings and future, the best interest and welfare of her children. While the bonds
between a mother and her small child are special in nature, either parent, whether father or
mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or her
suffering is greater than that of the other parent. It is not so much the suffering, pride, and other
feelings of either parent but the welfare of the child which is the paramount consideration. prLL
We are inclined to sustain the findings and conclusions of the regional trial court because
it gave greater attention to the choice of Rosalind and considered in detail all the relevant factors
bearing on the issue of custody.
When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita
Flores Macabulos, to determine the effects of uprooting her from the Assumption College where
she was studying. Four different tests were administered. The results of the tests are quite
revealing. The responses of Rosalind about her mother were very negative, causing the
psychologist to delve deeper into the child's anxiety. Among the things revealed by Rosalind was
an incident where she saw her mother hugging and kissing a "bad" man who lived in their house
and worked for her father. Rosalind refused to talk to her mother even on the telephone. She
tended to be emotionally emblazed because of constant fears that she may have to leave school
and her aunt's family to go back to the United States to live with her mother. The 5-1/2 page
report deals at length with feelings of insecurity and anxiety arising from strong conflict with the
mother. The child tried to compensate by having fantasy activities. All of the 8 recommendations
of the child psychologist show that Rosalind chooses petitioners over the private respondent and
that her welfare will be best served by staying with them (pp. 199-205, Rollo).
At about the same time, a social welfare case study was conducted for the purpose of
securing the travel clearance required before minors may go abroad. Social Welfare Officer
Emma D. Estrada Lopez, stated that the child Rosalind refused to go back to the United States
and be reunited with her mother. She felt unloved and uncared for. Rosalind was more attached
to her Yaya who did everything for her and Reginald. The child was found suffering from
emotional shock caused by her mother's infidelity. The application for travel clearance was
recommended for denial (pp. 206-209, Rollo). LLphil
Respondent Teresita, for her part, argues that the 7-year age reference in the law applies
to the date when the petition for a writ of habeas corpus is filed, not to the date when a decision is
rendered. This argument is flawed. Considerations involving the choice made by a child must be
ascertained at the time that either parent is given custody over the child. The matter of custody is
not permanent and unalterable. If the parent who was given custody suffers a future character
change and becomes unfit, the matter of custody can always be re-examined and udjusted
(Unson III v. Navarro, supra, at p. 189). To be sure, the welfare, the best interests, the benefit,
and the good of the child must be determined as of the time that either parent is chosen to be the
custodian. At the present time, both children are over 7 years of age and are thus perfectly
capable of making a fairly intelligent choice.
According to respondent Teresita, she and her children had tearful reunion in the trial
court, with the children crying, grabbing, and embracing her to prevent the father from taking them
away from her. We are more inclined to believe the father's contention that the children ignored
Teresita in court because such an emotional display as described by Teresita in her pleadings
could not have been missed by the trial court. Unlike the Justices of the Court of Appeals Fourth
Division, Judge Lucas P. Bersamin personally observed the children and their mother in the
courtroom. What the Judge found is diametrically opposed to the contentions of respondent
Teresita. The Judge had this to say on the matter:
And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or
with more understanding, especially as her conduct and demeanor in the courtroom
(during most of the proceedings) or elsewhere (but in the presence of the
undersigned presiding judge) demonstrated her ebullient temper that tended to
corroborate the alleged violence of her physical punishment of the children (even if
only for ordinary disciplinary purposes) and emotional instability, typified by her
failure (or refusal?) to show deference and respect to the Court and the other
parties (pp. 12-13, RTC Decision)
Respondent Teresita also questions the competence and impartiality of the expert
witnesses. Respondent court, in turn, states that the trial court should have considered the fact
that Reynaldo and his sister, herein petitioner Guillerma Layug, hired the two expert witnesses.
Actually, this was taken into account by the trial court which stated that the allegations of bias and
unfairness made by Teresita against the psychologist and social worker were not substantiated.
The trial court stated that the professional integrity and competence of the expert
witnesses and the objectivity of the interviews were unshaken and unimpeached. We might add
that their testimony remain uncontroverted. We also note that the examinations made by the
experts were conducted in the late 1991, well over a year before the filing by Teresita of
the  habeas corpus petition in December, 1992. Thus, the examinations were at the time not
intended to support petitioners' position in litigation, because there was then not even an
impending possibility of one. That they were subsequently utilized in the case a quo when it did
materialize does not change the tenor in which they were first obtained.
Furthermore, such examinations, when presented to the court must be construed to have
been presented not to sway the court in favor of any of the parties, but to assist the court in the
determination of the issue before it. The persons who effected such examinations were presented
in the capacity of expert witnesses testifying on matters within their respective knowledge and
expertise. On this matter, this Court had occasion to rule in the case of Sali vs. Abukakar, et al.
(17 SCRA 988 [1966]). LexLib
The fact that, in a particular litigation, an NBI expert examines certain
contested documents, at the request, not of a public officer or agency of the
Government, but of a private litigant, does not necessarily nullify the examination
thus made. Its purpose, presumably, to assist the court having jurisdiction over said
litigation, in the performance of its duty to settle correctly the issues relative to said
documents. Even a non-expert private individual may examine the same, if there
are facts within his knowledge which may help the court in the determination of said
issue. Such examination, which may properly be undertaken by a non-expert
private individual, does not, certainly become null and void when the examiner is an
expert and/or an officer of the NBI.
(pp. 991-992.)
In regard to testimony of expert witnesses it was held in Salomon, et al.  vs. Intermediate
Appellate Court,  et al. (185 SCRA 352 [1990]):
. . . Although courts are not ordinarily bound by expert testimonies, they
may place whatever weight they choose upon such testimonies in accordance with
the facts of the case. The relative weight and sufficiency of expert testimony is
peculiarly within the province of the trial court to decide, considering the ability and
character of the witness, his actions upon the witness stand, the weight and
process of the reasoning by which he has supported his opinion, his possible bias
in favor of the side for whom he testifies, the fact that he is a paid witness, the
relative opportunities for study and observation of the matters about which he
testifies, and any other matters which reserve to illuminate his statements. The
opinion of the expert may not be arbitrarily rejected; it is to be considered by the
court in view of all the facts and circumstances in the case and when common
knowledge utterly fails, the expert opinion may be given controlling effects (20 Am.
Jur., 1056-1058). The problem of the credibility of the expert witness and the
evaluation of his testimony is left to the discretion of the trial court whose ruling
thereupon is not reviewable in the absence of an abuse of that discretion.
(p. 359.)
It was in the exercise of this discretion, coupled with the opportunity to assess the
witnesses' character and to observe their respective demeanor that the trial court opted to rely on
their testimony, and we believe that the trial court was correct in its action.
Under direct examination on February 4, 1993, Social Worker Lopez stated that Rosalind
and her aunt were about to board a plane when they were off-loaded because there was no
required clearance. They were referred to her office, at which time Reginald was also brought
along and interviewed. One of the regular duties of Social Worker Lopez in her job appears to be
the interview of minors who leave for abroad with their parents or other persons. The interview
was for purposes of foreign travel by a 5-year old child and had nothing to do with any pending
litigation. On cross-examination, Social Worker Lopez stated that her assessment of the minor's
hatred for her mother was based on the disclosures of the minor. It is inconceivable, much less
presumable that Ms. Lopez would compromise her position, ethics, and the public trust reposed
on a person of her position in the course of doing her job by falsely testifying just to support the
position of any litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology
and an M.A. degree holder also in Psychology with her thesis graded "Excellent." She was a
candidate for a doctoral degree at the time of the interview. Petitioner Reynaldo may have
shouldered the cost of the interview but Ms. Macabulos services were secured because
Assumption College wanted an examination of the child for school purposes and not because of
any litigation. She may have been paid to examine the child and to render a finding based on her
examination, but she was not paid to fabricate such findings in favor of the party who retained her
services. In this instance it was not even petitioner Reynaldo but the school authorities who
initiated the same. It cannot be presumed that a professional of her potential and stature would
compromise her professional standing. llcd
Teresita questions the findings of the trial court that:
1. Her morality is questionable as shown by her marrying Reynaldo at the time she
had a subsisting marriage with another man.
2. She is guilty of grave indiscretion in carrying on a love affair with one of the
Reynaldo's fellow NSC employees.
3. She is incapable of providing the children with necessities and conveniences
commensurate to their social standing because she does not even own any
home in the Philippines.
4. She is emotionally unstable with ebullient temper.
It is contended that the above findings do not constitute the compelling reasons under the
law which would justify depriving her of custody over the children; worse, she claims, these
findings are non-existent and have not been proved by clear and convincing evidence.
Public and private respondents give undue weight to the matter of a child under 7 years of
age not to be separated from the mother, without considering what the law itself denominates as
compelling reasons or relevant considerations to otherwise decree. In the Unson III case, earlier
mentioned, this Court stated that it found no difficulty in not awarding custody to the mother, it
being in the best interest of the child "to be freed from the obviously unwholesome, not to say
immoral influence, that the situation where [the mother] had placed herself . . . might create in the
moral and social outlook of [the child] who was in her formative and most impressionable stage. . .
."
Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age.
They understand the difference between right and wrong, ethical behavior and deviant immorality.
Their best interests would be better served in an environment characterized by emotional stability
and a certain degree of material sufficiency. There is nothing in the records to show that Reynaldo
is an "unfit" person under Article 213 of the Family Code. In fact, he has been trying his best to
give the children the kind of attention and care which the mother is not in a position to extend.
The argument that the charges against the mother are false is not supported by the
records. The findings of the trial court are based on evidence.
Teresita does not deny that she was legally married to Roberto Lustado on December 17,
1984 in California (p. 13, Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less
than a year later, she had already driven across the continental United States to commence living
with another man, petitioner Reynaldo, in Pittsburgh. The two were married on October 7, 1987.
Of course, to dilute this disadvantage on her part, this matter of her having contracted a bigamous
marriage later with Reynaldo, Teresita tried to picture Reynaldo as a rapist, alleging further that
she told Reynaldo about her marriage to Lustado on the occasion when she was raped by
Reynaldo. Expectedly, Judge Harriet Demetriou of the Pasig RTC lent no weight to such tale. And
even if this story were given credence, it adds to and not subtracts from the conviction of this
Court about Teresita's values. Rape is an insidious crime against privacy. Confiding to one's
potential rapist about a prior marriage is not a very convincing indication that the potential victim is
 averse to the act. The implication created is that the act would be acceptable if not for the prior
marriage. cdrep
More likely is Reynaldo's story that he learned of the prior marriage only much later. In
fact, the rape incident itself is unlikely against a woman who had driven three days and three
nights from California, who went straight to the house of Reynaldo in Pittsburgh and upon arriving
went to bed and, who immediately thereafter started to live with him in a relationship which is
marital in nature if not in fact.
Judge Bersamin of the court a quo believed the testimony of the various witnesses that
while married to Reynaldo, Teresita entered into an illicit relationship with Perdencio Gonzales
right there in the house of petitioner Reynaldo and respondent Teresita. Perdencio had been
assigned by the National Steel Corporation to assist in the project in Pittsburgh and was staying
with Reynaldo, his co-employee, in the latter's house. The record shows that the daughter
Rosalind suffered emotional disturbance caused by the traumatic effect of seeing her mother
hugging and kissing a boarder in their house. The record also shows that it was Teresita who left
the conjugal home and the children, bound for California. When Perdencio Gonzales was
reassigned to the Philippines, Teresita followed him and was seen in his company in a Cebu
hotel, staying in one room and taking breakfast together. More significant is that letters and
written messages from Teresita to Perdencio were submitted in evidence (p. 12, RTC Decision).
The argument that moral laxity or the habit of flirting from one man to another does not fall
under "compelling reasons" is neither meritorious nor applicable in this case. Not only are the
children over seven years old and their clear choice is the father, but the illicit or immoral activities
of the mother had already caused emotional disturbances, personality conflicts, and exposure to
conflicting moral values, at least in Rosalind. This is not to mention her conviction for the crime of
bigamy, which from the records appears to have become final (pp. 210-222, Rollo).
Respondent court's finding that the father could not very well perform the role of a sole
parent and substitute mother because his job is in the United States while the children will be left
behind with their aunt in the Philippines is misplaced. The assignment of Reynaldo in Pittsburgh is
or was a temporary one. He was sent there to oversee the purchase of a steel mill component
and various equipment needed by the National Steel Corporation in the Philippines. Once the
purchases are completed, there is nothing to keep him there anymore. In fact, in a letter dated
January 30, 1995, Reynaldo informs this Court of the completion of his assignment abroad and of
his permanent return to the Philippines (ff. p. 263, Rollo).
The law is more than satisfied by the judgment of the trial court. The children are now
both over seven years old. Their choice of the parent with whom they prefer to stay is clear from
the record. From all indications, Reynaldo is a fit person, thus meeting the two requirements
found in the first paragraph of Article 213 of the Family Code. The presumption under the second
paragraph of said article no longer applies as the children are over seven years. Assuming that
the presumption should have persuasive value for children only one or two years beyond the age
of seven years mentioned in the statute, there are compelling reasons and relevant
considerations not to grant custody to the mother. The children understand the unfortunate
shortcomings of their mother and have been affected in their emotional growth by her behavior.
WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is
reversed and set aside, and the decision of Branch 96 of the Regional Trial Court of the National
Capital Judicial Region stationed in Quezon City and presided over by the Honorable Lucas P.
Bersamin in its Civil Case No. Q-92-14206 awarding custody of the minors Rosalind and Reginald
Espiritu to their father, Reynaldo Espiritu, is reinstated. No special pronouncement is made as to
costs.
SO ORDERED.
Feliciano, Romero, Vitug and Francisco, JJ.,  concur.

|||  (Espiritu v. Court of Appeals, G.R. No. 115640, [March 15, 1995], 312 PHIL 431-448)
 SECOND DIVISION

[G.R. No. L-68374. June 18, 1985.]

HORACIO LUNA and LIBERTY HIZON-LUNA, petitioners, vs. INTERMEDIATE

APPELLATE COURT, HON. ROQUE A. TAMAYO, as Presiding Judge of Regional
Trial Court, NCJR, Branch CXXXII, Makati, Metro Manila, MARIA LOURDES
SANTOS, and SIXTO SALUMBIDES, respondents.

DECISION

CONCEPCION, JR., J  p:

Review on certiorari of the decision of the respondent appellate court in case CA-G.R.
No. SP-01869, entitled: "Horacio Luna, et al., petitioners, versus Hon. Roque A. Tamayo, etc., et
al., respondents," which affirmed an order denying a motion to restrain the execution of a final
judgment rendered in a habeas corpus case. LLjur
The records of the case show that the herein private respondent Maria Lourdes Santos is
an illegitimate child of the petitioner Horacio Luna who is married to his co-petitioner Liberty
Hizon-Luna. Maria Lourdes Santos is married to her corespondent Sixto Salumbides, and are the
parents of Shirley Santos Salumbides, also known as Shirley Luna Salumbides, who is the
subject of this child custody case.
It appears that two or four months after the birth of the said Shirley Salumbides on April 7,
1975, her parents gave her to the petitioners, a childless couple with considerable means, who
thereafter showered her with love and affection and brought her up as their very own. The couple
doted upon Shirley who called them "Mama" and "Papa". She calls her natural parents "Mommy"
and "Daddy." When Shirley reached the age of four (4) years in 1979, she was enrolled at the
Maryknoll College in Quezon City. where she is now in Grade III.
A few months before September, 1980, her "Mama" and "Papa" decided to take Shirley
abroad and show her Disneyland and other places of interest in America. Shirley looked forward
to this trip and was excited about it. However, when the petitioners asked for the respondents'
written consent to the child's application for a U.S. visa, the respondents refused to give it, to the
petitioners' surprise and chagrin. Shirley was utterly disappointed. As a result, the petitioners had
to leave without Shirley whom they left with the private respondents, upon the latter's request. The
petitioners, however, left instructions with their chauffeur to take and fetch Shirley from Maryknoll
College every school day.
When the petitioners returned on October 29, 1980, they learned that the respondents
had transferred Shirley to the St. Scholastica College. The private respondents also refused to
return Shirley to them. Neither did the said respondents allow Shirley to visit the petitioners. In
view thereof, the petitioners filed a petition for habeas corpus with the Court of First Instance of
Rizal, Branch XV, against the private respondents to produce the person of Shirley and deliver
her to their care and custody. The case was docketed in court as Spec. Proc. No. 9417, and after
the filing of an answer and due hearing, a decision was rendered on March 9, 1981, declaring the
petitioners entitled to the child's custody and forthwith granted the writ prayed for. llcd
The private respondents appealed to the then Court of Appeals where the case was
docketed as CA-G.R. No. SP-12212, and in a decision dated April 7, 1982, the appealed decision
was reversed and set aside and another entered, ordering the petitioners, among other things, to
turn over Shirley to the private respondents. The herein petitioners filed a motion for the
reconsideration of the decision but their motion was denied.
Consequently, the petitioners filed a petition for review of the decision of the appellate
court. The case was docketed herein as G.R. No. 60860 and on November 10, 1982, this Court,
in a minute resolution, denied the petition for lack of merit.
Upon finality of the judgment, the case was remanded to the court of origin and assigned
to Regional Trial Court, NCJR, Branch CXXXII, Makati, Metro Manila, presided over by
respondent Judge Roque A. Tamayo who, thereafter, issued an order directing the issuance of a
writ of execution to satisfy and enforce the resolution of the Supreme Court which affirmed the
decision of the Court of Appeals.
The execution of the judgment was vigorously opposed by the petitioners who filed a
motion for the reconsideration of the order and to set aside the writ of execution on the ground of
supervening events and circumstances, more particularly, the subsequent emotional,
psychological and physiological condition of the child Shirley which make the enforcement of the
judgment sought to be executed unduly prejudicial, unjust and unfair, and cause irreparable
damage to the welfare and interests of the child. By reason thereof, the respondent judge called a
conference among the parties and their counsels, and conducted hearings on the petitioners'
motion for reconsideration and to set aside the writ of execution. Shirley made manifest during the
hearing that she would kill herself or run away from home if she should ever be separated from
her Mama and Papa, the petitioners herein, and forced to stay with the respondents. A portion of
her testimony is quoted hereunder: prcd
"ATTY. CASTRO:
xxx xxx xxx
Q Would you want to live with your daddy and mommy, referring to Sixto
Salumbides and Maria Lourdes Salumbides?
A No, sir.
Q Why not?
A Because they are cruel to me. They always spank me and they do not love
me. Whenever I am eating, they are not attending to me. It is up to
me whether I like the food or not.
xxx xxx xxx
Q Now, if you will be taken from your papa and mama (Luna spouses) and
given to your daddy and mommy (Salumbides spouses), what would
you do if you will do anything?
A I will either kill myself or I will escape. Even now they said they love me. I
don't believe them. I know they are not sincere. They are only saying
that to me. And I know those words were not coming from their
hearts. If they will get me from my papa and mama, they will be hurt
because they know that my papa and mama love me very much." 1
Dra. Cynthia Dulay Bruce, a child psychologist, affirmed her findings that —
". . . She (Shirley) has only grown more embittered, cautious, distrusting of
her biological parents. She threatens to kill herself or run away if given to her
biological parents. She claims she would be very unhappy with her biological
parents since they do not understand her needs, are selfish to her, and don't know
 how to care for her. Presently, she is very difficult to encourage in seeing her
biological parents in a different light." 2
and that —
. . . I reviewed with them (Salumbides spouse) that at the present time, to
get Shirley back in this emotionally charged transaction, would hinder Shirley
seeing them as truly loving and concerned parents. She would more deeply distrust
them if they uproot her from the home of the choice of Mr. and Mrs. Luna. The
biological parents wish to do what is also helpful to Shirley. I discussed with both
parties the recommendations of placement and follow up." 3
But, the respondent judge denied the petitioners' motion to set aside the writ of execution.
The petitioners filed a motion for the reconsideration of the order and when it was denied, they
filed a petition for certiorari and prohibition with preliminary injunction and restraining order with
the respondent Intermediate Appellate Court, which was docketed therein as CA-G.R. No. SP-
01869, to stop altogether the execution of the decision of the Court of Appeals rendered in CA-
G.R. No. SP-12212. The petition was duly heard, after which a decision was rendered on May 25,
1984, dismissing the petition. Hence, the present recourse. LibLex
The issue is whether or not procedural rules, more particularly the duty of lower courts to
enforce a final decision of appellate courts in child custody cases, should prevail over and above
the desire and preference of the child, to stay with her grandparents instead of her biological
parents and who had signified her intention to kill herself or run away from home if she should be
separated from her grandparents and forced to live with her biological parents.
It is a well-known doctrine that when a judgment of a higher court is returned to the lower
court, the only function of the latter court is the ministerial one of issuing the order of execution.
The lower court cannot vary the mandate of the superior court, or examine it, for any other
purpose than execution; nor review it upon any matter decided on appeal or error apparent; nor
intermeddle with it further than to settle so much as has been demanded. However, it is also
equally well-known that a stay of execution of a final judgment may be authorized whenever it is
necessary to accomplish the ends of justice as when there had been a change in the situation of
the parties which makes such execution inequitable, or when it appears that the controversy had
never been submitted to the judgment of the court; or when it appears that the writ of execution
has been improvidently issued; or that it is defective in substance; or is issued against the wrong
party; or that the judgment debt has been paid or otherwise satisfied; or when the writ has been
issued without authority.
In the instant case, the petitioners claim that the child's manifestation to the trial court that
she would kill herself or run away from home if she should be forced to live with the private
respondents is a supervening event that would justify the cancellation of the execution of the final
decision rendered by the Court of Appeals in CA-G.R. No. SP-12212. The respondents, upon the
other hand, maintain that there are no supervening developments and circumstances since these
events are not new as the Court of Appeals had taken into account the physiological and
emotional consideration of the transfer of custody of Shirley when it reversed the decision of the
trial court and gave to the private respondents the custody of the child Shirley; and besides, the
wishes and desires of the child is no hindrance to the parents' right to her custody since the right
of the parents to the custody of their children is paramount. LLpr
We find merit in the petitioner. The manifestation of the child Shirley that she would kill
herself or run away from home if she should be taken away from the herein petitioners and forced
to live with the private respondents, made during the hearings on the petitioners' motion to set
aside the writ of execution and reiterated in her letters to the members of the Court dated
September 19, 1984 4 and January 2, 1985, 5 and during the hearing of the case before this
Court, is a circumstance that would make the execution of the judgment rendered in Spec. Proc.
No. 9417 of the Court of First Instance of Rizal inequitable, unfair and unjust, if not illegal. Article
363 of the Civil Code provides that in all questions relating to the care, custody, education and
property of the children, the latter's welfare is paramount. This means that the best interest of the
minor can override procedural rules and even the rights of parents to the custody of their children.
Since, in this case, the very life and existence of the minor is at stake and the child is in an age
when she can exercise an intelligent choice, the courts can do no less than respect, enforce and
give meaning and substance to that choice and uphold her right to live in an atmosphere
 conducive to her physical, moral and intellectual development. 6 The threat may be proven
empty, but Shirley has a right to a wholesome family life that will provide her with love, care and
understanding, guidance and counselling, and moral and material security. 7 But, what if the
threat is for real?
Besides, in her letters to the members of the Court, Shirley depicted her biological
parents as selfish and cruel and who beat her often; and that they do not love her. And, as
pointed out by the child psychologist, Shirley has grown more embittered, cautious and distrusting
of her biological parents. To return her to the custody of the private respondents to face the same
emotional environment which she is now complaining of would be indeed traumatic and cause
irreparable damage to the child. As requested by her, let us not destroy her future.
WHEREFORE, the petition should be, as it is hereby GRANTED and the writ prayed for
issued, setting aside the judgment of the respondent Intermediate Appellate Court in CA-G.R. No.
SP-01869, and restraining the respondent judge and/or his successors from enforcing the
judgment rendered by the Court of Appeals in CA-G.R. No. SP-12212, entitled: "Horacio Luna
and Liberty Hizon-Luna, petitioners-appellees, versus Maria Lourdes Santos and Sixto
Salumbides, respondents-appellants." The decision rendered in Spec. Proc. No. 9417 of the
Court of First Instance of Rizal granting the herein petitioners custody of the child Shirley
Salumbides should be maintained. Without costs. Cdpr
SO ORDERED.
Abad Santos, Escolin and Cuevas, JJ.,  concur.

Separate Opinions

Aquino, J., concurring:

I concur. A judgment for the custody of the child, like a judgment for support is not final
and irrevocable. The welfare of the child is the paramount consideration. It would be for Shirley's
welfare to remain in the custody of the petitioners.

MAKASIAR, J., dissenting:

The resolution of the issue on who should have custody over the nine-year old girl has
been viewed from a limited approach. The majority opinion has been focused more on the
personal assessment of the child rather than on the general and specific laws and jurisprudence
that should govern this case. A nine-year old child, brainwashed by the material luxury as well as
constant attention showered on her by doting grandparents, cannot possibly appreciate the
incomparable love and solicitude her natural parents have for her always, in good or bad times.
The determination, therefore, as to whose custody the child belongs must necessarily and
initially involve the question of parental authority. It appears that the law on parental authority has
been conveniently sidetracked by petitioners.
Parental authority, known in Roman law as patria potestas, is defined as "the mass of
rights and obligations which parents have in relation to the person and property of their children,
until their majority age or emancipation, and even after this under certain circumstances" (2
Manresa 8, cited in p. 657, Comments & Jurisprudence on the Civil Code, Tolentino, Vol. I, 1983
ed.).
The following Civil Code provisions thus provide:
"Art. 311. The father and mother jointly exercise parental authority over
their legitimate children who are not emancipated. In case of disagreement, the
father's decision shall prevail, unless there is a judicial order to the contrary.
xxx xxx xxx
"Art. 313. Parental authority cannot be renounced or transferred, except in
cases of guardianship or adoption approved by the courts, or emancipation by
concession" (par. 1). LexLib
 Significantly, the stern pronouncements of this Court in the case of Celis vs. Cafuir (L-
3352, June 12, 1950, 86 Phil. 554) are very much in point. This Court thus declared:
"The word 'entrusted' cannot convey the idea of definite and permanent
renunciation of the mother's custody of her child.
xxx xxx xxx
"This Court should avert the tragedy in the years to come of having
deprived mother and son of the beautiful associations and tender, imperishable
memories engendered by the relationship of parent and child. We should not take
away from a mother the opportunity of bringing up her own child even at the cost of
extreme sacrifice due to poverty and lack of means; so that afterwards, she may be
able to look back with pride and a sense of satisfaction and her efforts, however
humble, to make her dreams of her little boy come true. We should not forget that
the relationship between a foster mother and a child is not natural but artificial. If
the child turns out to be a failure or forgetful of what its foster parents had done for
him, said parents might yet count and appraise all that they have done and spent
for him and with regret consider all of it as a dead loss, and even rue the day they
committed the blunder of taking the child into their hearts and their home. Not so
with a real natural mother who never counts the cost and her sacrifices, ever
treasuring memories of her associations with her child, however unpleasant and
disappointing. Flesh and blood count.
xxx xxx xxx
"Whether a child should stay permanently with a kindly stranger or with his
own mother, is not to be determined alone by considerations of affluence or
poverty. Poor youths who had to work their way thru school and college, have, not
infrequently, scaled the heights of success, as easily and swiftly as their more
favored companions, and done so with more, inner satisfaction, and credit to
themselves and their humble parents."
The guardianship or custody which parents exercise over their children is well-entrenched
in this jurisdiction. Thus, in the case of Reyes vs. Alvarez (8 Phil. 725), this Court declared: cdrep
"The guardianship which parents exercise over their children by virtue of
the paternal authority granted them by law has for its purpose their physical
development, the cultivation of their intelligence, and the development of their
intellectual and sensitive faculties. For such purposes they are entitled to control
their children and to keep them in their company in order to properly comply with
their paternal obligations, but it is also their duty to furnish them with a dwelling or a
place where they may live together."
This Court has long recognized that "the right attached to parental authority is a purely
personal one, and it is extinguished upon the death of the parent exercising it" (Abiera vs. Orin, 8
Phil. 193).
Custody embraces the sum of parental rights with respect to the rearing of a child,
including his care. It includes the right to the child's services and earnings, and the right to direct
his activities and make decisions regarding his care and control, education, health, and religion
(p. 107, 59 Am. Jur. 2d.).
The right of the 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 by the decisions of the courts, but derives from the
nature of parental relationship. Since the rights of parents to the custody of their minor children is
both a natural and a legal right, the law should not disturb the parent-child relationship except for
the strongest reasons, and only upon a clear showing of a parent's gross misconduct or unfitness,
or of other extraordinary circumstances affecting the welfare of the child (pp. 107 & 108, 59 Am.
Jur. 2d.).
"Article 363 orders that `No mother shall be separated from her child under
seven years of age, unless the court finds compelling reasons for such measure.'
One of the cruelest acts in the world is to separate a mother from her baby. This
 was often done in case of adultery by the mother, and the court ordered that the
custody of the child should be given to the father, but the new article provides other
wise because the mother's maternal love — than which there is nothing greater in
this life — should be respected. Besides, she could not exert a bad influence on a
baby. And lastly, perhaps the presence of her child will often redeem her" (p. 199,
The Father of the First Brown Race Civil Code, Rivera, 1978 Ed.).
As long as the parents are living and they have not lost their parental authority, patria
potestas is limited to them. Other ascendants have no authority over the children, even if the
parents of the latter are minors (2 Manresa 13, cited in p. 661, Comments and Jurisprudence on
the Civil Code, Tolentino, Vol. I, 1983 Ed.). cdphil
Parental authority is inalienable and every abdication of this authority by the parents is
void (Planiol and Ripert 324, p. 664, Ibid.). 
Whatever agreement or arrangement there was between petitioners and respondents
when the child Shirley was given to the former, the same has not been validated nor legalized by
the mere fact that the said girl had stayed with the petitioners for a number of years, in view of the
explicit provision of Article 313 mandating that parental authority cannot be renounced or
transferred, except in cases of guardianship or adoption approved by the courts, or emancipation
by concession.
Thus, the mother in case of separation, cannot by agreement vest the custody of a child
in the maternal grandmother as against the father (Mason vs. Williams, 165 Ky. 331, 176 S.W.
1171, cited in p. 662, Comments and Jurisprudence on the Civil Code, Tolentino, Vol. 1, 1983
Ed.).
Some United States courts have consistently ruled that since children cannot be bought
and sold, and since the parent is subject to obligations which he cannot throw off by any act of his
own, agreements by which the parents, or one of them, transfer custody of a child to a third
person, with the provision or informal understanding that custody will not be reclaimed, are not
generally considered legally binding contracts, unless they amount to statutory indentures of
apprenticeship, or are supported by other express statutory provisions. This is especially true in
the case of a parent who, having been compelled by poverty or unfavorable circumstances to
surrender the custody of his child, wishes to reclaim it when circumstances are improved (p. 117,
59 Am. Jur. 2d.).
For this Court to award custody over Shirley to petitioners primarily on the basis of her
reaction and choice would run counter to existing law and jurisprudence as already
aforestated. LibLex
A nine-year old girl, although already at the age of discernment, is not capable of knowing
or defining varied feelings like love, anger or cruelty when such a girl has been exposed to two
contrasting conditions, the first for more than eight years and the second, for barely four months.
The child grew up amidst affluent surroundings — the grandparents being well-off.
The lolo and lola as most lolos and lolas are, doted over Shirley. In fact, she attended Maryknoll
College, a school for the elite, and rode in a chauffeur-driven car. She grew up amidst a luxurious
atmosphere. Perhaps, in their own way of loving their granddaughter, they showered her with all
material needs and pampered her. Thus, the child had not been made to experience
disappointments, much less hardships. Life with her lolo and lola meant having what she wanted.
In the process, Shirley moved about in a limited world, created by her Mama (Lola) and Papa
(Lolo) — a world felt and seen through rose-colored lenses, The child addresses her natural
parents as "Daddy" and "Mommy". LLphil
Then all of a sudden, the scenario is changed and the girl finds herself in a very
contrasting situation. Having been used to the life style offered by her grandparents and having
thus absorbed a set of values different from the average and ordinary, she now finds life with her
natural parents harsh and unbearable. With the luxurious life she had with petitioners at the back
of her mind, she would naturally look at things in the respondents' home differently and partially.
Four months is too insufficient a time for a nine-year old girl to comprehend and accept a
home atmosphere strikingly distinct from one where she had lived for more than eight years. Four
months is a very short time for the child to be able to understand, to absorb and to appreciate two
vastly different home conditions. Whatever set of values the second home has to offer, the same
 cannot settle in a child for only four months' exposure. To Shirley, therefore, any attempted
discipline imposed by her natural parents means cruelty and lack of affection for her. Where
before she could choose the food she wanted, now she has to take whatever food is available
within the limited means of her parents. She cannot realize that in a middle-class family, the
choice of food is restricted by the amount appropriated therefor. The gauge is what and how
much food could benefit all the members of the household and not just one member. Choice for
particular needs becomes secondary to what the family budget can afford for the entire family.
This explains why Shirley had a dislike for the conditions existing in respondents' house which did
not cater to her tastes.
In her answers to the questions which are quite leading, one can clearly sense that
Shirley, who was used to having all the lavish care and attention from petitioners, reacted
negatively to her natural parents whose ways are so different from the former. It would take some
more time and exposure for Shirley to be able to really say that respondents do not love and care
for her. She would have been given more time in respondents' home to allow whatever values
such place can offer to settle in her mind. It was unfair for petitioners to push Shirley into a choice
— a decision which a nine-year old girl could not have made intelligently without undue pressure
and played-up emotionalism.
It must be noted with concern that Article 312 of the Civil Code clearly defines the specific
and limited role of grandparents when it states that "grandparents shall be consulted by all
members of the family on all important family questions." This has been interpreted to mean that
as long as the parents are living, grandparents and other ascendants have no authority over the
children, even when the parents are minors. Grandparents, therefore, cannot question the form of
instruction or education chosen by the parents for the children. The grandparents can only advise
and counsel the children. But if the parents are dead or are absent, then the grandparents shall
exercise parental authority over the children (Article 354, p. 663, Comments and Jurisprudence
on the Civil Code, Tolentino, 1983 Ed.). Cdpr
Evidently, the present petition for custody of petitioners runs counter to the parental
preference rule. Under the so-called parental preference rule, a natural parent, father or mother,
as the case may be, who is of good character and a proper person to have the custody of the
child and is reasonably able to provide for such child, ordinarily is entitled to the custody as
against all persons. Accordingly, such parents are entitled to the custody of their children as
against foster or prospective adoptive parents; and such entitlement applies also as against other
relatives of the child, including grandparents, or as against an agency or institution (pp. 207 &
208, Vol. 67A C.J.S.).
It has been an established rule that the preference of a child is only one factor to be
considered, and it is not controlling, decisive, or determinative. Thus, notwithstanding the
preference, the court has a discretion to determine the question of custody, and it is not error for
the court to refuse to discuss the custody issue with the child. The rights of a parent will not be
disregarded in order to gratify the mere wishes of a child where a parent is found to be a proper
person to be entrusted with the custody of a child (pp. 231-232, Vol. 67A C.J.S.). LLjur
In view of the foregoing, and considering that herein respondents have not been shown to
be unfit or unsuitable or financially incapable of keeping and caring for Shirley, the latter's custody
should be awarded to said respondents.

|||  (Luna v. Intermediate Appellate Court, G.R. No. L-68374, [June 18, 1985], 221 PHIL 400-415)

THIRD DIVISION

[G.R. No. 154994. June 28, 2005.]

JOYCELYN PABLO-GUALBERTO, petitioner, vs. CRISANTO RAFAELITO

GUALBERTO V,  respondent.
 [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
Parañaque City, Branch 260; and JOYCELYN D. PABLO-
GUALBERTO, respondents.

DECISION

PANGANIBAN,  J p:

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 [petitioner's] 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
CA's 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:
. . . [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before
[the Regional Trial Court of Parañaque City] a petition for declaration of nullity of his
marriage to . . . 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 Toddler's Discovery Center in Parañaque City) when [she]
decided to abandon [Crisanto] sometime in early February 2002[:] . . . [O]n April 2,
2002, [RTC Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for
custody pendente lite. . . . [B]ecause [Joycelyn] allegedly failed to appear despite
notice, [Crisanto], a certain Col. Renato Santos, and Ms. Cherry Batistel, testified
before the . . . Judge; . . . documentary evidence [was] also presented[.] . . . [O]n
April 3, 2002, . . . [the] Judge awarded custody  pendente lite of the child to
[Crisanto.] [T]he Order partly read . . .:
 '. . . 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,
Parañaque City. Despite effort[s] exerted by him, he has failed to see his
child. [Joycelyn] and the child are at present staying with the former's' step-
father at the latter's [residence] at Caminawit, San Jose, Occidental
Mindoro. AaCEDS
'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 father's 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.'
". . . [O]n April 16, 2002, the hearing of [Joycelyn's] 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 [Crisanto's] Motion to Resolve Prayer for
Custody Pendente Lite and [Joycelyn's] 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 Sheriff's returns. It
appears that on the 4th attempt on March 21, 2002, both Ma. Daisy and . . .
Ronnie Nolasco, [Joycelyn's mother and stepfather, respectively,] read the
contents of the documents presented after which they returned the
same. DHSEcI
'The Court believes that on that day, summons was duly served
and this Court acquired jurisdiction over [Joycelyn].
'The filing of [Joycelyn's 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, . . . [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 Parañaque 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 Crisanto's favor the CA ruled that grave abuse of discretion had been committed by
the trial court in reversing the latter court's 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 Joycelyn's
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 Joycelyn's 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 . . . 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 HEDCAS
"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 Court's 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 Joycelyn's Petition.
Timeliness of the Petition
The manner of filing and service Joycelyn's 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. . . . 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.
xxx xxx xxx
 "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 CA's 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. EcICDT
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 Biñan, 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 Biñan 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 CA's final denial of Crisanto's Motion for Reconsideration, Joycelyn's 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. SaCDTA
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, Joycelyn's 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. . . ."
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. CAIHaE
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 latter's 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 d'etre in the basic need of minor children for their mother's 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 mother's 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 child's
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 father's 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 parent's 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 children's 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 children's 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 otherwise. 48
The so-called "tender-age presumption" under Article 213 of the Family Code may be
overcome only by compelling evidence of the mother's 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 mother's
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 HSDaTC
 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 child's uncle. Under that circumstance, the Court deemed it in the
nine-year-old child's 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 child's] 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 . . ."
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
child's proper moral development. Such a fact has not been shown here. There is no evidence that
the son was exposed to the mother's 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 child's 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 mother's 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 Crisanto's 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. DHECac
SO ORDERED.
Sandoval-Gutierrez, Corona, Carpio Morales and Garcia, JJ., concur.

|||  (Pablo-Gualberto v. Gualberto, G.R. Nos. 154994 & 156254, [June 28, 2005], 500 PHIL 226-253)
 THIRD DIVISION

[G.R. No. 156343. October 18, 2004.]

JOEY D. BRIONES,  petitioner, vs. MARICEL P. MIGUEL, FRANCISCA P.

MIGUEL and LORETA P. MIGUEL,  respondents.

DECISION

PANGANIBAN,  J p:

An illegitimate child is under the sole parental authority of the mother. In the exercise of that
authority, she is entitled to keep the child in her company. The Court will not deprive her of custody,
absent any imperative cause showing her unfitness to exercise such authority and care.
The Case
The Petition for Review 1 before the Court seeks to reverse and set aside the August 28,
2002 Decision 2 and the December 11, 2002 Resolution 3 of the Court of Appeals in CA-GR SP No.
69400. 4 The dispositive portion of the assailed Decision reads as follows:
"WHEREFORE, the petition is hereby DISMISSED. Respondent Loreta P.
Miguel shall have custody over the child Michael Kevin Pineda until he reaches ten
(10) years of age. Once the said child is beyond ten (10) years of age, the Court
allows him to choose which parent he prefers to live with pursuant to Section 6,
Rule 99 of the 1997 Rules of Civil Procedure, as amended. The petitioner, Joey D.
Briones, shall help support the child, shall have visitorial rights at least once a
week, and may take the child out upon the written consent of the mother.
"Acting on the petitioner's 'Urgent Motion for a Hold Departure Order', and
finding it to be without merit, the same is DENIED." 5
The challenged Resolution denied reconsideration.
The Facts
The CA summarized the antecedents of the case in this wise:
"On March 5, 2002, petitioner Joey D. Briones filed a Petition for Habeas
Corpus against respondents Maricel Pineda Miguel and Francisca Pineda Miguel,
to obtain custody of his minor child Michael Kevin Pineda. THaDAE
"On April 25, 2002, the petitioner filed an Amended Petition to include
Loreta P. Miguel, the mother of the minor, as one of the respondents.
"A Writ of Habeas Corpus was issued by this Court on March 11, 2002
ordering the respondents to produce before this Court the living body of the minor
Michael Kevin Pineda on March 21, 2002 at 2:00 o'clock in the afternoon.
 "The petitioner alleges that the minor Michael Kevin Pineda is his
illegitimate son with respondent Loreta P. Miguel. He was born in Japan on
September 17, 1996 as evidenced by his Birth Certificate. The respondent Loreta
P. Miguel is now married to a Japanese national and is presently residing in Japan.
"The petitioner further alleges that on November 4, 1998 he caused the
minor child to be brought to the Philippines so that he could take care of him and
send him to school. In the school year 2000–2001, the petitioner enrolled him at the
nursery school of Blessed Angels L.A. School, Inc. in Caloocan City, where he
finished the nursery course.
"According to the petitioner, his parents, who are both retired and receiving
monthly pensions, assisted him in taking care of the child.
"On May 2, 2001, respondents Maricel P. Miguel and Francisca P. Miguel
came to the house of the petitioner in Caloocan City on the pretext that they were
visiting the minor child and requested that they be allowed to bring the said child for
recreation at the SM Department store. They promised him that they will bring him
back in the afternoon, to which the petitioner agreed. However, the respondents did
not bring him back as promised by them.
"The petitioner went several times to respondent Maricel P. Miguel at
Tanza, Tuguegarao City but he was informed that the child is with the latter's
mother at Batal Heights, Santiago City. When he went there, respondent Francisca
P. Miguel told him that Michael Kevin Pineda is with her daughter at Tuguegarao
City.
"He sought the assistance of the police and the Department of Social
Welfare to locate his son and to bring him back to him, but all his efforts were futile.
"Hence, he was constrained to file a Petition for Habeas Corpus with the
Regional Trial Court of Caloocan City which was docketed as SPC No. 2711.
However, the said case was withdrawn ex-parte.
"The petitioner prays that the custody of his son Michael Kevin Pineda be
given to him as his biological father and [as] he has demonstrated his capability to
support and educate him.
"On May 6, 2002, the respondents filed their Comment, in compliance with
the May 2, 2002 Resolution of this Court.
"In their Comment, the respondent Loreta P. Miguel denies the allegation of
the petitioner that he was the one who brought their child to the Philippines and
stated that she was the one who brought him here pursuant to their
agreement. SCHcaT
"Respondent Loreta P. Miguel likewise denies petitioner's allegation that
respondents Maricel P. Miguel and Francisca P. Miguel were the ones who took the
child from the petitioner or the latter's parents. She averred that she was the one
who took Michael Kevin Pineda from the petitioner when she returned to the
Philippines and that the latter readily agreed and consented.
"Respondent Loreta P. Miguel alleges that sometime in October 2001, the
petitioner was deported from Japan under the assumed name of Renato Juanzon
when he was found to have violated or committed an infraction of the laws of
Japan. She further stated that since the time the petitioner arrived in the
Philippines, he has not been gainfully employed. The custody of the child,
according to respondent Loreta P. Miguel was entrusted to petitioner's parents
while they were both working in Japan. She added that even before the custody of
the child was given to the petitioner's parents, she has already been living
separately from the petitioner in Japan because the latter was allegedly maintaining
an illicit affair with another woman until his deportation.
 "She likewise stated in her Comment that her marriage to a Japanese
national is for the purpose of availing of the privileges of staying temporarily in
Japan to pursue her work so she could be able to send money regularly to her son
in the Philippines. She further stated that she has no intention of staying
permanently in Japan as she has been returning to the Philippines every six (6)
months or as often as she could.
"Respondent Loreta P. Miguel prays that the custody of her minor child be
given to her and invokes Article 213, Paragraph 2 of the Family Code and Article
363 of the Civil Code of the Philippines."
Ruling of the Court of Appeals
Applying Article 213 (paragraph 2) of the Family Code, the CA awarded the custody of
Michael Kevin Pineda Miguel to his mother, Respondent Loreta P. Miguel. While acknowledging that
petitioner truly loved and cared for his son and considering the trouble and expense he had spent in
instituting the legal action for custody, it nevertheless found no compelling reason to separate the
minor from his mother. Petitioner, however, was granted visitorial rights.
Hence, this Petition. 6
Issue
In his Memorandum, petitioner formulated the "ultimate" issue as follows: ". . . [w]hether or not
[he], as the natural father, may be denied the custody and parental care of his own child in the
absence of the mother who is away." 7
The Court's Ruling
The Petition has no merit. However, the assailed Decision should be modified in regard to its
erroneous application of Section 6 of Rule 99 of the Rules of Court. SDHCac
Sole Issue
Who Should Have Custody of the Child?
Petitioner concedes that Respondent Loreta has preferential right over their minor child. He
insists, however, that custody should be awarded to him whenever she leaves for Japan and during
the period that she stays there. In other words, he wants joint custody over the minor, such that the
mother would have custody when she is in the country. But when she is abroad, he — as the
biological father — should have custody.
According to petitioner, Loreta is not always in the country. When she is abroad, she cannot
take care of their child. The undeniable fact, he adds, is that she lives most of the time in Japan, as
evidenced by her Special Power of Attorney dated May 28, 2001, 8 granting to her sister temporary
custody over the minor.
At present, however, the child is already with his mother in Japan, where he is
studying, 9 thus rendering petitioner's argument moot. While the Petition for Habeas Corpus was
pending before the CA, petitioner filed on July 30, 2002, an "Urgent Motion for a Hold Departure
Order," 10 alleging therein that respondents were preparing the travel papers of the minor so the child
could join his mother and her Japanese husband. The CA denied the Motion for lack of merit. 11
Having been born outside a valid marriage, the minor is deemed an illegitimate child of
petitioner and Respondent Loreta. Article 176 of the Family Code of the Philippines 12 explicitly
provides that "illegitimate children shall use the surname and shall be under the parental authority of
their mother, and shall be entitled to support in conformity with this Code." This is the rule regardless
of whether the father admits paternity. 13
Previously, under the provisions of the Civil Code, illegitimate children were generally
classified into two groups: (1) natural, whether actual or by legal fiction; and (2) spurious, whether
incestuous, adulterous or illicit. 14 A natural child is one born outside a lawful wedlock of parents who,
at the time of conception of the child, were not disqualified by any impediment to marry each
other. 15 On the other hand, a spurious child is one born of parents who, at the time of conception,
were disqualified to marry each other on account of certain legal impediments. 16
 Parental authority over recognized natural children who were under the age of majority was
vested in the father or the mother recognizing them. 17 If both acknowledge the child, authority was to
be exercised by the one to whom it was awarded by the courts; if it was awarded to both, the rule as
to legitimate children applied. In other words, in the latter case, parental authority resided jointly in the
father and the mother. 18
 
The fine distinctions among the various types of illegitimate children have been eliminated in
the Family Code. 19 Now, there are only two classes of children — legitimate (and those who, like the
legally adopted, have the rights of legitimate children) and illegitimate. All children conceived and born
outside a valid marriage are illegitimate, unless the law itself gives them legitimate status. 20
Article 54 of the Code provides these exceptions: "Children conceived or born before the
judgment of annulment or absolute nullity of the marriage under Article 36 has become final and
executory shall be considered legitimate. Children conceived or born of the subsequent marriage
under Article 53 shall likewise be legitimate."
Under Article 176 of the Family Code, all illegitimate children are generally placed under one
category, without any distinction between natural and spurious. 21 The concept of "natural child" is
important only for purposes of legitimation. 22 Without the subsequent marriage, a natural child
remains an illegitimate child.
Obviously, Michael is a natural ("illegitimate," under the Family Code) child, as there is
nothing in the records showing that his parents were suffering from a legal impediment to marry at the
time of his birth. Both acknowledge that Michael is their son. As earlier explained and pursuant to
Article 176, parental authority over him resides in his mother, Respondent Loreta, notwithstanding his
father's recognition of him.
David v. Court of Appeals 23 held that the recognition of an illegitimate child by the father
could be a ground for ordering the latter to give support to, but not custody of, the child. The law
explicitly confers to the mother sole parental authority over an illegitimate child; it follows that only if
she defaults can the father assume custody and authority over the minor. Of course, the putative
father may adopt his own illegitimate child; 24 in such a case, the child shall be considered a
legitimate child of the adoptive parent. 25
There is thus no question that Respondent Loreta, being the mother of and having sole
parental authority over the minor, is entitled to have custody of him. 26 She has the right to keep him
in her company. 27 She cannot be deprived of that right, 28 and she may not even renounce or
transfer it "except in the cases authorized by law. 29
Not to be ignored in Article 213 of the Family Code is the caveat that, generally, no child
under seven years of age shall be separated from the mother, except when the court finds cause to
order otherwise. ITCHSa
Only the most compelling of reasons, such as the mother's unfitness to exercise sole parental
authority, shall justify her deprivation of parental authority and the award of custody to someone
else. 30 In the past, the following grounds have been considered ample justification to deprive a
mother of custody and parental authority: neglect or abandonment, 31 unemployment,
immorality, 32 habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction
with a communicable disease.
Bearing in mind the welfare and the best interest of the minor as the controlling factor, 33 we
hold that the CA did not err in awarding care, custody, and control of the child to Respondent Loreta.
There is no showing at all that she is unfit to take charge of him.
We likewise affirm the visitorial right granted by the CA to petitioner. In Silva v. Court of
Appeals, 34 the Court sustained the visitorial right of an illegitimate father over his children in view of
the constitutionally protected inherent and natural right of parents over their children. 35 Even when
the parents are estranged and their affection for each other is lost, their attachment to and feeling for
their offspring remain unchanged. Neither the law nor the courts allow this affinity to suffer, absent any
real, grave or imminent threat to the well-being of the child.
 However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This
provision contemplates a situation in which the parents of the minor are married to each other, but are
separated either by virtue of a decree of legal separation or because they are living separately  de
facto. In the present case, it has been established that petitioner and Respondent Loreta were never
married. Hence, that portion of the CA Decision allowing the child to choose which parent to live with
is deleted, but without disregarding the obligation of petitioner to support the child. EICScD
WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED with the
MODIFICATION that the disposition allowing the child, upon reaching ten (10) years of age, to choose
which parent to live with is DELETED for lack of legal basis. Costs against petitioner.
SO ORDERED.
Sandoval-Gutierrez and Corona, JJ  ., concur.
Carpio Morales, J ., is on leave.

|||  (Briones v. Miguel, G.R. No. 156343, [October 18, 2004], 483 PHIL 483-494)

FIRST DIVISION

[G.R. No. 143363. February 6, 2002.]

ST. MARY'S ACADEMY, petitioner, vs. WILLIAM CARPITANOS and LUCIA S.

CARPITANOS, GUADA DANIEL, JAMES DANIEL II, JAMES DANIEL, SR., and
VIVENCIO VILLANUEVA, respondents.

Padilla Law Office  for petitioner.

Peter Y. Co for respondents Daniel and Villanueva.
Feliciano M. Maraon  for respondent Carpitanos.

SYNOPSIS

Sherwin Carpitanos, son of respondents Carpitanos, died in an accident caused by the

detachment of the steering wheel guide of the jeep owned by respondent Villanueva. The vehicle was
then driven by James Daniel II, a minor. The incident occurred during an enrollment drive conducted
by petitioner academy where Sherwin was a student. Sherwin's parents filed an action for damages
against petitioner and the other respondents. The trial court ruled in favor of Sherwin's parents
ordering petitioner to pay civil indemnity for the loss of life of Sherwin, actual and moral damages, and
attorney's fees under Articles 218 and 219 of the Family Code, and declared respondents Daniel
subsidiarily liable. Respondent Villanueva was absolved from any liability.
Under Articles 218 and 219 of the Family Code, for the school to be principally and solidarily
liable for the acts of its students, the latter's negligence must be the proximate cause of the injury. In
this case, there was no evidence that petitioner allowed the minor to drive the jeep and that the
proximate cause of the accident was a mechanical defect in the vehicle, thus, petitioner may not be
held liable for the death of Sherwin. However, as the registered owner of the vehicle, Villanueva was
held primarily liable for the death of Sherwin.

SYLLABUS

1. CIVIL LAW; FAMILY CODE; SPECIAL PARENTAL AUTHORITY OVER A MINOR CHILD.
— Under Article 218 of the Family Code, the following shall have special parental authority over a
minor child while under their supervision, instruction or custody: (1) the school, its administrators and
teachers; or (2) the individual, entity or institution engaged in child care. This special parental authority
and responsibility applies to all authorized activities, whether inside or outside the premises of the
school, entity or institution. Thus, such authority and responsibility applies to field trips, excursions
and other affairs of the pupils and students outside the school premises whenever authorized by the
school or its teachers.
2. ID.; ID.; ID.; PRINCIPAL AND SOLIDARY LIABILITY OF PERSONS EXERCISING
PARENTAL AUTHORITY. — Under Article 219 of the Family Code, if the person under custody is a
minor, those exercising special parental authority are principally and solidarily liable for damages
caused by the acts or omissions of the unemancipated minor while under their supervision,
instruction, or custody.
3. ID.; ID.; ID.; ID.; REQUISITE. — However, for petitioner to be liable, there must be a
finding that the act or omission considered as negligent was the proximate cause of the injury caused
because the negligence must have a causal connection to the accident.
4. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — In this case, the respondents failed to show that the
negligence of petitioner was the proximate cause of the death of the victim. Respondents Daniel
spouses and Villanueva admitted that the immediate cause of the accident was not the negligence of
petitioner or the reckless driving of James Daniel II, but the detachment of the steering wheel guide of
the jeep. Further, there was no evidence that petitioner school allowed the minor James Daniel II to
drive the jeep of respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent
Vivencio Villanueva, who had possession and control of the jeep. He was driving the vehicle and he
allowed James Daniel II, a minor, to drive the jeep at the time of the accident. Considering that the
negligence of the minor driver or the detachment of the steering wheel guide of the jeep owned by
respondent Villanueva was an event over which petitioner St. Mary's Academy had no control, and
which was the proximate cause of the accident, petitioner may not be held liable for the death
resulting from such accident. Consequently, we find that petitioner likewise cannot be held liable for
moral damages in the amount of P500,000.00 awarded by the trial court and affirmed by the Court of
Appeals. Though incapable of pecuniary computation, moral damages may be recovered if they are
the proximate result of the defendant's wrongful act or omission. In this case, the proximate cause of
the accident was not attributable to petitioner. For the reason that petitioner was not directly liable for
the accident, the decision of the Court of Appeals ordering petitioner to pay death indemnity to
respondent Carpitanos must be deleted. Moreover, the grant of attorney's fees as part of damages is
the exception rather than the rule. The power of the court to award attorney's fees under Article 2208
of the Civil Code demands factual, legal and equitable justification. Thus, the grant of attorney's fees
against the petitioner is likewise deleted. aESICD
5. ID.; DAMAGES; REGISTERED OWNER OF VEHICLE PRIMARILY RESPONSIBLE FOR
INJURIES CAUSED TO THE PUBLIC OR TO THIRD PERSONS WHILE VEHICLE WAS BEING
DRIVEN ON THE HIGHWAYS OR STREETS. — We have held that the registered owner of any
vehicle, even if not used for public service, would primarily be responsible to the public or to third
persons for injuries caused the latter while the vehicle was being driven on the highways or streets.
Hence, with the overwhelming evidence presented by petitioner and the respondent Daniel spouses
that the accident occurred because of the detachment of the steering wheel guide of the jeep, it is not
the school, but the registered owner of the vehicle who shall be held responsible for damages for the
death of Sherwin Carpitanos.

DECISION
PARDO,  J p:

The Case
The case is an appeal via certiorari from the decision 1 of the Court of Appeals as well as the
resolution denying reconsideration, holding petitioner liable for damages arising from an accident that
resulted in the death of a student who had joined a campaign to visit the public schools in Dipolog City
to solicit enrollment.
The Facts
The facts, as found by the Court of Appeals, are as follows:
"Claiming damages for the death of their only son, Sherwin Carpitanos,
spouses William Carpitanos and Lucia Carpitanos filed on June 9, 1995 a case
against James Daniel II and his parents, James Daniel Sr. and Guada Daniel, the
vehicle owner, Vivencio Villanueva and St. Mary's Academy before the Regional
Trial Court of Dipolog City.
"On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City
rendered its decision the dispositive portion of which reads as follows:
"'WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered
in the following manner:
1. Defendant St. Mary's Academy of Dipolog City, is hereby ordered to pay
plaintiffs William Carpitanos and Luisa Carpitanos, the following
sums of money:
a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss
of life of Sherwin S. Carpitanos;
b. FORTY THOUSAND PESOS (P40,000.00) actual damages
incurred by plaintiffs for burial and related expenses;
c. TEN THOUSAND PESOS (P10,000.00) for attorney's fees;
d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral
damages; and to pay costs.
2. Their liability being only subsidiary, defendants James Daniel, Sr. and
Guada Daniel are hereby ordered to pay herein plaintiffs the
amount of damages above-stated in the event of insolvency of
principal obligor St. Mary's Academy of Dipolog City;
3. Defendant James Daniel II, being a minor at the time of the commission
of the tort and who was under special parental authority of
defendant St. Mary's Academy, is ABSOLVED from paying the
above-stated damages, same being adjudged against defendants
St. Mary's Academy, and subsidiarily, against his parents;
4. Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His
counterclaim not being in order as earlier discussed in this
decision, is hereby DISMISSED.
IT IS SO ORDERED."' (Decision, pp. 32-33; Records, pp. 205-206)."
"From the records it appears that from 13 to 20 February 1995, defendant-
appellant St. Mary's Academy of Dipolog City conducted an enrollment drive for the
school year 1995-1996. A facet of the enrollment campaign was the visitation of
schools from where prospective enrollees were studying. As a student of St. Mary's
Academy, Sherwin Carpitanos was part of the campaigning group. Accordingly, on
the fateful day, Sherwin, along with other high school students were riding in a
Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan
Elementary School, Larayan, Dapitan City. The jeep was driven by James Daniel II
 then 15 years old and a student of the same school. Allegedly, the latter drove the
jeep in a reckless manner and as a result the jeep turned turtle.
"Sherwin Carpitanos died as a result of the injuries he sustained from the
accident." 2
In due time, petitioner St. Mary's Academy appealed the decision to the Court of Appeals. 3
On February 29, 2000, the Court of Appeals promulgated a decision reducing the actual
damages to P25,000.00 but otherwise affirming the decision a quo, in toto. 4
On February 29, 2000, petitioner St. Mary's Academy filed a motion for reconsideration of the
decision. However, on May 22, 2000, the Court of Appeals denied the motion. 5
Hence, this appeal. 6
The Issues
1) Whether the Court of Appeals erred in holding the petitioner liable for damages
for the death of Sherwin Carpitanos.
2) Whether the Court of Appeals erred in affirming the award of moral damages
against the petitioner.
The Court's Ruling
We reverse the decision of the Court of Appeals.
The Court of Appeals held petitioner St. Mary's Academy liable for the death of Sherwin
Carpitanos under Articles 218 7 and 219 8 of the Family Code, pointing out that petitioner was
negligent in allowing a minor to drive and in not having a teacher accompany the minor students in the
jeep.
Under Article 218 of the Family Code, the following shall have special parental authority over
a minor child while under their supervision, instruction or custody: (1) the school, its administrators
and teachers; or (2) the individual, entity or institution engaged in child care. This special parental
authority and responsibility applies to all authorized activities, whether inside or outside the premises
of the school, entity or institution. Thus, such authority and responsibility applies to field trips,
excursions and other affairs of the pupils and students outside the school premises whenever
authorized by the school or its teachers. 9
Under Article 219 of the Family Code, if the person under custody is a minor, those exercising
special parental authority are principally and solidarily liable for damages caused by the acts or
omissions of the unemancipated minor while under their supervision, instruction, or custody. 10
However, for petitioner to be liable, there must be a finding that the act or omission
considered as negligent was the proximate cause of the injury caused because the negligence, must
have a causal connection to the accident. 11
“In order that there may be a recovery for an injury, however, it must be
shown that the ‘injury for which recovery is sought must be the legitimate
consequence of the wrong done; the connection between the negligence and the
injury must be a direct and natural sequence of events, unbroken by intervening
efficient causes.’ In other words, the negligence must be the proximate cause of the
injury. For, ‘negligence, no matter in what it consists, cannot create a right of action
unless it is the proximate cause of the injury complained of.’ And ‘the proximate
cause of an injury is that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which
the result would not have occurred.”’ 12
In this case, the respondents failed to show that the negligence of petitioner was the
proximate cause of the death of the victim.
Respondents Daniel spouses and Villanueva admitted that the immediate cause of the
accident was not the negligence of petitioner or the reckless driving of James Daniel II, but the
detachment of the steering wheel guide of the jeep.
 In their comment to the petition, respondents Daniel spouses and Villanueva admitted the
documentary exhibits, establishing that the cause of the accident was the detachment of the steering
wheel guide of the jeep. Hence, the cause of the accident was not the recklessness of James Daniel II
but the mechanical defect in the jeep of Vivencio Villanueva. Respondents, including the spouses
Carpitanos, parents of the deceased Sherwin Carpitanos, did not dispute the report and testimony of
the traffic investigator who stated that the cause of the accident was the detachment of the steering
wheel guide that caused the jeep to turn turtle.
Significantly, respondents did not present any evidence to show that the proximate cause of
the accident was the negligence of the school authorities, or the reckless driving of James Daniel II.
Hence, the respondents’ reliance on Article 219 of the Family Code that “those given the authority and
responsibility under the preceding Article shall be principally and solidarily liable for damages caused
by acts or omissions of the unemancipated minor” was unfounded.
Further, there was no evidence that petitioner school allowed the minor James Daniel II to
drive the jeep of respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent
Vivencio Villanueva, who had possession and control of the jeep. He was driving the vehicle and he
allowed James Daniel II, a minor, to drive the jeep at the time of the accident.
Hence, liability for the accident, whether caused by the negligence of the minor driver or
mechanical detachment of the steering wheel guide of the jeep, must be pinned on the minor's
parents primarily. The negligence of petitioner St. Mary's Academy was only a remote cause of the
accident. Between the remote cause and the injury, there intervened the negligence of the minor's
parents or the detachment of the steering wheel guide of the jeep.
"The proximate cause of an injury is that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred." 13
Considering that the negligence of the minor driver or the detachment of the steering wheel
guide of the jeep owned by respondent Villanueva was an event over which petitioner St. Mary's
Academy had no control, and which was the proximate cause of the accident, petitioner may not be
held liable for the death resulting from such accident.
Consequently, we find that petitioner likewise cannot be held liable for moral damages in the
amount of P500,000.00 awarded by the trial court and affirmed by the Court of Appeals.
Though incapable of pecuniary computation, moral damages may be recovered if they are the
proximate result of the defendant's wrongful act or omission. 14 In this case, the proximate cause of
the accident was not attributable to petitioner.
For the reason that petitioner was not directly liable for the accident, the decision of the Court
of Appeals ordering petitioner to pay death indemnity to respondent Carpitanos must be deleted.
Moreover, the grant of attorney's fees as part of damages is the exception rather than the rule. 15 The
power of the court to award attorney's fees under Article 2208 of the Civil Code demands factual,
legal and equitable justification. 16 Thus, the grant of attorney's fees against the petitioner is likewise
deleted.
Incidentally, there was no question that the registered owner of the vehicle was respondent
Villanueva. He never denied and in fact admitted this fact. We have held that the registered owner of
any vehicle, even if not used for public service, would primarily be responsible to the public or to third
persons for injuries caused the latter while the vehicle was being driven on the highways or
streets." 17 Hence, with the overwhelming evidence presented by petitioner and the respondent
Daniel spouses that the accident occurred because of the detachment of the steering wheel guide of
the jeep, it is not the school, but the registered owner of the vehicle who shall be held responsible for
damages for the death of Sherwin Carpitanos.
The Fallo
WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of
Appeals 18 and that of the trial court. 19 The Court remands the case to the trial court for
determination of the liability of defendants, excluding petitioner St. Mary's Academy, Dipolog
City. DaTHAc
No costs.
 SO ORDERED.
Davide, Jr.,  C.J., Kapunan and Ynares-Santiago, JJ., concur.
Puno, J.,  in the result.

|||  (St. Mary's Academy v. Carpitanos, G.R. No. 143363, [February 6, 2002], 426 PHIL 878-887)

SECOND DIVISION

[G.R. No. 235498. July 30, 2018.]

RENALYN A. MASBATE and SPOUSES RENATO MASBATE and MARLYN

MASBATE, petitioners, vs. RICKY JAMES RELUCIO, respondent.

DECISION

PERLAS-BERNABE, J  p:

Assailed in this petition for review on certiorari 1 are the Decision 2 dated January 12,
2017 and the Omnibus Resolution 3 dated October 3, 2017 of the Court of Appeals (CA) in CA-
G.R. SP No. 144406, which set aside the Orders dated December 4, 2015 4 and January 7,
2016 5 of the Regional Trial Court of Legazpi City, Albay, Branch 8 (RTC) in Special Proceeding
(SP) No. FC-15-239, directed the remand of the case to the RTC for trial, and granted respondent
Ricky James Relucio (Ricky James) "temporary custody" once a month for a period not exceeding
twenty-four (24) hours over the minor, Queenie Angel M. Relucio (Queenie), his illegitimate
daughter with petitioner Renalyn A. Masbate (Renalyn), on top of visitation rights fixed at two (2)
days per week.

The Facts

Queenie was born on May 3, 2012 to Renalyn and Ricky James, who had been living
together with Renalyn's parents without the benefit of marriage. Three (3) years later, or in April
2015, the relationship ended. Renalyn went to Manila, supposedly leaving Queenie behind in the
care and custody of her father, Ricky James. 6
Ricky James alleged that on November 7, 2015, Spouses Renato and Marlyn Masbate
(Renalyn's parents) took Queenie from the school where he had enrolled her. When asked to give
Queenie back, Renalyn's parents refused and instead showed a copy of a Special Power of
Attorney 7 (SPA) executed by Renalyn granting full parental rights, authority, and custody over
Queenie to them. Consequently, Ricky James filed a petition for habeas corpus and child
custody 8 docketed as SP No. FC-15-239 before the RTC (petition a quo). 9 CAIHTE
A hearing was conducted on December 3, 2015, where Renalyn brought Queenie and
expressed the desire for her daughter to remain in her custody. 10

The RTC Ruling

In an Order 11 dated December 4, 2015, the RTC ruled that the custody of three (3)-year-
old Queenie rightfully belongs to Renalyn, citing the second paragraph of Article 213 of the Family
Code, which states that "[n]o child under seven [(7)] years of age shall be separated from the
mother x x x." The RTC likewise found that, while Renalyn went to Manila to study dentistry and
left Queenie in the custody of her parents, her intention was to bring Queenie to Manila at a later
time. Thus, in the fallo of said Order, the RTC declared that it will "NOT GIVE FURTHER DUE
COURSE" to the petition a quo. 12
Dissatisfied, Ricky James moved for reconsideration, 13 lamenting the "[extraordinary]
speed in the issuance of the x x x award of custody over the child to [petitioners]."  14 He claimed
that the hearing conducted on December 3, 2015 was not the kind of hearing that was
procedurally contemplated under A.M. No. 03-04-04-SC, 15 otherwise known as the "Rule on
Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors," because the
RTC merely propounded random questions without placing the witnesses on the stand to testify
under oath. Moreover, he was allegedly deprived of his right to due process when the RTC
refused to give further due course to the petition a quo. 16
The motion was denied in an Order 17 dated January 7, 2016, wherein the RTC
emphasized that Queenie was born out of wedlock, for which reason she shall be under the
parental authority of her mother, Renalyn, pursuant to Article 176 18 of the Family Code. In
addition, the RTC faulted Ricky James for failing to present credible evidence in court to
demonstrate that Renalyn is unfit to take custody of their daughter. 19
Aggrieved, Ricky James filed an appeal 20 before the CA, imputing error upon the
RTC: (a) in not conducting a full blown trial and not receiving evidence; (b) in granting sole
custody to Renalyn without giving paramount consideration to the best interests of the child;
and (c) in not granting him shared custody and/or visitation rights. 21 Ricky James insisted that
the tender-age presumption in Article 213 of the Family Code is rebuttable by evidence of the
mother's neglect, abandonment, and unemployment, among other factors, and claimed that
Renalyn abandoned Queenie when she went to live in Manila and failed to seek employment to
support her daughter. 22
For their part, Renalyn and her parents (petitioners) moved for the outright dismissal of
the appeal on the ground that no appeal can be had against an order denying a motion for
reconsideration. In addition, petitioners argued that being the illegitimate father of Queenie, Ricky
James has absolutely no right of custody over her, and that Renalyn's act of entrusting the care of
Queenie to her parents was not a renunciation of parental authority but only a temporary
separation necessitated by her need to adjust to her studies, which she undertook to improve her
and Queenie's life. 23 DETACa
On September 2, 2016, the case was referred to mediation, but the parties were unable to
arrive at a settlement. 24

The CA Ruling

In a Decision 25 dated January 12, 2017, the CA set aside the assailed RTC Orders and
remanded the case to the lower court for determination of who should exercise custody over
Queenie. 26 The CA found that the RTC hastily dismissed the petition a quo upon Queenie's
production in court, when the objective of the case was to establish the allegation that Renalyn
had been neglecting Queenie, which was a question of fact that must be resolved by
trial. 27 Citing Section 18 of A.M. No. 03-04-04-SC, which states that, "[a]fter trial, the court shall
render judgment awarding the custody of the minor to the proper party considering the best
interests of the minor," the CA declared that the dismissal by the RTC of the petition a quo was
not supported by the Rules. 28
Nonetheless, the CA affirmed the RTC Orders granting custody to Renalyn "pending the
outcome of the case," stating that only Queenie's mother, Renalyn, has parental authority over
her as she is an illegitimate child. Further, the CA declared that the RTC must thresh out
Renalyn's capacity to raise her daughter, which shall, in turn, determine whether or not the
tender-age presumption must be upheld, or whether Queenie's well-being is better served with
her remaining in the custody of her maternal grandparents in the exercise of their substitute
parental authority or with Ricky James, who was Queenie's actual custodian before the
controversy. 29
Finally, the CA granted Ricky James visitation rights of two (2) days a week, with
provision for additional visitation days that may be permitted by Renalyn. 30
Petitioners filed a motion for reconsideration, 31 while Ricky James filed a motion for
clarification 32 asking that he be allowed to pick up Queenie from petitioners' residence on a
Friday afternoon and to return the child on a Sunday afternoon. 33 In their
Comment, 34 petitioners argued that the arrangement proposed by Ricky James is not within the
scope of his visitation rights, but that he may, through Renalyn's written consent, take Queenie
home on certain family occasions. 35
In its Omnibus Resolution 36 dated October 3, 2017, the CA denied petitioners' motion for
reconsideration for lack of merit, insisting on its application of the case of Bagtas v.
Santos, 37 which held that a trial is still necessary to determine the issue of custody despite the
production of the child. 38 On the other hand, the CA ruled in favor of Ricky James' motion for
clarification, granting the latter what it calls a "limited and temporary custody" that will allow him to
take Queenie out once a month, or on the first Saturday of each month, for a period not
exceeding twenty-four (24) hours, but which shall not reduce his visitation days fixed at two (2)
days per week. 39 In so holding, the appellate court cited "humane and practical
considerations" 40 and argued that it is in Queenie's best interest to have an exclusive time with
Ricky James. 41
Undaunted, petitioners filed the instant petition for review on certiorari, maintaining that
the RTC correctly dismissed the petition a quo after the hearing on December 3, 2015 on the
grounds that: (a) the purported custodial right that Ricky James seeks to enforce in filing his
petition has no legal basis; (b) the petition a quo does not comply with the requisites for habeas
corpus petitions involving custody of minors; and (c) there are no more factual issues to be
resolved as it had already been admitted by Renalyn during the hearing that she goes to Manila
to study but that she comes home every week for Queenie and whenever there is a
problem. 42 aDSIHc
Ricky James filed a Comment/Opposition, 43 as well as an Urgent Omnibus Motion 44 to
dismiss the petition and for immediate execution pending appeal of the Omnibus Resolution dated
October 3, 2017, claiming that the instant petition was filed out of time and that it was erroneous
for petitioners to state that the last day of filing fell on November 4, 2017, a Saturday, which
compelled them to file their petition on November 6, 2017, a Monday. By his calculation, the
fifteen (15)-day reglementary period, which commenced to run upon petitioners' receipt on
October 19, 2017 of the Omnibus Resolution dated October 3, 2017, ended on November 3,
2017, a Friday, and not on November 4, 2017. 45

The Issue before the Court

The main issue for the Court's resolution is whether or not the CA correctly remanded the
case a quo for determination of who should exercise custody over Queenie.

The Court's Ruling

 The petition is partially meritorious.

I.

At the outset, it must be stressed that while petitioners may have erroneously determined
the expiration of the reglementary period for filing the instant petition, which resulted in the same
being filed a day late on November 6, 2017, the Court finds it proper to overlook this procedural
lapse given the compelling merit of the petition in the interest of substantial justice.
The Court has declared that rules on the perfection of appeals, particularly on the period
of filing thereof, must occasionally yield to the loftier ends of substantial justice and equity. In the
same manner that the CA took cognizance of respondent's appeal from the denial of his motion
for reconsideration of the RTC Order dated December 4, 2015, 46 which is technically prohibited
under the Rules of Court, so shall this Court hold that the ends of justice would be served better
when cases are determined, not on mere technicality or some procedural nicety, but on the merits
— after all the parties are given full opportunity to ventilate their causes and defenses. Lest it be
forgotten, dismissal of appeals purely on technical grounds is frowned upon. The rules of
procedure ought not to be applied in a very rigid, technical sense, for they have been adopted to
help secure — not override — substantial justice. 47 ATICcS
In this relation, it may not be amiss to point out that the fundamental policy of the State,
as embodied in the Constitution in promoting and protecting the welfare of children, shall not be
disregarded by the courts by mere technicality in resolving disputes which involve the family and
the youth. 48 The State is mandated to provide protection to those of tender years. Through its
laws, it safeguards them from everyone, even their own parents, to the end that their eventual
development as responsible citizens and members of society shall not be impeded, distracted or
impaired by family acrimony. 49
Accordingly, the Court shall delve into the substantive arguments propounded in this
case.

II.

It is settled that habeas corpus may be resorted to in cases where "the rightful

custody of any person is withheld from the person entitled thereto." 50 In custody cases involving
minors, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody
over a child. The grant of the writ depends on the concurrence of the following requisites: (1) that
the petitioner has the right of custody over the minor; (2) that the rightful custody of the minor is
being withheld from the petitioner by the respondents; and (3) that it is to the best interest of the
minor concerned to be in the custody of petitioner and not that of the respondents. 51
"The right of custody accorded to parents springs from the exercise of parental authority.
Parental authority or patria potestas in Roman Law is the juridical institution whereby parents
rightfully assume control and protection of their unemancipated children to the extent required by
the latter's needs. It is a mass of rights and obligations which the law grants to parents for the
purpose of the children's physical preservation and development, as well as the cultivation of their
intellect and the education of their heart and senses. As regards parental authority, 'there is no
power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for
the welfare of the minor.'" 52
As a general rule, the father and the mother shall jointly exercise parental authority over
the persons of their common children. 53 However, insofar as illegitimate children are concerned,
Article 176 54 of the Family Code states that illegitimate children shall be under the parental
authority of their mother. Accordingly, mothers (such as Renalyn) are entitled to the sole
parental authority of their illegitimate children (such as Queenie), notwithstanding the father's
recognition of the child. In the exercise of that authority, mothers are consequently entitled to
keep their illegitimate children in their company, and the Court will not deprive them of
custody, absent any imperative cause showing the mother's  unfitness  to exercise such authority
and care. 55
 In addition, Article 213 of the same Code provides for the so-called tender-age
presumption, stating that "[n]o child under seven [(7)] years of age shall be separated from the
mother unless the court finds compelling reasons to order otherwise." The rationale behind the
rule was explained by the Code Commission in this wise: TIADCc
The general rule is recommended in order to avoid many a tragedy
where a mother has seen her baby torn away from her. No man can sound the
deep sorrows of a mother who is deprived of her child of tender age. The
exception allowed by the rule has to be for "compelling reasons" for the good of
the child; those cases must indeed be rare, if the mother's heart is not to be
unduly hurt. x x x 56
According to jurisprudence, the following instances may constitute "compelling reasons"
to wrest away custody from a mother over her child although under seven (7) years of age:
neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity or affliction with a communicable disease. 57
As the records show, the CA resolved to remand the case to the RTC, ratiocinating that
there is a need to establish whether or not Renalyn has been neglecting Queenie, 58 for which
reason, a trial is indispensable for reception of evidence relative to the preservation or overturning
of the tender-age presumption under Article 213 of the Family Code. 59 In opposition, petitioners
contend that the second paragraph of Article 213 of the Family Code would not even apply in this
case (so as to determine Renalyn's unfitness as a mother) because the said provision only
applies to a situation where the parents are married to each other. 60 As basis, petitioners rely on
the Court's ruling in Pablo-Gualberto v. Gualberto V 61 (Pablo-Gualberto), the pertinent portion of
which reads:
In like manner, the word "shall" in Article 213 of the Family Code and
Section 6 of Rule 99 of the Rules of Court has been held to connote a mandatory
character. 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. x x x 62
For easy reference, Article 213 of the Family Code and Section 6, Rule 99 of the Rules of
Court, which were cited in Pablo-Gualberto, are quoted hereunder in full:
Article 213 of the Family Code
Article 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.
Section 6, Rule 99 of the Rules of Court
Section 6. Proceedings as to child whose parents are separated. Appeal.
— When husband and wife are divorced or living separately and apart from each
other, and the question to the care, custody, and control of a child or children of
their marriage is brought before a Court of First Instance by petition or as an
incident to any other proceeding, the court, upon hearing the testimony as may
be pertinent, shall award the care, custody, and control of each such child as will
be for its best interest, permitting the child to choose which parent it prefers to live
with if it be over ten years of age, unless the parent so chosen be unfit to take
charge of the child by reason of moral depravity, habitual drunkenness,
incapacity, or poverty. If, upon such hearing, it appears that both parents are
improper persons to have the care, custody, and control of the child, the court
may either designate the paternal or maternal grandparent of the child, or his
oldest brother or sister, or some reputable and discreet person to take charge of
such child, or commit it to any suitable asylum, children's home, or benevolent
society. The court may in conformity with the provisions of the Civil Code order
either or both parents to support or help support said child, irrespective of who
may be its custodian, and may make any order that is just and reasonable
 permitting the parent who is deprived of its care and custody to visit the child or
have temporary custody thereof. Either parent may appeal from an order made in
accordance with the provisions of this section. No child under seven years of age
shall be separated from its mother, unless the court finds there are compelling
reasons therefor. AIDSTE
Notably, after a careful reading of Pablo-Gualberto, it has been determined that the
aforequoted pronouncement therein is based on a previous child custody case, namely, Briones
v. Miguel 63 (Briones), wherein the Court pertinently held as follows:
However, the CA erroneously applied Section 6 of Rule 99 of the Rules
of Court. This provision contemplates a situation in which the parents of the minor
are married to each other but are separated either by virtue of a decree of legal
separation or because they are living separately de facto. In the present case, it
has been established that petitioner and Respondent Loreta were never married.
Hence, that portion of the CA Decision allowing the child to choose which parent
to live with is deleted, but without disregarding the obligation of petitioner to
support the child. 64
For guidance, the relevant issue in Briones for which the stated excerpt was made is
actually the application of Section 6, Rule 99 of the Rules of Court insofar as it permits the child
over ten (10) years of age to choose which parent he prefers to live with. As the Court's ruling
in Briones was prefaced: "[t]he Petition has no merit. However, the assailed Decision should be
modified in regard to its erroneous application of Section 6 of Rule 99 of the  Rules of
Court." 65 Accordingly, since the statement in Pablo-Gualberto invoked by petitioners, i.e., that
"Article 213 and Rule 99 similarly contemplate a situation in which the parents of the minor are
married to each other x x x," was based on Briones, then that same statement must be
understood according to its proper context — that is, the issue pertaining to the right of a child to
choose which parent he prefers to live with. The reason as to why this statement should be
understood in said manner is actually not difficult to discern: the choice of a child over seven (7)
years of age (first paragraph of Article 213 of the Family Code) and over ten (10) years of age
(Rule 99 of the Rules of Court) shall be considered in custody disputes only between married
parents because they are, pursuant to Article 211 of the Family Code, accorded joint parental
authority over the persons of their common children. On the other hand, this choice is not
available to an illegitimate child, much more one of tender age such as Queenie (second
paragraph of Article 213 of the Family Code), because sole parental authority is given only to the
mother, unless she is shown to be unfit or unsuitable (Article 176 of the Family Code). Thus, since
the issue in this case is the application of the exception to the tender-age presumption under the
second paragraph of Article 213 of the Family Code, and not the option given to the child under
the first paragraph to choose which parent to live with, petitioners' reliance on Pablo-Gualberto is
grossly misplaced. SDAaTC
In addition, it ought to be pointed out that the second paragraph of Article 213 of
the Family Code, which was the basis of the CA's directive to remand the case, does not even
distinguish between legitimate and illegitimate children — and hence, does not factor in whether
or not the parents are married — in declaring that "[n]o child under seven [(7)] years of age shall
be separated from the mother unless the court finds compelling reasons to order otherwise." " Ubi
lex non distinguit nec nos distinguere debemos. When the law makes no distinction, we (this
Court) also ought not to recognize any distinction." 66 As such, petitioners' theory that Article 213
of the Family Code is herein inapplicable — and thus, negates the need for the ordered remand
— is not only premised on an erroneous reading of jurisprudence, but is also one that is
fundamentally off-tangent with the law itself.

III.

The Court cannot also subscribe to petitioners' contention that even if there are
compelling reasons to separate Queenie from her mother, Renalyn, pursuant to the second
paragraph of Article 213 of the Family Code, Ricky James would still not acquire custody over
their daughter because there is no provision of law granting custody rights to an illegitimate
father. 67
 In the event that Renalyn is found unfit or unsuitable to care for her daughter, Article 214
of the Family Code mandates that substitute parental authority shall be exercised by
the surviving grandparent. However, the same Code further provides in Article 216 that "[i]n
default of parents or judicially appointed guardian, the following persons shall exercise substitute
parental authority over the child in the order indicated:"
Article 216. x x x
(1) The surviving grandparent as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or
disqualified; and
(3) The child's actual custodian, over twenty-one years of age, unless unfit or
disqualified.
The same order of preference with respect to substitute parental authority is reiterated in
Section 13 of A.M. No. 03-04-04-SC, the "Rule on Custody of Minors and Writ of Habeas Corpus
in Relation to Custody of Minors," to wit:
Section 13. Provisional order awarding custody. — After an answer has
been filed or after expiration of the period to file it, the court may issue a
provisional order awarding custody of the minor. As far as practicable, the
following order of preference shall be observed in the award of custody:
(a) Both parents jointly;
(b) Either parent, taking into account all relevant considerations, especially the
choice of the minor over seven years of age and of sufficient discernment, unless
the parent chosen is unfit;
(c) The grandparent, or if there are several grandparents, the grandparent chosen
by the minor over seven years of age and of sufficient discernment, unless the
grandparent chosen is unfit or disqualified;
(d) The eldest brother or sister over twenty-one years of age, unless he or she is
unfit or disqualified;
(e) The actual custodian of the minor over twenty-one years of age, unless
the former is unfit or disqualified; or
(f) Any other person or institution the court may deem suitable to provide proper
care and guidance for the minor.
It was not disputed that Ricky James was in actual physical custody of Queenie when
Renalyn left for Manila to pursue her studies until the instant controversy took place. As such,
Ricky James had already assumed obligations and enjoyed privileges of a custodial character,
giving him a cause of action to file a case of habeas corpus to regain custody of Queenie as her
actual custodian. acEHCD
Indeed, it may be argued that Article 176 of the Family Code has effectively disqualified
the father of an illegitimate child from exercising substitute parental authority under Article 216
even if he were the actual custodian of the child under the premise that no one is allowed to do
indirectly what he is prohibited to do directly. However, the Court cannot adopt a rigid view,
without running afoul to the overarching consideration in custody cases, which is the best
interest of the minor. Even way back, Article 363 of the Civil Code provides that in all questions
relating to the care, custody, education and property of the children, the latter's welfare is
paramount. 68 Under present rules, A.M. No. 03-04-04-SC explicitly states that "[i]n awarding
custody, the court shall consider the best interests of the minor and shall give paramount
consideration to [her] material and moral welfare. The best interests of the minor refer to the
totality of the circumstances and conditions as are most congenial to the survival, protection, and
feelings of security of the minor encouraging to [her] physical, psychological and emotional
development. It also means the least detrimental available alternative for safeguarding the growth
and development of the minor." 69
In light of the foregoing, the Court finds that Queenie's best interest demands that a
proper trial be conducted to determine if she had, indeed, been neglected and abandoned by her
mother, rendering the latter unfit to exercise parental authority over her, and in the event that
Renalyn is found unsuitable, whether it is in Queenie's best interest that she be in the custody of
her father rather than her grandparents upon whom the law accords a far superior right to
exercise substitute parental authority. In the case of Bagtas v. Santos, 70 which was a tug-of-war
between the maternal grandparents of the illegitimate minor child and the actual custodians of the
latter, the Court faulted the trial court for hastily dismissing the petition for habeas corpus and
awarding the custody of the minor to the grandparents without conducting any trial. The import of
such decision is that the preference accorded by Article 216 of the Family Code does not
automatically attach to the grandparents, and is conditioned upon the determination of their
fitness to take care of their grandchild. In ruling as it did, the Court ratiocinated that the child's
welfare being the most important consideration, it is not bound by any legal right of a person
over the child. Reiterating its pronouncement in the early case of Sombong v. CA, 71 the Court
held that:
[I]n passing on the writ in a child custody case, the court deals with a matter of an
equitable nature. Not bound by any mere legal right of parent or guardian, the
court gives his or her claim to the custody of the child due weight as a claim
founded on human nature and considered generally equitable and just.
Therefore, these cases are decided, not on the legal right of the petitioner to be
relieved from unlawful imprisonment or detention, as in the case of adults, but on
the court's view of the best interests of those whose welfare requires that they be
in custody of one person or another. Hence, the court is not bound to deliver a
child into the custody of any claimant or of any person, but should, in the
consideration of the facts, leave it in such custody as its welfare at the time
appears to require. In short, the child's welfare is the supreme consideration.
Considering that the child's welfare is an all-important factor in custody
cases, the Child and Youth Welfare Code unequivocally provides that in all
questions regarding the care and custody, among others, of the child, his welfare
shall be the paramount consideration. In the same vein, the Family
Code authorizes the courts to, if the welfare of the child so demands, deprive the
parents concerned of parental authority over the child or adopt such measures as
may be proper under the circumstances. 72
The Court cannot close its eyes to the sad reality that not all fathers, especially those who
have sired children out of wedlock, have risen to the full height of a parent's responsibility towards
his offspring. Yet, here is a father of an illegitimate child who is very much willing to take on the
whole gamut of parenting. He, thus, deserves, at the very least, to be given his day in court to
prove that he is entitled to regain custody of his daughter. As such, the CA's order to remand the
case is proper. SDHTEC

IV.

While the appellate court correctly remanded the case for trial, the Court, however, holds
that it erred in granting Ricky James temporary custody for a limited period of twenty-four (24)
consecutive hours once every month, in addition to visitation rights, invoking "humane and
practical considerations," 73 which were based solely on Ricky James' allegations.
It should be stressed that Section 15 of A.M. No. 03-04-04-SC provides for temporary
visitation rights, not temporary custody, as follows:
Section 15. Temporary visitation rights. — The court shall provide in its
order awarding provisional custody appropriate visitation rights to the non-
custodial parent or parents, unless the court finds said parent or parents unfit or
disqualified.
The temporary custodian shall give the court and non-custodial parent or
parents at least five days' notice of any plan to change the residence of the minor
or take him out of his residence for more than three days provided it does not
prejudice the visitation rights of the non-custodial parent or parents.
 It is only after trial, when the court renders its judgment awarding the custody of the minor
to the proper party, that the court may likewise issue "any order that is just and reasonable
permitting the parent who is deprived of the care and custody of the minor  to visit or have
temporary custody," pursuant to Section 18 of A.M. No. 03-04-04-SC, to wit: HSAcaE
Section 18. Judgment. — After trial, the court shall render judgment
awarding the custody of the minor to the proper party considering the best
interests of the minor.
If it appears that both parties are unfit to have the care and custody of the
minor, the court may designate either the paternal or maternal grandparent of the
minor, or his oldest brother or sister, or any reputable person to take charge of
such minor, or to commit him to any suitable home for children.
In its judgment, the court may order either or both parents to give an
amount necessary for the support, maintenance and education of the minor,
irrespective of who may be its custodian. In determining the amount of support,
the court may consider the following factors: (1) the financial resources of the
custodial and non-custodial parent and those of the minor; (2) the physical and
emotional health, special needs, and aptitude of the minor; (3) the standard of
living the minor has been accustomed to; and (4) the non-monetary contributions
that the parents would make toward the care and well-being of the minor.
The court may also issue any order that is just and reasonable
permitting the parent who is deprived of the care and custody of the minor
to visit or have temporary custody. (Emphasis supplied)
By granting temporary albeit limited custody ahead of trial, the appellate court overturned
the tender-age presumption with nothing but Ricky James' bare allegations, to which the Court
cannot give its imprimatur. As earlier intimated, the issue surrounding Renalyn's fitness as a
mother must be properly threshed out in the trial court before she can be denied custody, even for
the briefest of periods, over Queenie.
In view of the disposition in Silva and Briones and the rules quoted above, the Court can
only uphold Ricky James' visitation rights, which shall be limited to two (2) days per week, without
prejudice to Renalyn allowing him additional days. However, consistent with the aforesaid cases,
as well as the more recent case of Grande v. Antonio, 74 Ricky James may take Queenie out only
upon the written consent of Renalyn. Contrary to the posturing 75 of the appellate court, the
requirement for the consent of the mother is consistent with the regime of sole maternal custody
under the second paragraph of Article 213 of the Family Code with respect to children under
seven (7) years of age, which may be overcome only by compelling evidence of the mother's
unfitness. 76 Until and unless Ricky James is able to substantiate his allegations, he can only
claim visitation rights over his daughter.
WHEREFORE, the petition is PARTLY GRANTED. The Decision dated January 12, 2017
and the Omnibus Resolution dated October 3, 2017 of the Court of Appeals in CA-G.R. SP No.
144406 are hereby AFFIRMED with the MODIFICATION deleting the grant of limited and
temporary custody for lack of legal and factual basis. The grant of visitation rights of two (2) days
per week shall be maintained. Respondent Ricky James Relucio may take his daughter, Queenie
Angel M. Relucio, out but only with the written consent of petitioner Renalyn A. Masbate in
accordance with this Decision.
The Regional Trial Court of Legazpi City, Albay, Branch 8 is DIRECTED to immediately
proceed with hearing Special Proceeding No. FC-15-239 upon notice of this Decision. HESIcT
SO ORDERED.
Carpio, Peralta, Caguioa  and Reyes, Jr., JJ., concur.
 

|||  (Masbate v. Relucio, G.R. No. 235498, [July 30, 2018])

 EN BANC

[G.R. No. 193652. August 5, 2014.]

Infant JULIAN YUSAY CARAM, represented by his mother, MA. CHRISTINA

YUSAY CARAM, petitioner, vs. Atty. MARIJOY D. SEGUI, Atty. SALLY D.
ESCUTIN, VILMA B. CABRERA, and CELIA C. YANGCO, respondents.

DECISION

VILLARAMA, JR.,  J p:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, and Section 19 1 of the Rule on the Writ of Amparo 2 seeking to set
aside the August 17, 2010 3 and September 6, 2010 4 Orders of the Regional Trial Court (RTC),
Branch 106 of Quezon City, in Sp. Proc. Case No. Q-10-67604. The RTC had dismissed
petitioner's petition for the issuance of a writ of amparo which petitioner filed in order for her to
regain parental authority and custody of Julian Yusay Caram (Baby Julian), her biological child,
from the respondent officers of the Department of Social Welfare and Development (DSWD).
The factual antecedents as gleaned from the records follow:
Petitioner Ma. Christina Yusay Caram (Christina) had an amorous relationship with
Marcelino Gicano Constantino III (Marcelino) and eventually became pregnant with the latter's
child without the benefit of marriage. After getting pregnant, Christina mislead Marcelino into
believing that she had an abortion when in fact she proceeded to complete the term of her
pregnancy. During this time, she intended to have the child adopted through Sun and Moon Home
for Children (Sun and Moon) in Parañaque City to avoid placing her family in a potentially
embarrassing situation for having a second illegitimate son. 5 TSHcIa
 On July 26, 2009, Christina gave birth to Baby Julian at Amang Rodriguez Memorial
Medical Center, Marikina City. 6 Sun and Moon shouldered all the hospital and medical
expenses. On August 13, 2009, Christina voluntarily surrendered Baby Julian by way of a Deed of
Voluntary Commitment 7 to the DSWD.
On November 26, 2009, Marcelino suffered a heart attack and died 8 without knowing
about the birth of his son. Thereafter, during the wake, Christina disclosed to Marcelino's family
that she and the deceased had a son that she gave up for adoption due to financial distress and
initial embarrassment. Marcelino's family was taken aback by the revelation and sympathized with
Christina. After the emotional revelation, they vowed to help her recover and raise the baby. 9
On November 27, 2009, the DSWD, through Secretary Esperanza I. Cabral issued a
certificate 10 declaring Baby Julian as "Legally Available for Adoption". A local matching
conference was held on January 27, 2010 and on February 5, 2010, Baby Julian was "matched"
with the spouses Vergel and Filomina Medina (Medina Spouses) of the Kaisahang Bahay
Foundation. Supervised trial custody then commenced. 11 aAHTDS
On May 5, 2010, Christina who had changed her mind about the adoption, wrote a letter
to the DSWD asking for the suspension of Baby Julian's adoption proceedings. She also said she
wanted her family back together. 12
On May 28, 2010, the DSWD, through respondent Atty. Marijoy D. Segui, sent a
Memorandum 13 to DSWD Assistant Secretary Vilma B. Cabrera informing her that the certificate
declaring Baby Julian legally available for adoption had attained finality on November 13, 2009, or
three months after Christina signed the Deed of Voluntary Commitment which terminated her
parental authority and effectively made Baby Julian a ward of the State. The said Memorandum
was noted by respondent Atty. Sally D. Escutin, Director IV of the Legal Service, DSWD.
On July 12, 2010, Noel Gicano Constantino, Marcelino's brother, sent a letter to Atty.
Escutin informing her that a DNA testing was scheduled on July 16, 2010 at the DNA Analysis
Laboratory at the University of the Philippines. 14
On July 16, 2010, Assistant Secretary Cabrera sent a letter 15 to Noel Constantino
stating that it would not allow Baby Julian to undergo DNA testing. Assistant Secretary Cabrera
informed Noel Constantino that the procedures followed relative to the certification on the
availability of the child for adoption and the child's subsequent placement to prospective adoptive
parents were proper, and that the DSWD was no longer in the position to stop the adoption
process. Assistant Secretary Cabrera further stated that should Christina wish to reacquire her
parental authority over Baby Julian or halt the adoption process, she may bring the matter to the
regular courts as the reglementary period for her to regain her parental rights had already lapsed
under Section 7 of Republic Act (R.A.) No. 9523. 16
On July 27, 2010, Christina filed a petition 17 for the issuance of a writ of amparo before
the RTC of Quezon City seeking to obtain custody of Baby Julian from Atty. Segui, Atty. Escutin,
Assistant Secretary Cabrera and Acting Secretary Celia C. Yangco, all of the DSWD. ITEcAD
In her petition, Christina accused respondents of "blackmailing" her into surrendering
custody of her child to the DSWD utilizing what she claims to be an invalid certificate of availability
for adoption which respondents allegedly used as basis to misrepresent that all legal requisites for
adoption of the minor child had been complied with.
Christina argued that by making these misrepresentations, the respondents had acted
beyond the scope of their legal authority thereby causing the enforced disappearance of the said
child and depriving her of her custodial rights and parental authority over him.
On the basis of the said petition, the RTC, Branch 106 of Quezon City, through its
Presiding Judge, the Honorable Angelene Mary W. Quimpo-Sale, issued a Writ of Amparo 18 on
July 28, 2010 commanding the four respondents to produce the body of Baby Julian at a hearing
scheduled on August 4, 2010. Respondents were also required to file their verified written return
to the writ pursuant to Section 9 19 of the Amparo Rule, within five working days from the service
of the writ.
The respondents complied with the writ and filed their Return 20 on August 2, 2010
praying that the petition be denied for being the improper remedy to avail of in a case relating to a
biological parent's custodial rights over her child.
 On August 4, 2010, respondents appeared before the RTC but respondents did not bring
the child, stating that threats of kidnapping were made on the child and his caregivers. To give
respondents another chance, the RTC reset the hearing to August 5, 2010.
At the August 5, 2010 hearing, the Office of the Solicitor General (OSG) entered its
appearance as representative of the State and prayed that its lawyers be given time to file their
memorandum or position paper in this case. In turn, the RTC acknowledged the appearance of
the OSG and allowed its representatives to actively participate in the arguments raised during the
said hearing. aEHIDT
Relative to the matter of the parties submitting additional pleadings, Judge Sale narrowed
the issues to be discussed by providing for the following guidelines, thus:
To abbreviate the proceedings, in view of all the manifestations and
counter-manifestations made by the counsels, the court enjoined the parties to file
their respective position papers on the following issues:
1. Whether or not this court has jurisdiction over the instant case;
2. Whether or not this petition is the proper remedy based on the facts of
the case and prayer in the petition; and
3. Whether or not the prayer in the petition should be granted and custody
of the child be given to his biological mother. TaISEH
The parties were given five (5) days from today to file their respective
position papers based on these three main issues. They may include other related
issues they deem essential for the resolution of this case. Set this case for further
hearing, if necessary, on August 18, 2010 at 9:00 a.m. 21
In the same order, Judge Sale also acknowledged that the child subject of the case was
brought before the court and the petitioner was allowed to see him and take photographs of him.
On August 17, 2010, the RTC dismissed the petition for issuance of a writ
of amparo without prejudice to the filing of the appropriate action in court. The RTC held that
Christina availed of the wrong remedy to regain custody of her child Baby Julian. 22 The RTC
further stated that Christina should have filed a civil case for custody of her child as laid down in
the Family Code and the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to
Custody of Minors. If there is extreme urgency to secure custody of a minor who has been
illegally detained by another, a petition for the issuance of a writ of habeas corpus may be availed
of, either as a principal or ancillary remedy, pursuant to the Rule on Custody of Minors and Writ of
Habeas Corpus in Relation to Custody of Minors. 23
On August 20, 2010, Christina filed a motion for reconsideration 24 arguing that since the
RTC assumed jurisdiction of the petition for the issuance of a writ of amparo, the latter is duty-
bound to dispose the case on the merits. 25 The RTC, however, denied Christina's motion for
reconsideration on September 6, 2010 maintaining that the latter availed of the wrong remedy and
that the Supreme Court intended the writ of amparo to address the problem of extrajudicial killings
and enforced disappearances. 26
On September 28, 2010, Christina directly elevated the case before this Court, via a
petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended,
in relation to Section 19 of the Rule on the Writ of Amparo. In her petition, Christina prayed that
the Court (1) set aside the August 17, 2010 and September 6, 2010 Orders of the RTC, (2)
declare R.A. No. 9523 unconstitutional for being contrary to A.M. No. 02-6-02-SC, 27 which was
promulgated by the Supreme Court, and for violating the doctrine of separation of powers, (3)
declare the "enforced separation" between her and Baby Julian as violative of her rights to life,
liberty and security, and (4) grant her the privilege of availing the benefits of a writ of amparo so
she could be reunited with her son. 28 TICAcD
The only relevant issue presented before the Court worthy of attention is whether a
petition for a writ of amparo is the proper recourse for obtaining parental authority and custody of
a minor child. This Court will not belabor to discuss Christina's arguments relating to the
supposed unconstitutionality or R.A. No. 9523 as Congress has the plenary power to repeal, alter
and modify existing laws 29 and A.M. No. 02-6-02-SC functions only as a means to enforce the
provisions of all adoption and adoption-related statutes before the courts.
 Now, in her petition, Christina argues that the life, liberty and security of Baby Julian is
being violated or threatened by the respondent DSWD officers' enforcement of an illegal Deed of
Voluntary Commitment between her and Sun and Moon. She claims that she had been
"blackmailed" through the said Deed by the DSWD officers and Sun and Moon's representatives
into surrendering her child thereby causing the "forced separation" of the said infant from his
mother. Furthermore, she also reiterates that the respondent DSWD officers acted beyond the
scope of their authority when they deprived her of Baby Julian's custody. 30
The Court rejects petitioner's contentions and denies the petition.
Section 1 of the Rule on the Writ of Amparo provides as follows:
SECTION 1. Petition. — The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is violated or
threatened with violation by an unlawful act or omission of a public official or
employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or
threats thereof.
In the landmark case of Secretary of National Defense, et al. v. Manalo, et al., 31 this
Court held:
[T]he Amparo Rule was intended to address the intractable problem of "extralegal
killings" and "enforced disappearances," its coverage, in its present form, is
confined to these two instances or to threats thereof. "Extralegal killings" are
"killings committed without due process of law, i.e., without legal safeguards or
judicial proceedings." On the other hand, "enforced disappearances" are
"attended by the following characteristics: an arrest, detention or abduction of a
person by a government official or organized groups or private individuals acting
with the direct or indirect acquiescence of the government; the refusal of the
State to disclose the fate or whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such persons outside the
protection of law. HSAcaE
This pronouncement on the coverage of the writ was further cemented in the latter case
of Lozada, Jr. v. Macapagal-Arroyo 32 where this Court explicitly declared that as it stands, the
writ of amparo is confined only to cases of extrajudicial killings and enforced disappearances, or
to threats thereof. As to what constitutes "enforced disappearance," the Court in Navia v.
Pardico 33 enumerated the elements constituting "enforced disappearances" as the term is
statutorily defined in Section 3 (g) of R.A. No. 9851 34 to wit:
(a) that there be an arrest, detention, abduction or any form of deprivation of liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence of,
the State or a political organization;
(c) that it be followed by the State or political organization's refusal to acknowledge
or give information on the fate or whereabouts of the person subject of
the amparo  petition; and,
(d) that the intention for such refusal is to remove subject person from the
protection of the law for a prolonged period of time.
In this case, Christina alleged that the respondent DSWD officers caused her "enforced
separation" from Baby Julian and that their action amounted to an "enforced disappearance"
within the context of the Amparo rule. Contrary to her position, however, the respondent DSWD
officers never concealed Baby Julian's whereabouts. In fact, Christina obtained a copy of the
DSWD's May 28, 2010 Memorandum 35 explicitly stating that Baby Julian was in the custody of
the Medina Spouses when she filed her petition before the RTC. Besides, she even admitted in
her petition for review on certiorari that the respondent DSWD officers presented Baby Julian
before the RTC during the hearing held in the afternoon of August 5, 2010. 36 There is therefore,
no "enforced disappearance" as used in the context of the Amparo rule as the third and fourth
elements are missing. IcESDA
 Christina's directly accusing the respondents of forcibly separating her from her child and
placing the latter up for adoption, supposedly without complying with the necessary legal
requisites to qualify the child for adoption, clearly indicates that she is not searching for a lost
child but asserting her parental authority over the child and contesting custody over him. 37
Since it is extant from the pleadings filed that what is involved is the issue of child custody
and the exercise of parental rights over a child, who, for all intents and purposes, has been legally
considered a ward of the State, the Amparo rule cannot be properly applied.
To reiterate, the privilege of the writ of amparo is a remedy available to victims of extra-
judicial killings and enforced disappearances or threats of a similar nature, regardless of whether
the perpetrator of the unlawful act or omission is a public official or employee or a private
individual. It is envisioned basically to protect and guarantee the right to life, liberty and security of
persons, free from fears and threats that vitiate the quality of life. ESTCHa
WHEREFORE, the petition is DENIED. The August 17, 2010 and September 6, 2010
Orders of the Regional Trial Court, Branch 106, Quezon City in Sp. Proc. Case No. Q-10-67604
are AFFIRMED without prejudice to petitioner's right to avail of proper legal remedies afforded to
her by law and related rules.
No costs.
SO ORDERED.
Carpio, Velasco Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Perez,
Mendoza, Reyes, Perlas-Bernabe and Leonen, JJ., concur.
Sereno, C.J., is on leave.
 
 

|||  (Caram v. Segui, G.R. No. 193652, [August 5, 2014], 740 PHIL 459-472)
 SECOND DIVISION

[G.R. No. 166676. September 12, 2008.]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. JENNIFER B.

CAGANDAHAN,  respondent.

DECISION

QUISUMBING,  J p:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of
law and seeking a reversal of the Decision 1 dated January 12, 2005 of the Regional Trial Court
(RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for Correction of Entries in Birth
Certificate filed by Jennifer B. Cagandahan and ordered the following changes of entries in
Cagandahan's birth certificate: (1) the name "Jennifer Cagandahan" changed to "Jeff
Cagandahan" and (2) gender from "female" to "male".
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction
of Entries in Birth Certificate 2 before the RTC, Branch 33 of Siniloan, Laguna.
In her petition, she alleged that she was born on January 13, 1981 and was registered as
a female in the Certificate of Live Birth but while growing up, she developed secondary male
characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a
condition where persons thus afflicted possess both male and female characteristics. She further
alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six,
underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen,
tests revealed that her ovarian structures had minimized, she has stopped growing and she has
no breast or menstrual development. She then alleged that for all interests and appearances as
well as in mind and emotion, she has become a male person. Thus, she prayed that her birth
certificate be corrected such that her gender be changed from female to male and her first name
be changed from Jennifer to Jeff. cHaCAS
The petition was published in a newspaper of general circulation for three (3) consecutive
weeks and was posted in conspicuous places by the sheriff of the court. The Solicitor General
entered his appearance and authorized the Assistant Provincial Prosecutor to appear in his
behalf.
To prove her claim, respondent testified and presented the testimony of Dr. Michael
Sionzon of the Department of Psychiatry, University of the Philippines-Philippine General
Hospital. Dr. Sionzon issued a medical certificate stating that respondent's condition is known as
CAH. He explained that genetically respondent is female but because her body secretes male
hormones, her female organs did not develop normally and she has two sex organs — female
and male. He testified that this condition is very rare, that respondent's uterus is not fully
developed because of lack of female hormones, and that she has no monthly period. He further
testified that respondent's condition is permanent and recommended the change of gender
because respondent has made up her mind, adjusted to her chosen role as male, and the gender
change would be advantageous to her.
The RTC granted respondent's petition in a Decision dated January 12, 2005 which
reads:
The Court is convinced that petitioner has satisfactorily shown that he is
entitled to the reliefs prayed [for]. Petitioner has adequately presented to the
Court very clear and convincing proofs for the granting of his petition. It was
medically proven that petitioner's body produces male hormones, and first his
body as well as his action and feelings are that of a male. He has chosen to be
male. He is a normal person and wants to be acknowledged and identified as a
male. DHSEcI
WHEREFORE, premises considered, the Civil Register of Pakil, Laguna
is hereby ordered to make the following corrections in the birth [c]ertificate of
Jennifer Cagandahan upon payment of the prescribed fees:
a) By changing the name from Jennifer Cagandahan to JEFF
CAGANDAHAN; and
b) By changing the gender from female to MALE.
It is likewise ordered that petitioner's school records, voter's registry,
baptismal certificate, and other pertinent records are hereby amended to conform
with the foregoing corrected data.
SO ORDERED. 3
Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the
abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING
THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT
HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE
OF "SEX" OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE
RESPONDENT'S MEDICAL CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A "MALE". 4
Simply stated, the issue is whether the trial court erred in ordering the correction of
entries in the birth certificate of respondent to change her sex or gender, from female to male, on
the ground of her medical condition known as CAH, and her name from "Jennifer" to "Jeff", under
Rules 103 and 108 of the Rules of Court. DHECac
The OSG contends that the petition below is fatally defective for non-compliance with
Rules 103 and 108 of the Rules of Court because while the local civil registrar is an indispensable
party in a petition for cancellation or correction of entries under Section 3, Rule 108 of the Rules
of Court, respondent's petition before the court  a quo did not implead the local civil
registrar. 5 The OSG further contends respondent's petition is fatally defective since it failed to
state that respondent is a bona fide resident of the province where the petition was filed for at
least three (3) years prior to the date of such filing as mandated under Section 2 (b), Rule 103 of
the Rules of Court. 6 The OSG argues that Rule 108 does not allow change of sex or gender in
the birth certificate and respondent's claimed medical condition known as CAH does not make her
a male. 7
 On the other hand, respondent counters that although the Local Civil Registrar of Pakil,
Laguna was not formally named a party in the Petition for Correction of Birth Certificate,
nonetheless the Local Civil Registrar was furnished a copy of the Petition, the Order to publish on
December 16, 2003 and all pleadings, orders or processes in the course of the
proceedings, 8 respondent is actually a male person and hence his birth certificate has to be
corrected to reflect his true sex/gender, 9 change of sex or gender is allowed under Rule
108, 10 and respondent substantially complied with the requirements of Rules 103 and 108 of the
Rules of Court. 11 ICTacD
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
SEC. 1. Venue. — A person desiring to change his name shall present
the petition to the Regional Trial Court of the province in which he resides, [or, in
the City of Manila, to the Juvenile and Domestic Relations Court].
SEC. 2. Contents of petition. — A petition for change of name shall be
signed and verified by the person desiring his name changed, or some other
person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide  resident of the
province where the petition is filed for at least three (3) years prior to the
date of such filing;
(b) The cause for which the change of the petitioner's name is
sought;
(c) The name asked for.
Sec. 3. Order for hearing. — If the petition filed is sufficient in form and
substance, the court, by an order reciting the purpose of the petition, shall fix a
date and place for the hearing thereof, and shall direct that a copy of the order be
published before the hearing at least once a week for three (3) successive weeks
in some newspaper of general circulation published in the province, as the court
shall deem best. The date set for the hearing shall not be within thirty (30) days
prior to an election nor within four (4) months after the last publication of the
notice.
SEC. 4. Hearing. — Any interested person may appear at the hearing
and oppose the petition. The Solicitor General or the proper provincial or city
fiscal shall appear on behalf of the Government of the Republic.
SEC. 5. Judgment. — Upon satisfactory proof in open court on the date
fixed in the order that such order has been published as directed and that the
allegations of the petition are true, the court shall, if proper and reasonable cause
appears for changing the name of the petitioner, adjudge that such name be
changed in accordance with the prayer of the petition. AcISTE
SEC. 6. Service of judgment. — Judgments or orders rendered in
connection with this rule shall be furnished the civil registrar of the municipality or
city where the court issuing the same is situated, who shall forthwith enter the
same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY
SEC. 1. Who may file petition. — Any person interested in any act, event,
order or decree concerning the civil status of persons which has been recorded in
the civil register, may file a verified petition for the cancellation or correction of
any entry relating thereto, with the Regional Trial Court of the province where the
corresponding civil registry is located.
 SEC. 2. Entries subject to cancellation or correction. — Upon good and
valid grounds, the following entries in the civil register may be cancelled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments declaring marriages void
from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l)
civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation
of a minor; and (o) changes of name. TcHEaI
SEC. 3. Parties. — When cancellation or correction of an entry in the civil
register is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the proceeding.
SEC. 4. Notice and publication. — Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same, and cause
reasonable notice thereof to be given to the persons named in the petition. The
court shall also cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province.
SEC. 5. Opposition. — The civil registrar and any person having or
claiming any interest under the entry whose cancellation or correction is sought
may, within fifteen (15) days from notice of the petition, or from the last date of
publication of such notice, file his opposition thereto. AaHTIE
SEC. 6. Expediting proceedings. — The court in which the proceedings is
brought may make orders expediting the proceedings, and may also grant
preliminary injunction for the preservation of the rights of the parties pending such
proceedings.
SEC. 7. Order. — After hearing, the court may either dismiss the petition
or issue an order granting the cancellation or correction prayed for. In either case,
a certified copy of the judgment shall be served upon the civil registrar concerned
who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective for non-compliance with Rules
103 and 108 of the Rules of Court because respondent's petition did not implead the local civil
registrar. Section 3, Rule 108 provides that the civil registrar and all persons who have or claim
any interest which would be affected thereby shall be made parties to the proceedings. Likewise,
the local civil registrar is required to be made a party in a proceeding for the correction of name in
the civil registry. He is an indispensable party without whom no final determination of the case can
be had. 12 Unless all possible indispensable parties were duly notified of the proceedings, the
same shall be considered as falling much too short of the requirements of the rules. 13 The
corresponding petition should also implead as respondents the civil registrar and all other persons
who may have or may claim to have any interest that would be affected thereby. 14 Respondent,
however, invokes Section 6, 15 Rule 1 of the Rules of Court which states that courts shall
construe the Rules liberally to promote their objectives of securing to the parties a just, speedy
and inexpensive disposition of the matters brought before it. We agree that there is substantial
compliance with Rule 108 when respondent furnished a copy of the petition to the local civil
registrar.
The determination of a person's sex appearing in his birth certificate is a legal issue and
the court must look to the statutes. In this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected
without a judicial order.
Together with Article 376 16 of the Civil Code, this provision was amended by Republic
Act No. 9048 17 in so far as  clerical or typographical errors are involved. The correction or
change of such matters can now be made through administrative proceedings and without the
need for a judicial order. In effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of the
Rules of Court the correction of such errors. Rule 108 now applies only to substantial changes
and corrections in entries in the civil register. 18 DAEIHT
 Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is
not a mere clerical or typographical error. It is a substantial change for which the applicable
procedure is Rule 108 of the Rules of Court. 19
The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of
the Rules of Court are those provided in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments
of marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation of a minor; and (16)
changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code
include even those that occur after birth. 20
Respondent undisputedly has CAH. This condition causes the early or "inappropriate"
appearance of male characteristics. A person, like respondent, with this condition produces too
much androgen, a male hormone. A newborn who has XX chromosomes coupled with CAH
usually has a (1) swollen clitoris with the urethral opening at the base, an ambiguous genitalia
often appearing more male than female; (2) normal internal structures of the female reproductive
tract such as the ovaries, uterus and fallopian tubes; as the child grows older, some features start
to appear male, such as deepening of the voice, facial hair, and failure to menstruate at puberty.
About 1 in 10,000 to 18,000 children are born with CAH. DcIHSa
CAH is one of many conditions 21 that involve intersex anatomy. During the twentieth
century, medicine adopted the term "intersexuality" to apply to human beings who cannot be
classified as either male or female. 22 The term is now of widespread use. According to
Wikipedia, intersexuality "is the state of a living thing of a gonochoristic species whose sex
chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither
exclusively male nor female. An organism with intersex may have biological characteristics of
both male and female sexes."
Intersex individuals are treated in different ways by different cultures. In most societies,
intersex individuals have been expected to conform to either a male or female gender
role. 23 Since the rise of modern medical science in Western societies, some intersex people with
ambiguous external genitalia have had their genitalia surgically modified to resemble either male
or female genitals. 24 More commonly, an intersex individual is considered as suffering from a
"disorder" which is almost always recommended to be treated, whether by surgery and/or by
taking lifetime medication in order to mold the individual as neatly as possible into the category of
either male or female.
In deciding this case, we consider the compassionate calls for recognition of the various
degrees of intersex as variations which should not be subject to outright denial. "It has been
suggested that there is some middle ground between the sexes, a 'no-man's land' for those
individuals who are neither truly 'male' nor truly 'female'." 25 The current state of Philippine
statutes apparently compels that a person be classified either as a male or as a female, but this
Court is not controlled by mere appearances when nature itself fundamentally negates such rigid
classification.
In the instant case, if we determine respondent to be a female, then there is no basis for a
change in the birth certificate entry for gender. But if we determine, based on medical testimony
and scientific development showing the respondent to be other than female, then a change in the
subject's birth certificate entry is in order. IaSAHC
Biologically, nature endowed respondent with a mixed (neither consistently and
categorically female nor consistently and categorically male) composition. Respondent has
female (XX) chromosomes. However, respondent's body system naturally produces high levels of
 male hormones (androgen). As a result, respondent has ambiguous genitalia and the phenotypic
features of a male.
Ultimately, we are of the view that where the person is biologically or naturally intersex
the determining factor in his gender classification would be what the individual, like respondent,
having reached the age of majority, with good reason thinks of his/her sex. Respondent here
thinks of himself as a male and considering that his body produces high levels of male hormones
(androgen) there is preponderant biological support for considering him as being male. Sexual
development in cases of intersex persons makes the gender classification at birth inconclusive. It
is at maturity that the gender of such persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not taken unnatural steps
to arrest or interfere with what he was born with. And accordingly, he has already ordered his life
to that of a male. Respondent could have undergone treatment and taken steps, like taking
lifelong medication, 26 to force his body into the categorical mold of a female but he did not. He
chose not to do so. Nature has instead taken its due course in respondent's development to
reveal more fully his male characteristics. TCacIE
In the absence of a law on the matter, the Court will not dictate on respondent concerning
a matter so innately private as one's sexuality and lifestyle preferences, much less on whether or
not to undergo medical treatment to reverse the male tendency due to CAH. The Court will not
consider respondent as having erred in not choosing to undergo treatment in order to become or
remain as a female. Neither will the Court force respondent to undergo treatment and to take
medication in order to fit the mold of a female, as society commonly currently knows this gender
of the human species. Respondent is the one who has to live with his intersex anatomy. To him
belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the
primordial choice of what courses of action to take along the path of his sexual development and
maturation. In the absence of evidence that respondent is an "incompetent" 27 and in the
absence of evidence to show that classifying respondent as a male will harm other members of
society who are equally entitled to protection under the law, the Court affirms as valid and justified
the respondent's position and his personal judgment of being a male.
In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an
individual deals with what nature has handed out. In other words, we respect respondent's
congenital condition and his mature decision to be a male. Life is already difficult for the ordinary
person. We cannot but respect how respondent deals with his unordinary state and thus help
make his life easier, considering the unique circumstances in this case.
As for respondent's change of name under Rule 103, this Court has held that a change of
name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons
adduced and the consequences that will follow. 28 The trial court's grant of respondent's change
of name from Jennifer to Jeff implies a change of a feminine name to a masculine name.
Considering the consequence that respondent's change of name merely recognizes his preferred
gender, we find merit in respondent's change of name. Such a change will conform with the
change of the entry in his birth certificate from female to male.
WHEREFORE, the Republic's petition is DENIED. The Decision dated January 12, 2005
of the Regional Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as
to costs. TcSHaD
SO ORDERED.
Carpio-Morales, Tinga, Velasco, Jr. and  Brion, JJ., concur.
 

|||  (Republic v. Cagandahan, G.R. No. 166676, [September 12, 2008], 586 PHIL 637-653)
 FIRST DIVISION

[G.R. No. 174689. October 19, 2007.]

ROMMEL JACINTO DANTES SILVERIO, petitioner,vs.REPUBLIC OF THE

PHILIPPINES,  respondent.

DECISION

CORONA, J  p:

When God created man, He made him in the likeness of God; He created them male and
female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming
from inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She
pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came
two human beings; one was a male and the other was a female. Amihan named the man
"Malakas" (Strong) and the woman "Maganda" (Beautiful).(The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does the law
recognize the changes made by a physician using scalpel, drugs and counseling with regard to a
person's sex? May a person successfully petition for a change of name and sex appearing in the
birth certificate to reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the
change of his first name and sex in his birth certificate in the Regional Trial Court of Manila,
Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of
Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to the spouses
Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as
"Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate).His sex was
registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically male but feels,
thinks and acts as a female" and that he had always identified himself with girls since
childhood. 1 Feeling trapped in a man's body, he consulted several doctors in the United States.
He underwent psychological examination, hormone treatment and breast augmentation. His
attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent
sex reassignment surgery 2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino
Reysio-Cruz, Jr.,a plastic and reconstruction surgeon in the Philippines, who issued a medical
certificate attesting that he (petitioner) had in fact undergone the procedure.
From then on, petitioner lived as a female and was in fact engaged to be married. He then
sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his
sex from "male" to "female."
An order setting the case for initial hearing was published in the People's Journal Tonight,
a newspaper of general circulation in Metro Manila, for three consecutive weeks. 3 Copies of the
order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were established. No
opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his
American fiancé, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision 4 in favor of petitioner. Its relevant
portions read:
Petitioner filed the present petition not to evade any law or judgment or any
infraction thereof or for any unlawful motive but solely for the purpose of making his
birth records compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief
asked for.
The [c]ourt rules in the affirmative. SCEHaD
Firstly, the [c]ourt is of the opinion that granting the petition would be more
in consonance with the principles of justice and equity. With his sexual [re-
assignment],petitioner, who has always felt, thought and acted like a woman, now
possesses the physique of a female. Petitioner's misfortune to be trapped in a
man's body is not his own doing and should not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be
caused to anybody or the community in granting the petition. On the contrary,
granting the petition would bring the much-awaited happiness on the part of the
petitioner and her [fiancé] and the realization of their dreams.
Finally, no evidence was presented to show any cause or ground to deny
the present petition despite due notice and publication thereof. Even the State,
through the [OSG] has not seen fit to interpose any [o]pposition.
 WHEREFORE, judgment is hereby rendered GRANTING the petition and
ordering the Civil Registrar of Manila to change the entries appearing in the
Certificate of Birth of [p]etitioner, specifically for petitioner's first name from
"Rommel Jacinto" to  MELY and petitioner's gender from "Male" to  FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic),thru the OSG, filed a
petition for certiorari in the Court of Appeals. 6 It alleged that there is no law allowing the change
of entries in the birth certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals 7 rendered a decision 8 in favor of the
Republic. It ruled that the trial court's decision lacked legal basis. There is no law allowing the
change of either name or sex in the certificate of birth on the ground of sex reassignment through
surgery. Thus, the Court of Appeals granted the Republic's petition, set aside the decision of the
trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for
reconsideration but it was denied. 9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in his birth certificate is
allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of
Court and RA 9048. 10
The petition lacks merit. AEScHa
A PERSON'S FIRST NAME
CANNOT BE CHANGED ON THE
GROUND OF SEX REASSIGNMENT
Petitioner invoked his sex reassignment as the ground for his petition for change of name
and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or any
infraction thereof or for any unlawful motive but solely for the purpose of making
his birth records compatible with his present sex.(emphasis supplied)
Petitioner believes that after having acquired the physical features of a female, he
became entitled to the civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for purposes of
identification. 11 A change of name is a privilege, not a right. 12 Petitions for change of name are
controlled by statutes. 13 In this connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial
authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular,
Section 1 of RA 9048 provides:
SECTION 1.  Authority to Correct Clerical or Typographical Error and
Change of First Name or Nickname.— No entry in a civil register shall be changed
or corrected without a judicial order, except for clerical or typographical errors and
change of first name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in accordance with the
provisions of this Act and its implementing rules and regulations.
RA 9048 now governs the change of first name. 14 It vests the power and authority to
entertain petitions for change of first name to the city or municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The intent and effect of the law is
to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court,until and unless
an administrative petition for change of name is first filed and subsequently denied.  15 It likewise
lays down the corresponding venue, 16 form 17 and procedure. In sum, the remedy and the
proceedings regulating change of first name are primarily administrative in nature, not
judicial. AcDaEH
RA 9048 likewise provides the grounds for which change of first name may be allowed:
 SECTION 4.  Grounds for Change of First Name or Nickname.— The
petition for change of first name or nickname may be allowed in any of the following
cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted
with dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously
used by the petitioner and he has been publicly known by that first
name or nickname in the community; or
(3) The change will avoid confusion.
Petitioner's basis in praying for the change of his first name was his sex reassignment. He
intended to make his first name compatible with the sex he thought he transformed himself into
through surgery. However, a change of name does not alter one's legal capacity or civil
status. 18 RA 9048 does not sanction a change of first name on the ground of sex reassignment.
Rather than avoiding confusion, changing petitioner's first name for his declared purpose may
only create grave complications in the civil registry and the public interest.
Before a person can legally change his given name, he must present proper or
reasonable cause or any compelling reason justifying such change. 19 In addition, he must show
that he will be prejudiced by the use of his true and official name. 20 In this case, he failed to
show, or even allege, any prejudice that he might suffer as a result of using his true and official
name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioner's first
name was not within that court's primary jurisdiction as the petition should have been filed with the
local civil registrar concerned, assuming it could be legally done. It was an improper remedy
because the proper remedy was administrative, that is, that provided under RA 9048. It was also
filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila
where his birth certificate is kept. More importantly, it had no merit since the use of his true and
official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly
dismissed petitioner's petition in so far as the change of his first name was concerned. EACTSH
NO LAW ALLOWS THE
CHANGE OF ENTRY IN THE
BIRTH CERTIFICATE AS TO
SEX ON THE GROUND OF SEX
REASSIGNMENT
The determination of a person's sex appearing in his birth certificate is a legal issue and
the court must look to the statutes. 21 In this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected
without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so
far as clerical or typographical  errors are involved. The correction or change of such matters can
now be made through administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such
errors. 22 Rule 108 now applies only to substantial changes and corrections in entries in the civil
register. 23
Section 2 (c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2.  Definition of Terms.— As used in this Act, the following terms
shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers to a mistake committed in the
performance of clerical work in writing, copying, transcribing or
typing an entry in the civil register that is harmless and innocuous,
such as misspelled name or misspelled place of birth or the like,
which is visible to the eyes or obvious to the understanding, and
 can be corrected or changed only by reference to other existing
record or records: Provided, however,That no correction must
involve the change of nationality, age, status or sex of the
petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of sex is not a mere
clerical or typographical error. It is a substantial change for which the applicable procedure is Rule
108 of the Rules of Court. AIDcTE
The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of
the Rules of Court are those provided in Articles 407 and 408 of the Civil Code: 24
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments
of marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation of a minor; and (16)
changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil
Code include even those that occur after birth. 25 However, no reasonable interpretation of the
provision can justify the conclusion that it covers the correction on the ground of sex
reassignment.
To correct simply means "to make or set aright; to remove the faults or error from“ while
to change means "to replace something with something else of the same kind or with something
that serves as a substitute." 26 The birth certificate of petitioner contained no error. All entries
therein, including those corresponding to his first name and sex, were all correct. No correction is
necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such
as legitimations, acknowledgments of illegitimate children and naturalization),events (such as
births, marriages, naturalization and deaths) and  judicial decrees (such as legal separations,
annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or
recovery of citizenship, civil interdiction, judicial determination of filiation and changes of
name).These acts, events and judicial decrees produce legal consequences that touch upon the
legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the
laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407.
Neither is it recognized nor even mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation (that is, the sum total of
capacities and incapacities) of a person in view of his age, nationality and his family
membership. 27 DHaEAS
The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily terminable at his
own will,such as his being legitimate or illegitimate, or his being married or not.
The comprehensive term status ... include such matters as the beginning and end
of legal personality, capacity to have rights in general, family relations, and its
various aspects, such as birth, legitimation, adoption, emancipation, marriage,
divorce, and sometimes even succession. 28 (emphasis supplied)
A person's sex is an essential factor in marriage and family relations. It is a part of a
person's legal capacity and civil status. In this connection, Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status shall
be governed by special laws.
But there is no such special law in the Philippines governing sex reassignment and its
effects. This is fatal to petitioner's cause.
 Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births.— The declaration of the
physician or midwife in attendance at the birth or, in default thereof, the declaration
of either parent of the newborn child, shall be sufficient for the registration of a birth
in the civil register. Such declaration shall be exempt from documentary stamp tax
and shall be sent to the local civil registrar not later than thirty days after the birth,
by the physician or midwife in attendance at the birth or by either parent of the
newborn child.
In such declaration, the person above mentioned shall certify to the
following facts: (a) date and hour of birth; (b) sex and nationality of infant;(c)
names, citizenship and religion of parents or, in case the father is not known, of the
mother alone; (d) civil status of parents; (e) place where the infant was born; and (f)
such other data as may be required in the regulations to be issued. AScHCD
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical record of the facts as they
existed at the time of birth. 29 Thus, the sex of a person is determined at birth,visually done by
the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering
that there is no law legally recognizing sex reassignment, the determination of a person's sex
made at the time of his or her birth, if not attended by error, 30 is immutable. 31
When words are not defined in a statute they are to be given their common and ordinary
meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as
used in the Civil Register Law and laws concerning the civil registry (and even all other laws)
should therefore be understood in their common and ordinary usage, there being no legislative
intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure
and function that distinguish a male from a female" 32 or "the distinction between male and
female." 33 Female is "the sex that produces ova or bears young" 34 and male is "the sex that
has organs to produce spermatozoa for fertilizing ova." 35 Thus, the words "male" and "female" in
everyday understanding do not include persons who have undergone sex reassignment.
Furthermore, "words that are employed in a statute which had at the time a well-known meaning
are presumed to have been used in that sense unless the context compels to the
contrary." 36 Since the statutory language of the Civil Register Law was enacted in the early
1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something
alterable through surgery or something that allows a post-operative male-to-female transsexual to
be included in the category "female." DCTHaS
For these reasons, while petitioner may have succeeded in altering his body and
appearance through the intervention of modern surgery, no law authorizes the change of entry as
to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the
correction or change of the entries in his birth certificate.
NEITHER MAY ENTRIES IN THE BIRTH
CERTIFICATE AS TO FIRST NAME OR
SEX BE CHANGED ON THE GROUND OF
EQUITY
The trial court opined that its grant of the petition was in consonance with the principles of
justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to
anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and public
policy consequences. First, even the trial court itself found that the petition was but petitioner's
first step towards his eventual marriage to his male fiancé. However, marriage, one of the most
sacred social institutions, is a special contract of permanent union between a man and a
woman. 37 One of its essential requisites is the legal capacity of the contracting parties who must
be a male and a female. 38 To grant the changes sought by petitioner will substantially
reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a
man with another man who has undergone sex reassignment (a male-to-female post-operative
transsexual). Second, there are various laws which apply particularly to women such as the
provisions of the Labor Code on employment of women, 39 certain felonies under the Revised
 Penal Code 40 and the presumption of survivorship in case of calamities under Rule 131 of
the Rules of Court,41 among others. These laws underscore the public policy in relation to
women which could be substantially affected if petitioner's petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to
render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not
a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret
the law, not to make or amend it.
In our system of government, it is for the legislature, should it choose to do so, to
determine what guidelines should govern the recognition of the effects of sex reassignment. The
need for legislative guidelines becomes particularly important in this case where the claims
asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first name and for
correction or change of entries in the civil registry, where they may be filed, what grounds may be
invoked, what proof must be presented and what procedures shall be observed. If the legislature
intends to confer on a person who has undergone sex reassignment the privilege to change his
name and sex to conform with his reassigned sex, it has to enact legislation laying down the
guidelines in turn governing the conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on when a person may
be recognized as having successfully changed his sex. However, this Court has no authority to
fashion a law on that matter, or on anything else. The Court cannot enact a law where no law
exists. It can only apply or interpret the written word of its co-equal branch of government,
Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness,
contentment and [the] realization of their dreams." No argument about that. The Court recognizes
that there are people whose preferences and orientation do not fit neatly into the commonly
recognized parameters of social convention and that, at least for them, life is indeed an ordeal.
However, the remedies petitioner seeks involve questions of public policy to be addressed solely
by the legislature, not by the courts. AaCTID
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
Puno, C.J.,Sandoval-Gutierrez, Azcuna and  Garcia, JJ., concur.

|||  (Silverio v. Republic, G.R. No. 174689, [October 19, 2007], 562 PHIL 953-974)

THIRD DIVISION

[G.R. No. 216425. November 11, 2020.]

 ANACLETO BALLAHO ALANIS III, petitioner, vs. COURT OF APPEALS,
Cagayan de Oro City, and HON. GREGORIO Y. DE LA PEÑA III, Presiding
Judge, Br. 12, Regional Trial Court of Zamboanga City, respondents.

DECISION

LEONEN, J  p:
Reading Article 364 of the Civil Code together with the State's declared policy to ensure
the fundamental equality of women and men before the law, 1 a legitimate child is entitled to use
the surname of either parent as a last name.
This Court resolves the Petition for Certiorari 2 assailing the Decision 3 and
Resolution 4 of the Court of Appeals, which affirmed the Regional Trial Court Orders 5 denying
Anacleto Ballaho Alanis III's appeal to change his name to Abdulhamid Ballaho.
Petitioner filed a Petition before the Regional Trial Court of Zamboanga City, Branch 12,
to change his name. 6 He alleged that he was born to Mario Alanis y Cimafranca and Jarmila
Imelda Ballaho y Al-Raschid, 7 and that the name on his birth certificate was "Anacleto Ballaho
Alanis III." 8 However, he wished to remove his father's surname "Alanis III," and instead use his
mother's maiden name "Ballaho," as it was what he has been using since childhood and indicated
in his school records. 9 He likewise wished to change his first name from "Anacleto" to
"Abdulhamid" for the same reasons. 10
During trial, petitioner testified that his parents separated when he was five years old. His
father was based in Maguindanao while his mother was based in Basilan. His mother testified that
she single-handedly raised him and his siblings. 11
As summarized by the Regional Trial Court, petitioner presented the following in evidence
to support his claim that the requested change would avoid confusion:
. . . a.) petitioner's photograph in what appears to be a page of a yearbook; b.)
another photograph of the petitioner appearing in the editorial staff of ND Beacon
where he appears to be the assistant editor-in-chief; c.) the high school diploma
of the petitioner certifying that he finished his high school education at Notre
Dame of Parang in Parang, Maguindanao; d.) another copy of the editorial of the
ND Beacon where petitioner's name appears as one of its editorial staff; e.)
another copy of the editorial of ND Beacon where the name of the petitioner
appears as the editor-in-chief; f.) a certificate of participation issued to the
petitioner by the Department of [E]ducation, Culture and Sports; g.) a CAP
College Foundation, Inc., diploma issued in the name of petitioner; h.) another
CAP College Foundation, Inc., diploma issued in the name of petitioner; i.) a
[W]estern Mindanao State University student identification card in the name of
petitioner; j.) a non-professional driver[']s license issued in the name of petitioner;
k.) the Community Tax Certificate of petitioner[.] 12
In its April 9, 2008 Order, 13 the Regional Trial Court denied the Petition, holding that
petitioner failed to prove any of the grounds to warrant a change of name. 14 It noted that the
mere fact that petitioner has been using a different name and has become known by it is not a
valid ground for change of name. It also held that to allow him to drop his last name was to
disregard the surname of his natural and legitimate father, 15 in violation of the Family
Code and Civil Code, which provide that legitimate children shall principally use their fathers'
surnames. 16
The Regional Trial Court acknowledged that confusion could exist here, but found that
granting his petition would create more confusion:
Although it may appear that confusion may indeed arise as to the identity
of the petitioner herein who has accordingly used the name Abdulhamid Ballaho
in all his records and is known to the community as such person and not Anacleto
Ballaho Alanis III, his registered full name is his Certificate of Live Birth, this Court
 believes that the very change of name sought by the petitioner in this petition
would even create more confusion since if so granted by this Court, such change
sought after could trigger much deeper inquiries regarding her parentage and/or
paternity, bearing in mind that he is the legitimate eldest child of the spouses
Mario Alanis y Cimafranca and Jarmila Imelda Ballaho y Al-Raschid[.] 17
Thus, the trial court concluded that, instead of seeking to change his name in his birth
certificate, petitioner should have had the other private and public records corrected to conform to
his true and correct name:
Time and again, this Court has consistently ruled that, in similar
circumstances, the proper remedy for the petitioner is to instead cause the proper
correction of his private and public records to conform to his true and correct first
name and surname, which in this case is Anacleto Ballaho Alanis, III and not to
change his said official, true and correct name as appearing in his Certificate of
Live Birth simply because either he erroneously and inadvertently or even
purposely or deliberately used an incorrect first name and surname in his private
and public records. 18
The dispositive portion of the Order reads:
WHEREFORE, in view of the foregoing, and finding no legal, proper,
justified and reasonable grounds to allow the change of name of the herein
petitioner from Anacleto Ballaho Alanis III as appearing in his Certificate of Live
Birth to Abdulhamid Ballaho as prayed for by the petitioner in his petition dated
February 1, 2007 the above-entitled petition is hereby DENIED and ordered
DISMISSED for lack of merit. No cost.
SO ORDERED. 19
Petitioner moved for reconsideration, but the Regional Trial Court denied this in a June 2,
2008 Order. 20
It appears that on May 2, 2008, a month before the trial court rendered this Order,
petitioner's counsel, Atty. Johny Boy Dialo (Atty. Dialo), had figured in a shooting incident and
failed to report for work. Thus, petitioner was only able to file a notice of appeal on September 2,
2008 — months after Atty. Dialo's law office had received the Order, beyond the filing period. He
invoked his counsel's excusable neglect for a belated appeal, alleging the shooting incident. 21
Thereafter, with a new counsel, petitioner filed a Record on Appeal and Notice of Appeal
on September 3, 2008, 22 reiterating his counsel's excusable negligence. 23 He added that he
was set to take the Bar Examinations and had to come home from his review, only to find out after
checking with Atty. Dialo's law office that he had lost the case and the appeal period had
lapsed. 24 However, the Record and Notice of Appeal were denied in the Regional Trial Court's
September 16, 2008 Order for having been filed out of time. 25
Thus, petitioner filed a Petition for Certiorari 26 before the Court of Appeals, providing the
same reason to explain his failure to timely appeal.
In its May 26, 2014 Decision, 27 the Court of Appeals denied the Petition, holding that
petitioner failed to show any reason to relax or disregard the technical rules of procedure. 28 It
noted that the trial court did not gravely err in denying petitioner's Record on Appeal for having
been filed out of time. 29
Petitioner moved for reconsideration, which was also denied in the Court of Appeals'
December 15, 2014 Resolution. 30 Thus, he filed this Petition for Certiorari. 31
Petitioner insists that the serious indisposition of his counsel after being shot and
receiving death threats is excusable negligence for a belated appeal, it not being attended by any
carelessness or inattention. 32 Delving on the substantive issue, petitioner maintains that he has
the right to use his mother's surname despite his legitimate status, as recognized in Alfon v.
Republic. 33
In its Comment, 34 the Office of the Solicitor General argued that this Petition should be
dismissed outright for being the wrong remedy, and that the proper course was to file a petition for
review on certiorari. 35 Further, it argues that the Court of Appeals did not gravely abuse its
discretion in upholding the trial court's ruling. 36 It points out that since Atty. Dialo's law office has
more than one lawyer, and it had admittedly received the Order, 37 the belated appeal was
unjustified. Further, petitioner was already a law graduate when he filed the first Petition, and was
expected to be more vigilant of his case's progress. 38 Thus, the Office of the Solicitor General
finds no "exceptionally meritorious" reason to warrant a liberal interpretation of technical rules. In
any case, petitioner's reason is not among the grounds to warrant a change in name. 39
In his Reply, 40 petitioner failed to address the argument that a petition for certiorari is the
wrong remedy to assail the Court of Appeals' dismissal of his Petition for Certiorari. He only
reiterated the Court of Appeals should have discarded technicalities, because jurisprudence on
Article 364 of the Civil Code is settled in his favor. 41
After this Court had given due course to the Petition, the parties filed their respective
memoranda. 42
The issues for this Court's resolution are:
First, whether or not the Petition should be dismissed for petitioner's failure to show grave
abuse of discretion on the part of the Court of Appeals;
Second, whether or not legitimate children have the right to use their mothers' surnames
as their surnames; and
Finally, whether or not petitioner has established a recognized ground for changing his
name.
This Court grants the Petition.
I
The Petition was filed under Rule 65 of the Rules of Court, but petitioner did not even
attempt to show any grave abuse of discretion on the part of the Court of Appeals. On this ground
alone, the Petition may be dismissed.
It is not disputed that the Record on Appeal was filed out of time. The Court of Appeals
could have relaxed the rules for perfecting an appeal, but was not required, by law, to review it.
The Court of Appeals found no reason to warrant any relaxation of the rules, after
appreciating the following circumstances: (1) petitioner did not adduce evidence to prove the
alleged shooting of his former counsel; 43 (2) petitioner was represented by counsel belonging to
a law office which had more than one associate; 44 and (3) petitioner was a law graduate and
should have been more vigilant. 45
This Court cannot sidestep the rule on reglementary periods for appealing decisions,
except in the most meritorious cases. 46
Petitioner claims that the circumstances surrounding the failure to file the appeal are
bereft of carelessness or inattention on the part of counsel, and thus, constitute excusable
negligence.
This is unconvincing. In Sublay v. National Labor Relations Commission, 47 the petitioner
filed an appeal out of time because the counsel on record did not inform her or her other counsel
that a decision had been rendered in her case. This Court affirmed the denial of her appeal for
having been filed out of time, explaining that:
The unbroken stream of judicial dicta is that clients are bound by the
action of their counsel in the conduct of their case. Otherwise, if the lawyer's
mistake or negligence was admitted as a reason for the opening of a case, there
would be no end to litigation so long as counsel had not been sufficiently diligent
or experienced or learned. 48 (Citation omitted)
This Court noted in Sublay that the petitioner was represented by more than one lawyer.
The decision she wished to appeal had been duly served on one of her lawyers on record, who
failed to inform the more active counsel. This Court ruled that the petitioner was bound by the
negligence of her counsel:
Lastly, petitioner's claim for judicial relief in view of her counsel's alleged
negligence is incongruous, to say the least, considering that she was represented
 by more than one (1) lawyer. Although working merely as a collaborating counsel
who entered his appearance for petitioner as early as May 1996, i.e., more or
less six (6) months before the termination of the proceedings a quo, Atty. Alikpala
had the bounden duty to monitor the progress of the case. A lawyer has the
responsibility of monitoring and keeping track of the period of time left to file an
appeal. He cannot rely on the courts to appraise him of the developments in his
case and warn him against any possible procedural blunder. Knowing that the
lead counsel was no longer participating actively in the trial of the case several
months before its resolution, Atty. Alikpala who alone was left to defend petitioner
should have put himself on guard and thus anticipated the release of the Labor
Arbiter's decision. Petitioner's lead counsel might have been negligent but she
was never really deprived of proper representation. This fact alone militates
against the grant of this petition. 49
Here, petitioner failed to respond to the assertion that Atty. Dialo's law office, Dialo
Darunday & Associates Law Office, is a law firm with more than one lawyer, as well as legal staff,
who must have been aware that Atty. Dialo was not reporting to office or receiving his mail sent
there. Moreover, Atty. Dialo stopped reporting to office on May 2, 2008, whereas the law firm
received the June 2, 2008 Order more than a month later, on June 12, 2008. Without any
response to this point, this Court cannot automatically excuse the law office and assume that it
could not adjust to Atty. Dialo's absence.
The law firm was certainly negligent in how it dealt with the Order. Given the other
circumstances of this case, petitioner would ordinarily be bound by this negligence. Consequently,
petitioner had the burden to sufficiently establish, by alleging and arguing, that this case is so
meritorious that it warrants the relaxation of the procedural rules. This, petitioner did not bother to
do.
Nonetheless, in the exercise of its equity jurisdiction, 50 this Court may choose to apply
procedural rules more liberally to promote substantial justice. Thus, we delve into the substantial
issues raised by petitioner.
II
The fundamental equality of women and men before the law shall be ensured by the
State. This is guaranteed by no less than the Constitution, 51 a statute, 52 and an international
convention to which the Philippines is a party.
In 1980, the Philippines became a signatory to the Convention on the Elimination of All
Forms of Discrimination Against Women, and is thus now part of the Philippine legal system. As a
state party to the Convention, the Philippines bound itself to the following:
Article 2
xxx xxx xxx
(f) to take all appropriate measures, including legislation, to
modify or abolish existing laws, regulations, customs and
practices which constitute discrimination against women;
xxx xxx xxx
Article 5
xxx xxx xxx
(a) To modify the social and cultural patterns of conduct of men
and women, with a view to achieving the elimination of prejudices
and customary and all other practices which are based on the
idea of the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women[.] 53
Non-discrimination against women is also an emerging customary norm. Thus, the State
has the duty to actively modify what is in its power to modify, to ensure that women are not
discriminated.
 Accordingly, Article II, Section 14 of the 1987 Constitution reiterated the State's
commitment to ensure gender equality:
SECTION 14. The State recognizes the role of women in nation-building,
and shall ensure the fundamental equality before the law of women and men.
In keeping with the Convention, Article II, Section 14 of the Constitution requires that the
State be active in ensuring gender equality. This provision is even more noticeably proactive than
the more widely-invoked equal protection and due process clauses under the Bill of Rights.
In Racho v. Tanaka, 54 this Court observed:
This constitutional provision provides a more active application than the
passive orientation of Article III, Section 1 of the Constitution does, which simply
states that no person shall "be denied the equal protection of the laws." Equal
protection, within the context of Article III, Section 1 only provides that any legal
burden or benefit that is given to men must also be given to women. It does not
require the State to actively pursue "affirmative ways and means to battle the
patriarchy — that complex of political, cultural, and economic factors that ensure
women's disempowerment." 55 (Citation omitted)
Article II, Section 14 implies the State's positive duty to actively dismantle the existing
patriarchy by addressing the culture that supports it.
With the Philippines as a state party to the Convention, the emerging customary norm,
and not least of all in accordance with its constitutional duty, Congress enacted Republic Act No.
7192, or the Women in Development and Nation Building Act. Reiterating Article II, Section 14,
the law lays down the steps the government would take to attain this policy:
SECTION 2. Declaration of Policy. — The State recognizes the role of women in
nation building and shall ensure the fundamental equality before the law of
women and men. The State shall provide women rights and opportunities equal
to that of men.
To attain the foregoing policy:
(1) A substantial portion of official development assistance funds received
from foreign governments and multilateral agencies and
organizations shall be set aside and utilized by the agencies
concerned to support programs and activities for women;
(2) All government departments shall ensure that women benefit equally
and participate directly in the development programs and projects
of said department, specifically those funded under official foreign
development assistance, to ensure the full participation and
involvement of women in the development process; and
(3) All government departments and agencies shall review and revise all
their regulations, circulars, issuances and procedures to remove
gender bias therein. 56
Courts, like all other government departments and agencies, must ensure the
fundamental equality of women and men before the law. Accordingly, where the text of a law
allows for an interpretation that treats women and men more equally, that is the correct
interpretation.
Thus, the Regional Trial Court gravely erred when it held that legitimate children cannot
use their mothers' surnames. Contrary to the State policy, the trial court treated the surnames of
petitioner's mother and father unequally when it said:
In the case at bar, what the petitioner wishes is for this Court to allow him
to legally change is [sic] his given and registered first name from Anacleto III to
Abdulhamid and to altogether disregard or drop his registered surname, Alanis,
the surname of his natural and legitimate father, and for him to use as his family
name the maiden surname of his mother Ballaho, which is his registered middle
name, which petitioner claims and in fact presented evidence to be the name that
he has been using and is known to be in all his records.
 In denying the herein petition, this Court brings to the attention of the
petitioner that, our laws on the use of surnames state that legitimate and
legitimated children shall principally use the surname of the father. The Family
Code gives legitimate children the right to bear the surnames of the father and
the mother, while illegitimate children shall use the surname of their mother,
unless their father recognizes their filiation, in which case they may bear the
father's surname. Legitimate children, such as the petitioner in this case,
has [sic] the right to bear the surnames of the father and the mother, in conformity
with the provisions of the Civil Code on Surnames, and it is so provided by law
that legitimate and legitimated children shall principally use the surname of the
father. 57 (Citations omitted)
This treatment by the Regional Trial Court was based on Article 174 of the Family Code,
which provides:
ARTICLE 174. Legitimate children shall have the right:
(1) To bear the surnames of the father and the mother, in conformity with
the provisions of the Civil Code on Surnames[.]
In turn, Article 364 of the Civil Code provides:
ARTICLE 364. Legitimate and legitimated children shall principally use
the surname of the father.
The Regional Trial Court's application of Article 364 of the Civil Code is incorrect. Indeed,
the provision states that legitimate children shall "principally" use the surname of the father, but
"principally" does not mean "exclusively." This gives ample room to incorporate into Article 364
the State policy of ensuring the fundamental equality of women and men before the law, and no
discernible reason to ignore it. This Court has explicitly recognized such interpretation in Alfon v.
Republic: 58
The only reason why the lower court denied the petitioner's prayer to
change her surname is that as legitimate child of Filomena Duterte and
Estrella Alfon she should principally use the surname of her father invoking Art.
364 of the Civil Code.But the word "principally" as used in the codal-provision is
not equivalent to "exclusively" so that there is no legal obstacle if a legitimate or
legitimated child should choose to use the surname of its mother to which it is
equally entitled. Moreover, this Court in Haw Liong vs. Republic, G.R. No. L-
21194, April 29, 1966, 16 SCRA 677, 679, said:
"The following may be considered, among others, as
proper or reasonable causes that may warrant the grant of a
petitioner for change of name; (1) when the name is ridiculous,
tainted with dishonor, or is extremely difficult to write or
pronounce; (2) when the request for change is a consequence of
a change of status, such as when a natural child is
acknowledged or legitimated; and (3) when the change is
necessary to avoid confusion (Tolentino, Civil Code of the
Philippines, 1953 ed., Vol. 1, p. 660)." 59
Given these irrefutable premises, the Regional Trial Court patently erred in denying
petitioner's prayer to use his mother's surname, based solely on the word "principally" in Article
364 of the Civil Code.
III
Having resolved the question of whether a legitimate child is entitled to use their mother's
surname as their own, this Court proceeds to the question of changing petitioner's first name from
"Anacleto" to "Abdulhamid."
Whether grounds exist to change one's name is a matter generally left to the trial court's
discretion. 60 Notably, the Petition is devoid of any legal arguments to persuade this Court that
the Regional Trial Court erred in denying him this change. Nonetheless, we revisit the ruling, and
petitioner's arguments as stated in his appeal.
 The Regional Trial Court correctly cited the instances recognized under jurisprudence as
sufficient to warrant a change of name, namely:
. . . (a) when the name is ridiculous, dishonorable or extremely difficult to write or
pronounce; (b) when the change results as a legal consequence of legitimation or
adoption; (c) when the change will avoid confusion; (d) when one has
continuously used and been known since childhood by a Filipino name and was
unaware of alien parentage; (e) when the change is based on a sincere desire to
adopt a Filipino name to erase signs of former alienage, all in good faith and
without prejudice to anybody; and (f) when the surname causes embarrassment
and there is no showing that the desired change of name was for a fraudulent
purpose or that the change of name would prejudice public interest. 61 (Citation
omitted)
As summarized in the Record on Appeal, the petition to change name was filed to avoid
confusion:
Petitioner has been using the name Abdulhamid Ballaho in all his records
and transactions. He is also known to and called by his family and friends by such
name. He has never used the name Anacleto Ballaho Alanis III even once in his
life. To have the petitioner suddenly use the name Anacleto Ballaho Alanis III
would cause undue embarrassment to the petitioner since he has never been
known by such name. Petitioner has shown not only some proper or compelling
reason but also that he will be prejudiced by the use of his true and official name.
A mere correction of his private and public records to conform to the name stated
in his Certificate of Live Birth would create more confusion because petitioner has
been using the name Abdulhamid Ballaho since enrollment in grade school until
finishing his law degree. The purpose of the law in allowing change of name as
contemplated by the provisions of Rule 103 of the Rules of Court is to give a
person an opportunity to improve his personality and to provide his best interest[.]
There is therefore ample justification to grant fully his petition, which is not
whimsical but on the contrary is based on a solid and reasonable ground, i.e., to
avoid confusion[.] 62 (Citations omitted)
These arguments are well taken. That confusion could arise is evident. In Republic v.
Bolante, 63 where the respondent had been known as "Maria Eloisa" her whole life, as evidenced
by scholastic records, employment records, and licenses, this Court found it obvious that
changing the name written on her birth certificate would avoid confusion:
The matter of granting or denying petitions for change of name and the
corollary issue of what is a proper and reasonable cause therefor rests on the
sound discretion of the court. The evidence presented need only be satisfactory
to the court; it need not be the best evidence available. What is involved in
special proceedings for change of name is, to borrow from Republic v. Court of
Appeals, . . . "not a mere matter of allowance or disallowance of the petition, but
a judicious evaluation of the sufficiency and propriety of the justifications
advanced in support thereof, mindful of the consequent results in the event of its
grant and with the sole prerogative for making such determination being lodged
in the courts."
With the view we take of the case, respondent's submission for a change
of name is with proper and reasonable reason. As it were, she has, since she
started schooling, used the given name and has been known as Maria Eloisa,
albeit the name Roselie Eloisa is written on her birth record. Her scholastic
records, as well as records in government offices, including that of her driver's
license, professional license as a certified public accountant issued by the
Professional Regulation Commission, and the "Quick Count" document of the
COMELEC, all attest to her having used practically all her life the name Maria
Eloisa Bringas Bolante.
The imperatives of avoiding confusion dictate that the instant petition is
granted. But beyond practicalities, simple justice dictates that every person shall
be allowed to avail himself of any opportunity to improve his social standing,
 provided he does so without causing prejudice or injury to the interests of the
State or of other people. 64 (Emphasis in the original, citations omitted)
This Court made a similar conclusion in Chua v. Republic: 65
The same circumstances are attendant in the case at bar. As Eric has
established, he is known in his community as "Eric Chua," rather than "Eric Kiat."
Moreover, all of his credentials exhibited before the Court, other than his
Certificate of Live Birth, bear the name "Eric Chua." Guilty of reiteration, Eric's
Certificate of Baptism, Voter Certification, Police Clearance, National Bureau of
Investigation Clearance, Passport, and High School Diploma all reflect his
surname to be "Chua." Thus, to compel him to use the name "Eric Kiat" at this
point would inevitably lead to confusion. It would result in an alteration of all of his
official documents, save for his Certificate of Live Birth. His children, too, will
correspondingly be compelled to have their records changed. For even their own
Certificates of Live Birth state that their father's surname is "Chua." To deny this
petition would then have ramifications not only to Eric's identity in his community,
but also to that of his children. 66
Similarly, in this case, this Court sees fit to grant the requested change to avoid
confusion.
The Regional Trial Court itself also recognized the confusion that may arise here. Despite
this, it did not delve into the issue of changing "Anacleto" to "Abdulhamid," but instead concluded
that granting the petition would create even more confusion, because it "could trigger much
deeper inquiries regarding [his] parentage and/or paternity[.]" 67
This Court fails to see how the change of name would create more confusion. Whether
people inquire deeper into petitioner's parentage or paternity because of a name is
inconsequential here, and seems to be more a matter of intrigue and gossip than an issue for
courts to consider. Regardless of which name petitioner uses, his father's identity still appears in
his birth certificate, where it will always be written, and which can be referred to in cases where
paternity is relevant.
Aside from being unduly restrictive and highly speculative, the trial court's reasoning is
also contrary to the spirit and mandate of the Convention, the Constitution, and Republic Act No.
7192, which all require that the State take the appropriate measures to ensure the fundamental
equality of women and men before the law.
Patriarchy becomes encoded in our culture when it is normalized. The more it pervades
our culture, the more its chances to infect this and future generations. 68
The trial court's reasoning further encoded patriarchy into our system. If a surname is
significant for identifying a person's ancestry, interpreting the laws to mean that a marital child's
surname must identify only the paternal line renders the mother and her family invisible. This, in
turn, entrenches the patriarchy and with it, antiquated gender roles: the father, as dominant, in
public; and the mother, as a supporter, in private. 69
WHEREFORE, the Petition is GRANTED. The May 26, 2014 Decision and December 15,
2014 Resolution of the Court of Appeals in CA-G.R. SP No. 02619-MIN, as well as the April 9,
2008 and June 2, 2008 Orders of the Regional Trial Court of Zamboanga City, Branch 12 in
Special Proceeding No. 5528, are REVERSED and SET ASIDE.
As prayed for in his Petition for Change of Name, petitioner's name is declared to
be ABDULHAMID BALLAHO. Accordingly, the Civil Registrar of Cebu City is DIRECTED to
make the corresponding corrections to petitioner's name, from ANACLETO BALLAHO ALANIS III
to ABDULHAMID BALLAHO.
SO ORDERED.
Hernando, Delos Santos and Rosario, JJ., concur.
Inting, * J., is on official leave.
 

|||  (Alanis III v. Court of Appeals, G.R. No. 216425, [November 11, 2020])