LEGAL MEMORANDUM

Overview:

Susette Azarcon [Susette] mainly wants to file petition for legal

support against the putative father of her minor child [Shawn]. Alternatively,
she also wants to file economic abuse under Section 5 of R.A. No. 9262
only in extreme circumstances.

FACTS:

Susette claims that she met Marlou Zozobrado [Marlou] at the police
station where he was assigned sometime in 2009 while she was reporting
an incident.

Thereafter, Marlou became the godfather to her firstborn daughter.

Susette claims that she entertained Marlou and only discovered about his
marriage after she gave birth to their daughter, Shawn Margarette Azarcon
[minor child], on December 11, 2013. She also claims that Marlou and his
legal wife paid her a visit four months after she gave birth. Thereafter,
Marlou declared that his responsibility extends only to their Shawn since
Susette is only a mistress. Furthermore, Marlou only provides the amount
of five hundred pesos (PhP 500.00) per week or a total of two thousand
pesos (PhP 2,000.00) every month, albeit being employed as a Philippine
National Police personnel.

Susette accepted the financial support provided by Marlou, although

it was insufficient to meet Shawn’s needs. The issue arose when Marlou
suddenly discontinued their daughter’s financial support in 2017, but for
some reason resumed providing the same. However, on May 2022, he
again discontinued providing financial support without giving any reason.

Susette claims that she made numerous attempts to settle amicably

with Marlou but to no avail. Marlou remained adamant to permanently end
his financial obligation. Susette was also informed by an unknown
messenger account that Marlou is presently living with another married
woman. On January 30, 2023, Susette filed a police blotter against Marlou
for his intentional refusal to provide support to his minor child at Police
Station 17, in Barangay Baliok, Davao City, and the case was referred to
Integrated Gender and Development Division (ICDD), Davao City. On April
26, 2023, parties met at the Public Attorney’s Office for their 1 st Mediation/
Conciliation Conference, in which Marlou vehemently denied the
accusations that he is the father of Shawn. He also verbally declared that
there were no documentary evidence proving his filiation. Thus, the
complaint.

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Susette Azarcon vs Marlou Zozobrado
 ISSUE:

I. Whether or not Marlous is legally bound to support his

illegitimate daughter?

II. Whether or not Marlou can be compelled for DNA

Testing?

III. Whether or not Marlou is liable for economic violence

under section 5 (e) of R.A. No. 9262?

IV. Whether or not Marlou is liable for psychologiocal

abuse under section 5 (i) of R.A. No. 9262?

RULING:

I. Marlou is legally bound to provide support to his

minor child (when proven by DNA result).

Under the law, a parent is obliged to provide support to his/her

child, legitimate or illegitimate1. However, an illegitimate child should
first prove his filiation with the putative parent concern who denied the
filiation in order for the latter to be obliged to provide financial support to
the former2.

In Susette’s case, she argued that Shawn, her daughter, is the

alleged illegitimate child of Marlou. For this reason, Marlou is obliged to
provide financial support to Shawn. However, Marlou denied having an
illegitimate daughter with Susette.

Considering the foregoing circumstances, Susette has to present

evidence establishing Marlou to be the father of Shawn which is the
same manner and evidence when proving the filiation of a legitimate
child3.

The requirement to prove illegitimate filiation are as follows4:

(1) through record of birth appearing in the civil register or a

final order; or
(2) by admission of filiation in a public document or private
handwritten instrument and signed by the parent concerned;

1
Article 195 of the Family Code
2
Abella V. Cabañero, G.R. No. 206647, August 09, 2017
3
Article 175 of the Family Code.
4
Article 172 of the Family Code.
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Susette Azarcon vs Marlou Zozobrado
 or in default of these two, by open and continuous
possession of the status of a legitimate child or by any other
means allowed by the Rules of Court and special laws5.

Applying the foregoing, since Marlou vehemently denied being the

father of Shawn during their 1st mediation/ conciliation at the Public
Attorney’s Office, Susette must establish Shawn’s filiation in order for her
to be entitled to legal support. In which case, Susette must file a judicial
action against Marlou for compulsory recognition and then demand
support when filiation is established.

Apparently, Susette has no evidence proving Shawn’s illegitimate

filiation with Marlou. The only way to prove the filiation of Shawn is
through DNA testing which Marlou will clearly refuse to undergo.
Accordingly, Susette may request the Court for an issuance of an order
directing all the parties to submit themselves to DNA paternity testing 6
pursuant to the Rules of Court7.

II. Marlou can be compelled to undergo DNA

paternity testing.

Litany of cases provide that there is no violation of the right against

self-incrimination when the putative father is subjected to DNA testing.
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 material8.

Applying the foregoing, Marlou can therefore be compelled to

undergo DNA paternity testing as a means to prove filiation. The right
against self-incrimination is simply preventing 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 evidence9.

In view of the foregoing, Marlou can be compelled and subjected to

DNA testing and if the result of the DNA sample yields to a positive
result of paternity, then demand for support follows.10

5
G.R. No. 200169, January 28, 2015
6
Ibid. DNA (deoxyribonucleic acid) 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.
7
Rule 28 of the Rules of Court, as amended.
8
Herrera vs. Alba Et. Al, G.R. No. 148220, June 15, 2005
9
Agustin vs. CA, G.R. No. 162571, June 15, 2005
10
Ibid.
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Susette Azarcon vs Marlou Zozobrado
 III. Marlou is not liable for economic abuse under
Section 5 (e) paragraph 2 under RA 9262

Marlou is also not guilty of violating Section 5(e) of R.A. 9262 due
to the absence of the fourth element.11 In Acharon vs People12, the
Supreme Court ruled, that for deprivation of financial support to rise to a
level that would make a person criminally liable under Section 5(e),
R.A. 9262, there must be allegation and proof that it was made with
the intent to control or restrict the woman's and/or her child's or her
children's actions.

Applying the foregoing case, there is no proof that Marlou

deliberately refused to give support in order to control the behavior or
actions of Susette and/or Shawn. Neither was there any allegation or
proof that he prevented Susette from seeking gainful employment or
pursuing economic opportunities. The evidence in this case simply
established that he merely failed or deliberately stopped providing
financial support which is not enough to convict under economic abuse.

Nonetheless, if Susette can present evidence showing that the

discontinuation of the payment of legal support to Shawn was with the
intent to control or restrict Susette and/or Shawn’s actions then Marlou
can be held liable to economic abuse pursuant to Section 5 (e) under
R.A. No. 9262.

IV. Marlous is liable for psychological abuse under

Section 5 (i) of RA 9262.

In Acharon vs People13, the Supreme Court ruled that, in order for

criminal liability to arise under Section 5(i) of R.A. 9262, insofar as it
deals with "denial of financial support," there must, therefore, be
evidence on record that the accused willfully or consciously withheld
financial support legally due the woman for the purpose of inflicting
mental or emotional anguish upon her. In other words, the actus reus of
the offense under Section 5(i) is the willful denial of financial support,

11
The elements of a violation of Section 5(e) of R.A. 9262, insofar as it deals with deprivation of
financial support, are therefore:
(1) The offended party is a woman and/or her child or children;
(2) The woman is either the wife or former wife of the offender, or is a woman with whom the
offender has or had a sexual or dating relationship, or is a woman with whom such offender has a
common child. As for the woman's child or children, they may be legitimate or illegitimate, or living
within or without the family abode;
(3) The offender either (a) deprived or (b) threatened to deprive the woman or her children of
financial support legally due her or her family, or (c) deliberately provided the woman's children
insufficient financial support
(4) The offender committed any or all of the acts under the third element for the purpose of
controlling or restricting the woman's or her child's movement or conduct
12
G.R. No. 224946. November 09, 2021
13
G.R. No. 224946. November 09, 2021
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Susette Azarcon vs Marlou Zozobrado
while the mens rea is the intention to inflict mental or emotional anguish
upon the woman.

In this case, Marlou is liable for psychological abuse through the

means of denial of financial support14 under Section 5(i) of R.A. 926215.
The actus reus is clearly when Marlou purposely stopped providing
financial support to Shawn in 2017 and even to date despite repeated
demands whilst being gainfully employed as a Philippine National Police
personnel. While the mens rea here is evident intention of Marlou to
inflict anguish through willful denial of financial support. He knew from
the start that Susette has no permanent job and no other means to
sustain their daily needs, and without his financial support she will suffer
emotional and mental anguish. Susette was extremely hurt and
experienced emotional agony by the neglect and utter insensitivity that
Marlou made her endure and suffer.

RECOMMENDATIONS:

1) Considering that Susette has no documentary evidence proving that

Shawn is the illegitimate daughter of Marlou, the proper case that she
may file is compulsory recognition with support and a request for
DNA paternity testing against Marlou16. Alternatively, she may
directly file an action for support, where the issue of compulsory
recognition may be integrated and resolved.
2) Marlou is not guilty of economic abuse under section 5 (e), unless
Susette can present evidence showing that the discontinuation of the
payment of legal support to Shawn was with the intent to control or
restrict Susette and/or Shawn’s actions then Marlou can be held
liable to economic abuse pursuant to Section 5 (e) under R.A. No.
9262.
3) But, Marlou is guilty of psychological violence under section 5 (i) of
R.A No. 9262 since he purposely stopped providing financial support
to Shawn in 2017 and even to date despite repeated demands whilst
being gainfully employed as a Philippine National Police personnel
with the evident intention to inflict anguish. Marlou knew from the start
that Susette had no permanent job and no other means to sustain
their daily needs, and without his financial support she will suffer
emotional and mental anguish. Susette was extremely hurt and
14
Acharon vs People. Denial of financial support in defining the criminal act. The word "denial" is defined
as "refusal to satisfy a request or desire" or "the act of not allowing someone to do or have something."
The foregoing definitions connote willfulness, or an active exertion of effort so that one would not be able
to have or do something.
15
R.A. No. 9262, Section 5. Acts of Violence Against Women and Their Children.
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.
16
Dolina v. Vallecera, 653 Phil. 391, 394-395 (2010) [Per J. Abad, Second Division].

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Susette Azarcon vs Marlou Zozobrado
 experienced emotional agony by the neglect and utter insensitivity
that Marlou made her endure and suffer.
4) Clinic or hospitals conducting DNA testing in Davao City:

a)Regional Forensic Unit 11- Ecoland, Davao City

b)Safeguard Diagnostic Center- J.P. Laurel Ave, Iñigo St,
Poblacion District, Davao City, Davao del Sur

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Susette Azarcon vs Marlou Zozobrado