G.R. No.

L-33152 January 30, 1982

LUIS
PARCO
and
VIRGINIA
BAUTISTA, petitioners,
vs.
HONORABLE COURT OF APPEALS, HON. UNION C. KAYANAN, Judge, COURT
OF FIRST INSTANCE OF QUEZON (BRANCH IV), CALAUAG, and FRANCISCO
RODRIGUEZ,
JR.,
Legal
Guardian
of
the
Incompetent
SOLEDAD
RODRIGUEZ, respondents.

DE CASTRO, J.:
By this petition for review on certiorari, petitioners seek to set aside the Resolution of
the Court of Appeals dated January 20, 1971 1 which revived and declared in full force
and effect its decision on August 20, 1970 2 dismissing the petition for certiorari with
preliminary injunction in CA-G.R. No. 43732, entitled "Luis Parco, et al. vs. Hon. Judge
of the Court of First Instance of Quezon, Branch IV, Calauag, et al., " and pray that the
decision dated April 15, 1969 3 and all subsequent orders 4 issued by respondent Judge
of Branch IV-Calauag, Court of First Instance of Quezon in Special Proceedings No.
2641 be declared as null and void.
This case, G. R. No. L-33152, started from Special Proceedings No. 2641. a
guardianship proceedings for the incompetent Soledad Rodriguez of Sriaya, Quezon,
which originally pertained to Branch 1, Court of First Instance of Quezon, then presided
by the late Hon. Judge Vicente Arguelles, 5 later on succeded by Hon. Judge Ameurfina
Melencio-Herrera (now Associate Justice of the Supreme Court). In 1966, respondent
Judge of Branch IV-Calauag of the Court of First Instance of Quezon, Hon. Union C.
Kayanan, took cognizance of Special Proceedings No. 2641 when the Secretary of
Justice authorized respondent Judge to help unclog the docket of Branch I at Lucena
City, Quezon.
For clarity, We have hereunder summarized the sequence of events and material dates
as it appears in the records from the time respondent Judge of Branch IV of the Court of
First Instance of Quezon took cognizance of Special Proceedings No. 2641.
On December 20, 1966, respondent Judge authorized and approved, upon motion of
Fransisco Rodriguez, Jr. (guardian of Soledad Rodriguez), hereinafter referred to as
private respondent, the sale to Luis Parco and Virginia Bautista, hereinafter referred to
as the petitioners, of Lot Nos. 3437 (613 sq. meters) and 4389 (4,068 sq. meters)
covered by TCT Nos. 16939 and 18035, respectively, for the sum of P4,400.00 for the
support, maintenance and medical treatment of the ward Soledad Rodriguez.
On January 6, 1967, respondent Judge again approved and authorized, upon motion of
private respondent, the sale to petitioners of Lot No. 1207 covered by TCT No. 16944
containing an area of 63,598 sq. meters, more or less, for the same reason. All the

sales of the three (3) lots being absolute, new transfer certificates of title were issued in
the name of petitioners.
On May 13, 1968, or almost one year and five months from the approval of the sale of
Lot Nos. 3437, 4389, and 1207, private respondent filed an urgent petition in the Court
of First Instance of Quezon, Ninth Judicial District, invoking Section 6 Rule 96 of the
Revised Rules of Court, praying that an order be immediately issued requiring
petitioners to appear before the court so that they can be examined as regards the three
(3) lots in question which are allegedly in danger of being lost, squandered, concealed
and embezzled and upon failure to do so or to comply with any order that may be
issued in relation therewith to hold them in contempt of court. The pertinent allegations
read as follows:
xxx xxx xxx
1. That as legal guardian (private respondent) of the abovenamed
incompetent and upon authorization by this Hon. Court he has transferred
in good faith to the spouses LUIS PARCO and VIRGINIA (UY) BAUTISTA,
both of Atimonan, Quezon, the titles over the following realties belonging
to his ward, namely:
a. A parcel of land (Lot No. 3437 of the Cadastral Survey of
Sariaya) with the improvements thereon situated in the
Municipality of Sariaya ... containing an area of Six Hundred
Thirteen (613) sq. meters, more or less;
b. A parcel of land (Lot No. 4389 of the Cadastral Survey of
Sariaya) situated in the Municipality of Sariaya ... containing
an area of Four Thousand And Sixty-Eight (4,068) sq.
meters, more or less;
c. A parcel of land (Lot No. 1207 of the Cadastral Survey of
Sariaya) situated in the Municipality of Sariaya ... containing
an area of Sixty-three Thousand Five Hundred and Ninetyeight (63,598) sq. meters, more or less.
2. That anent the first TWO (2) PARCELS above-described he transferred
the titles thereto in favor of the recited spouses under a loan agreement
(not an absolute sale thereto and with the express commitment in writing
that he can recover the same within three (3) months from December 19,
1966, ...
That prior to the expiration of the cited period of three months, he tried to
recover the stated two parcels of land from them, however, the same was
not carried out because he was then transacting with them the sale of
PARCEL THREE and under the Agreement that they will not sell cede, or

convey the mentioned two (2) lots to anyone (except to petitioner now
private respondent herein) and once the stated PARCEL THREE has been
sold at the price of P48,000.00 the borrowed amount of P4,400.00 shall be
deducted therefrom and said two parcels shall be returned to him;
3. That recently, he discovered that the cited couple, in bad faith and in
violation of their agreement and of the trust and confidence which he had
reposed upon them, have fraudulently ceded and transferred the titles
over the stated two parcels of land to another person, allegedly for a price
of (over P30,000.00) and in spite of his repeated request upon them to
reconvey to him the titles thereto or to turn over to him the total proceeds
they have received (minus the sum of P4,400.00), they have maliciously
and unjustly refused to do so, and are intending to keep and retain said
amount for their own personal use and benefit;
4. That as already adverted to in the previous paragraph hereof, the
mentioned couple induced him to transfer to them the title of parcel three,
so that they can sell the same for the agreed price of P48,000.00 and
believing in good faith that the cited spouses are honest and trustworthy,
he agreed and executed the requisite document transferring the title to
them subject to the following conditions:
a. They shall pay to him the amount of Twelve Thousand
(Pl2,000.00) Pesos after they have secured a buyer of the
property, ...
b. They shall pay to NIEVES ALCALA and PURA AGCAOILE
(who are private respondent's agents and representatives in
negotiating the sale of parcel three) the sum of Fifteen
Thousand (P15,000.00) Pesos after they have sold the
realty, ...
5. That recently, he discovered that the cited couple have already sold and
ceded the mentioned parcel three to another person, and despite his
repeated request upon them to pay and deliver to him or to Nieves Alcala
the sum of money specified in the foregoing paragraph, they have
maliciously and unjustly failed and refused to do so, and have fraudulently
retained the said amount of money for thier own personal use and benefit;
6. That the enumerated parcels of land together with all the proceeds
derived therefrom, undeniably belonged to his ward as trust properties,
which are subject to the disposition of this Hon. Court, and due to the
mentioned fraudulent, malicious and dishonest acts of the above- named
couple, are in danger of being lost, squandered, concealed and
embezzled;

xxx xxx xxx

In an answer dated June 5, 1968, petitioners contended mainly, among others, that the
three lots have been conveyed to them by deeds of absolute sale which were duly
approved by the guardianship court.
Pre-trial hearings were set for possible amicable settlement beginning on September 6,
1968 but was postponed and reset to October 9, 1968 on petitioners' counsel motion.
On October 9, 1968, both parties and their counsels appeared but failed to reach any
amicable settlement. Again, the pre-trial hearing was reset to November 28 and 29,
1968 but was likewise postponed to January 8, 1969 at petitioners' counsel motion.
On January 8, 1969, for failure to petitioners and their counsel to appear although there
was a telegram requesting for postponement, respondent Judge issued an
order, 6 authorizing private respondent to present evidence before the Clerk of Court
who was instructed to make the corresponding report which shall be made as the basis
of this decision.
In a petition dated January 30, 1969, petitioners prayed for the reconsideration of the
order of January 8, 1969 pointing out, among others, that there was a First Order dated
July 29, 1968, 7 issued by then Judge Ameurfina M. Herrera, Presiding Judge of Branch
I, Court of First Instance of Quezon that said branch "will henceforth take cognizance of
this case" and thus, asked for the transfer of the incident sought before Branch IV to
Branch I for proper action.
On February 20, 1969, respondent Judge, finding the petition for reconsideration wellgrounded, issued an order directing the Clerk of Court to transmit the records of the
case to the Court of First Instance, Branch I, Lucena City, quoted below:
ORDER
Acting on the Petition for Reconsideration filed by counsel for the
respondent on February 4, 1969, considering that Hon. A. MelencioHerrera, Presiding Judge of Branch 1, CFI, Lucena City, issued an order
on July 29, 1968, the dispositive portion of which is quoted as follows.
'WHEREFORE, it is hereby confirmed that this court will henceforth take
cognizance of this case,' and considering that this special proceedings
actually belongs to Branch I, although incidents therein were taken
cognizance of by the Presiding Judge of CFI, Branch IV when he was
holding court session in Lucena City and notwithstanding Administrative
Order No. 261 dated October 7, 1968 which states that 'This
administrative order shall not apply to cases pending in the different salas
which have been partially tried and shall remain therein for final
disposition', because to case was originally filed during the incumbency of
the late Judge Vicente Arguelles, finding therefore the said petition to be

well-grounded, the Clerk of Court is hereby authorized to transmit these

records to the Deputy Clerk of Court, CFI, Branch I, of Lucena City.
SO ORDERED.
Given at Calauag, Quezon this 20th day of February, 1969.
(SGD.) UNION C. KAYANAN Judge
On March 24, 1969, Private respondent, without the assistance of a counsel, filed
before Branch IV, Court of First Instance of Quezon an amended petition praying that
the three (3) lots subject matter of the original urgent petition be ordered reconveyed to
the ward in said Special Proceedings No. 2641 for he was informed that petitioners win
transfer and properties to third person.
On March 26, 1969, the Clerk of Court of Branch IV, Court of First Instance of Quezon,
issued the notice of hearing of the amended petition filed by private respondent dated
March 24, 1969 notifying counsel for both parties that the case will be heard before
Branch IV on April 10, 1969 at 2:30 p.m. at Calauag, Quezon. On the date set for
hearing, counsels for both parties appeared but for failure of the petitioners to appear
respondent Judge issued an order 8 reiterating its previous order dated January 8, 1969
allowing private respondent to present his evidence ex-parte and considered the case
submitted for resolution.
On April 15, 1969, respondent Judge rendered a decision 9 on the basis of the report of
the Clerk of Court dated February 19, 1969 ordering petitioners to reconvey the three
(3) parcels of land to private respondent.
On June 14, 1969, petitioners moved to reconsider the decision stating, among others,
that respondent Judge has no authority to take cognizance of the case which, according
to petitioners, is an issue raised in the petition for reconsideration of the court order of
January 8, 1969, and that the decision was without legal basis. Petitioners prayed that
the case or incident be transferred to the proper court which had taken cognizance of
this case.
On June 23, 1969, respondent Judge denied the petition for reconsideration for lack of
merit. Petitioners' counsel received the said order of denial on June 26, 1969.
Meanwhile, on June 21, 1969, private respondent filed an urgent motion in Branch IV
praying that petitioners be required to appear before the court to be examined as
regards the properties of the ward and to explain why they should not be cited for
contempt for not complying with a final order of the court directing the reconveyance of
the three (3) parcels of land to private respondent.

On June 23, 1969, respondent Judge, acting on the urgent motion, issued an
order 10 directing petitioners to explain why they should not be cited for contempt of
court pursuant to par. (b) Section 3 Rule 71 of the Revised Rules of Court.
On June 27, 1969, petitioners filed an urgent motion claiming that the urgent motion for
contempt of court was premature considering that the decision ordering the
reconveyance of the properties in question has not yet become final and executory and
is still subject to appeal. In their prayer for the setting aside of the order of June 23,
1969, petitioners informed the court that they win appeal the decision to the Court of
Appeals and that the corresponding notice of appeal, appeal bond and the record on
appeal will be filed in due time.
The following day, June 28, 1969, petitioners filed the notice of appeal and appeal bond
with a manifestation that the record on appeal will be filed in due time.
On July 3, 1963, respondent Judge issued an order 11 denying for lack of merit
petitioners' urgent motion of June 27, 1969, thus declaring that the order dated June 23,
1969 stands considering that petitioners' right to appeal has already lapsed. In the same
order, petitioners were given ten (10) days upon receipt to explain why they should not
be cited for contempt pursuant to Section 4, Rule 71 in relation to Section 6, Rule 96 of
the Revised Rules of Court.
On July 7, 1969, petitioners filed a petition for extension of ten (10) days to expire on
July 20, 1969 within which to file the record on appeal. In an order 12 dated July 9, 1969,
respondent Judge denied the said petition for having been filed beyond the
reglementary period.
On July 10, 1969, petitioners filed an unverified second petition for reconsideration of
the decision dated April 15, 1969 and the order of July 3, 1969 contending that Branch
IV lost its jurisdiction over the raise from the time the order dated February 20, 1969
was issued by Judge A. Melencio- Herrera; that the proceedings under Section 6 Rule
96 do not authorize the Hon. Court (Branch IV) to determine the question of right over
the property or to order delivery thereof; that the purpose is merely to elicit information
or secure evidence from the person suspected of having embezzled, concealed or
conveyed away any personal property of the ward; that if the court finds sufficient
evidence showing ownership on the part of the ward, it is the duty of the guardian to
bring the proper action.
On the other hand, on July 17, 1969, a motion for reconsideration of the order dated
July 9, 1969 was filed by petitioners claiming that all the pleadings related to the
intended appeal were filed within the period allowed by the Revised Rules of Court.
After an opposition was filed, respondent Judge issued an order on 13 July 18, 1969
denying the second petition for reconsideration for lack of basis and on the ground that
the period to appeal either the decision or any of the previous orders had already
expired.

On August 20, 1969, petitioners went to the Court of Appeals on a petition for certiorari
with preliminary injunction pleading nullity of the decision of the Court of First Instance,
Branch IV,
Quezon dated April 15, 1969 on grounds of lack of jurisdiction and grave abuse of
discretion in denying their right of appeal.
On September 27, 1969, the Court of Appeals dismissal the petition for lack of
merit. 14 On motion by petitioners, the dismissal was reconsidered in a split resolution
dated December 15, 1969 thereby giving due course to the petition, and private
respondent was required to answer.
After private respondent filed their answer and the parties submitted their respective
memoranda, the Court of Appeals, in a three-to-two vote decision 15 dated August 21,
1970 dismissed the petition.
On motion for reconsideration filed by petitioners, the Court of Appeals, in a split
resolution 16 dated October 10, 1970 granted the motion for reconsideration and set
aside the decision dated August 20,1970.
However, upon motion for reconsideration filed by private respondent, the Court of
Appeals, in a three-to-two vote resolution 17 dated January 20, 1971, reverted to its
decision of August 21, 1970 dismissing the petition.
Hence, the instant petition for review on the following assignment of errors, to wit:
I
THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT
OF APPEALS ERRED IN SUSTAINING THE RETENTION BY THE
RESPONDENT JUDGE OF BRANCH IV-CALAUAG OF THE CASE OF
BRANCH I-LUCENA CITY AFTER HE ORDERED THE RETURN OF THE
CASE TO BRANCH I,LUCENA CITY TO WHICH THE CASE BELONGS
AND AFTER THE PRESIDING JUDGE OF BRANCH I LUCENA CITY
HAD RESUMED AND EXERCISED HER JURISDICTION OVER SAID
CASE.
II
ASSUMING THAT THE RESPONDENT JUDGE COULD LEGALLY AND
VALIDLY RETAIN JURISDICTION OVER THE CASE OF BRANCH I
LUCENA CITY DESPITE THE CIRCUMSTANCES ADVERTED TO IN
THE FIRST ASSIGNED ERROR, THE MAJORITY OF THE DIVISION OF
FIVE JUSTICES OF THE COURT OF APPEALS ERRED IN
SANCTIONING THE RESPONDENT JUDGE'S ASSUMPTION OF
JURISDICTION TO ADJUDICATE THE ISSUE OF OWNERSHIP AND/OR

ORDER RECONVEYANCE OF PETITIONERS' PROPERTY SOLD TO

THEM AND TITLED IN THEIR NAMES, NOTWITHSTANDING THE
LIMITED JURISDICTION OF A GUARDIANSHIP COURT.
III
THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT
OF APPEALS ERRED IN NOT HOLDING THAT THE JUDICIAL
AUTHORITY AND APPROVAL OF THE SALES ARE CONCLUSIVE
UPON THE VALIDITY AND REGULARITY OF SAID SALES BETWEEN
THE PARTIES AND THEIR SUCCESSORS IN INTEREST.
IV
THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT
OF APPEALS ERRED IN SANCTIONING BY SILENCE THE
QUESTIONED ORDER OF THE RESPONDENT JUDGE ENFORCING
HIS DECISION BY CONTEMPT PROCEEDINGS.
THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT
OF APPEALS ERRED IN SANCTIONING DENIAL OF PETITIONERS'
RIGHT TO APPEAL.
This petition was given due course in view of the peculiar incidents during its trial stage
where, as borne out by the records, two (2) branches of the Court of First Instance of
Quezon Province, 9th Judicial District assert jurisdiction over Special Proceedings No.
2641, which, when the decision rendered by one branch was brought in the Court of
Appeals on certiorari with preliminary injunction, the Special Division of Five Justices, in
a three-to-two vote resolution in four (4) occasions after its dismissal for lack of merit on
September 27, 1968, reconsidered the same and was given due course on December
15, 1968, again dismissed on August 21, 1970, but again reconsidered on October 10,
1970, until finally dismissed on January 20, 1971 when the Special Division of Five
reverted to its August 21, 1970 resolution. The Special Division was equally split on the
issue whether or not the Court of First Instance, Branch IV, Calauag, Quezon, acting
with limited jurisdiction as a guardianship court under Section 6 Rule 96 of the Rules of
Court, has the authority to adjudicate the question of ownership and order the
reconveyance of the three (3) parcels of land in question to private respondent,
guardian of the ward Soledad Rodriguez. On these two (2) principal issues, We are
called upon to finally resolve the legal controversy peculiar on this case.
After the parties submitted their respective briefs, the case was deemed submitted for
decision on October 28, 1971.
In a Resolution 18 of this Court dated November 29, 1978, the urgent manifestation and
motion of Leonisa S. Rodriguez, the surviving spouse of Mario Rodriguez (brother of the
ward) that the ward Soledad Rodriguez died on September 15, 1970 and private

respondent Francisco Rodriguez, Jr. died on October 24, 1973; and that the heirs of the
ward be substituted as the private respondents in this case was noted. To begin with,
the principal issue al hand is whether or not respondent Judge of the Court of First
Instance of Quezon, Branch IV-Calauag has the authority or power to take further action
in Special Proceedings No. 2641 after the Presiding Judge of the Court of First Instance
of Quezon, Branch I-Lucena City asserted its jurisdiction by issuing two (2) orders dated
July 29, 1968 and respondent Judge correspondingly ordered the return of the case to
Branch I in an order dated February 20,1969.
Petitioners maintain that respondent Judge of Branch IV, Court of First Instance of
Quezon has no power or authority to retain jurisdiction over Special Proceedings No.
2641 which, at its inception, originally pertained to Branch I-Lucena City, Court of First
Instance of Quezon. To support such chum, petitioners contend that the Second Order
dated July 29, 1968 requiring private respondent for an inventory and accounting of the
ward's property confirms that the Presiding Judge of Branch I has resumed its
jurisdiction over said case, more so, when respondent Judge ordered on February 20,
1969 the transmittal of the records of the case to the Deputy Clerk of Court, Court of
First Instance, Branch I-Lucena City.
Private respondent, on the other hand, justifies the retention of jurisdiction by
respondent Judge over Special Proceedings No. 2641 contending, among others, that
the two (2) orders dated July 29, 1968 issued by then Judge A. Melencio-Herrera are
not sufficient bases for claiming that Branch IV has been deprived of its, jurisdiction
because jurisdiction is vested upon the court not upon any particular branch or judge
thereof and the issuance of such orders constitute undue interference with the
processes and proceedings already undertaken by respondent Judge; that petitioners
are guilty of estoppel when they failed to raise the issue of jurisdiction from the very
beginning and when they voluntarily appeared before respondent Judge, filed their
answer and other pleadings, and moved for postponements of the scheduled dates of
hearing.
We sustain petitioners' stand. Of course, jurisdiction is vested in the court not in any
particular branch or judge, and as a corollary rule, the various branches of the Court of
First Instance of a judicial district are a coordinate and co-equal courts 19 one branch
stands on the same level as the other. Undue interference by one on the proceedings
and processes of another is prohibited by law. In the language of this Court, the various
branches of the Court of First Instance of a province or city, having as they have the
same or equal authority and exercising as they do concurrent and coordinate jurisdiction
should not, cannot, and are not permitted to interfere with their respective cases, much
less with their orders or judgments. 20 A contrary rule would obviously lead to confusion
and might seriously hinder the administration of justice. A judge is competent to act so
long as the case remains before him, but after it passed from his branch to the other,
the case could be acted upon by the judge of the latter branch. 21 Otherwise, an
anomalous situation would occur at the detriment of the party litigants who are likewise
confused where to appear and plead their cause.

In the case before Us, there is no dispute that both Branch I and Branch IV of the Court
of First Instance of Quezon, have jurisdiction over the subject matter, a guardianship
proceedings under Section 1, Rule 92 of the Rules of Court and Section 44(a) of the
Judiciary Act of 1948. While it is recognized that when a case is filed in one branch,
jurisdiction over the case does not attach to the branch or judge alone, to the exclusion
of the other branches, 22 We are of the view however, considering the unusual
circumstances and incidents attendant in this case the situation in the case at bar is
different. Here, it must be noted that the Presiding Judge of Branch I asserted and
resumed its prior jurisdiction by issuing two (2) orders, one of which requires private
respondent to render an inventory and accounting of the property of the ward. On the
other hand, respondent Judge of Branch IV, in confirmation of such resumption of
jurisdiction, ordered the return of the records of Special Proceedings No. 2641 to
Branch I-Lucena City, Court of First Instance of Quezon, but, instead of regularly
relinquishing jurisdiction over the case, respondent Judge continued to take further
action on the case in total disregard of the two (2) orders of the Presiding Judge of
Branch I. Should one branch be permitted to equally assert, assume or retain
jurisdiction over a case or controversy over which another coordinate or co-equal
branch has already resumed its jurisdiction, We would then sanction undue interference
by one branch over another. With that, the judicial stability of the decrees or orders of
the courts would be a meaningless precept in a well-ordered administration of justice.
There is no question that the prior proceedings had in Branch IV by respondent Judge
were valid and regular as they were admittedly authorized by the Secretary of Justice. It
must be emphasized however, that Branch IV lost its jurisdiction over Special
Proceedings No. 2641 when respondent Judge ordered the return of the records to
Branch I after having been informed in a motion for reconsideration filed on January 30,
1969 of the existence of the two (2) orders issued by the Presiding Judge of Branch 1.
From that point of time, all subsequent proceedings and processes in connection with or
related to Special Proceedings No. 2641 undertaken by the respondent Judge became
irregular. It amounted to an undue interference with the processes and proceedings of
Branch I.
Nevertheless, from the standpoint of the pertinent law on the matter, it may be observed
that the detail of respondent Judge of Branch IV stationed permanently in Calauag,
Quezon to Branch I in Lucena City, Quezon authoritatively rests on the provision of
Section 51 of the Judiciary Act of 1948 which reads:
Section 51. Detail of judge to another district or province.-Whenever a
judge stationed in. any province or branch of a court in a province shag
certify to the Secretary of Justice that the condition of the docket in his
court is such as to require the assistance of an additional judge, or when
there is any vacancy in any court or branch of a court in a province, the
Secretary of Justice may, in the interest of justice, with the approval of the
Supreme Court and for a period of not more than three months for each
time, assign any judge of any court or province, whose docket permits his
temporary absence from said court, to hold sessions in the court needing

such assistance or whether such vacancy exists. No judge so detailed

shall take cognizance of any case when any of the parties thereto objects
and the objection is sustained by the Supreme Court. (emphasis supplied)
xxx xxx xxx
Apparently, when the circumstances contemplated under Section 51 of the Judiciary Act
of 1948 occur, the detailed Judge holds sessions in the court needing such assistance
or where such vacancy exists as if he is the presiding judge of that particular branch
where the clogged docket or vacancy exists. The detailed Judge does not hold sessions
therein as if he is the Presiding Judge of the branch where he is originally or
permanently designated. In the case before Us, respondent Judge Kayanan was duly
authorized to help unclog the docket of Branch I stationed in Lucena City, Quezon which
at that time was rendered vacant due to the death of Judge Vicente Arguelles. When
respondent Judge Kayanan took cognizance of the cases left by Judge Arguelles,
pending the designation of a replacement, he merely sits as a judge of Branch I, Court
of First Instance of Quezon Province. In the event of designation of a new Presiding
Judge of Branch 1, accepted practice and procedure of speedy administration of justice
requires that the detailed judge turns over the cases he took cognizance of to the new
Presiding Judge. Justification for the continued retention of jurisdiction over those cases
in the case at bar appears to be not convincing.
We find no plausible indication how estoppel could operate against petitioners. It is true
that petitioners filed their answer to the urgent petition of private respondent and
appeared before respondent Judge of Branch IV without questioning the latter's
authority to hear the case. The answer to the urgent petition of private respondent dated
May 13, 1968 was filed by petitioners on June 5, 1968 or almost two (2) months before
Judge Melencio-Herrera of Branch I issued the two (2) orders dated July 29, 1968
asserting jurisdiction over the case. The appearances of petitioners and counsel in the
sala of respondent Judge during the intervening period from July 29, 1968 were
apparently due to the fact that petitioners came to know only of the two orders of Branch
I when they examined the records of the case prompted by the manifestation of the
counsel of private respondent, in the course of the proceedings in Branch IV, to submit
for an accounting in connection with the administration of the properties of the ward
Soledad Rodriguez. Petitioners manifested such information to respondent Judge in a
petition for reconsideration of the order of January 8, 1968 authorizing the presentation
of evidence ex parte. The silence or inaction of petitioners was therefore due to their
lack of knowledge of respondent Judge's lack of authority to retain or take further action
on the case. Such lack of authority was confirmed when respondent Judge, acting on
the petition for reconsideration dated January 30, 1969, issued on February 20, 1969 an
order authorizing the return of the records of the case to Branch I. In claiming that the
records referred to by the order concern the first portion of the records of Special
Proceedings No. 2641 and not the second portion containing the urgent petition filed by
private respondent on May 13, 1968, private respondent would then encourage split
jurisdiction of courts which is abhorred by the law.

Assuming that Branch IV-Calauag, Court of First Instance of Quezon has jurisdiction
over Special Proceedings No. 2641 notwithstanding the attendant circumstances
adverted to earlier, We now dwell on another issue, which standing alone would
decisively resolve the assigned errors raised in this petition, that is, whether or not
Branch IV exercising limited and special, jurisdiction as a guardianship court under
Section 6 Rule 96 of the Rules of Court has jurisdiction to order the delivery or
reconveyance of the three parcels of land in question to the ward, represented herein by
private respondent.
In two leading cases, Castillo vs. Bustamante, 64 Phil. 839 and Cui vs. Piccio et al, 91
Phil. 712, this Court laid the rule on the issue raised before Us as interpreted in the light
of Section 6 Rule 96 of the Rules of Court which reads:
Section 6. Proceedings when person suspected of embezzling or
concealing property of the ward. Upon complaint of the guardian or
ward, or of any person having actual or prospective interest in the estate
of the ward as creditor, heir, or otherwise, that anyone is suspected of
having embezzled, concealed, or conveyed away any money, goods, or
interest, or a written instrument, belonging to the ward or his estate, the
court may cite the suspected person to appear for examination touching
such money, goods, interests, or instrument, and make such orders as will
secure the estate against such embezzlement, concealment or
conveyance.
In Cui vs. Piccio et al., supra, this Court held that the jurisdiction of the court in
guardianship proceedings, ordinarily, is to cite persons suspected of having embezzled,
concealed or conveyed the property belonging to the ward for the purpose of obtaining
information which may be used in an action later to be instituted by the guardian to
protect the right of the ward. Generally, the guardianship court exercising special and
limited jurisdiction cannot actually order the delivery of the property of the ward found to
be embezzled, concealed or conveyed. In a categorical language of this Court, only in
extreme cases, where property clearly belongs to the ward or where his title thereto has
been already judicially decided, may the court direct its delivery to the guardian. 23 In
effect, there can only be delivery or return of the embezzled, concealed or conveyed
property of the ward, where the right or title of said ward is clear and undisputable.
However, where title to any property said to be embezzled, concealed or conveyed is in
dispute, under the Cui case, the determination of said title or right whether in favor of
the person said to have embezzled, concealed or conveyed the property must be
determined in a separate ordinary action and not in guardianship proceedings.
In the case at bar, We are not prepared to say, at this premature stage, whether or not,
on the basis alone of the pleadings of the parties in the trial court, the title or right of the
ward Soledad Rodriguez over the three (3) parcels of land in question is clear and
undisputable. What is certain here is the fact that the sale of the properties in question
were duly approved by the respondent Judge in accordance with the provisions on
selling and encumbering of the property of the ward under Rule 97 of the Rules of

Court. It must be noted that while the original urgent petition dated May 13, 1968 prayed
for the examination of petitioners herein regarding the alleged concealing, conveyancing
and embezzling of the questioned properties, the amended petition dated March 24,
1969 asked for reconveyance.
Moreover, it may be observed that private respondent contended that the sale of the
first two lots was actually a loan agreement with right of recovery while that of the third
lot was subject to condition, hence, a fictitious or simulated sale. On the other hand,
according to petitioners, the sales were all absolute and protected by the Torrens
System since new transfer certificate of titles were issued in their name. Apparently,
there is a cloud of doubt as to who has a better right or title to the disputed properties.
This, We believe, requires the determination of title or ownership of the three parcels of
land in dispute which is beyond the jurisdiction of the guardianship court and should be
threshed out in a separate ordinary action not a guardianship proceedings as held
in Cui vs. Piccio supra.
The ruling in Castillo vs. Bustamante, 64 Phil. 839, relied upon by private respondent
finds no application in the instant case. As differentiated from the case at bar,
in Castillo case, the right or title of the ward to the property in dispute was clear and
undisputable as the same was donated to her through compromise agreement
approved by the court which title had the authority of res judicata. As enunciated above,
the right or title of the ward to the properties in question is in dispute and as such should
be determined in a separate ordinary action.
Furthermore, private respondent's claim that petitioners are barred by laches to raise
the issue of jurisdiction is without merit. In support of such claim, private respondent
invoked the exception laid down in Tijam vs. Sibonghanoy, 23 SCRA 29, to the rule that
the lack of jurisdiction over the subject matter is fatal and may be raised at any stage of
the proceedings; that it is conferred only by law, and in the manner prescribed by law
and an objection on the lack of jurisdiction cannot be waived by the parties; and the
infirmity cannot be cured by silence, acquiescence, or even by express consent, or win
of the parties. 24
The doctrine laid down in Tijam vs. Sibonghanoy, supra, and in the latter case
of Rodriguez vs. Court of Appeals,29 SCRA 419 is not applicable in the case at bar. In
Tijam case, the appellant had all the opportunity to challenged the court's jurisdiction in
the court a quo as well as in the Court of Appeals but instead invoked its jurisdiction to
obtain affirmative relief and submitted its case for final adjudication on the merits. It was
only after an adverse decision was rendered by the Court of Appeals and fifteen (15)
years later from the inception of the case that it finally chose to raise the question of j
jurisdiction. I t is clear that t the circumstances present in Tijam case are not present
here. The petitioners in the instant case challenged the authority of the trial court to take
further cognizance of the case the moment they become aware of Branch I assuming
jurisdiction. The lack of jurisdiction was raised in a petition for reconsideration of the
order dated January 8, 1969, in a petition for reconsideration of the decision dated April
15, 1969, in a second petition for reconsideration of the said decision, and alleged as an

additional ground in the petition for certiorari in the Court of Appeals. In any case, the
operation of the principle of estoppel on the question of jurisdiction seemingly depends
upon whether the lower court actually had jurisdiction. If it had no jurisdiction, but the
case was tried and decided upon the theory that it had jurisdiction, the parties are not
barred, on appeal, from assailing such jurisdiction, for the same must exist as a matter
of law, and may not be conferred by consent of the parties or by estoppel. 25
As respondent trial court has no jurisdiction, We deem it unnecessary to pass upon the
assigned errors raised in the petition.
WHEREFORE, the Resolution of the Court of Appeals dated January 20, 1971 is
hereby reversed and set aside, and the decision rendered by respondent Judge of
Branch IV-Calauag, Court of First Instance of Quezon dated April 15, 1969 and the
orders issued thereafter are declared null and void, and the case is hereby remanded to
Branch I-Lucena City, Court of First Instance of Quezon for further proceedings.
SO ORDERED.
Barredo (Chairman), Concepcion, Jr., Abad Santos, Ericta and Escolin, JJ., concur.
G.R. No. L-58319 June 29, 1982
PATRIA
PACIENTE, petitioner,
vs.
HON. AUXENCIO C. DACUYCUY, Presiding Judge of the Juvenile and Domestic
Relations Court of Leyte and Southern Leyte; FELICIANA CALLE, court-appointed
guardian of the minors Shirley and Leandro, both surnamed HOMERES; the
SOLICITOR GENERAL; THE CITY FISCAL OF TACLOBAN; and, THE REGISTER
OF DEEDS, Tacloban City, respondents.
RESOLUTION

GUTIERREZ, J.:
This is a petition for certiorari and prohibition challenging the validity of an April 24, 1981
order of the respondent Juvenile and Domestic Relations Court of Leyte which required
the petitioner and Conchita Dumdum to
give and deposit with the clerk of this court the amount of TEN
THOUSAND PESOS (PI0,000.00) more as additional consideration of Lot
No. 3085-G of the Tacloban Cadastre which the court believes to be fair
and reasonable price of the property. This amount should be deposited
with the clerk of this court on or before June 24, 1981; otherwise TCT No.
T-13238 in the name of Patria Paciente now subject of a mortgage in favor

of the Consolidated Bank and Trust Corporation to guarantee an obligation

in the amount of P30,000.00, dated December 27, 1978, will be cancelled.
as well as the validity of its resolution dated August 21, 1981 which denied the motion
for reconsideration of the petitioner and Conchita Dumdum of the aforesaid order and
directed the Register of Deeds of Tacloban City
to cancel TCT No. 13238 of Patria Paciente and issue in lieu thereof a
new transfer certificate of title to the following present owners of Lot 3085G of the Tacloban Cadastre: Patria Paciente, of legal age, Filipino,
married, residing in Tacloban City, 1/3; Shirley Homeres, 10 years old,
residing in Tacloban City, 1/3; and, Leandro Homeres, 10 years old,
residing in Tacloban City, Philippines, 1/3, subject to the mortgage lien of
the Consolidated Bank and Trust Corporation.
because of their failure to comply with the same aforestated order. The facts of the case
are as follow:
In 1972, Leonardo Homeres died leaving his wife, Lilia Samson Homeres, and two
minor children, Shirley and Leandro, a parcel of land known as Lot No. 3085-G situated
in Sagkahan, Tacloban City, covered by TCT No. 12138. This lot which he had inherited
from his deceased father, Felizardo Homeres, has an area of one thousand seven
hundred one (1,701) square meters.
On September 9, 19-76, Lilia S. Homeres, sold Lot No. 3085-G to Conchita Dumdum for
P10,000.00.
On November 11, 1976, Lilia S. Homeres filed a petition for guardianship over the
persons and estate of the minors. The petition was granted on August 9, 1977. Lilia S.
Homeres took her oath as guardian on September 13, 1977,
On September 21, 1977, Conchita Dumdum sold Lot No. 3085-G, which had been titled
in her name under TCT No. T-13121, to petitioner Patria Paciente for the amount of
P15,000.00. Consequently, Patria Paciente was issued TCT No. T-13238 by the
Register of Deeds of Tacloban City.
On December 27, 1978, the petitioner mortgaged the lot to the Consolidated Bank and
Trust Corporation for P30,000.00.
On September 12, 1980, the Acting City Register of Deeds of Tacloban City, filed a
manifestation informing respondent court that Lot No. 3085-G which is the subject of the
guardianship proceedings had been registered in the name of the petitioner under TCT
No. T-13238 and that it was mortgaged to the Consolidated Bank and Trust Corporation
to guarantee petitioner's loan of P30,000.00.

Upon being thus informed by the Register of Deeds, the respondent court issued an
order on November 14, 1980, directing the petitioner and the manager of the
Consolidated Bank and Trust Corporation to appear before the court on January 21,
1981 and show cause why TCT No. T-13238, covering a parcel of land co-owned by the
minors, Shirley and Leandro Homeres, should not be cancelled for having been
alienated without authority from the court.
When January 21, 1981 came, the petitioner and the manager of Consolidated Bank
and Trust Corporation did not appear before the court. Instead, Conchita Dumdum
appeared and explained to the respondent court that she sold the lot which she
acquired from Lilia S. Homeres to the petitioner without obtaining the approval of the
court because she was not aware of such requirement regarding the properties of the
minors. On the same date, the respondent court again issued an order requiring the
petitioner and the manager of the Consolidated Bank and Trust Corporation to explain
why TCT No. T- 13238 should not be cancelled for their failure to first secure judicial
authority before disposing of the said property.
At the hearing on April 24, 1981, George Go, the petitioner's husband, apprised the
court that the petitioner was an innocent purchaser for value of the lot in question.
Respondent court then issued the questioned order.
A motion for reconsideration filed by her and Conchita Dumdum having been denied,
petitioner filed the present petition.
The issue in this case is whether the respondent court acting as a guardianship court
has jurisdiction to order the Register of Deeds to cancel the transfer certificate of title of
petitioner and to order the issuance of a new title to include the minors as co-owners
with the petitioner for her having failed to comply with the court's order directing her to
pay the minors the reasonable price of their property that their mother alienated without
authority of a competent court.
Relying on the cases of Cui, et al. vs. Piccio, et al. 91 Phil. 712, and Parco and Bautista
vs. Court of Appeals, G.R. No. L-33152, January 30, 1982, petitioner contends that
respondent court in hearing a petition for guardianship is not the proper situs for the
cancellation of a Torrens Title. In the Cui case, this Court ruled:
... Out of the cases cited, the only one we find to have some relevancy is
that of Castillo vs. Bustamante, 64 Phil. 839. In this case, the court made
a distinction between the provisions of sections 709 and 593 of the Code
of Civil Procedure which now correspond to section 6, Rule 88 and section
6 of Rule 97 of the Rules of Court. This Court in that case said in effect
that while in administration proceedings the court under section 709 may
only question the person suspected of having embezzled, concealed or
conveyed away property belonging to the estate, section 593 of the same
Code of Civil Procedure authorizes the Judge or the court to issue such
orders as maybe necessary to secure the estate against concealment,

embezzlement and conveyance, and this distinction is now given

emphasis by respondents' counsel. the way we interpret section 573 of the
Code of Civil Procedure as now embodied in Rule 97, section 6 of the
Rules of Court in the light of the ruling laid down in the case of Castillo vs.
Bustamante, supra, is that the court may issue an order directing the
delivery or return of any property embezzled, concealed or conveyed
which belongs to a ward, where the right or title of said ward is clear and
indisputable.
xxx xxx xxx
In conclusion, we hold that the respondent Judge had no jurisdiction to
issue his order of September 5, 1951, in the guardianship proceedings
requiring the petitioners to deliver the rentals collected by them to the
guardian and authorizing the latter to collect rentals in the future, for the
reason that the jurisdiction of the court in guardianship proceedings,
ordinarily, is to cite persons suspected of having embezzled, concealed or
conveyed property belonging to the ward for the purpose of obtaining
information which may be used in action later to be instituted by the
guardian to protect the right of the ward; and that only in extreme cases,
where property clearly belongs to the ward or where his title thereto has
already been judicially decided, may the court direct its delivery to the
guardian.
and in the case of Parco and Bautista the ruling reads as follows:
In Cui vs. Piccio, et al., supra, this Court held that the jurisdiction of the
court in guardianship proceedings, ordinarily, is to cite persons suspected
of having embezzled, concealed or conveyed the property belonging to
the ward for the purpose of obtaining information which may be used in an
action later to be instituted by the guardian to protect the right of the ward.
Generally, the guardianship court exercising special and limited jurisdiction
cannot actually order the delivery of the property of the ward found to be
embezzled, concealed, or conveyed. In a categorical language of this
Court, only in extreme cases, where property clearly belongs to the ward
or where his title thereto has been already judicially decided, may the
court direct its delivery to the guardian. In effect, there can only be delivery
or return of the embezzled, concealed or conveyed property of the ward,
where the right or title of said ward is clear and undisputable. However,
where title to any property said to be embezzled, concealed or conveyed
is in dispute, under the Cui case, the determination of said title or right
whether in favor of the persons said to have embezzled, concealed or
conveyed the property must be determined in a separate ordinary action
and not in a guardianship proceedings.

Insofar as the acts of the guardianship court intended to effect the delivery or return of
the property conveyed are concerned, We find the orders of the respondent court valid.
The petitioner's contentions in this regard are untenable. Even the aforecited cases
relied upon do not support her argument. While it is true that in these two cases We
ruled that where title to any property said to be embezzled, concealed or conveyed is in
question, the determination of said title or right whether in favor of the ward or in favor of
the person said to have embezzled, concealed or conveyed the property must be
determined in a separate ordinary action and not in guardianship proceedings, We also
emphasized that if the right or title of the ward to the property is clear and indisputable
the court may issue an order directing its delivery or return.
In the present case the right or title of the two minors to the property is clear and
indisputable. They inherited a part of the land in question from their father. The sale of
this land, where they are co-owners, by their mother without the authority of the
guardianship court is illegal (Yuson de Pua vs. San Agustin, 106 SCRA 7, 16).
In issuing the above questioned order and resolution, the respondent court did not
exceed its jurisdiction but merely exercised its duty to protect persons under disability.
The respondent court's order directing the deposit of an additional consideration of
P10,000.00 is a different matter. It was issued without a hearing to determine not only
the valuation of the property but the time frame for fixing said valuation which is not
clear. It is, consequently, null and void.
It is true that when the petitioner and Conchita Dumdum failed to give the additional
amount, the second order directing the cancellation of the petitioner's title may be said
to have superseded or cancelled the first order. The second order directed the issuance
of a new title over the land inherited by Leandro Homeres from his late father with each
heir getting title to one-third of the property. Considering, however, the petitioner's
protestations of violations of due process and the guardianship court's unusual
procedures in dealing with the properties under guardianship, the respondent court is
directed to conduct regular hearings and take evidence on the reasonable price of Lot
No. 3085-G, if its alienation is found to be in the best interests of the wards and
consistent with the rights of all parties involved.
WHEREFORE, the petition is dismissed. The guardianship court in Special Proceedings
No. JP-0156 of the Juvenile and Domestic Relations Court of Leyte is hereby ordered to
conduct further hearings of the case as above indicated.
SO ORDERED,
Teehankee (Chairman), Makasiar, Plana, Vasquez and Relova, JJ., concur.
Melencio-Herrera, J., is on leave.
G.R. No. L-57438 January 3, 1984

FELICIANO
FRANCISCO, petitioner,
vs.
HON. COURT OF APPEALS and PELAGIO FRANCISCO, respondents.
Nicomedes M. Jajardo for petitioner.
Crescini & Associates Law Office for private respondent.

GUERRERO, J.:
This petition for review on certiorari seeks the annulment of the decision and resolution
of the defunct Court of Appeals, now Intermediate Appellate Court, dated April 27, 1981.
and June 26, 1981. respectively, dismissing the petition for certiorari filed by petitioner
Feliciano Francisco docketed as CA-G.R. No. 12172 entitled "Feliciano Francisco
versus Judge Jesus R. De Vega and Pelagio Francisco". In the said petition for
certiorari, petitioner Feliciano Francisco challenged the validity of the Order of the Court
of First Instance of Bulacan, Fifth Judicial District, Branch II, now Regional Trial Court,
granting execution pending appeal of its decision by relieving petitioner Feliciano
Francisco as guardian of incompetent Estefania San Pedro and appointing respondent
herein, Pelagio Francisco, in his instead.
The antecedent facts as recited in the appealed decision of the Court of Appeals
showed that:
Petitioner is the duly appointed guardian of the incompetent Estefania San
Pedro in Special Proceedings No. 532 of the Court of First Instance of
Bulacan presided over by respondent Judge. On August 30, 1974
respondent Pelagio Francisco, claiming to be a first cousin of Estefania
San Pedro, together with two others, said to be nieces of the incompetent,
petitioned the court for the removal of petitioner and for the appointment in
his stead of respondent Pelagio Francisco. Among other grounds, the
petition was based on the failure of the guardian to submit an inventory of
the estate of his ward and to render an accounting.
It would seem that petitioner subsequently rendered an accounting but
failed to submit an inventory, for which reason the court on March 20,
1975 gave petitioner ten (10) days within which to do so, otherwise he
would be removed from guardianship Petitioner thereafter submitted an
inventory to which respondent Pelagio Francisco filed an objection on the
ground that petitioner actually received P14,000.00 for the sale of a
residential land and not P12,000.00 only as stated in the deed of sale and
reported by him in his inventory. The respondent Judge found the claim to
be true, and, in his order of April 17, 1980 relieved the petitioner as
guardian.

On motion of petitioner, however, the respondent Judge reconsidered his

finding, relying on the deed of sale as the best evidence of the price paid
for the sale of the land. in his order dated September 12, 1980,
respondent judge acknowledged that his finding was "rather harsh and
somewhat unfair to the said guardian." Nevertheless, respondent Judge
ordered the retirement of petitioner on the ground of old age. The order
states in part as follows:
"... considering the rather advanced age of the present
guardian, this Court is inclined and so decrees, that he
should nevertheless be, as he is hereby, retired to take effect
upon the appointment by this court and the assumption of
office of his replacement, who shall be taken from the
recommendees of the parties herein. For this purpose, the
present guardian is hereby given twenty (20) days from
receipt of a copy of this order within which to submit his
proposal for a replacement for himself and to comment on
petitioner's recommendee and the latter a like period within
which to comment on the present guardian's proposed
substitute, after which the matter will be deemed submitted
for resolution and final action by the court.
SO ORDERED."
Petitioner filed a motion for reconsideration, contending that he was only
72 years of age and still fit to continue with the management of the estate
of his ward as he had done with zeal for the past twelve years. In an order
dated November 13, 1980 the court denied his motion. Accordingly, on
December 17, 1980, petiti/ner filed a notice of appeal 'from the order
issued by the court on November 13, 1980' and paid the appeal bond. On
February 2, 1981 he filed the record on appeal. 1
Meanwhile, on January 27, 1981, the court, on motion of private
respondent, required petitioner to submit within three days his nomination
for guardian of Estefania San Pedro as required in its order of September
12, 1980. In issuing the order, the court stated that 'an indefinite
discontinuance in office would defeat the intent and purpose of the said
order of September 12, 1980 relieving the present guardian.
Petitioner's motion for reconsideration was denied. Hence, this petition.
(referring to CA-G.R. No. SP-1217)"
On December 5, 1980, before the appeal was perfected, Pelagio Francisco filed an
"Omnibus Motion" with the court a quo with the prayer (1) to restrain guardian from
exercising office; (2) order guardian to surrender to court all properties of the ward; and
(3) appoint new guardian . 2

Petitioner, on December 9, 1980 filed his opposition to the omnibus motion claiming that
the same was premature.3 The trial court, however, disregarded the opposition and
required petitioner on January 27, 1981 to submit within three (3) days his nomination
for guardian of Estefania San Pedro as required in its order of September 12, 1980, the
court holding that "an indefinite continuance in office would defeat the intent and
purpose of the said order of September 12, 1980, relieving the present guardian." 4
Petitioner moved for reconsideration of the said order, 5 but the trial court overruled the
same on March 4, 1981. Subsequently, on March 11, 1981, 6 the court a quo appointed
respondent Pelagio Francisco as the new guardian of the person and property of the
incompetent Estefania San Pedro. 7
On March 13, 1981, petitioner filed with the defunct Court of Appeals a petition for
certiorari challenging the validity of the order of the trial court granting the execution
pending appeal of its decision and appointing respondent Pelagio Francisco as the new
guardian despite the fact that respondent is five (5) years older than petitioner, docketed
as CA-G.R. No. 12172.
The Court of Appeals dismissed the petition on April 23, 1981, the pertinent portion of its
decision reading as follows:
The Rules of Court authorizes executions pending appeal "upon good
reasons to be stated in a special order." (Rule 39, Sec. 2). In the case at
bar, the retirement of petitioner was ordered on the ground of old age.
When this ground is considered in relation to the delay of the petitioner in
the making of an accounting and the submission of an inventory, the order
amounts to a finding that petitioner, considering his "rather advanced age,"
was no longer capable of managing the estate of his ward. Rule 97, Sec.
2). Given this finding, it is clear that petitioner's continuance in office would
not be in the best interest of the ward.
It is of course true that the order of removal is not yet final. Considering
the time -it normally takes for appeals to be finally determined as well as
the purpose of the order under appeal, which would be frustrated if it is not
immediately executed, we cannot say that respondent acted with grave
and irreparable damage and that the order of September 12, 1980 is not
yet final, petitioner has not demonstrated that in ordering execution
pending appeal, the respondent Judge committed a grave abuse of
discretion.
Indeed, the granting of execution pending appeal ties within the sound
discretion of a court. Appellate courts win not interfere to discretion, unless
it modify control or inquire into the exercise of this be shown that there has
been an abuse of that discretion. (2 Moran, Comments on the Rules of
Court, 260 [1979].

WHEREFORE, the petition for certiorari is DISMISSED, without

pronouncement as to costs.
SO ORDERED. 8
Petitioner subsequently filed another motion for reconsideration advancing the following
arguments: that to grant execution pending appeal would render petitioner's appeal
moot and academic that "advanced age" was not one of the, grounds raised by private
respondent in the court below; that the court a quo abuse its discretion in appointing
respondent as guardian despite the fact that private respondent is five (5) years older
than petitioner. 9
The respondent appellate court, in its resolution dated June 26, 1981, denied
petitioner's motion for reconsideration, the court finding it unnecessary to repeat the
discussion of the arguments which it had already considered and only entertained the
argument regarding the competency of the respondent as the new guardian. On this
point, respondent Court ruled:
The order of March 11, 1981 appointing respondent Francisco as guardian
was never assailed in the petition in this case. As already stated, this case
concerns the validity only of the orders of January 27, 1981 and March 4,
1981 which required petitioner to recommend his own replacement,
otherwise the court would appoint a new guardian. It does not appear that
petitioner objected to the appointment of respondent Francisco on the
ground now invoked, namely, that Francisco is in fact older than petitioner.
Nor does it appear that petitioner filed a motion for reconsideration of the
order of March 11, 1981, calling attention to the fact that respondent
Francisco is older than petitioner, In short, the point now raised does not
appear to have been urged in the lower court so that the latter could have
rectified the error, if it was error at all, For this reason, it is not proper
ground for certiorari before this Court, much less for a motion for
reconsideration.
WHEREFORE, the motion for reconsideration is DENIED for lack of merit.
SO ORDERED. 10
In the petition at bar, petitioner contends that (a) The Honorable Court of Appeals has
committed grave abuse of discretion in holding that the removal of petitioner as
guardian of the ward Estefania San Pedro on the ground of old age is a good ground for
the execution of the decision pending appeal; and (b) The Honorable Court of Appeals
committed grave misapprehension and misinterpretation of facts when it declared that
petitioner did not question the appointment of private respondent as guardian in his
stead on the ground that the latter is older than the former by five (5) years.

A guardianship is a trust relation of the most sacred character, in which one person,
called a "guardian" acts for another called the "ward" whom the law regards as
incapable of managing his own affairs.11 A guardianship is designed to further the
ward's well-being, not that of the guardian, It is intended to preserve the ward's property,
as wen as to render any assistance that the ward may personally require. It has been
stated that while custody involves immediate care and control, guardianship indicates
not only those responsibilities, but those of one in loco parentis as well. 12
Having in mind that guardianship proceeding is instituted for the benefit and welfare of
the ward, the selection of a guardian must, therefore, suit this very purpose. Thus, in
determining the selection of a guardian, the court may consider the financial situation,
the physical condition, the sound judgment, prudence and trustworthiness, the morals,
character and conduct, and the present and past history of a prospective appointee, as
wen as the probability of his, being able to exercise the powers and duties of guardian
for the full period during which guardianship will be necessary. 13
A guardian is or becomes incompetent to serve the trust if he is so disqualified by
mental incapacity, conviction of crime, moral delinquency or physical disability as to be
prevented from properly discharging the duties of his office. 14 A guardian, once
appointed may be removed in case he becomes insane or otherwise incapable of
discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, or
failed for thirty (30) days after it is due to render an account or make a return.15
We agree with the trial court and the appellate court that there is need for petitioner
Feliciano Francisco to be retired from the guardianship over the person and property of
incompetent Estefania San Pedro. The conclusion reached by the trial court about the
"rather advanced age" of petitioner at 72 years old (petitioner is now 76 years old)
finding him unfit to continue the trust cannot be disturbed. As correctly pointed out by
the appellate court, this finds direct support in the delay of the accounting and inventory
made by petitioner. To sustain petitioner as guardian would, therefore, be detrimental to
the ward. While age alone is not a control criterion in determining a person's fitness or
qualification to be appointed or be retained as guardian, it may be a factor for
consideration. 16
Considering the difficult and complicated responsibilities and duties of a guardian, We
sustain the immediate retirement of petitioner Feliciano Francisco as guardian, affirming
thereby the rulings of both the trial court and the appellate court.
With respect to the issue of execution pending appeal in appointing respondent Pelagio
Francisco as guardian to succeed petitioner while the latter's appeal was still pending,
We hold and rule that respondent appellate court correctly sustained the propriety of
said execution pending appeal. Upon urgent and compelling reasons, execution
pending appeal is a matter of sound discretion on the part of the trial court, 17 and the
appellate court will not interfere, control or inquire into the exercise of this discretion,
unless there has been an abuse thereof, 18 which We find none herein.

Inasmuch as the primary objective for the institution of guardianship is for the protection
of the ward, there is more than sufficient reason for the immediate execution of the
lower court's judgment for the replacement of the first guardian. We agree with the
reason given by the appellate court in sustaining execution pending appeal that "an
indefinite continuance in office would defeat the intent and purpose of the order of
September 12, 1980, relieving the present guardian (Feliciano Francisco)."
As to the issue concerning the appointment of respondent Pelagio Francisco as the new
guardian, We likewise agree with the respondent appellate court in denying in its
resolution of June 26, 1981 for lack of merit the motion for reconsideration filed by
petitioner questioning the appointment of private respondent Pelagio Francisco. We
also find no abuse of discretion committed by the appellate court.
The rule is well-established that appellate courts may not entertain issues brought
before it for the first time on appeal. (Jose Matienzo vs. Martin Servidad, 107 SCRA
276; Garcian vs. Court of Appeals, 102 SCRA 597; Director of Lands vs. Dano 96 SCRA
160).
WHEREFORE, IN VIEW OF THE FOREGOING, the assailed decision and resolution of
the respondent court dated April 27, 1981 and June 26, 1981, respectively, are hereby
AFFIRMED. Costs against petitioner.
SO ORDERED.
Makasiar (Chairman), Concepcion, Jr. and De Castro, JJ., concur.

[G.R. No. 132223. June 19, 2001]

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

DECISION
SANDOVAL-GUTIERREZ, J.:
Petition for review on certiorari of the Decision of the Court of Appeals in CA-G.R.
CV No. 45650, In the Matter of Guardianship of Minors Valerie Vancil and Vincent
Vancil Bonifacia P. Vancil, Petitioner-Appellee, vs. Helen G. Belmes, OppositorAppellant, 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 fathers death pension benefits with a probable value
of P100,000.00.
Finding sufficiency in form and in substance, the case was set for hearing after a 3consecutive-weekly publications with the Sunstar Daily.
On July 15, 1987, petitioner, Bonifacia Vancil was appointed legal and judicial guardian
over the persons and estate of Valerie Vancil and Vincent Vancil Jr.
On August 13, 1987, the natural mother of the minors, Helen Belmes, submitted an
opposition to the subject guardianship proceedings asseverating that she had already
filed a similar petition for guardianship under Special Proceedings No. 2819 before the
Regional Trial Court of Pagadian City.
Thereafter, on June 27, 1988, Helen Belmes followed her opposition with a motion for
the Removal of Guardian and Appointment of a New One, asserting that she is the
natural mother in actual custody of and exercising parental authority over the subject
minors at Maralag, Dumingag, Zamboanga del Sur where they are permanently
residing; that the petition was filed under an improper venue; and that at the time the
petition was filed Bonifacia Vancil was a resident of 140 Hurliman Court, Canon City,
Colorado, U.S.A. being a naturalized American citizen.
On October 12, 1988, after due proceedings, the trial court rejected and denied
Belmes motion to remove and/or to disqualify Bonifacia as guardian of Valerie and
Vincent Jr. and instead ordered petitioner Bonifacia Vancil to enter the office and
perform her duties as such guardian upon the posting of a bond of P50,000.00. The
subsequent attempt for a reconsideration was likewise dismissed in an Order dated
November 24, 1988.[1]
On appeal, the Court of Appeals rendered its assailed Decision reversing the RTC
order of October 12, 1988 and dismissing Special Proceedings No. 1618-CEB.
The Court of Appeals held:
Stress should likewise be made that our Civil Code considers parents, the father, or in
the absence, the mother, as natural guardian of her minor children. The law on parental
authority under the Civil Code or P.D. 603 and now the New Family Code, (Article 225
of the Family Code) ascribe to the same legal pronouncements. Section 7 of Rule 93 of
the Revised Rules of Court confirms the designation of the parents as ipso

facto guardian of their minor children without need of a court appointment and only for
good reason may another person be named. Ironically, for the petitioner, there is
nothing on record of any reason at all why Helen Belmes, the biological mother, should
be deprived of her legal rights as natural guardian of her minor children. To give away
such privilege from Helen would be an abdication and grave violation of the very basic
fundamental tenets in civil law and the constitution on family solidarity. [2]
On March 10, 1998, Bonifacia Vancil filed with this Court the present petition, raising
the following legal points:
1. The Court of Appeals gravely erred in ruling that the preferential right of a parent
to be appointed guardian over the persons and estate of the minors is absolute,
contrary to existing jurisprudence.
2. The Court of Appeals gravely erred in ruling that Oppositor Helen G. Belmes,
the biological mother, should be appointed the guardian of the minors despite the
undisputed proof that under her custody, her daughter minor Valerie Vancil was
raped seven times by Oppositors live-in partner.
3. The respondent (sic) Court of Appeals gravely erred when it disqualified
petitioner Bonifacia P. Vancil to be appointed as judicial guardian over the persons
and estate of subject minors despite the fact that she has all the qualifications and
none of the disqualifications as judicial guardian, merely on the basis of her U.S.
citizenship which is clearly not a statutory requirement to become guardian.
At the outset, let it be stressed that in her Manifestation/Motion, dated September
15, 1998, respondent Helen Belmes stated that her daughter Valerie turned eighteen on
September 2, 1998 as shown by her Birth Certificate. [3] Respondent thus prayed that
this case be dismissed with respect to Valerie, she being no longer a proper subject of
guardianship proceedings. The said Manifestation/Motion was noted by this Court in
its Resolution dated November 11, 1998.
Considering that Valerie is already of major age, this petition has become moot with
respect to her. Thus, only the first and third legal points raised by petitioner should be
resolved.
The basic issue for our resolution is who between the mother and grandmother of
minor Vincent should be his guardian.
We agree with the ruling of the Court of Appeals that respondent, being the natural
mother of the minor, has the preferential right over that of petitioner to be his
guardian. This ruling finds support in Article 211 of the Family Code which provides:
Art. 211. The father and the mother shall jointly exercise parental authority over the
persons of their common children. In case of disagreement, the fathers decision shall
prevail, unless there is a judicial order to the contrary. xxx.

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

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

[G.R. No. 154994. June 28, 2005]

JOYCELYN
PABLO-GUALBERTO, petitioner,
GUALBERTO V, respondent.

vs.

CRISANTO

RAFAELITO

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

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

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

PANGANIBAN, J.:
When love is lost between spouses and the marriage inevitably results in
separation, the bitterest tussle is often over the custody of their children. The Court is
now tasked to settle the opposing claims of the parents for custody pendente lite of their
child who is less than seven years of age. There being no sufficient proof of any
compelling reason to separate the minor from his mother, custody should remain with
her.
The Case
Before us are two consolidated petitions. The first is a Petition for Review[1] filed by
Joycelyn Pablo-Gualberto under Rule 45 of the Rules of Court, assailing the August 30,
2002 Decision[2] of the Court of Appeals (CA) in CA-GR SP No. 70878. The assailed
Decision disposed as follows:
WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED.
The assailed Order of May 17, 2002 is hereby SET ASIDE andANNULLED. The
custody of the child is hereby ordered returned to [Crisanto Rafaelito G. Gualberto V].
The [respondent] court/Judge is hereby directed to consider, hear and resolve
[petitioners] motion to lift the award of custody pendente lite of the child to
[respondent].[3]
The second is a Petition for Certiorari[4] filed by Crisanto Rafaelito Gualberto V
under Rule 65 of the Rules of Court, charging the appellate court with grave abuse of
discretion for denying his Motion for Partial Reconsideration of the August 30, 2002
Decision. The denial was contained in the CAs November 27, 2002 Resolution, which
we quote:
We could not find any cogent reason why the [last part of the dispositive portion of our
Decision of August 30, 2002] should be deleted, hence, subject motion is hereby
DENIED.[5]
The Facts
The CA narrated the antecedents as follows:
x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the
Regional Trial Court of Paraaque City] a petition for declaration of nullity of his
marriage to x x x Joycelyn D. Pablo Gualberto, with an ancillary prayer for
custody pendente lite of their almost 4-year-old son, minor Rafaello (the child, for
brevity), whom [Joycelyn] allegedly took away with her from the conjugal home and his

school (Infant Toddlers Discovery Center in Paraaque City) when [she] decided to
abandon [Crisanto] sometime in early February 2002[.] x x x [O]n April 2, 2002, [RTC
Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for custody pendente
lite. x x x [B]ecause [Joycelyn] allegedly failed to appear despite notice, [Crisanto], a
certain Col. Renato Santos, and Ms. Cherry Batistel, testified before the x x x Judge; x x
x documentary evidence [was] also presented[.] x x x [O]n April 3, 2002, x x x [the]
Judge awarded custody pendente lite of the child to [Crisanto.] [T]he Order partly read
x x x:
x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their minor
child with her to Caminawit, San Jose, Occidental Mindoro. At that time, the minor was
enrolled at B.F. Homes, Paraaque City. Despite effort[s] exerted by him, he has failed
to see his child. [Joycelyn] and the child are at present staying with the formers stepfather at the latters [residence] at Caminawit, San Jose, Occidental Mindoro.
Renato Santos, President of United Security Logistic testified that he was
commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and came up with the
conclusion that [she] is having lesbian relations with one Noreen Gay Cuidadano in
Cebu City.
The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper
of the spouses who stated that [the mother] does not care for the child as she very often
goes out of the house and on one occasion, she saw [Joycelyn] slapping the child.
Art. 211 of the Family Code provides as follows:
The father and the mother shall jointly exercise parental authority over the persons of
their children. In the case of disagreement, the fathers decision shall prevail, unless
there is a judicial order to the contrary.
The authority of the father and mother over their children is exercised jointly. This
recognition, however, does not place her in exactly the same place as the father; her
authority is subordinated to that of the father.
In all controversies regarding the custody of minors, the sole and foremost
consideration is the physical, educational, social and moral welfare of the child, taking
into account the respective resources and social and moral situations of the contending
parties.
The Court believes that [Joycelyn] had no reason to take the child with her. Moreover,
per Sheriff returns, she is not with him at Caminawit, San Jose, Occidental Mindoro.
WHEREFORE, pendente lite, the Court hereby awards custody of the minor, Crisanto
Rafaello P. Gualberto X to his father, Crisanto Rafaelito G. Gualberto V.

x x x [O]n April 16, 2002, the hearing of [Joycelyns] motion to lift the award of
custody pendente lite of the child to [Crisanto] was set but the former did not allegedly
present any evidence to support her motion. However, on May 17, 2002, [the] Judge
allegedly issued the assailed Order reversing her Order of April 3, 2002 and this time
awarding custody of the child to [Joycelyn]. [T]he entire text of the Order [is] herein
reproduced, to wit:
Submitted is [Crisantos] Motion to Resolve Prayer for Custody Pendente Lite and
[Joycelyns] Motion to Dismiss and the respective Oppositions thereto.
[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person referred to
in the caption of the Petition is one JOCELYN Pablo Gualberto and not Joycelyn Pablo
Gualberto. [Joycelyn] knows she is the person referred to in the Complaint. As a matter
of fact, the body of the Complaint states her name correct[ly]. The law is intended to
facilitate and promote the administration of justice, not to hinder or delay it. Litigation
should be practicable and convenient. The error in the name of Joycelyn does not
involve public policy and has not prejudiced [her].
This case was filed on March 12, 2002. Several attempts were made to serve
summons on [Joycelyn] as shown by the Sheriffs returns. It appears that on the
4thattempt on March 21, 2002, both Ma. Daisy and x x x Ronnie Nolasco, [Joycelyns
mother and stepfather, respectively,] read the contents of the documents presented
after which they returned the same.
The Court believes that on that day, summons was duly served and this Court acquired
jurisdiction over [Joycelyn].
The filing of [Joycelyns annulment] case on March 26, 2002 was an after thought,
perforce the Motion to [D]ismiss should be denied.
The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years
old. Under Article 213 of the Family Code, he shall not be separated from his mother
unless the Court finds compelling reasons to order otherwise. The Court finds the
reason stated by [Crisanto] not [to] be compelling reasons. The father should however
be entitled to spend time with the minor. These do not appear compelling reasons to
deprive him of the company of his child.
When [Joycelyn] appeared before this Court, she stated that she has no objection to
the father visiting the child even everyday provided it is in Mindoro.
The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello P.
Gualberto, with [the] right of [Crisanto] to have the child with him every other weekend.
WHEREFORE:
1.

The [M]otion to Dismiss is hereby DENIED;

2.

Custody pendente lite is hereby given to the mother Joycelyn

Pablo Gualberto with the right of the father, x x x [Crisanto], to
have him every other week-end.

3.

Parties are admonished not to use any other agencies of the

government like the CIDG to interfere in this case and to harass
the parties.[6]

In a Petition for Certiorari[7] before the CA, Crisanto charged the Regional Trial Court
(Branch 260) of Paraaque City with grave abuse of discretion for issuing its
aforequoted May 17, 2002 Order. He alleged that this Order superseded, without any
factual or legal basis, the still valid and subsisting April 3, 2002 Order awarding him
custody pendente lite of his minor son; and that it violated Section 14 of Article VII of the
1987 Constitution.
Ruling of the Court of Appeals
Partly in Crisantos favor, the CA ruled that grave abuse of discretion had been
committed by the trial court in reversing the latter courts previous Order dated April 3,
2002, by issuing the assailed May 17, 2002 Order. The appellate court explained that
the only incident to resolve was Joycelyns Motion to Dismiss, not the issuance of the
earlier Order. According to the CA, the prior Order awarding provisional custody to the
father should prevail, not only because it was issued after a hearing, but also because
the trial court did not resolve the correct incident in the later Order.
Nonetheless, the CA stressed that the trial court judge was not precluded from
considering and resolving Joycelyns Motion to lift the award of custody pendente lite to
Crisanto, as that Motion had yet to be properly considered and ruled upon. However, it
directed that the child be turned over to him until the issue was resolved.
Hence, these Petitions.[8]
Issues
In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration:
1.
Whether or not the Respondent Court of Appeals, when it awarded the custody
of the child to the father, violated Art. 213 of the Family Code, which mandates that no
child under seven years of age shall be separated from the mother, unless the court
finds compelling reasons to order otherwise.
2.
Is it Article 213 or Article 211 which applies in this case involving four-year old
Rafaello?[9]
On the other hand, Crisanto raises the following issues:

A.
Did Respondent Court commit grave abuse of discretion amounting to or in
excess of jurisdiction when, in its August 30, 2002 Decision, it ordered respondent
court/Judge to consider, hear and resolve the motion to lift award of custody pendente
lite of the child to petitioner and x x x denied the motion for reconsideration thereof in its
November 27, 2002 Resolution, considering that: (1) there is no such motion ever, then
or now pending, with the court a quo; (2) the November 27, 2002 Resolution is
unconstitutional; and (3) the April 3, 2002 Order of respondent Judge, the validity of
which has been upheld in the August 30, 2002 Decision of the respondent Court, has
become final and executory; and
B.
Ought not the ancillary remedies [o]f habeas corpus, because the whereabouts,
physical and mental condition of the illegally detained Minor Rafaello is now unknown to
petitioner and preliminary mandatory injunction with urgent prayer for immediate
issuance of preliminary [injunction], petitioner having a clear and settled right to custody
of Minor Rafaello which has been violated and still is being continuously violated by
[petitioner Joycelyn], be granted by this Honorable Court? [10]
Being interrelated, the procedural challenges and the substantive issues in the two
Petitions will be addressed jointly.
The Courts Ruling
There is merit in the Petition in GR No. 154994, but not in GR No. 156254.
Preliminary Issue:
The Alleged Prematurity
of the Petition in GR No. 154994
Before going into the merits of the present controversy, the Court shall first dispose
of a threshold issue. In GR No. 154994, therein Respondent Crisanto contends that the
Petition for Review was filed beyond the deadline (October 24, 2002) allowed by the
Rules of Court and by this Court. He claims that Registry Bill No. 88 shows that the
Petition was sent by speed mail, only on November 4, 2002. Furthermore, he assails
the Petition for its prematurity, since his Motion for Partial Reconsideration of the August
30, 2002 CA Decision was still pending before the appellate court. Thus, he argues that
the Supreme Court has no jurisdiction over Joycelyns Petition.
Timeliness of the Petition
The manner of filing and service Joycelyns Petition by mail is governed by Sections
3 and 7 of Rule 13 of the Rules of Court, which we quote:

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

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

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

As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out that his
Urgent Motion for Partial Reconsideration [19] was still awaiting resolution by the CA when
she filed her Petition before this Court on October 24, 2002. The CA ruled on the
Motion only on November 27, 2002.
The records show, however, that the Motion of Crisanto was mailed only on
September 12, 2002. Thus, on September 17, 2002, when Joycelyn filed her Motion for
Extension of Time to file her Petition for Review, she might have still been unaware that
he had moved for a partial reconsideration of the August 20, 2002 CA Decision.
Nevertheless, upon being notified of the filing of his Motion, she should have manifested
that fact to this Court.
With the CAs final denial of Crisantos Motion for Reconsideration, Joycelyns lapse
may be excused in the interest of resolving the substantive issues raised by the parties.
First Issue:
Grave Abuse of Discretion
In GR No. 156254, Crisanto submits that the CA gravely abused its discretion when
it ordered the trial court judge to consider, hear and resolve the motion to lift the award
of custody pendente lite without any proper motion by Joycelyn and after the April 3,
2002 Order of the trial court had become final and executory. The CA is also charged
with grave abuse of discretion for denying his Motion for Partial Reconsideration without
stating the reasons for the denial, allegedly in contravention of Section 1 of Rule 36 of
the Rules of Court.
The Order to Hear the Motion
to Lift the Award of Custody
Pendente Lite Proper
To begin with, grave abuse of discretion is committed when an act is 1) done
contrary to the Constitution, the law or jurisprudence; [20] or 2) executed whimsically or
arbitrarily in a manner so patent and so gross as to amount to an evasion of a positive
duty, or to a virtual refusal to perform the duty enjoined. [21] What constitutes grave
abuse of discretion is such capricious and arbitrary exercise of judgment as that which
is equivalent, in the eyes of the law, to lack of jurisdiction. [22]
On the basis of these criteria, we hold that the CA did not commit grave abuse of
discretion.
First, there can be no question that a court of competent jurisdiction is vested with
the authority to resolve even unassigned issues. It can do so when such a step is
indispensable or necessary to a just resolution of issues raised in a particular pleading
or when the unassigned issues are inextricably linked or germane to those that have

been pleaded.[23] This truism applies with more force when the relief granted has been
specifically prayed for, as in this case.
Explicit in the Motion to Dismiss [24] filed by Joycelyn before the RTC is her ancillary
prayer for the court to lift and set aside its April 3, 2002 Order awarding to Crisanto
custody pendente lite of their minor son. Indeed, the necessary consequence of
granting her Motion to Dismiss would have been the setting aside of the Order awarding
Crisanto provisional custody of the child. Besides, even if the Motion to Dismiss was
denied -- as indeed it was -- the trial court, in its discretion and if warranted, could still
have granted the ancillary prayer as an alternative relief.
Parenthetically, Joycelyns Motion need not have been verified because of the
provisional nature of the April 3, 2002 Order. Under Rule 38 [25] of the Rules of Court,
verification is required only when relief is sought from a final and executory Order.
Accordingly, the court may set aside its own orders even without a proper motion,
whenever such action is warranted by the Rules and to prevent a miscarriage of justice.
[26]

Denial of the Motion for

Reconsideration Proper
Second, the requirement in Section 1 of Rule 36 (for judges to state clearly and
distinctly the reasons for their dispositions) refers only to decisions and final orders on
the merits, not to those resolving incidental matters.[27] The provision reads:
SECTION 1. Rendition of judgments and final orders. A judgment or final order
determining the merits of the case shall be in writing personally and directly prepared by
the judge, stating clearly and distinctly the facts and the law on which it is based, signed
by him, and filed with the clerk of court. (Italics supplied)
Here, the declaration of the nullity of marriage is the subject of the main case, in
which the issue of custody pendente lite is an incident. That custody and support of
common children may be ruled upon by the court while the action is pending is provided
in Article 49 of the Family Code, which we quote :
Art. 49. During the pendency of the action [28] and in the absence of adequate provisions
in a written agreement between the spouses, the Court shall provide for the support of
the spouses and the custody and support of their common children. x x x.
Clearly then, the requirement cited by Crisanto is inapplicable. In any event, in its
questioned Resolution, the CA clearly stated that it could not find any cogent reason to
reconsider and set aside the assailed portion of its August 30, 2002 Decision.
The April 3, 2002 Order Not
Final and Executory

Third, the award of temporary custody, as the term implies, is provisional and
subject to change as circumstances may warrant. In this connection, there is no need
for a lengthy discussion of the alleged finality of the April 3, 2002 RTC Order granting
Crisanto temporary custody of his son. For that matter, even the award of child custody
after a judgment on a marriage annulment is not permanent; it may be reexamined and
adjusted if and when the parent who was given custody becomes unfit. [29]
Second Issue:
Custody of a Minor Child
When love is lost between spouses and the marriage inevitably results in
separation, the bitterest tussle is often over the custody of their children. The Court is
now tasked to settle the opposing claims of the parents for custody pendente lite of their
child who is less than seven years old. [30] On the one hand, the mother insists that,
based on Article 213 of the Family Code, her minor child cannot be separated from her.
On the other hand, the father argues that she is unfit to take care of their son; hence,
for compelling reasons, he must be awarded custody of the child.
Article 213 of the Family Code[31] provides:
ART. 213. In case of separation of the parents, parental authority shall be exercised by
the parent designated by the court. The court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the
parent chosen is unfit.
No child under seven years of age shall be separated from the mother, unless the court
finds compelling reasons to order otherwise.
This Court has held that when the parents are separated, legally or otherwise, the
foregoing provision governs the custody of their child. [32]Article 213 takes its bearing
from Article 363 of the Civil Code, which reads:
Art. 363. In all questions on the care, custody, education and property of children, the
latters welfare shall be paramount. No mother shall be separated from her child under
seven years of age, unless the court finds compelling reasons for such measure .(Italics
supplied)
The general rule that children under seven years of age shall not be separated from
their mother finds its raison detre in the basic need of minor children for their mothers
loving care.[33] In explaining the rationale for Article 363 of the Civil Code, the Code
Commission stressed thus:
The general rule is recommended in order to avoid a tragedy where a mother has seen
her baby torn away from her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by the rule has to be for

compelling reasons for the good of the child: those cases must indeed be rare, if the
mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the
penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient
punishment for her. Moreover, her moral dereliction will not have any effect upon the
baby who is as yet unable to understand the situation. (Report of the Code
Commission, p. 12)
A similar provision is embodied in Article 8 of the Child and Youth Welfare Code
(Presidential Decree No. 603). [34] Article 17 of the same Code is even more explicit in
providing for the childs custody under various circumstances, specifically in case the
parents are separated. It clearly mandates that no child under five years of age shall
be separated from his mother, unless the court finds compelling reasons to do so. The
provision is reproduced in its entirety as follows:
Art. 17. Joint Parental Authority. The father and the mother shall exercise jointly just
and reasonable parental authority and responsibility over their legitimate or adopted
children. In case of disagreement, the fathers decision shall prevail unless there is a
judicial order to the contrary.
In case of the absence or death of either parent, the present or surviving parent shall
continue to exercise parental authority over such children, unless in case of the
surviving parents remarriage, the court for justifiable reasons, appoints another person
as guardian.
In case of separation of his parents, no child under five years of age shall be separated
from his mother, unless the court finds compelling reasons to do so. (Italics supplied)
The above mandates reverberate in Articles 211, 212 and 213 of the Family Code.
It is unmistakable from the language of these provisions that Article 211[35] was derived
from the first sentence of the aforequoted Article 17; Article 212, [36] from the second
sentence; and Article 213,[37] save for a few additions, from the third sentence. It should
be noted that the Family Code has reverted to the Civil Code provision mandating that a
child below seven years should not be separated from the mother.[38]
Mandatory Character
of Article 213 of the Family Code
In Lacson v. San Jose-Lacson,[39] the Court held that the use of shall in Article 363
of the Civil Code and the observations made by the Code Commission underscore the
mandatory character of the word.[40] Holding in that case that it was a mistake to deprive
the mother of custody of her two children, both then below the age of seven, the Court
stressed:

[Article 363] prohibits in no uncertain terms the separation of a mother and her child
below seven years, unless such a separation is grounded upon compelling reasons as
determined by a court.[41]
In like manner, the word shall in Article 213 of the Family Code and Section 6 [42] of
Rule 99 of the Rules of Court has been held to connote a mandatory character. [43] Article
213 and Rule 99 similarly contemplate a situation in which the parents of the minor are
married to each other, but are separated by virtue of either a decree of legal separation
or a de facto separation. [44] In the present case, the parents are living separately as a
matter of fact.
The Best Interest of the Child
a Primary Consideration
The Convention on the Rights of the Child provides that [i]n all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies, the best interests of the child shall
be a primary consideration.[45]
The principle of best interest of the child pervades Philippine cases involving
adoption, guardianship, support, personal status, minors in conflict with the law, and
child custody. In these cases, it has long been recognized that in choosing the parent to
whom custody is given, the welfare of the minors should always be the paramount
consideration.[46] Courts are mandated to take into account all relevant circumstances
that would have a bearing on the childrens well-being and development. Aside from the
material resources and the moral and social situations of each parent, other factors may
also be considered to ascertain which one has the capability to attend to the physical,
educational, social and moral welfare of the children. [47] Among these factors are the
previous care and devotion shown by each of the parents; their religious background,
moral uprightness, home environment and time availability; as well as the childrens
emotional and educational needs
Tender-Age
Presumption
As pointed out earlier, there is express statutory recognition that, as a general rule,
a mother is to be preferred in awarding custody of children under the age of seven. The
caveat in Article 213 of the Family Code cannot be ignored, except when the court finds
cause to order otherwise.[48]
The so-called tender-age presumption under Article 213 of the Family Code may
be overcome only by compelling evidence of the mothers unfitness. The mother has
been declared unsuitable to have custody of her children in one or more of the following
instances: neglect, abandonment, unemployment, immorality, habitual drunkenness,

drug addiction, maltreatment of the child, insanity or affliction with a communicable

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

and Preliminary Injunction

As we have ruled that Joycelyn has the right to keep her minor son in her custody,
the writ of habeas corpus and the preliminary mandatory injunction prayed for by
Crisanto have no leg to stand on. A writ of habeas corpus may be issued only when the
rightful custody of any person is withheld from the person entitled thereto, [57] a situation
that does not apply here.
On the other hand, the ancillary remedy of preliminary mandatory injunction cannot
be granted, because Crisantos right to custody has not been proven to be clear and
unmistakable.[58] Unlike an ordinary preliminary injunction, the writ of preliminary
mandatory injunction is more cautiously regarded, since the latter requires the
performance of a particular act that tends to go beyond the maintenance of the status
quo.[59]Besides, such an injunction would serve no purpose, now that the case has been
decided on its merits.[60]
WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision
of the Court of Appeals is hereby REVERSED and the May 17, 2002 Regional Trial Court
Order REINSTATED. The Petition in GR No. 156254 is DISMISSED. Costs against
Petitioner Crisanto Rafaelito Gualberto V.
SO ORDERED.
Sandoval-Gutierrez, Corona, Carpio-Morales, and Garcia, JJ., concur.
G.R. No. 110427 February 24, 1997
The Incompetent, CARMEN CAIZA, represented by her legal guardian, AMPARO
EVANGELISTA,petitioner,
vs.
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife,
LEONORA ESTRADA,respondents.

NARVASA, C.J.:
On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza, a
spinster, a retired pharmacist, and former professor of the College of Chemistry and
Pharmacy of the University of the Philippines, was declared incompetent by
judgment 1 of the Regional Trial Court of Quezon City, Branch 107, 2 in a guardianship
proceeding instituted by her niece, Amparo A. Evangelista. 3 She was so adjudged
because of her advanced age and physical infirmities which included cataracts in both
eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her
person and estate.

Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On
September 17, 1990, her guardian Amparo Evangelista commenced a suit in the
Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses
Pedro and Leonora Estrada from said premises. 4 The complaint was later amended to
identify the incompetent Caiza as plaintiff, suing through her legal guardian, Amparo
Evangelista.
The amended Complaint 5 pertinently alleged that plaintiff Caiza was the absolute
owner of the property in question, covered by TCT No. 27147; that out of kindness, she
had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to
temporarily reside in her house, rent-free; that Caiza already had urgent need of the
house on account of her advanced age and failing health, "so funds could be raised to
meet her expenses for support, maintenance and medical treatment;" that through her
guardian, Caiza had asked the Estradas verbally and in writing to vacate the house but
they had refused to do so; and that "by the defendants' act of unlawfully depriving
plaintiff of the possession of the house in question, they . . (were) enriching themselves
at the expense of the incompetent, because, while they . . (were) saving money by not
paying any rent for the house, the incompetent . . (was) losing much money as her
house could not be rented by others." Also alleged was that the complaint was "filed
within one (1) year from the date of of first letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been living in
Caiza's house since the 1960's; that in consideration of their faithful service they had
been considered by Caiza as her own family, and the latter had in fact executed a
holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the
house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor, 6 the
Estradas being ordered to vacate the premises and pay Caiza P5,000.00 by way of
attorney's fees.
But on appeal, 8 the decision was reversed by the Quezon City Regional Trial Court,
Branch 96. 9 By judgment rendered on October 21, 1992, 10 the RTC held that the
"action by which the issue of defendants' possession should be resolved isaccion
publiciana, the obtaining factual and legal situation . . demanding adjudication by such
plenary action for recovery of possession cognizable in the first instance by the
Regional Trial Court."
Caiza sought to have the Court of Appeals reverse the decision of October 21, 1992,
but failed in that attempt. In a decision 11 promulgated on June 2, 1993, the Appellate
Court 12 affirmed the RTC's judgment in toto. It ruled that (a) the proper remedy for
Caiza was indeed an accion publiciana in the RTC, not an accion interdictal in the
MetroTC, since the "defendants have not been in the subject premises as mere tenants
or occupants by tolerance, they have been there as a sort of adopted family of Carmen
Caiza," as evidenced by what purports to be the holographic will of the plaintiff; and (b)
while "said will, unless and until it has passed probate by the proper court, could not be

the basis of defendants' claim to the property, . . it is indicative of intent and desire on
the part of Carmen Caiza that defendants are to remain and are to continue in their
occupancy and possession, so much so that Caiza's supervening incompetency can
not be said to have vested in her guardian the right or authority to drive the defendants
out." 13
Through her guardian, Caiza came to this Court praying for reversal of the Appellate
Court's judgment. She contends in the main that the latter erred in (a) holding that she
should have pursued an accion publiciana, and not an accion interdictal; and in (b)
giving much weight to "a xerox copy of an alleged holographic will, which is irrelevant to
this case." 14
In the responsive pleading filed by them on this Court's requirement, 15 the Estradas
insist that the case against them was really not one of unlawful detainer; they argue that
since possession of the house had not been obtained by them by any "contract, express
or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their
occupancy of the premises could not be deemed one "terminable upon mere demand
(and hence never became unlawful) within the context of the law." Neither could the suit
against them be deemed one of forcible entry, they add, because they had been
occupying the property with the prior consent of the "real owner," Carmen Caiza, which
"occupancy can even ripen into full ownership once the holographic will of petitioner
Carmen Caiza is admitted to probate." They conclude, on those postulates, that it is
beyond the power of Caiza's legal guardian to oust them from the disputed premises.
Carmen Caiza died on March 19, 1994, 16 and her heirs the aforementioned
guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew,
respectively were by this Court's leave, substituted for her. 17
Three issues have to be resolved: (a) whether or not an ejectment action is the
appropriate judicial remedy for recovery of possession of the property in dispute; (b)
assuming desahucio to be proper, whether or not Evangelista, as Caiza's legal
guardian had authority to bring said action; and (c) assuming an affirmative answer to
both questions, whether or not Evangelista may continue to represent Caiza after the
latter's death.
I
It is axiomatic that what determines the nature of an action as well as which court has
jurisdiction over it, are the allegations of the complaint and the character of the relief
sought. 18 An inquiry into the averments of the amended complaint in the Court of origin
is thus in order. 19
The amended Complaint alleges:

20

6. That the plaintiff Carmen Caiza, is the sole and absolute owner of a
house and lot at No. 61 Scout Tobias, Quezon City, which property is now
the subject of this complaint;
xxx xxx xxx
9. That the defendants, their children, grandchildren and sons-in-law, were
allowed to live temporarily in the house of plaintiff Carmen Caiza, for
free, out of her kindness;
10. That the plaintiff, through her legal guardian, has duly notified the
defendants, for them to vacate the said house, but the two (2) letters of
demand were ignored and the defendants refused to vacate the same. . .
11. That the plaintiff, represented by her legal guardian, Amparo
Evangelista, made another demand on the defendants for them to vacate
the premises, before Barangay Captain Angelina A. Diaz of Barangay
Laging Handa, Quezon City, but after two (2) conferences, the result was
negative and no settlement was reached. A photocopy of the Certification
to File Action dated July 4, 1990, issued by said Barangay Captain is
attached, marked Annex "D" and made an integral part hereof;
12. That the plaintiff has given the defendants more than thirty (30) days to
vacate the house, but they still refused to vacate the premises, and they
are up to this time residing in the said place;
13. That this complaint is filed within one (1) year from the date of first
letter of demand dated February 3, 1990 (Annex "B") sent by the plaintiff
to the defendants, by her legal guardian Amparo Evangelista;
14. By the defendants' act of unlawfully depriving the plaintiff of the
possession of the house in question, they are enriching themselves at the
expense of the incompetent plaintiff because, while they are saving money
by not paying any rent for the house, the plaintiff is losing much money as
her house could not be rented by others;
15. That the plaintiff's health is failing and she needs the house urgently,
so that funds could be raised to meet her expenses for her support,
maintenance and medical treatment;
16. That because of defendants' refusal to vacate the house at No. 61
Scout Tobias, Quezon City, the plaintiff, through her legal guardian, was
compelled to go to court for justice, and she has to spend P10,000.00 as
attorney's fees.
Its prayer 21 is quoted below:

WHEREFORE, in the interest of justice and the rule of law, plaintiff,

Carmen Caiza, represented by her legal guardian, Amparo Evangelista,
respectfully prays to this Honorable Court, to render judgment in favor of
plaintiff and against the defendants as follows:
1. To order the defendants, their children, grandchildren, sons-in-law and
other persons claiming under them, to vacate the house and premises at
No. 6 1 Scout Tobias, Quezon City, so that its possession can be restored
to the plaintiff Carmen Caiza; and
2. To pay attorney's fees in the amount of P10,000.00;
3. To pay the costs of the suit.
In essence, the amended complaint states:
1) that the Estradas were occupying Caiza's house by tolerance
having been "allowed to live temporarily . . (therein) for free, out of . .
(Caiza's) kindness;"
2) that Caiza needed the house "urgently" because her "health . . (was)
failing and she . . (needed) funds . . to meet her expenses for her support,
maintenance and medical treatment;"
3) that through her general guardian, Caiza requested the Estradas
several times, orally and in writing, to give back possession of the house;
4) that the Estradas refused and continue to refuse to give back the house
to Caiza, to her continuing prejudice; and
5) that the action was filed within one (1) year from the last demand to
vacate.
Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled
that in an action for unlawful detainer, it suffices to allege that the defendant is
unlawfully withholding possession from the plaintiff is deemed sufficient, 22 and a
complaint for unlawful detainer is sufficient if it alleges that the withholding of
possession or the refusal to vacate is unlawful without necessarily employing the
terminology of the law. 23
The Estradas' first proffered defense derives from a literal construction of Section 1,
Rule 70 of the Rules of Court which inter alia authorizes the institution of an unlawful
detainer suit when "the possession of any land or building is unlawfully withheld after
the expiration or termination of the right to hold possession, by virtue of any contract,
express or implied." They contend that since they did not acquire possession of the
property in question "by virtue of any contract, express or implied" they having been,

to repeat, "allowed to live temporarily . . (therein) for free, out of . . (Caiza's) kindness"
in no sense could there be an "expiration or termination of . . (their) right to hold
possession, by virtue of any contract, express or implied." Nor would an action for
forcible entry lie against them, since there is no claim that they had "deprived (Caiza)
of the possession of . . (her property) by force, intimidation, threat, strategy, or stealth.
The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy her
house, rent-free, did not create a permanent and indefeasible right of possession in the
latter's favor. Common sense, and the most rudimentary sense of fairness clearly
require that that act of liberality be implicitly, but no less certainly, accompanied by the
necessary burden on the Estradas of returning the house to Caiza upon her demand.
More than once has this Court adjudged that a person who occupies the land of another
at the latter's tolerance or permission without any contract between them is necessarily
bound by an implied promise that he will vacate upon demand, failing which a summary
action for ejectment is the proper remedy against him. 24 The situation is not much
different from that of a tenant whose lease expires but who continues in occupancy by
tolerance of the owner, in which case there is deemed to be an unlawful deprivation or
withholding of possession as of the date of the demand to vacate. 25 In other words, one
whose stay is merely tolerated becomes a deforciant illegally occupying the land or
property the moment he is required to leave. 26 Thus, in Asset Privatization Trust
vs. Court of Appeals, 27 where a company, having lawfully obtained possession of a
plant upon its undertaking to buy the same, refused to return it after failing to fulfill its
promise of payment despite demands, this Court held that "(a)fter demand and its
repudiation, . . (its) continuing possession . . became illegal and the complaint for
unlawful
detainer
filed
by
the
. . (plant's owner) was its proper remedy.
It may not be amiss to point out in this connection that where there had been more than
one demand to vacate, the one-year period for filing the complaint for unlawful detainer
must be reckoned from the date of the last demand, 28 the reason being that the lessor
has the option to waive his right of action based on previous demands and let the
lessee remain meanwhile in the premises. 29 Now, the complaint filed by Caiza's
guardian alleges that the same was "filed within one (1) year from the date of the first
letter of demand dated February 3, 1990." Although this averment is not in accord with
law because there is in fact a second letter of demand to vacate, dated February 27,
1990, the mistake is inconsequential, since the complaint was actually filed on
September 17, 1990, well within one year from the second (last) written demand to
vacate.
The Estradas' possession of the house stemmed from the owner's express permission.
That permission was subsequently withdrawn by the owner, as was her right; and it is
immaterial that the withdrawal was made through her judicial guardian, the latter being
indisputably clothed with authority to do so. Nor is it of any consequence that Carmen
Caiza had executed a will bequeathing the disputed property to the Estradas; that
circumstance did not give them the right to stay in the premises after demand to vacate
on the theory that they might in future become owners thereof, that right of ownership

being at best inchoate, no transfer of ownership being possible unless and until the will
is duly probated.
Thus, at the time of the institution of the action of desahucio, the Estradas had no legal
right to the property, whether as possessors by tolerance or sufferance, or as owners.
They could not claim the right of possession by sufferance; that had been legally ended.
They could not assert any right of possession flowing from their ownership of the house;
their status as owners is dependent on the probate of the holographic will by which the
property had allegedly been bequeathed to them an event which still has to take
place; in other words, prior to the probate of the will, any assertion of possession by
them would be premature and inefficacious.
In any case, the only issue that could legitimately be raised under the circumstances
was that involving the Estradas' possession by tolerance, i.e., possession de facto,
not de jure. It is therefore incorrect to postulate that the proper remedy for Caiza is not
ejectment but accion publiciana, a plenary action in the RTC or an action that is one for
recovery of the right to possession de jure.
II
The Estradas insist that the devise of the house to them by Caiza clearly denotes her
intention that they remain in possession thereof, and legally incapacitated her judicial
guardian, Amparo Evangelista, from evicting them therefrom, since their ouster would
be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it may be
changed or revoked; 30 and until admitted to probate, it has no effect whatever and no
right can be claimed thereunder, the law being quite explicit: "No will shall pass either
real or personal property unless it is proved and allowed in accordance with the Rules of
Court" (ART. 838,id.). 31 An owner's intention to confer title in the future to persons
possessing property by his tolerance, is not inconsistent with the former's taking back
possession in the meantime for any reason deemed sufficient. And that in this case
there was sufficient cause for the owner's resumption of possession is apparent: she
needed to generate income from the house on account of the physical infirmities
afflicting her, arising from her extreme age.
Amparo Evangelista was appointed by a competent court the general guardian of both
the person and the estate of her aunt, Carmen Caiza. Her Letters of
Guardianship 32 dated December 19, 1989 clearly installed her as the "guardian over
the person and properties of the incompetent CARMEN CANIZA with full authority to
take possession of the property of said incompetent in any province or provinces in
which it may be situated and to perform all other acts necessary for the management of
her properties . . " 33 By that appointment, it became Evangelista's duty to care for her
aunt's person, to attend to her physical and spiritual needs, to assure her well-being,
with right to custody of her person in preference to relatives and friends. 34 It also
became her right and duty to get possession of, and exercise control over, Caiza's

property, both real and personal, it being recognized principle that the ward has no right
to possession or control of his property during her incompetency. 35 That right to
manage the ward's estate carries with it the right to take possession thereof and recover
it from anyone who retains it, 36 and bring and defend such actions as may be needful
for this purpose. 37
Actually, in bringing the action of desahucio, Evangelista was merely discharging the
duty to attend to "the comfortable and suitable maintenance of the ward" explicitly
imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:
Sec. 4. Estate to be managed frugally, and proceeds applied to
maintenance of ward. A guardian must manage the estate of his ward
frugally and without waste, and apply the income and profits thereof, so far
as maybe necessary, to the comfortable and suitable maintenance of the
ward and his family, if there be any; and if such income and profits be
insufficient for that purpose, the guardian may sell or encumber the real
estate, upon being authorized by order to do so, and apply to such of the
proceeds as may be necessary to such maintenance.
Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment
action, that as the law now stands, even when, in forcible entry and unlawful detainer
cases, the defendant raises the question of ownership in his pleadings and the question
of possession cannot be resolved without deciding the issue of ownership, the
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts
nevertheless have the undoubted competence to resolve "the issue of ownership . . only
to determine the issue of possession." 38
III
As already stated, Carmen Caiza passed away during the pendency of this appeal.
The Estradas thereupon moved to dismiss the petition, arguing that Caiza's death
automatically terminated the guardianship, Amaparo Evangelista lost all authority as her
judicial guardian, and ceased to have legal personality to represent her in the present
appeal. The motion is without merit.
While it is indeed well-established rule that the relationship of guardian and ward is
necessarily terminated by the death of either the guardian or the ward, 39 the rule affords
no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one
of the latter's only two (2) surviving heirs, the other being Caiza's nephew, Ramon C.
Nevado. On their motion and by Resolution of this Court 40 of June 20, 1994, they were
in fact substituted as parties in the appeal at bar in place of the deceased, in
accordance with Section 17, Rule 3 of the Rules of Court, viz.: 41
Sec. 18. Death of a party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and be substituted for the

deceased within a period of thirty (30) days, or within such time as may be
granted. If the legal representative fails to appear within said time, the
court may order the opposing party to procure the appointment of a legal
representative of the deceased within a time to be specified by the court,
and the representative shall immediately appear for and on behalf of the
interest of the deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be recovered as
costs. The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint guardian ad litem for the minor
heirs.
To be sure, an ejectment case survives the death of a party. Caiza's demise did not
extinguish the desahucio suit instituted by her through her guardian. 42 That action, not
being a purely personal one, survived her death; her heirs have taken her place and
now represent her interests in the appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals
promulgated on June 2, 1993 affirming the Regional Trial Court's judgment and
dismissing petitioner's petition for certiorari is REVERSED and SET ASIDE, and the
Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35,
in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private
respondents.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo, Francisco and Panganiban, JJ., concur.
G.R. No. L-46345 January 30, 1990
RESTITUTO
CENIZA
and
JESUS
CENIZA, petitioners,
vs.
THE HON. COURT OF APPEALS, MAGNO DABON, VICENTA DABON, TERESITA
DABON, EUGENIA DABON, and TOMAS DABON, respondents.
Vicente P. Valera and Pedro Rosito & Jesus F. Balicanta for petitioners.
Victorino U. Montecillo for respondents.

GRINO-AQUINO, J.:
This is a petition for review of the order dated October 29, 1976, of the Court of Appeals
in CA-G.R. No. 48546 entitled, "Restituto Ceniza, et al. vs. Magno Dabon, et al.,"

dismissing the petitioners' complaint for reconveyance of their shares in co-ownership

property and reversing the decision of the trial court in their favor.
On June 14, 1967, the petitioners filed against private respondents, an action in the
Court of First Instance of Cebu for recovery of their title to Lots Nos. 627-B and 627-C
(being portions of Lot No. 627 with an area of approximately 5,306 square meters)
situated in Casuntingan, Mandaue, Cebu (now Mandaue City), which originally formed
part of "Hacienda de Mandaue" of the Seminario de San Carlos de Cebu. The Property
is covered by reconstituted Original Certificate of Title No. RO-10996 issued on
February 8, 1939 (formerly Decree No. 694438 issued on February 27, 1934) in the
name of "Vicente Dabon married to Marcela [or Marcelina] Ceniza." (pp. 7 and 19,
Record on Appeal).
Petitioners are the descendants of Manuel Ceniza while the private respondents are the
descendants of his sister, Sofia Ceniza. Sofia Ceniza was childless but she had an
adopted daughter named Flaviana Ceniza, who begot a daughter named Marced
Ceniza and who in turn had a daughter named Marcelina (or Marcela) Ceniza who
married Vicente Dabon. Private respondents are the children of this marriage and they
are the great-great-grandchildren of Sofia Ceniza.
On the other hand, Manuel Ceniza had an only son, Pablo, who had two sons, Santiago
and Jose Ceniza. Petitioners Restituto and Jesus Ceniza and a certain Nemesia
Ceniza-Albina are their children and the great-grandchildren of Manuel Ceniza.
The records disclose that when Hacienda de Mandaue was subdivided for resale to the
occupants in 1929, Jose Ceniza and Vicente Dabon, who were residing in the hacienda,
jointly purchased Lot 627 on installment basis and they agreed, for convenience, to
have the land registered in the name of Dabon. Since then, Jose Ceniza, Vicente
Dabon, and their heirs have possessed their respective portions of the land, declared
the same for taxation, paid real estate taxes on their respective shares, and made their
respective installment payments to the Seminario de San Carlos de Cebu.
After Dabon died in 1954, his seven (7) children, named Magno, Jacinta, Tomas,
Flaviana, Soledad, Teresita and Eugenia, succeeded to his possession of a portion of
the land.
On November 4, 1961, a private land surveyor, Espiritu Bunagan, on the request of
Jacinta Dabon and Restituto Ceniza who jointly defrayed the cost, divided Lot 627 into
three parts, namely:
(1) Lot No. 627-A with 3,538 square meters for Marcela Ceniza;
(2) Lot No. 627-B with 884 square meters for Restituto Ceniza; and

(3) Lot No. 627-C with 834 square meters for Nemesia Ceniza-Albina, who
later bequeathed her share to her brother, Jesus Ceniza. (p. 19, Record
on Appeal).
The present controversy arose because the private respondents refused to convey Lots
Nos. 627-B and 627-C to the petitioners. They claimed that their predecessor-ininterest, Vicente Dabon, was the sole and exclusive owner of Lot 627, by purchase from
the Seminario de San Carlos de Cebu. In their answer to the petitioners' complaint for
reconveyance in June 1967, they alleged that the petitioners' right of action had already
prescribed.
Petitioners replied that Vicente Dabon held the land in trust for them, as co-owners,
hence, their action for reconveyance was imprescriptible.
On August 31, 1970, the trial court rendered judgment for the petitioners. Finding that
there existed a co-ownership among the parties, it ordered the private respondents to
execute deeds of conveyance of Lots Nos. 627-B and 627-C in favor of the plaintiffs,
Restituto and Jesus Ceniza, respectively (p. 35, Record on Appeal).
On appeal by the defendants (now private respondents) the Court of Appeals on
October 29, 1976, reversed that decision of the trial court. It ruled that the petitioners'
right of action had prescribed after the lapse of 20 years from the date of registration of
the land on February 8, 1939 in Vicente Dabon's name (p. 32, Rollo).
The petitioners have appealed to this Court by a petition for review under Rule 45 of the
Rules of Court.
The legal issue presented by the petition is whether the registration of the title of the
land in the name of one of the co-owner, constituted a repudiation of the co-ownership
for purposes of acquisitive prescription.
We find merit in the petition for review.
The trial court correctly ruled that since a trust relation and co-ownership were proven to
exist between the predecessors- in-interest of both petitioners and private respondents,
prescription did not run in favor of Dabon's heirs except from the time that they
repudiated the co-ownership and made the repudiation known to the other co-owners,
Restituto and Jesus Ceniza (Cortes vs. Oliva, 33 Phil. 480).
Paragraph 5 of Article 494 of the Civil Code providesNo prescription shall run in favor of a co-owner or co-heir against his coowners or co-heirs so long as he expressly or impliedly recognizes the coownership.

The registration of Lot No. 627 in the name of Vicente Dabon created a trust in favor of
his co-owner Jose Ceniza, and the latter's heirs. Article 1452 of the Civil Code states:
If two or more persons agree to purchase property and common consent
the legal title is taken in the name of one of them for the benefit of all, a
trust is created by force of law in favor of the others in proportion to the
interest of each.
This Court has ruled in numerous cases involving fiduciary relations that, as a general
rule, the trustee's possession is not adverse and therefore cannot ripen into a title by
prescription. Adverse possession requires the concurrence of the following
circumstances:
a) that the trustee has performed unequivocal acts of repudiation
amounting to the ouster of thecestui que trust;
b) that such positive acts of repudiation have been made known to
the cestui que trust; and
c) that the evidence thereon should be clear and conclusive.
The above elements are not present here for the petitioners/ co-owners have not been
ousted from the land. They continue to possess their respective shares of Lot 627 and
they have been paying the realty taxes thereon. Restituto's house stands on his portion
of the Land. Assuming that the private respondents' rejection of the subdivision plan for
the partition of the land was an act of repudiation of the co-ownership, prescription had
not yet set in when the petitioners instituted the present action for reconveyance. These
circumstances were overlooked by the Court of Appeals.
In Custodio v. Casiano 9 SCRA 841, we ruled that:
Where title to land was issued in the name of a co-heir merely with the
understanding that he would act as a trustee of his sisters, and there is
no evidence that this trust relation had ever been repudiated by said
trustee, it is held that a reaction of co-ownership existed between such
trustee and his sisters and the right of the successors-in-interest of said
sisters to bring the present action for recovery of their shares therein
against the successors-in-interest of said trustee cannot barred by
prescription, despite the, lapse of 25 years from the date of registration of
the land in the trustee's name. (Emphasis supplied.)
In Escobar v. Locsin, 74 Phil. 86, we affirmed the duty of the courts to shield fiduciary
relations "against every manner of chicanery or detestable design cloaked by legal
technicalities" and to guard against misuse of the Torrens system "to foment betrayal in
the performance of a trust."

In this case, since the statutory period of limitation within which to file an action for
reconveyance, after the defendants had repudiated the co-ownership in 1961, had not
yet run its course when the petitioners filed said action in 1967, the action was not
barred by prescription.
WHEREFORE. the decision of the Court of appeals is hereby REVERSED AND SET
ASIDE and the decision dated August 31, 1970 of the then Court of First Instance of
Cebu, Branch VI, in Civil Case No. R-10030 is reinstated. Costs against the private
respondents.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

[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.:
May an illegitimate child, upon adoption by her natural father, use the surname of
her natural mother as her middle name? This is the issue raised in the instant case.
The facts are undisputed.
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition [1] to
adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein,
among others, that Stephanie was born on June 26, 1994; [2] that her mother is Gemma
Astorga Garcia; that Stephanie has been using her mothers middle name and
surname; and that he is now a widower and qualified to be her adopting parent. He
prayed that Stephanies middle name Astorga be changed to Garcia, her mothers
surname, and that her surname Garcia be changed to Catindig, his surname.
On March 23, 2001,[3] the trial court rendered the assailed Decision granting the
adoption, thus:
After a careful consideration of the evidence presented by the petitioner, and in the
absence of any opposition to the petition, this Court finds that the petitioner possesses
all the qualifications and none of the disqualification provided for by law as an adoptive
parent, and that as such he is qualified to maintain, care for and educate the child to be
adopted; that the grant of this petition would redound to the best interest and welfare of

the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioners
care and custody of the child since her birth up to the present constitute more than
enough compliance with the requirement of Article 35 of Presidential Decree No. 603.
WHEREFORE, finding the petition to be meritorious, the same is GRANTED.
Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of
obedience and maintenance with respect to her natural mother, and for civil purposes,
shall henceforth be the petitioners legitimate child and legal heir. Pursuant to Article
189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE
NATHY CATINDIG.
Upon finality of this Decision, let the same be entered in the Local Civil Registrar
concerned pursuant to Rule 99 of the Rules of Court.
Let copy of this Decision be furnished the National Statistics Office for record purposes.
SO ORDERED.[4]
On April 20, 2001, petitioner filed a motion for clarification and/or
reconsideration[5] praying that Stephanie should be allowed to use the surname of her
natural mother (GARCIA) as her middle name.
On May 28, 2001,[6] the trial court denied petitioners motion for reconsideration
holding that there is no law or jurisprudence allowing an adopted child to use the
surname of his biological mother as his middle name.
Hence, the present petition raising the issue of whether an illegitimate child may use
the surname of her mother as her middle name when she is subsequently adopted by
her natural father.
Petitioner submits that the trial court erred in depriving Stephanie of a middle name
as a consequence of adoption because: (1) there is no law prohibiting an adopted child
from having a middle name in case there is only one adopting parent; (2) it is customary
for every Filipino to have as middle name the surname of the mother; (3) the middle
name or initial is a part of the name of a person; (4) adoption is for the benefit and best
interest of the adopted child, hence, her right to bear a proper name should not be
violated; (5) permitting Stephanie to use the middle name Garcia (her mothers
surname) avoids the stigma of her illegitimacy; and; (6) her continued use of Garcia as
her middle name is not opposed by either the Catindig or Garcia families.
The Republic, through the Office of the Solicitor General (OSG), agrees with
petitioner that Stephanie should be permitted to use, as her middle name, the surname
of her natural mother for the following reasons:
First, it is necessary to preserve and maintain Stephanies filiation with her natural
mother because under Article 189 of the Family Code, she remains to be an intestate
heir of the latter. Thus, to prevent any confusion and needless hardship in the future,
her relationship or proof of that relationship with her natural mother should be
maintained.

Second, there is no law expressly prohibiting Stephanie to use the surname of her
natural mother as her middle name. What the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle name, which is ordinarily the
surname of the mother. This custom has been recognized by the Civil Code and Family
Code. In fact, the Family Law Committees agreed that the initial or surname of the
mother should immediately precede the surname of the father so that the second name,
if any, will be before the surname of the mother. [7]
We find merit in the petition.
Use Of Surname Is Fixed By Law
For all practical and legal purposes, a man's name is the designation by which he is
known and called in the community in which he lives and is best known. It is defined
as the word or combination of words by which a person is distinguished from other
individuals and, also, as the label or appellation which he bears for the convenience of
the world at large addressing him, or in speaking of or dealing with him. [8] It is both of
personal as well as public interest that every person must have a name.
The name of an individual has two parts: (1) the given or proper name and (2)
the surname or family name. The given or proper name is that which is given to the
individual at birth or at baptism, to distinguish him from other individuals. The surname
or family name is that which identifies the family to which he belongs and is continued
from parent to child. The given name may be freely selected by the parents for the
child, but the surname to which the child is entitled is fixed by law.[9]
Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which
regulate the use of surname [10] of an individual whatever may be his status in life, i.e.,
whether he may be legitimate or illegitimate, an adopted child, a married woman or a
previously married woman, or a widow, thus:
Art. 364. Legitimate and legitimated children shall principally use the surname of the
father.
Art. 365. An adopted child shall bear the surname of the adopter.
xxx
Art. 369. Children conceived before the decree annulling a voidable marriage shall
principally use the surname of the father.
Art.

370. A married woman may use:

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

(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as
Mrs.
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall
resume her maiden name and surname. If she is the innocent spouse, she may
resume her maiden name and surname. However, she may choose to continue
employing her former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall continue using her
name and surname employed before the legal separation.
Art. 373. A widow may use the deceased husband's surname as though he were still
living, in accordance with Article 370.
Art. 374. In case of identity of names and surnames, the younger person shall be
obliged to use such additional name or surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between ascendants and
descendants, the word Junior can be used only by a son. Grandsons and other direct
male descendants shall either:
(1) Add a middle name or the mother's surname,
(2) Add the Roman numerals II, III, and so on.
x x x
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.
The middle name or the mothers surname is only considered in Article 375(1),
quoted above, in case there is identity of names and surnames between ascendants
and descendants, in which case, the middle name or the mothers surname shall be
added.
Notably, the law is likewise silent as to what middle name an adoptee may
use. Article 365 of the Civil Code merely provides that an adopted child shall bear the
surname of the adopter. Also, Article 189 of the Family Code, enumerating the legal
effects of adoption, is likewise silent on the matter, thus:

"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the
adopters and both shall acquire the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of the adopted to use the surname
of the adopters;
x x x
However, as correctly pointed out by the OSG, the members of the Civil Code and
Family Law Committees that drafted the Family Coderecognized the Filipino custom
of adding the surname of the childs mother as his middle name. In the Minutes of
the Joint Meeting of the Civil Code and Family Law Committees, the members approved
the suggestion that the initial or surname of the mother should immediately
precede the surname of the father, thus
Justice Caguioa commented that there is a difference between the use by the wife of
the surname and that of the child because the fathers surname indicates the family
to which he belongs, for which reason he would insist on the use of the fathers
surname by the child but that, if he wants to, the child may also use the surname
of the mother.
Justice Puno posed the question: If the child chooses to use the surname of the
mother, how will his name be written? Justice Caguioa replied that it is up to him but
that his point is that it should be mandatory that the child uses the surname of the
father and permissive in the case of the surname of the mother.
Prof. Baviera remarked that Justice Caguioas point is covered by the present Article
364, which reads:
Legitimate and legitimated children shall principally use the surname of the father.
Justice Puno pointed out that many names change through no choice of the person
himself precisely because of this misunderstanding. He then cited the following
example: Alfonso Ponce Enriles correct surname is Ponce since the mothers surname
is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez Davids family
name is Gutierrez and his mothers surname is David but they all call him Justice David.
Justice Caguioa suggested that the proposed Article (12) be modified to the effect
that it shall be mandatory on the child to use the surname of the father but he
may use the surname of the mother by way of an initial or a middle name. Prof.
Balane stated that they take note of this for inclusion in the Chapter on Use of
Surnames since in the proposed Article (10) they are just enumerating the rights of
legitimate children so that the details can be covered in the appropriate chapter.
xxx

Justice Puno remarked that there is logic in the simplification suggested by Justice
Caguioa that the surname of the father should always be last because there are so
many traditions like the American tradition where they like to use their second given
name and the Latin tradition, which is also followed by the Chinese wherein they even
include the Clan name.
xxx
Justice Puno suggested that they agree in principle that in the Chapter on the
Use of Surnames, they should say that initial or surname of the mother should
immediately precede the surname of the father so that the second name, if any,
will be before the surname of the mother. Prof. Balane added that this is really
the Filipino way. The Committee approved the suggestion.[12] (Emphasis supplied)
In the case of an adopted child, the law provides that the adopted shall bear the
surname of the adopters.[13] Again, it is silent whether he can use a middle name.
What it only expressly allows, as a matter of right and obligation, is for the adoptee to
bear the surname of the adopter, upon issuance of the decree of adoption. [14]
The Underlying Intent of
Adoption Is In Favor of the
Adopted Child
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 aState Party to the Convention
of the Rights of the Child initiated by the United Nations, accepted the principle
that adoption is impressed with social and moral responsibility, and that its
underlying intent is geared to favor the adopted child.[18] Republic Act No. 8552,
otherwise known as the Domestic Adoption Act of 1998,[19] secures these rights and
privileges for the adopted.[20]
One of the effects of adoption is that the adopted is deemed to be a legitimate child
of the adopter for all intents and purposes pursuant to Article 189 [21] of the Family Code
and Section 17[22] Article V of RA 8552.[23]
Being a legitimate child by virtue of her adoption, it follows that Stephanie is
entitled to all the rights provided by law to a legitimate child without
discrimination of any kind, including the right to bear the surname of her father
and her mother, as discussed above. This is consistent with the intention of the
members of the Civil Code and Family Law Committees as earlier discussed. In fact, it
is a Filipino custom that the initial or surname of the mother should immediately precede
the surname of the father.

Additionally, as aptly stated by both parties, Stephanies continued use of her

mothers surname (Garcia) as her middle name will maintain her maternal lineage. It is
to be noted that Article 189(3) of the Family Code and Section 18 [24], Article V of RA
8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her
biological parent. Hence, Stephanie can well assert or claim her hereditary rights from
her natural mother in the future.
Moreover, records show that Stephanie and her mother are living together in the
house built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan.
Petitioner provides for all their needs. Stephanie is closely attached to both her mother
and father. She calls them Mama and Papa. Indeed, they are one normal happy
family. Hence, to allow Stephanie to use her mothers surname as her middle name will
not only sustain her continued loving relationship with her mother but will also eliminate
the stigma of her illegitimacy.
Liberal Construction of
Adoption Statutes In Favor Of
Adoption
It is a settled rule that adoption statutes, being humane and salutary, should be
liberally construed to carry out the beneficent purposes of adoption. [25] The interests and
welfare of the adopted child are of primary and paramount consideration, [26] hence,
every reasonable intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law.[27]
Lastly, Art. 10 of the New Civil Code provides that:
In case of doubt in the interpretation or application of laws, it is presumed that the
lawmaking body intended right and justice to prevail.
This provision, according to the Code Commission, is necessary so that it may tip
the scales in favor of right and justice when the law is doubtful or obscure. It will
strengthen the determination of the courts to avoid an injustice which may apparently be
authorized by some way of interpreting the law. [28]
Hence, since there is no law prohibiting an illegitimate child adopted by her natural
father, like Stephanie, to use, as middle name her mothers surname, we find no reason
why she should not be allowed to do so.
WHEREFORE, the petition is GRANTED. The assailed Decision is partly
MODIFIED in the sense that Stephanie should be allowed to use her mothers surname
GARCIA as her middle name.
Let the corresponding entry of her correct and complete name be entered in the
decree of adoption.
SO ORDERED.
Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.

G.R. No. 164948

June 27, 2006

DIWATA
RAMOS
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.

LANDINGIN Petitioner,

DECISION
CALLEJO, SR., J.:
Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is
the Decision1 of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the
Decision2 of the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No.
2733 granting the Petition for Adoption of the petitioner herein.
The Antecedents
On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of
America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition 3 for
the adoption of minors Elaine Dizon Ramos who was born on August 31, 1986; 4 Elma
Dizon Ramos, who was born on September 7, 1987; 5 and Eugene Dizon Ramos who
was born on August 5, 1989.6 The minors are the natural children of Manuel Ramos,
petitioners brother, and Amelia Ramos.
Landingin, as petitioner, alleged in her petition that when Manuel died on May 19,
1990,7 the children were left to their paternal grandmother, Maria Taruc Ramos; their
biological mother, Amelia, went to Italy, re-married there and now has two children by
her second marriage and no longer communicated with her children by Manuel Ramos
nor with her in-laws from the time she left up to the institution of the adoption; the
minors are being financially supported by the petitioner and her children, and relatives
abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the
children; the minors have given their written consent 8 to the adoption; she is qualified to
adopt as shown by the fact that she is a 57-year-old widow, has children of her own who
are already married, gainfully employed and have their respective families; she lives
alone in her own home in Guam, USA, where she acquired citizenship, and works as a
restaurant server. She came back to the Philippines to spend time with the minors; her
children gave their written consent 9 to the adoption of the minors. Petitioners brother,
Mariano Ramos, who earns substantial income, signified his willingness and
commitment to support the minors while in petitioners custody.
Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows:
WHEREFORE, it is most respectfully prayed to this Honorable Court that after
publication and hearing, judgment be rendered allowing the adoption of the minor
children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene Dizon Ramos by the

petitioner, and ordering that the minor childrens name follow the family name of
petitioner.
Petitioner prays for such other reliefs, just and equitable under the premises. 10
On March 5, 2002, the court ordered the Department of Social Welfare and
Development (DSWD) to conduct a case study as mandated by Article 34 of
Presidential Decree No. 603, as amended, and to submit a report thereon not later than
April 4, 2002, the date set for the initial hearing of the petition. 11 The Office of the
Solicitor General (OSG) entered its appearance 12 but deputized the City Prosecutor of
Tarlac to appear in its behalf. 13 Since her petition was unopposed, petitioner was
allowed to present her evidence ex parte.14
The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the
adoptees, to testify on the written consent executed by her and her siblings. 15 The
petitioner marked in evidence the Affidavit of Consent purportedly executed by her
children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized
by a notary public in Guam, USA, as proof of said consent. 16
On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field
Office III, Tarlac, submitted a Child Study Report, with the following recommendation:
In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed
Ramos, eligible for adoption because of the following reasons:
1. Minors surviving parent, the mother has voluntarily consented to their adoption
by the paternal aunt, Diwata Landingin this is in view of her inability to provide
the parental care, guidance and support they need. An Affidavit of Consent was
executed by the mother which is hereto attached.
2. The three minors subject for adoption have also expressed their willingness to
be adopted and joins the petitioners in Guam, USA in the future. A joint Affidavit
of consent is hereto attached. The minors developed close attachment to the
petitioners and they regarded her as second parent.
3. The minors are present under the care of a temporary guardian who has also
family to look after. As young adolescents they really need parental love, care,
guidance and support to ensure their protection and well being.
In view of the foregoing, it is hereby respectfully recommended that minors Elaine D.
Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt
Diwata Landingin. Trial custody is hereby further recommended to be dispensed with
considering that they are close relatives and that close attachments was already
developed between the petitioner and the 3 minors. 17
Pagbilao narrated what transpired during her interview, as follows:

The mother of minors came home together with her son John Mario, this May 2002 for 3
weeks vacation. This is to enable her appear for the personal interview concerning the
adoption of her children.
The plan for the adoption of minors by their paternal aunt Diwata Landingin was
conceived after the death of their paternal grandmother and guardian. The paternal
relatives including the petitioner who attended the wake of their mother were very much
concerned about the well-being of the three minors. While preparing for their adoption,
they have asked a cousin who has a family to stay with minors and act as their
temporary guardian.
The mother of minors was consulted about the adoption plan and after weighing the
benefits of adoption to her children, she voluntarily consented. She realized that her
children need parental love, guidance and support which she could not provide as she
already has a second family & residing in Italy. Knowing also that the petitioners & her
children have been supporting her children up to the present and truly care for them,
she believes her children will be in good hands. She also finds petitioners in a better
position to provide a secured and bright future to her children. 18
However, petitioner failed to present Pagbilao as witness and offer in evidence the
voluntary consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present
any documentary evidence to prove that Amelia assents to the adoption.
On November 23, 2002, the court, finding merit in the petition for adoption, rendered a
decision granting said petition. The dispositive portion reads:
WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma
Dizon Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and
maintenance from their natural parents and that they be declared for all legal intents
and purposes the children of Diwata Ramos Landingin. Trial custody is dispensed with
considering that parent-children relationship has long been established between the
children and the adoptive parents. Let the surnames of the children be changed from
"Dizon-Ramos" to "Ramos-Landingin."
Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him
to effect the corresponding changes/amendment in the birth certificates of the abovementioned minors.
SO ORDERED.19
The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its
brief21 for the oppositor-appellant, the OSG raised the following arguments:
I

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE
THE LACK OF CONSENT OF THE PROPOSED ADOPTEES BIOLOGICAL MOTHER.
II
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE
THE LACK OF THE WRITTEN CONSENT OF THE PETITIONERS CHILDREN AS
REQUIRED BY LAW.
III
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE
PETITIONERS FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT
THE PROPOSED ADOPTEES.
On April 29, 2004, the CA rendered a decision 22 reversing the ruling of the RTC. It held
that petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the
childrens natural mother. Moreover, the affidavit of consent of the petitioners children
could not also be admitted in evidence as the same was executed in Guam, USA and
was not authenticated or acknowledged before a Philippine consular office, and
although petitioner has a job, she was not stable enough to support the children. The
dispositive portion of the CA decision reads:
WHEREFORE, premises considered, the appealed decision dated November 25, 2002
of the Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby
REVERSED and SET ASIDE.
SO ORDERED.23
Petitioner filed a Motion for Reconsideration 24 on May 21, 2004, which the CA denied in
its Resolution dated August 12, 2004.25
Petitioner, thus, filed the instant petition for review on certiorari 26 on September 7, 2004,
assigning the following errors:
1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND
MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT
AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED
THE RESULT OF THE CASE.
2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT
THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT
THE THREE CHILDREN.27
The issues raised by the parties in their pleadings are the following: (a) whether the
petitioner is entitled to adopt the minors without the written consent of their biological

mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed
by the petitioner-adopters children sufficiently complies with the law; and (c) whether or
not petitioner is financially capable of supporting the adoptees.
The Courts Ruling
The petition is denied for lack of merit.
It has been the policy of the Court to adhere to the liberal concept, as stated in
Malkinson v. Agrava,28 that adoption statutes, being humane and salutary, hold the
interest and welfare of the child to be of paramount consideration and are designed to
provide homes, parental care and education for unfortunate, needy or orphaned
children and give them the protection of society and family in the person of the adopter
as well as to allow childless couples or persons to experience the joys of parenthood
and give them legally a child in the person of the adopted for the manifestation of their
natural parental instincts. Every reasonable intendment should thus be sustained to
promote and fulfill these noble and compassionate objectives of the law.29
However, in Cang v. Court of Appeals, 30 the Court also ruled that the liberality with which
this Court treats matters leading to adoption insofar as it carries out the beneficent
purposes of the law to ensure the rights and privileges of the adopted child arising
therefrom, ever mindful that the paramount consideration is the overall benefit and
interest of the adopted child, should be understood in its proper context and
perspective. The Courts position should not be misconstrued or misinterpreted as to
extend to inferences beyond the contemplation of law and jurisprudence. Thus, the
discretion to approve adoption proceedings is not to be anchored solely on best
interests of the child but likewise, with due regard to the natural rights of the parents
over the child.31
Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of
1998, provides:
Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled
and informed of his/her right to give or withhold his/her approval of the adoption, the
written consent of the following to the adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the legal guardian, or the
proper government instrumentality which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of
the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter,
if living with said adopter and the latters souse, if any;

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

The general requirement of consent and notice to the natural parents is intended to
protect the natural parental relationship from unwarranted interference by interlopers,
and to insure the opportunity to safeguard the best interests of the child in the manner
of the proposed adoption.32
Clearly, the written consent of the biological parents is indispensable for the validity of a
decree of adoption. Indeed, the natural right of a parent to his child requires that his
consent must be obtained before his parental rights and duties may be terminated and
re-established in adoptive parents. In this case, petitioner failed to submit the written
consent of Amelia Ramos to the adoption.
We note that in her Report, Pagbilao declared that she was able to interview Amelia
Ramos who arrived in the Philippines with her son, John Mario in May 2002. If said
Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is
incredible that the latter would not require Amelia Ramos to execute a Written Consent
to the adoption of her minor children. Neither did the petitioner bother to present Amelia
Ramos as witness in support of the petition.
Petitioner, nonetheless, argues that the written consent of the biological mother is no
longer necessary because when Amelias husband died in 1990, she left for Italy and
never came back. The children were then left to the guidance and care of their paternal
grandmother. It is the paternal relatives, including petitioner, who provided for the
childrens financial needs. Hence, Amelia, the biological mother, had effectively
abandoned the children. Petitioner further contends that it was by twist of fate that after
12 years, when the petition for adoption was pending with the RTC that Amelia and her
child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD
social worker, was able to meet her, and during the meeting, Amelia intimated to the
social worker that she conformed to the adoption of her three children by the petitioner.
Petitioners contention must be rejected. When she filed her petition with the trial court,
Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written
consent of the biological parents cannot be obtained, the written consent of the legal
guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother
of the minors had indeed abandoned them, she should, thus have adduced the written
consent of their legal guardian.
Ordinarily, abandonment by a parent to justify the adoption of his child without his
consent, is a conduct which evinces a settled purpose to forego all parental
duties.33 The term means neglect and refusal to perform the filial and legal obligations of
love and support. If a parent withholds presence, love, care, the opportunity to display
filial affection, and neglects to lend support and maintenance, the parent, in effect,
abandons the child.34

Merely permitting the child to remain for a time undisturbed in the care of others is not
such an abandonment.35To dispense with the requirement of consent, the abandonment
must be shown to have existed at the time of adoption. 36
In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove
her claim that Amelia Ramos had abandoned her children. Petitioners testimony on that
matter follows:
Q Where is the mother of these three children now?
A She left for Italy on November 20, 1990, sir.
Q At the time when Amelia Ramos left for Italy, was there an instance where she
communicated with the family?
A None, sir.
Q How about with her children?
A None, sir.
Q Do you know what place in Italy did she reside?
A I do not know, sir.
Q Did you receive any news about Amelia Ramos?
A What I know, sir, was that she was already married with another man.
Q From whom did you learn that?
A From others who came from Italy, sir.
Q Did you come to know whether she has children by her second marriage?
A Yes, sir, she got two kids.37
Elaine, the eldest of the minors, testified, thus:
Q Where is your mother now?
A In Italy, sir.
Q When did your mother left for Italy?
A After my father died, sir.

Q How old were you when your mother left for Italy in 1990?
A Two years old, sir.
Q At the time when your mother left for Italy, did your mother communicate with you?
A No, sir.38
However, the Home Study Report of the DSWD Social Worker also stated the following:
IV. Background of the Case:
xxxx
Since the mother left for Italy, minors siblings had been under the care and custody of
their maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of
their deceased father now serves as their guardian. The petitioner, together with her
children and other relatives abroad have been supporting the minor children financially,
even during the time that they were still living with their natural parents. Their mother
also sends financial support but very minimal.39
xxxx
V. Background Information about the Minors Being Sought for Adoption:
xxxx
As the eldest she tries her best to be a role model to her younger siblings. She helps
them in their lessons, works and has fun with them. She also encourages openness on
their problems and concerns and provides petty counseling. In serious problems she
already consult (sic) her mother and petitioner-aunt. 40
xxxx
In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that
they had a happy and comfortable life. After the death of her husband, her in-laws which
include the petitioner had continued providing support for them. However being
ashamed of just depending on the support of her husbands relatives, she decided to
work abroad. Her parents are also in need of financial help as they are undergoing
maintenance medication. Her parents mortgaged their farm land which she used in
going to Italy and worked as domestic helper.
When she left for Italy in November 1990, she entrusted her 3 children to the care &
custody of her mother-in-law who returned home for good, however she died on
November 2000.

While working in Italy, she met Jun Tayag, a married man from Tarlac. They became
live-in partners since 1995 and have a son John Mario who is now 2 years old. The
three of them are considered Italian residents. Amelia claimed that Mr. Tayag is planning
to file an annulment of his marriage and his wife is amenable to it. He is providing his
legitimate family regular support.
Amelia also sends financial support ranging from P10,000-P15,000 a month through her
parents who share minimal amount of P3,000-P5,000 a month to his (sic) children. The
petitioner and other paternal relatives are continuously providing support for most of the
needs & education of minors up to present. 41
Thus, when Amelia left for Italy, she had not intended to abandon her children, or to
permanently sever their mother-child relationship. She was merely impelled to leave the
country by financial constraints. Yet, even while abroad, she did not surrender or
relinquish entirely her motherly obligations of rearing the children to her now deceased
mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for
serious personal problems. Likewise, Amelia continues to send financial support to the
children, though in minimal amounts as compared to what her affluent in-laws provide.
Let it be emphasized, nevertheless, that the adoption of the minors herein will have the
effect of severing all legal ties between the biological mother, Amelia, and the adoptees,
and that the same shall then be vested on the adopter. 42 It would thus be against the
spirit of the law if financial consideration were to be the paramount consideration in
deciding whether to deprive a person of parental authority over his/her children. More
proof has to be adduced that Amelia has emotionally abandoned the children, and that
the latter will not miss her guidance and counsel if they are given to an adopting
parent.43 Again, it is the best interest of the child that takes precedence in adoption.
Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no
evidence which has not been formally offered. The purpose for which the evidence is
offered must be specified. The offer of evidence is necessary because it is the duty of
the Court to rest its findings of fact and its judgment only and strictly upon the evidence
offered by the parties. Unless and until admitted by the court in evidence for the
purpose or purposes for which such document is offered, the same is merely a scrap of
paper barren of probative weight. Mere identification of documents and the markings
thereof as exhibits do not confer any evidentiary weight on documents unless formally
offered.44
Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of
Consent purportedly executed by her children; the authenticity of which she, likewise,
failed to prove. The joint written consent of petitioners children 45 was notarized on
January 16, 2002 in Guam, USA; for it to be treated by the Rules of Court in the same
way as a document notarized in this country it needs to comply with Section 2 of Act No.
2103,46 which states:

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

country shall be considered authentic if the acknowledgment and authentication are
made in accordance with the following requirements:
(a) The acknowledgment shall be made before (1) an ambassador, minister,
secretary of legation, charg d affaires, consul, vice-consul, or consular agent of
the Republic of the Philippines, acting within the country or place to which he is
accredited, or (2) a notary public or officer duly authorized by law of the country
to take acknowledgments of instruments or documents in the place where the act
is done.
(b) The person taking the acknowledgment shall certify that the person
acknowledging the instrument or document is known to him, and that he is the
same person who executed it, and acknowledged that the same is his free act
and deed. The certificate shall be under his official seal, if he is by law required to
keep a seal, and if not, his certificate shall so state. In case the acknowledgment
is made before a notary public or an officer mentioned in subdivision (2) of the
preceding paragraph, the certificate of the notary public or the officer taking the
acknowledgment shall be authenticated by an ambassador, minister, secretary of
legation, charg de affaires, consul, vice-consul, or consular agent of the
Republic of the Philippines, acting within the country or place to which he is
accredited. The officer making the authentication shall certify under his official
seal that the person who took the acknowledgment was at the time duly
authorized to act as notary public or that he was duly exercising the functions of
the office by virtue of which he assumed to act, and that as such he had authority
under the law to take acknowledgment of instruments or documents in the place
where the acknowledgment was taken, and that his signature and seal, if any,
are genuine.
As the alleged written consent of petitioners legitimate children did not comply with the
afore-cited law, the same can at best be treated by the Rules as a private document
whose authenticity must be proved either by anyone who saw the document executed
or written; or by evidence of the genuineness of the signature or handwriting of the
makers.47
Since, in the instant case, no further proof was introduced by petitioner to authenticate
the written consent of her legitimate children, the same is inadmissible in evidence.
In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to
support the children and is only relying on the financial backing, support and
commitment of her children and her siblings. 48 Petitioner contradicts this by claiming that
she is financially capable as she has worked in Guam for 14 years, has savings, a
house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month.
Her children and siblings have likewise committed themselves to provide financial
backing should the need arise. The OSG, again in its comment, banks on the statement
in the Home Study Report that "petitioner has limited income." Accordingly, it appears

that she will rely on the financial backing of her children and siblings in order to support
the minor adoptees. The law, however, states that it is the adopter who should be in a
position to provide support in keeping with the means of the family.
Since the primary consideration in adoption is the best interest of the child, it follows
that
the
financial
capacity
of
prospective
parents
should
also
be carefully evaluated and considered. Certainly, the adopter should be in a position to
support the would-be adopted child or children, in keeping with the means of the family.
According to the Adoption Home Study Report 49 forwarded by the Department of Public
Health & Social Services of the Government of Guam to the DSWD, petitioner is no
longer supporting her legitimate children, as the latter are already adults, have individual
lives and families. At the time of the filing of the petition, petitioner was 57 years old,
employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around
$1,000 a month. Petitioners main intention in adopting the children is to bring the latter
to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same
is still being amortized. Petitioner likewise knows that the limited income might be a
hindrance to the adoption proceedings.
Given these limited facts, it is indeed doubtful whether petitioner will be able to
sufficiently handle the financial aspect of rearing the three children in the US. She only
has a part-time job, and she is rather of age. While petitioner claims that she has the
financial support and backing of her children and siblings, the OSG is correct in stating
that the ability to support the adoptees is personal to the adopter, as adoption only
creates a legal relation between the former and the latter. Moreover, the records do not
prove nor support petitioners allegation that her siblings and her children are financially
able and that they are willing to support the minors herein. The Court, therefore, again
sustains the ruling of the CA on this issue.
While the Court recognizes that petitioner has only the best of intentions for her nieces
and nephew, there are legal infirmities that militate against reversing the ruling of the
CA. In any case, petitioner is not prevented from filing a new petition for adoption of the
herein minors.
WHEREFORE, premises considered, the petition is hereby DENIED.
SO ORDERED.
ROMEO
Associate Justice

J.

IN RE: PETITION FOR

ADOPTION OF MICHELLE P.
LIM,
MONINA P. LIM,

CALLEJO,

G.R. Nos. 168992-93

Present:
PUNO, C.J., Chairperson,

SR.

Petitioner.
x-----------------------x
IN RE: PETITION FOR
ADOPTION OF MICHAEL JUDE
P. LIM,

CARPIO,
CORONA,
LEONARDO-DE CASTRO, and
BERSAMIN, JJ.
Promulgated:

MONINA P. LIM,
Petitioner.
May 21, 2009
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking
to set aside the Decision[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 childrens 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 petitioners clinic. His
date of birth is 1 August 1983.[4]
The spouses reared and cared for the children as if they were their own. They
sent the children to exclusive schools. They used the surname Lim in all their school
records and documents. Unfortunately, on 28 November 1998, Lim died. On 27
December 2000, petitioner married Angel Olario (Olario), an American citizen.
Thereafter, petitioner decided to adopt the children by availing of the
amnesty[5] given under Republic Act No. 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] Petitioners 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. Petitioners argument that mere consent of her husband would suffice was
untenable because, under the law, there are additional requirements, such as residency
and certification of his qualification, which the husband, who was not even made a party
in this case, must comply.
As to the argument that the adoptees are already emancipated and joint adoption
is merely for the joint exercise of parental authority, the trial court ruled that joint
adoption is not only for the purpose of exercising parental authority because an
emancipated child acquires certain rights from his parents and assumes certain
obligations and responsibilities.
Hence, the present petition.

Issue
Petitioner appealed directly to this Court raising the sole issue of whether or not
petitioner, who has remarried, can singly adopt.

The Courts Ruling

Petitioner contends that the rule on joint adoption must be relaxed because it is
the duty of the court and the State to protect the paramount interest and welfare of the
child to be adopted. Petitioner argues that the legal maxim dura lex sed lex is not
applicable to adoption cases. She argues that joint parental authority is not necessary

in this case since, at the time the petitions were filed, Michelle was 25 years old and
already married, while Michael was already 18 years of age. Parental authority is not
anymore necessary since they have been emancipated having attained the age of
majority.
We deny the petition.
Joint Adoption by Husband and Wife
It is undisputed that, at the time the petitions for adoption were filed, petitioner had
already remarried. She filed the petitions by herself, without being joined by her
husband Olario. We have no other recourse but to affirm the trial courts decision
denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article
III of RA 8552 reads:
SEC. 7. Who May Adopt. - The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil
capacity and legal rights, of good moral character, has not been convicted
of any crime involving moral turpitude, emotionally and psychologically
capable of caring for children, at least sixteen (16) years older than the
adoptee, and who is in a position to support and care for his/her children in
keeping with the means of the family. The requirement of sixteen (16) year
difference between the age of the adopter and adoptee may be waived
when the adopter is the biological parent of the adoptee, or is the spouse
of the adoptees parent;
(b) Any alien possessing the same qualifications as above stated
for Filipino nationals: Provided, That his/her country has diplomatic
relations with the Republic of the Philippines, that he/she has been living
in the Philippines for at least three (3) continuous years prior to the filing of
the application for adoption and maintains such residence until the
adoption decree is entered, that he/she has been certified by his/her
diplomatic or consular office or any appropriate government agency that
he/she has the legal capacity to adopt in his/her country, and that his/her
government allows the adoptee to enter his/her country as his/her adopted
son/daughter: Provided, further, That the requirements on residency and
certification of the aliens qualification to adopt in his/her country may be
waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative

within the fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of
his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to
adopt jointly with his/her spouse a relative within the fourth (4 th)
degree of consanguinity or affinity of the Filipino spouses; or
(c) The guardian with respect to the ward after the termination of
the guardianship and clearance of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the following
cases:
(i) if one spouse seeks to adopt the legitimate son/daughter
of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate
son/daughter: Provided, however, That the other spouse has
signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the
illegitimate son/daughter of the other, joint parental authority shall be
exercised by the spouses. (Emphasis supplied)

The use of the word shall in the above-quoted provision means that joint
adoption by the husband and the wife is mandatory. This is in consonance with the
concept of joint parental authority over the child which is the ideal situation. As the child
to be adopted is elevated to the level of a legitimate child, it is but natural to require the
spouses to adopt jointly. The rule also insures harmony between the spouses. [12]
The law is clear. There is no room for ambiguity. Petitioner, having remarried at the
time the petitions for adoption were filed, must jointly adopt. Since the petitions for
adoption were filed only by petitioner herself, without joining her husband, Olario, the
trial court was correct in denying the petitions for adoption on this ground.

Neither does petitioner fall under any of the three exceptions enumerated in
Section 7. First, the children to be adopted are not the legitimate children of petitioner or
of her husband Olario. Second, the children are not the illegitimate children
of petitioner. And third, petitioner and Olario are not legally separated from each other.
The fact that Olario gave his consent to the adoption as shown in his Affidavit of
Consent does not suffice. There are certain requirements that Olario must comply being
an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552
such as: (1) he must prove that his country has diplomatic relations with the Republic of
the Philippines; (2) he must have been living in the Philippines for at least three
continuous years prior to the filing of the application for adoption; (3) he must maintain
such residency until the adoption decree is entered; (4) he has legal capacity to adopt in
his own country; and (5) the adoptee is allowed to enter the adopters country as the
latters adopted child. None of these qualifications were shown and proved during the
trial.
These requirements on residency and certification of the aliens qualification to
adopt cannot likewise be waived pursuant to Section 7. The children or adoptees are
not relatives within the fourth degree of consanguinity or affinity of petitioner or of Olario.
Neither are the adoptees the legitimate children of petitioner.

Effects of Adoption
Petitioner contends that joint parental authority is not anymore necessary since
the children have been emancipated having reached the age of majority.

This is

untenable.
Parental authority includes caring for and rearing the children for civic
consciousness and efficiency and the development of their moral, mental and physical
character and well-being.[13] The father and the mother shall jointly exercise parental
authority over the persons of their common children. [14] Even the remarriage of the

surviving parent shall not affect the parental authority over the children, unless the court
appoints another person to be the guardian of the person or property of the children. [15]
It is true that when the child reaches the age of emancipation that is, when he
attains the age of majority or 18 years of 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]
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 courts decision
favoring adoption in the case at bar, for the law is clear and it cannot be
modified without violating the proscription against judicial
legislation. Until such time however, that the law on the matter is
amended, we cannot sustain the respondent-spouses petition for
adoption. (Emphasis supplied)

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.

ANTONIO T. CARPIO
Associate Justice
G.R. No. 167405

February 16, 2006

ANA
JOYCE
S.
REYES, Petitioner,
vs.
HON. CESAR M. SOTERO, Presiding Judge, RTC of Paniqui, Tarlac, Branch 67,
ATTY. PAULINO SAGUYOD, the Clerk of Court of Branch 67 of the RTC at Paniqui,
Tarlac in his capacity as Special Administrator, CORAZON CHICHIOCO,

ANGELITO LISING, ERLINDA ESPACIO, GONZALO ZALZOS and ERNESTO

LISING,Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review seeks to modify the Decision of the Court of Appeals dated May
14, 2004 in CA-G.R. SP No. 74047 as well as the Resolution dated May 14, 2005
denying the motion for reconsideration. In the assailed judgment, the Court of Appeals
annulled and set aside the September 18, 2002 and November 12, 2002 Resolutions of
the Regional Trial Court (RTC) of Paniqui, Tarlac, Branch 67 in Spec. Proc. No. 204 but
refrained from dismissing the petition for letters of administration and settlement of
estate on the ground that petitioner must first prove that she was legally adopted by the
decedent, Elena Lising.
On September 15, 1998, respondent Corazon L. Chichioco filed a petition for the
issuance of letters of administration and settlement of estate of the late Elena Lising
before the RTC of Paniqui, Tarlac, where it was docketed as Spec. Proc. No. 204 and
raffled to Branch 67. Chichioco claimed that she was the niece and heir of Lising who
died intestate on July 31, 1998. Named as co-heirs of Chichioco were Rosario L.
Zalzos, Florante Zalzos, Erlinda Lising, Manuel Lising, Evelyn Lising, Josephine Lising,
Alfredo Lising and respondents Ernesto Lising and Erlinda Espacio.
According to Chichioco, the deceased left real properties located in the municipalities of
Ramos and Paniqui, Tarlac, as well as assorted pieces of jewelry and money which
were allegedly in the possession of petitioner Ana Joyce S. Reyes, a grandniece of the
deceased. Chichioco prayed that she be appointed administrator of the estate, upon
payment of a bond, pending settlement and distribution of Lisings properties to the legal
heirs.1
On November 6, 1998, petitioner Reyes filed an Opposition 2 to the petition, claiming that
she was an adopted child of Lising and the latters husband, Serafin Delos Santos, who
died on November 30, 1970. She asserted that the petition should be dismissed and
that the appointment of an administrator was unnecessary, since she was the only heir
of Lising who passed away without leaving any debts. She further asserted that
Chichioco is unfit to serve as administrator of Lisings estate because of her
"antagonistic interests" against the decedent. Chichioco and her alleged co-heirs have
questioned the decedents title to a piece of real property which forms a large part of the
estate.
On November 11, 1998, petitioner filed a Supplement to the Opposition 3 attaching
thereto the Certification4 issued by the Municipal Civil Registrar of Paniqui, Tarlac stating
that on page 76, Book No. 01 of the Register of Court Decrees, Reyes was adopted by
Elena Lising and Serafin Delos Santos pursuant to a decision rendered in Spec. Proc.
No. 1410 by Judge Julian Lustre of the Court of First Instance (CFI) of Tarlac, Branch 3,

promulgated on December 21, 1968 and duly registered with the Office of the Civil
Registrar on January 29, 1969.
Petitioner also submitted a Certification 5 issued by the Clerk of Court of the RTC-Tarlac
City, stating that a judgment was rendered in Spec. Proc. No. 1410 on December 21,
1968 decreeing petitioners adoption by Elena Lising and Serafin Delos Santos. She
also presented a copy of Judicial Form No. 43 6 indicating that the adoption decree was
on file in the General Docket of the RTC-Tarlac City, wherein the dispositive portion of
the adoption decree was recorded as follows:
In view of the foregoing, the court finds this petition a proper case for adoption and
therefore grants the same. Consequently, the Court declares that henceforth, the child
Ana Joyce C. Zalzos is freed from all legal obligations of obedience and maintenance
with respect to her natural parents Orlando Zalzos and May C. Castro, and is to all legal
intents and purposes the child of the petitioners Serafin delos Santos and Elena Lising. 7
Petitioner likewise submitted a Decree of Final Distribution 8 issued by the Philippine
Veterans Affairs Office (PVAO) showing that, upon the death of Serafin Delos Santos,
death benefits were paid to his widow, Elena Lising, and his "daughter", Ana Joyce
Delos Santos, in accordance with pertinent provisions of law.
On April 5, 1999, the RTC ordered respondents to submit documentary evidence to
prove the jurisdictional facts of the case and to comment on petitioners
opposition.9 Only Rosario L. Zalsos appears to have filed a Comment/Reply to
Oppositors Opposition,10 after which the RTC ordered the parties to submit memoranda
thereon.11 On July 22, 1999, the case was deemed submitted for resolution. 12
Meanwhile, on June 30, 1999, Chichioco and her alleged co-heirs filed before the Court
of Appeals a petition for annulment of the adoption decree docketed as SP No.
53457.13 They claimed that no proceedings for the adoption of petitioner took place in
1968 since the Provincial Prosecutor of Tarlac and the Office of the Solicitor General
(OSG) had no records of the adoption case. Petitioners natural mother supposedly
connived with the court personnel to make it appear that petitioner was adopted by the
Delos Santos spouses and that the CFIs order for initial hearing was published in a
weekly newspaper which was not authorized to publish court orders in special
proceedings.
Upon motion of Chichioco, the RTC ordered on October 4, 1999, the suspension of
hearings in Spec. Proc. No. 204 pending the outcome of SP No. 53457. 14 Subsequently,
however, the Court of Appeals dismissed 15 SP No. 53457 for failure to comply with the
third paragraph of Section 4, Rule 47 of the Rules of Court. 16 The said dismissal
became final and executory on March 8, 2000.17
Thereafter, on August 22, 2000, petitioner filed a motion before the RTC praying that the
opposition to Spec. Proc. No. 204 be finally resolved and that the petition be

dismissed.18 This was followed by an Urgent Ex Parte Motion 19 filed by petitioner on

October 17, 2000 praying for the immediate resolution of her opposition.
On November 16, 2000, respondents filed a Comment 20 to the opposition stating that
reasonable doubts have been cast on petitioners claim that she was legally adopted
due allegedly to certain "badges of fraud." Respondents also informed the RTC that
they have filed a criminal complaint against petitioner before the Office of the Provincial
Prosecutor, Tarlac City, for alleged falsification of the adoption decree and Judicial Form
No. 43, docketed as I.S. No. 00-1016.
Subsequently, the RTC issued a Resolution 21 dated December 12, 2000 deferring
resolution of petitioners opposition to Spec. Proc. No. 204, pending the outcome of the
criminal case filed against the latter. In the meantime, the parties were enjoined from
dissipating or disposing any or all of the properties included in the estate of Elena Lising
without order from this Court.
On December 13, 2000, Chichioco filed an Urgent Motion to Appoint Special
Administrator22 before the RTC on the ground that there was yet no true determination
and appraisal of the decedents universal estate. It was prayed therein that the Branch
Clerk of Court, Atty. Paulino Saguyod, be appointed special administrator as he was "an
experienced and able person in the management of properties" and is "honest,
impartial, competent and acceptable to the majority of the interested parties."
In the meantime, the Provincial Prosecutor found probable cause to charge petitioner
with falsification of public documents per resolution dated January 5, 2001. 23 Petitioner
thus appealed the said finding to the Office of the Regional State Prosecutor.
On August 8, 2001, the RTC granted respondents motion for the appointment of a
special administrator and appointed its branch clerk of court, Atty. Saguyod. 24 Petitioner
moved for reconsideration on the grounds that the branch clerk of court was disqualified
from taking on the task of special administrator, and that Atty. Saguyod was appointed
without being required to file a bond. Petitioner also reiterated that the petition should be
dismissed because she is the sole heir of the decedent. 25 However, the RTC denied
petitioners motion for reconsideration on November 5, 2001. 26
On January 14, 2002, the Office of the Regional State Prosecutor reversed the findings
of the Provincial Prosecutor and dismissed the criminal complaint against
petitioner.27 Undaunted, Chichioco filed a petition for review before the Department of
Justice (DOJ).
Simultaneously, Chichioco and the other alleged co-heirs filed a motion before the RTC
to enjoin petitioner from conducting business in a property belonging to the estate.
Respondent Chichioco alleged that petitioner converted the basement of Lisings
residence into a billiard hall without authority of the special administrator. 28

Acting on said motion, the RTC issued a resolution on September 18, 2002, the
dispositive part of which reads:
WHEREFORE, the Oppositor Ana Joyce Reyes is hereby enjoined from conducting
business activity in any of the properties left by the decedent. The Special Administrator
is also empowered to take control and possession of the listed personal and real
properties of the decedent and those that may be found to be owned or registered in the
name of the same.
SO ORDERED.29
Petitioner filed a motion for reconsideration of the above resolution which was denied by
the RTC on November 12, 2002. On even date, the DOJ also issued a resolution
dismissing respondent Chichiocos petition for review in the criminal case. 30
Subsequently, petitioner filed a special civil action for certiorari before the Court of
Appeals, docketed as CA-G.R. SP No. 74047, 31 assailing the September 18, 2002 and
November 12, 2002 resolutions of the RTC. Petitioner alleged that said resolutions were
issued with grave abuse of discretion amounting to lack or in excess of jurisdiction since
as sole heir, she had the right to possess and use the decedents property, title over
which automatically passed on to her upon the latters death. Moreover, the special
administrator, Atty. Saguyod, had yet to file a bond and submit an inventory of the
decedents estate.
Additionally, petitioner insisted that Spec. Proc. No. 204 should be dismissed since the
dismissal by the Court of Appeals of SP No. 53457 constituted res judicata as to the
former. There was likewise no valid challenge to her adoption and she consequently
remains to be the sole heir of the decedent. Thus, she stressed that there was no need
for the appointment of an administrator or for the settlement proceedings.
In due course, the Court of Appeals rendered judgment 32 nullifying the resolutions of the
trial court. It held that the presiding judge, Judge Cesar M. Sotero, gravely abused his
discretion in appointing his branch clerk of court as special administrator. Citing
Balanay, Jr. v. Martinez,33 the appellate court reasoned that such act could engender a
suspicion that Judge Sotero and his clerk are in cahoots in milking the decedents
estate. Moreover, Atty. Saguyod failed to comply with the requirements of a bond and
inventory and could not therefore take control and possession of any of the decedents
properties.
However, the appellate court refused to dismiss Spec. Proc. No. 204 since the dismissal
of SP No. 53457 was not a judgment on the merits and did not operate as res judicata
to the former. It was also incumbent upon petitioner to prove before the trial court that
she was indeed adopted by the Delos Santos spouses since, according to the appellate
court, "imputations of irregularities permeating the adoption decree render its
authenticity under a cloud of doubt."

Petitioners motion for reconsideration having been denied on March 15, 2005, 34 hence
this petition on the following assigned errors:
A. THE HONORABLE COURT ERRED IN HOLDING THAT PETITIONER HAD
TO PROVE THE VALIDITY OF HER ADOPTION DUE TO IMPUTATIONS OF
IRREGULARITIES IN VIEW OF SECTION 47 OF RULE 39. 35
B. THE HONORABLE COURT ERRED IN HOLDING THAT THE DISMISSAL IN
SP NO. 53457 WAS NOT A DISMISSAL ON THE MERITS. 36
The petition is meritorious.
On the first assigned error, we agree with petitioner that she need not prove her legal
adoption by any evidence other than those which she had already presented before the
trial court. To recall, petitioner submitted a certification from the local civil registrars
office that the adoption decree was registered therein and also a copy of Judicial Form
No. 43 and a certification issued by the clerk of court that the decree was on file in the
General Docket of the RTC-Tarlac City. Both certifications were issued under the seal of
the issuing offices and were signed by the proper officers. These are thus presumed to
have been regularly issued as part of the official duties that said public officers
perform.37
It should be borne in mind that an adoption decree is a public document 38 required by
law to be entered into the public records, the official repository of which, as well as all
other judicial pronouncements affecting the status of individuals, is the local civil
registrars office as well as the court which rendered the judgment.
Documents consisting of entries in public records made in the performance of a duty by
a public officer are prima facie evidence of the facts therein stated. 39 As such, the
certifications issued by the local civil registrar and the clerk of court regarding details of
petitioners adoption which are entered in the records kept under their official custody,
are prima facie evidence of the facts contained therein. These certifications suffice as
proof of the fact of petitioners adoption by the Delos Santos spouses until contradicted
or overcome by sufficient evidence. Mere "imputations of irregularities" will not cast a
"cloud of doubt" on the adoption decree since the certifications and its contents are
presumed valid until proof to the contrary is offered.
In this regard, it must be pointed out that such contrary proof can be presented only in a
separate action brought principally for the purpose of nullifying the adoption decree. The
latter cannot be assailed collaterally in a proceeding for the settlement of a decedents
estate, as categorically held in Santos v. Aranzanso. 40 Accordingly, respondents cannot
assail in these proceedings the validity of the adoption decree in order to defeat
petitioners claim that she is the sole heir of the decedent. Absent a categorical
pronouncement in an appropriate proceeding that the decree of adoption is void, the
certifications regarding the matter, as well as the facts stated therein, should be deemed
legitimate, genuine and real. Petitioners status as an adopted child of the decedent

remains unrebutted and no serious challenge has been brought against her standing as
such. Therefore, for as long as petitioners adoption is considered valid, respondents
cannot claim any interest in the decedents estate. For this reason, we agree with
petitioner that Spec. Proc. No. 204 should be dismissed.
As succinctly held in Santos v. Aranzanso:41
From all the foregoing it follows that respondents - x x x and those who, like them x x x,
claim an interest in the estate x x x as alleged first cousins, cannot intervene, as such,
in the settlement proceedings, in view of the fact that in the order of intestate
succession adopted children exclude first cousins (Articles 979 and 1003, New Civil
Code). The same holds true as long as the adoption must be - as in the instant case considered valid. (Emphasis added)
Petitioner, whose adoption is presumed to be valid, would necessarily exclude
respondents from inheriting from the decedent since they are mere collateral relatives of
the latter. To allow the proceedings below to continue would serve no salutary purpose
but to delay the resolution of the instant case. After all, the dismissal of Spec. Proc. No.
204 is the logical consequence of our pronouncement relative to the presumed validity
of petitioners adoption.
Moreover, it must be stressed that all the evidence pertinent to the resolution of the
petitioners opposition, which is actually a motion to dismiss the petition for letters of
administration and settlement of the estate, is a matter of record in the instant case. The
same has in fact been submitted for resolution before the RTC more than six years ago
and is so far the only pending incident before the RTC. The parties have likewise amply
ventilated their positions on the matter through their respective pleadings filed before
the lower courts. No useful purpose will thus be served if we let the RTC resolve the
matter, only for its ruling to be elevated again to the Court of Appeals and subsequently
to this Court. The remand of the case to the lower court for further reception of evidence
is not necessary where the Court is in a position to resolve the dispute based on the
evidence before it.42 This is in keeping with the avowed purpose of the rules of
procedure which is to secure for the parties a just, speedy and inexpensive
determination of every action or proceeding. 43 Hence, since the grounds for the
dismissal of Spec. Proc. No. 204 are extant in the records and there is no cogent
reason to remand the case to the RTC, Spec. Proc. No. 204 should be dismissed.
Based on the foregoing, the Court sees no need to discuss petitioners second assigned
error.
WHEREFORE, the instant petition is GRANTED. Special Proceedings No. 204 pending
before the Regional Trial Court of Tarlac City, Branch 67 is DISMISSED.
SO ORDERED.

CONSUELO
Associate Justice

YNARES-SANTIAGO

[G.R. No. 144763. September 3, 2002]

REYMOND
B.
LAXAMANA, petitioner, vs.
LAXAMANA, respondent.

MA.

LOURDES* D.

DECISION
YNARES-SANTIAGO, J.:
This is another sad tale of an estranged couples tug-of-war over the custody of
their minor children. Petitioner Reymond B. Laxamana and respondent Ma. Lourdes D.
Laxamana met sometime in 1983. Petitioner, who came from a well-to-do family, was a
graduate of Bachelor of Laws, while respondent, a holder of a degree in banking and
finance, worked in a bank. After a whirlwind courtship, petitioner, 31 years old and
respondent, 33, got married on June 6, 1984. [1] Respondent quit her job and became a
full-time housewife. Petitioner, on the other hand, operated buy and sell, fishpond, and
restaurant businesses for a living. The union was blessed with three children twin
brothers Joseph and Vincent, born on March 15, 1985, and Michael, born on June 19,
1986.[2]
All went well until petitioner became a drug dependent. In October 1991, he was
confined at the Estrellas Home Care Clinic in Quezon City. He underwent
psychotherapy and psychopharmacological treatment and was discharged on
November 16, 1991.[3] Upon petition of respondent, the Regional Trial Court of Quezon
City, Branch 101, ordered petitioners confinement at the NARCOM-DRC for treatment
and rehabilitation.[4]Again, on October 30, 1996, the trial court granted petitioners
voluntary confinement for treatment and rehabilitation at the National Bureau of
Investigation-TRC.[5]
On April 25, 1997, the court issued an order declaring petitioner already drug-free
and directing him to report to a certain Dr. Casimiro for out-patient counseling for 6
months to one (1) year.[6]
Despite several confinements, respondent claimed petitioner was not fully
rehabilitated. His drug dependence worsened and it became difficult for respondent
and her children to live with him. Petitioner allegedly became violent and irritable. On
some occasions, he even physically assaulted respondent. Thus, on June 17, 1999,
respondent and her 3 children abandoned petitioner and transferred to the house of her
relatives.

On August 31, 1999, petitioner filed with the Regional Trial Court of Quezon City,
Branch 107, the instant petition for habeas corpus praying for custody of his three
children.[7] Respondent opposed the petition, citing the drug dependence of petitioner.[8]
Meanwhile, on September 24, 1999, respondent filed a petition for annulment of
marriage with Branch 102 of the Regional Trial Court of Quezon City.[9]
On September 27, 1999, petitioner filed in the habeas corpus case, a motion
seeking visitation rights over his children. [10] On December 7, 1999, after the parties
reached an agreement, the court issued an order granting visitation rights to petitioner
and directing the parties to undergo psychiatric and psychological examination by a
psychiatrist of their common choice. The parties further agreed to submit the case for
resolution after the trial courts receipt of the results of their psychiatric
examination. The full text of said order reads:
The parties appeared with their respective lawyers. A conference was held in open
Court and the parties agreed on the following:
Effective this Saturday and every Saturday thereafter until further order the petitioner
shall fetch the children every Saturday and Sunday at 9:00 oclock in the morning from
the house of the sister of respondent, Mrs. Corazon Soriano and to be returned at 5:00
oclock in the afternoon of the same days.
That the parties agreed to submit themselves to Dr. Teresito Ocampo for
psychiatric/psychological examination. Dr. Ocampo is hereby advised to go over the
records of this case to enable him to have a thorough background of the problem. He is
hereby ordered to submit his findings directly to this Court without furnishing the parties
copies of his report. And after the receipt of that report, thereafter, the case shall be
deemed submitted for decision.[11]
On January 6, 2000, Dr. Ocampo submitted the results of his psychiatric evaluation
on the parties and their children. Pertinent portions thereof state:
SINGLY and COLLECTIVELY, the following information was obtained in the interview of
the 3 children:
(1)

THEY were affected psychologically by the drug-related behavior of their father:

a.

they have a difficult time concentrating on their studies.

b.

they are envious of their classmates whose families live in peace and harmony.

c.

once, MICHAEL had to quit school temporarily.

(2)

THEY witnessed their father when he was under the influence of shabu.

(3)
THEY think their father had been angry at their paternal grandmother and this
anger was displaced to their mother.
(4)
THEY hope their father will completely and permanently recover from his drug
habit; and their criteria of his full recovery include:
a.

he will regain his easy-going attitude.

b.

he wont be hot-headed anymore and would not drive their van recklessly.

c.

he would not tell unverifiable stories anymore.

d.

he would not poke a gun on his own head and ask the children who they
love better, mom or dad.

(5)
At one point one of the sons, became very emotional while he was narrating his
story and he cried. I had to stop the interview.
(6)

THEIR mother was fearful and terrified when their father quarreled with her.

(7)
THEY hope their visits to their father will not interfere with their school and
academic schedules.
xxx

xxx

xxx

(3)
MARILOU is one of 4 siblings. She graduated from college with a degree in
banking and finance. SHE was a carreer (sic) woman; worked for a bank for ten years;
subsequently quit her job to devote more time to her family.
(4)
REYMOND is one of 5 siblings in a well-to-do family. His father was a
physician. During his developmental years, he recalled how his mother complained
incessantly about how bad the father was; only to find later that the truth was opposite
to the complaints of his mother; that his father was nice, logical and understanding. He
recalled how he unselfishly served his father --- he opened the door when he arrived
home; he got his portfolio; he brought the days newspaper; he removed his shoes; he
brought his glass of beer or his shot of whisky. In short, he served him like a
servant. His father died of stroke in 1990.
REYMOND graduated from college with a degree in LAW in 1984; he did not pass the
bar.
His work history is as follows:
a.

1985 to 1989 he operated fishponds.

b.

1976 to 1991 simultaneously, he operated restaurant.

c.

1991 he engaged in the trading of vegetable, cooking oil, and mangos.

d.

HE handled the leasing of a family property to a fast food company.

The findings on the examination of the MENTAL STATUS and MENTAL PROCESSES
OF MARILOU showed a woman who showed the psychological effects of the trauma
she had in the past. She is slightly edgy and fidgety with any external noise. SHE
answered all my questions coherently. Her emotional state was stable throughout the
interview. She is of average intelligence. She was oriented to person, place and
date. Her memory for recent and remote events was intact. She could process sets of
figures and sets of similarities and differences. Her content of thought was negative for
delusions, hallucinations, paranoia, suicidal and homicidal ideation. She could process
abstract ideas and general information. Her attention span was adequate. There was
no evidence of impaired judgment.
The Rorschach ink blot test gave responses such as man touching a woman, 2
people on a hi-five , 2 women chatting, beast, stuffed animal, etc. Her past
reflected on her psyche. There is no creative process. There were no bizarre ideas.
The ZUNG anxiety/depression test highlighted I get tired for no reason; I feel that I am
useful and needed (re, son). There is moderate depression. However, she could still
make competent decisions.
The Social Adaptation Scale scored well in her capacity to adapt to her situation. There
is no evidence of losing control.
The findings on the examination of the MENTAL STATUS and MENTAL PROCESSES
of REYMOND showed an individual who presented himself in the best situation he
could possibly be. He is cool, calm and collected. He answered all my questions
coherently. He is of average intelligence. He was oriented to person, place and
date. His memory for recent and remote events was intace (sic). His content of thought
was negative for delusions, hallucinations, paranoia, suicidal and homicidal
ideation. His attention span was adequate. He could process abstract ideas, sets of
figures, and general information.
The Rorschach ink blot test gave responses such as distorted chest , butterfly with
scattered color, cat ran over by a car, nothing 2 people, monster etc. There is
no central theme in his responses. There were no bizarre ideas.
The Zung anxiety/depression test: My mind is as clear as it used to be (most of the
time). There was no evidence of brain damage. There is no significant affective
response that would affect his rationality.
The Social Adaptive Scale scored well in his capacity to adapt to his situation. He
reached out well to others. He is in very good control of his emotions.

BASED ON MY FINDINGS I MADE THE FOLLOWING COMMENTS AND

CONCLUSIONS:
I. The CRITERIA for cure in drug addiction consist of:
1.

5-years and 10-years intervals of drug-free periods.

2.

change for the better of the maladaptive behaviors of the addict

consisting of telling lies, manipulative behavior, melodramatic and
hysterical actions.

3.

constructive and reproductive outlets for the mental and physical

energies of the addict.

4.

behavior oriented towards spiritual values and other things.

II BASED on such scientific and observable criteria, I do not yet consider

REYMOND LAXAMANA completely cured even though his drug urine test at
Medical City for shabu was negative. (Emphasis supplied)
III I DO NOT DETECT any evidence that the paternal visits of the sons would be
harmful or they would be in any danger. The academic schedules of the sons has be
taken into account in determining the length and frequency of their visits.
xxx

xxx

x x x.[12]

On January 14, 2000, the trial court rendered the assailed decision awarding the
custody of the three children to respondent and giving visitation rights to petitioner. The
dispositive portion thereof states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1.
The children, Joseph, Michael and Vincent all surnamed Laxamana are hereby
ordered to remain under the custody of the respondent.
2.
The visitation arrangement as per Order of December 7, 1999 is hereby
incorporated and forms part of this Decision. The parties are enjoined to comply with the
terms stated therein.
3.
The petitioner is hereby ordered to undergo urine drug screen for shabu for
three times (3x) per month every ten (10) days, with the Dangerous Drugs Board. The
said Board is hereby ordered to submit the results of all tests immediately as directed to
this Court.
4.
The petitioner is hereby referred to undergo regular counseling at the Free-Clinic
at the East Avenue Medical Center, Department of Health Out Patient Psychiatry

Department until further order. For this purpose, it is suggested that he should see Dr.
Teresito P. Ocampo to make arrangements for said counseling.
Let copies of this Decision be furnished the Dangerous Drugs Board and the FreeClinic, Out Patient Psychiatry Department, East Avenue Medical Center, Department of
Health for their information and guidance.
SO ORDERED.[13]
Aggrieved, petitioner filed the instant petition for review on certiorari under Rule 45
of the Rules of Court, based on the following:
I
THE COURT A QUO HAS DEPARTED FROM THE ACCEPTED AND USUAL COURSE
OF JUDICIAL PROCEEDINGS WHEN IT RESOLVED THE ISSUE OF CUSTODY
WITHOUT CONDUCTING A TRIAL TO DETERMINE FACTUAL ISSUES.
II
THE COURT A QUO HAS RESOLVED THE ISSUE OF CUSTODY IN A MANNER NOT
IN ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THIS
HONORABLE SUPREME COURT WHEN IT RESOLVED THE ISSUE OF CUSTODY
WITHOUT CONSIDERING THE PARAMOUNT INTEREST AND WELFARE OF
HEREIN PARTIES THREE (3) MINOR CHILDREN.
III
THE ASSAILED DECISION IS NULL AND VOID AS IT DOES NOT COMPLY WITH
SECTION 14 ARTICLE VIII OF THE CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES.[14]
The core issue for resolution in the instant petition is whether or not the trial court
considered the paramount interest and welfare of the children in awarding their custody
to respondent.
In controversies involving the care, custody and control of their minor children, the
contending parents stand on equal footing before the court who shall make the selection
according to the best interest of the child. The child if over seven years of age may be
permitted to choose which parent he/she prefers to live with, but the court is not bound
by such choice if the parent so chosen is unfit. In all cases, the sole and foremost
consideration is the physical, educational, social and moral welfare of the child
concerned, taking into account the respective resources as well as social and moral
situations of the opposing parents.[15]
In Medina v. Makabali,[16] we stressed that 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. There is no
power, but a task; no complex rights of parents but a sum of duties; no sovereignty, but
a sacred trust for the welfare of the minor.
Mindful of the nature of the case at bar, the court a quo should have conducted a
trial notwithstanding the agreement of the parties to submit the case for resolution on
the basis, inter alia, of the psychiatric report of Dr. Teresito. Thus, petitioner is not
estopped from questioning the absence of a trial considering that said psychiatric report,
which was the courts primary basis in awarding custody to respondent, is insufficient to
justify the decision. The fundamental policy of the State to promote and protect the
welfare of children shall not be disregarded by mere technicality in resolving disputes
which involve the family and the youth. [17] While petitioner may have a history of drug
dependence, the records are inadequate as to his moral, financial and social wellbeing. The results of the psychiatric evaluation showing that he is not yet completely
cured may render him unfit to take custody of the children, but there is no evidence to
show that respondent is unfit to provide the children with adequate support, education,
as well as moral and intellectual training and development. Moreover, the children in
this case were 14 and 15 years old at the time of the promulgation of the decision, yet
the court did not ascertain their choice as to which parent they want to live with. In its
September 8, 1999 order, the trial court merely stated that: The children were asked
as to whether they would like to be with petitioner but there are indications that they
entertain fears in their hearts and want to be sure that their father is no longer a drug
dependent.[18] There is no showing that the court ascertained the categorical choice of
the children. These inadequacies could have been remedied by an exhaustive trial
probing into the accuracy of Dr. Ocampos report and the capacity of both parties to
raise their children. The trial court was remiss in the fulfillment of its duties when it
approved the agreement of the parties to submit the case for decision on the basis of
sketchy findings of facts.
In Lacson v. Lacson,[19] the case was remanded to the trial court with respect to the
issue of custody. In the said case, the court a quoresolved the question of the childrens
custody based on the amicable settlement of the spouses. Stressing the need for
presentation of evidence and a thorough proceedings, we explained
It is clear that every child [has] rights which are not and should not be dependent
solely on the wishes, much less the whims and caprices, of his parents. His welfare
should not be subject to the parents' say-so or mutual agreement alone. Where, as in
this case, the parents are already separated in fact, the courts must step in to determine
in whose custody the child can better be assured the rights granted to him by law. The
need, therefore, to present evidence regarding this matter, becomes imperative. A
careful scrutiny of the records reveals that no such evidence was introduced in the CFI.
This latter court relied merely on the mutual agreement of the spouses-parents. To be
sure, this was not sufficient basis to determine the fitness of each parent to be the
custodian of the children.

Besides, at least one of the children Enrique, the eldest is now eleven years of
age and should be given the choice of the parent he wishes to live with. x x x.
In the instant case, the proceedings before the trial court leave much to be
desired. While a remand of this case would mean further delay, the childrens
paramount interest demand that further proceedings be conducted to determine the
fitness of both petitioner and respondent to assume custody of their minor children.
WHEREFORE, in view of all the foregoing, the instant case is REMANDED to the
Regional Trial Court of Quezon City, Branch 107, for the purpose of receiving evidence
to determine the fitness of petitioner and respondent to take custody of their
children. Pending the final disposition of this case, custody shall remain with
respondent but subject to petitioners visitation rights in accordance with the December
7, 1999 order of the trial court.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur.

[G.R. No. 143989. July 14, 2003]

ISABELITA S. LAHOM, petitioner, vs. JOSE MELVIN SIBULO (previously referred

to as DR. MELVIN S. LAHOM), respondent.
DECISION
VITUG, J.:
The bliss of marriage and family would be to most less than complete without
children. The realization could have likely prodded the spouses Dr. Diosdado Lahom
and Isabelita Lahom to take into their care Isabelitas nephew Jose Melvin Sibulo and to
bring him up as their own. At the tender age of two, Jose Melvin enjoyed the warmth,
love and support of the couple who treated the child like their own. Indeed, for years,
Dr. and Mrs. Lahom fancied on legally adopting Jose Melvin. Finally, in 1971, the
couple decided to file a petition for adoption. On 05 May 1972, an order granting the
petition was issued that made all the more intense than before the feeling of affection of
the spouses for Melvin. In keeping with the court order, the Civil Registrar of Naga City
changed the name Jose Melvin Sibulo to Jose Melvin Lahom.
A sad turn of events came many years later. Eventually, in December of 1999, Mrs.
Lahom commenced a petition to rescind the decree of adoption before the Regional
Trial Court (RTC), Branch 22, of Naga City. In her petition, she averred 7. That x x x despite the proddings and pleadings of said spouses, respondent
refused to change his surname from Sibulo to Lahom, to the frustrations of petitioner

particularly her husband until the latter died, and even before his death he had made
known his desire to revoke respondents adoption, but was prevented by petitioners
supplication, however with his further request upon petitioner to give to charity whatever
properties or interest may pertain to respondent in the future.
x
x

xxx

10. That respondent continued using his surname Sibulo to the utter disregard of the
feelings of herein petitioner, and his records with the Professional Regulation
Commission showed his name as Jose Melvin M. Sibulo originally issued in 1978 until
the present, and in all his dealings and activities in connection with his practice of his
profession, he is Jose Melvin M. Sibulo.
x
x

xxx

13. That herein petitioner being a widow, and living alone in this city with only her
household helps to attend to her, has yearned for the care and show of concern from a
son, but respondent remained indifferent and would only come to Naga to see her once
a year.
14. That for the last three or four years, the medical check-up of petitioner in Manila
became more frequent in view of a leg ailment, and those were the times when
petitioner would need most the care and support from a love one, but respondent all the
more remained callous and utterly indifferent towards petitioner which is not expected of
a son.
15. That herein respondent has recently been jealous of petitioners nephews and
nieces whenever they would find time to visit her, respondent alleging that they were
only motivated by their desire for some material benefits from petitioner.
16. That in view of respondents insensible attitude resulting in a strained and
uncomfortable relationship between him and petitioner, the latter has suffered wounded
feelings, knowing that after all respondents only motive to his adoption is his
expectancy of his alleged rights over the properties of herein petitioner and her late
husband, clearly shown by his recent filing of Civil Case No. 99-4463 for partition
against petitioner, thereby totally eroding her love and affection towards respondent,
rendering the decree of adoption, considering respondent to be the child of petitioner,
for all legal purposes, has been negated for which reason there is no more basis for its
existence, hence this petition for revocation. [1]
Prior to the institution of the case, specifically on 22 March 1998, Republic Act
(R.A.) No. 8552, also known as the Domestic Adoption Act, went into effect. The new
statute deleted from the law the right of adopters to rescind a decree of adoption.
Section 19 of Article VI of R.A. No. 8552 now reads:

SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, with the
assistance of the Department if a minor or if over eighteen (18) years of age but is
incapacitated, as guardian/counsel, the adoption may be rescinded on any of the
following grounds committed by the adopter(s): (a) repeated physical and verbal
maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the
life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to
comply with parental obligations.
Adoption, being in the best interest of the child, shall not be subject to
rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee
for causes provided in Article 919 of the Civil Code. (emphasis supplied)
Jose Melvin moved for the dismissal of the petition, contending principally (a) that
the trial court had no jurisdiction over the case and (b) that the petitioner had no cause
of action in view of the aforequoted provisions of R.A. No. 8552. Petitioner
asseverated, by way of opposition, that the proscription in R.A. No. 8552 should not
retroactively apply, i.e., to cases where the ground for rescission of the adoption vested
under the regime of then Article 348[2] of the Civil Code and Article 192[3] of the Family
Code.
In an order, dated 28 April 2000, the trial court held thusly:
On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A. No.
8369 confers jurisdiction to this Court, having been designated Family Court in A.M. No.
99-11-07 SC.
On the matter of no cause of action, the test on the sufficiency of the facts alleged in
the complaint, is whether or not, admitting the facts alleged, the Court could render a
valid judgment in accordance with the prayer of said complaint (De Jesus, et al. vs.
Belarmino, et al., 95 Phil. 365).
Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter to
rescind an adoption earlier granted under the Family Code. Conformably, on the face of
the petition, indeed there is lack of cause of action.
Petitioner however, insists that her right to rescind long acquired under the provisions
of the Family Code should be respected. Assuming for the sake of argument, that
petitioner is entitled to rescind the adoption of respondent granted on May 5, 1972, said
right should have been exercised within the period allowed by the Rules. From the
averments in the petition, it appears clear that the legal grounds for the petition have
been discovered and known to petitioner for more than five (5) years, prior to the filing
of the instant petition on December 1, 1999, hence, the action if any, had already
prescribed. (Sec. 5, Rule 100 Revised Rules of Court)
WHEREFORE, in view of the foregoing consideration, the petition is ordered
dismissed.[4]

Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court,
petitioner raises the following questions; viz:
1. May the subject adoption, decreed on 05 May 1972, still be revoked or
rescinded by an adopter after the effectivity of R.A. No. 8552?
2. In the affirmative, has the adopters action prescribed?
A brief background on the law and its origins could provide some insights on the
subject. In ancient times, the Romans undertook adoption to assure male heirs in the
family.[5] The continuity of the adopters family was the primary purpose of adoption and
all matters relating to it basically focused on the rights of the adopter. There was hardly
any mention about the rights of the adopted. [6] Countries, like Greece, France, Spain
and England, in an effort to preserve inheritance within the family, neither allowed nor
recognized adoption.[7] It was only much later when adoption was given an impetus in
law and still later when the welfare of the child became a paramount concern. [8] Spain
itself which previously disfavored adoption ultimately relented and accepted the Roman
law concept of adoption which, subsequently, was to find its way to the
archipelago. The Americans came and introduced their own ideas on adoption which,
unlike most countries in Europe, made the interests of the child an overriding
consideration.[9] In the early part of the century just passed, the rights of children invited
universal attention; the Geneva Declaration of Rights of the Child of 1924 and the
Universal Declaration of Human Rights of 1948, [10] followed by the United Nations
Declarations of the Rights of the Child, [11] were written instruments that would also
protect and safeguard the rights of adopted children. The Civil Code of the
Philippines[12] of 1950 on adoption, later modified by the Child and Youth Welfare
Code[13] and then by the Family Code of the Philippines, [14]gave immediate statutory
acknowledgment to the rights of the adopted. In 1989, the United Nations initiated the
Convention of the Rights of the Child. The Philippines, a State Party to the Convention,
accepted the principle that adoption was impressed with social and moral responsibility,
and that its underlying intent was geared to favor the adopted child. R.A. No. 8552
secured these rights and privileges for the adopted. Most importantly, it affirmed the
legitimate status of the adopted child, not only in his new family but also in the society
as well. The new law withdrew the right of an adopter to rescind the adoption decree
and gave to the adopted child the sole right to sever the legal ties created by adoption.
Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her
right to annul the adoption decree, nor deprive the trial court of its jurisdiction to hear the
case, both being vested under the Civil Code and the Family Code, the laws then in
force.
The concept of vested right is a consequence of the constitutional guaranty of due
process[15] that expresses a present fixed interestwhich in right reason and natural
justice is protected against arbitrary state action; [16] it includes not only legal or equitable
title to the enforcement of a demand but also exemptions from new obligations created
after the right has become vested. [17] Rights are considered vested when the right to
enjoyment is a present interest, [18] absolute, unconditional, and perfect [19] or fixed and
irrefutable.

In Republic vs. Court of Appeals, [20] a petition to adopt Jason Condat was filed by
Zenaida C. Bobiles on 02 February 1988 when the Child and Youth Welfare Code
(Presidential Decree No. 603) allowed an adoption to be sought by either spouse
or both of them. After the trial court had rendered its decision and while the case was
still pending on appeal, the Family Code of the Philippines (Executive Order No.
209),mandating joint adoption by the husband and wife, took effect. Petitioner
Republic argued that the case should be dismissed for having been filed by Mrs.
Bobiles alone and without being joined by the husband. The Court concluded that
the jurisdiction of the court is determined by the statute in force at the time of the
commencement of the action. The petition to adopt Jason, having been filed with
the court at the time when P.D. No. 603 was still in effect, the right of Mrs. Bobiles to
file the petition, without being joined by her husband, according to the Court had
become vested. In Republic vs. Miller,[21] spouses Claude and Jumrus Miller, both
aliens, sought to adopt Michael Madayag. On 29 July 1988, the couple filed a petition
to formalize Michaels adoption having theretofore been taken into their care. At the
time the action was commenced, P.D. No. 603 allowed aliens to adopt. After the decree
of adoption and while on appeal before the Court of Appeals, the Family Code was
enacted into law on 08 August 1988 disqualifying aliens from adopting Filipino
children. The Republic then prayed for the withdrawal of the adoption decree. In
discarding the argument posed by the Republic, the Supreme Court ruled that the
controversy should be resolved in the light of the law governing at the time the
petition was filed.
It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an
action to revoke the decree of adoption granted in 1975. By then, the new law,[22] had
already abrogated and repealed the right of an adopter under the Civil Code and the
Family Code to rescind a decree of adoption. Consistently with its earlier
pronouncements, the Court should now hold that the action for rescission of the
adoption decree, having been initiated by petitioner after R.A. No. 8552 had come into
force, no longer could be pursued.
Interestingly, even before the passage of the statute, an action to set aside the
adoption is subject to the fiveyear bar rule under Rule 100 [23]of the Rules of Court and
that the adopter would lose the right to revoke the adoption decree after the lapse of
that period. The exercise of the right within a prescriptive period is a condition that
could not fulfill the requirements of a vested right entitled to protection. It must also be
acknowledged that a person has no vested right in statutory privileges. [24] While
adoption has often been referred to in the context of a right, the privilege to adopt is
itself not naturally innate or fundamental but rather a right merely created by statute. [25] It
is a privilege that is governed by the states determination on what it may deem to be for
the best interest and welfare of the child. [26] Matters relating to adoption, including the
withdrawal of the right of an adopter to nullify the adoption decree, are subject to
regulation by the State.[27] Concomitantly, a right of actiongiven by statute may be
taken away at anytime before it has been exercised. [28]
While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential
right to rescind the adoption decree even in cases where the adoption might clearly turn
out to be undesirable, it remains, nevertheless, the bounden duty of the Court to apply

the law. Dura lex sed lexwould be the hackneyed truism that those caught in the law
have to live with. It is still noteworthy, however, that an adopter, while barred from
severing the legal ties of adoption, can always for valid reasons cause the forfeiture of
certain benefits otherwise accruing to an undeserving child. For instance, upon the
grounds recognized by law, an adopter may deny to an adopted child his legitime and,
by a will and testament, may freely exclude him from having a share in the disposable
portion of his estate.
WHEREFORE, the assailed judgment of the court a quo is AFFIRMED. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.