PROVISIONAL ORDERS

G.R. No. 150644 August 28, 2006

EDWARD V. LACSON, Petitioner,vs. MAOWEE DABAN LACSON and MAONAA DABAN LACSON, represented by
their mother and guardian ad-litem, LEA DABAN LACSON, Respondents.
DECISION
GARCIA, J.:
Petitioner Edward V. Lacson, father of the respondent sisters Maowee Daban Lacson and Maonaa Daban Lacson and
husband of their mother and guardian ad-litem, Lea Daban Lacson, has come to this Court via this petition for review
under Rule 45 of the Rules of Court to seek the reversal and setting aside of the Decision 1 dated July 13, 2001 of the
Court of Appeals (CA) in CA-G.R. CV No. 60203, as reiterated in its Resolution 2 of October 18, 2001 denying his motion
for reconsideration.
From the petition and its annexes, the respondents reply thereto, and other pleadings, the Court gathers the following
facts:
The sisters Maowee Daban Lacson and Maonaa Daban Lacson are legitimate daughters of petitioner Edward V. Lacson
and his wife, Lea Daban Lacson. Maowee was born on December 4, 1974, while Maonaa, a little less than a year later.
Not long after the birth of Maonaa, petitioner left the conjugal home in Molo, Iloilo City, virtually forcing mother and
children to seek, apparently for financial reason, shelter somewhere else. For a month, they stayed with Leas motherin-law, Alicia Lacson, then with her (Leas) mother and then with her brother Noel Daban. After some time, they rented
an apartment only to return later to the house of Leas mother. As the trial court aptly observed, the sisters and their
mother, from 1976 to 1994, or for a period of eighteen (18) years, shuttled from one dwelling place to another not
their own.
It appears that from the start of their estrangement, Lea did not badger her husband Edward for support, relying
initially on his commitment memorialized in a note dated December 10, 1975 to give support to his daughters. As
things turned out, however, Edward reneged on his promise of support, despite Leas efforts towards having him fulfill
the same. Lea would admit, though, that Edward occasionally gave their children meager amounts for school
expenses. Through the years and up to the middle part of 1992, Edwards mother, Alicia Lacson, also gave small
amounts to help in the schooling of Maowee and Maonaa, both of whom eventually took up nursing at St. Pauls
College in Iloilo City. In the early part of 1995 when Lea, in behalf of her two daughters, filed a complaint against
Edward for support before the Regional Trial Court of Iloilo City, Branch 33, Maowee was about to graduate.
In that complaint dated January 30, 1995, as amended, 3 docketed as Civil Case No. 22185, Maowee and Maonaa, thru
their mother, averred that their father Edward, despite being gainfully employed and owning several pieces of valuable
lands, has not provided them support since 1976. They also alleged that, owing to years of Edwards failure and
neglect, their mother had, from time to time, borrowed money from her brother Noel Daban. As she would later testify,
Lea had received from Noel, by way of a loan, as much as P400,000.00 toP600,000.00.
In his Answer, Edward alleged giving to Maowee and Maonaa sufficient sum to meet their needs. He explained,
however, that his lack of regular income and the unproductivity of the land he inherited, not his neglect, accounted for
his failure at times to give regular support. He also blamed financial constraint for his inability to provide
theP12,000.00 monthly allowance prayed for in the complaint.
As applied for and after due hearing, the trial court granted the sisters Maowee and Maonaa support pendente lite
at P12,000.00 per month, subject to the schedule of payment and other conditions set forth in the courts
corresponding order of May 13, 1996.4
Following trial, the RTC rendered on June 26, 1997 judgment finding for the plaintiff sisters, as represented by their
mother. In that judgment, the trial court, following an elaborate formula set forth therein, ordered their defendant
father Edward to pay them a specific sum which represented 216 months, or 18 years, of support in arrears. The fallo
of the trial courts decision5 reads:
WHEREFORE, judgment is hereby rendered:
1) Ordering defendant to compensate plaintiffs support in arrears in the amount of TWO MILLION FOUR HUNDRED
NINETY-SIX THOUSAND (P2, 496,000.00) PESOS from which amount shall be deducted ONE HUNDRED TWENTY-FOUR
(P124,000.00) PESOS that which they received from defendant for two years and that which they received by way of
support pendent lite;
2) Ordering defendant to pay TWENTY THOUSAND (P20,000.00) PESOS as attorneys fees; and
3) Pay costs.
SO ORDERED.

Therefrom, Edward appealed to the CA whereat his recourse was docketed as CA-G.R. CV. No. 60203.
Eventually, the CA, in the herein assailed Decision dated July 13, 2001, 6 dismissed Edwards appeal, disposing as
follows;
WHEREFORE, premises considered, the present appeal is hereby DISMISSED and the appealed Decision in Civil Case
No. 22185 is hereby AFFIRMED.
Double costs against the defendant appellant [Edward Lacson].
SO ORDERED. (Words in bracket added.)
In time, Edward moved for reconsideration, but his motion was denied by the appellate court in its equally assailed
Resolution of October 18, 2001.7
Hence, Edwards present recourse on his submission that the CA erred I. XXX WHEN IT AFFIRMED THE GRANT OF SUPPORT IN ARREARS FROM 1976 TO 1994.
II. XXX IN AFFIRMING THE ALLEGED ADVANCES OF SUPPORT BY RESPONDENTS UNCLE NOEL DABAN.
III. XXX IN AFFIRMING THE AWARD OF SUPPORT EVEN IF PETITIONER IS NOT FINANCIALLY CAPABLE OF PROVIDING THE
SAME TO RESPONDENTS.
IV. XXX WHEN IT ORDERED PETITIONER TO PROVIDE SUPPORT TO XXX RESPONDENTS EVEN IF PETITIONERS
OBLIGATION TO PROVIDE SUPPORT HAD ALREADY BEEN COMPLETELY SATISFIED BY THE PROCEEDS OF THE SALE OF
HIS EXCLUSIVE PROPERTY WHICH WERE ALL APPROPRIATED BY THE RESPONDENTS.
The petition lacks merit.
Petitioner admits being obliged, as father, to provide support to both respondents, Maowee and Maonaa. It is his
threshold submission, however, that he should not be made to pay support in arrears, i.e., from 1976 to 1994, no
previous extrajudicial, let alone judicial, demand having been made by the respondents. He invokes the following
provision of the Family Code to complete his point:
Article 203 The obligation to give support shall be demandable from the time the person who has a right to receive
the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand.
To petitioner, his obligation to pay under the aforequoted provision starts from the filing of Civil Case No. 22185 in
1995, since only from that moment can it be said that an effective demand for support was made upon him.
Petitioners above posture has little to commend itself. For one, it conveniently glossed over the fact that he veritably
abandoned the respondent sisters even before the elder of the two could celebrate her second birthday. To be sure,
petitioner could not plausibly expect any of the sisters during their tender years to go through the motion of
demanding support from him, what with the fact that even their mother (his wife) found it difficult during the period
material to get in touch with him. For another, the requisite demand for support appears to have been made sometime
in 1975. It may be that Lea made no extrajudicial demand in the sense of a formal written demand in terms and in the
imperious tenor commonly used by legal advocates in a demand letter. Nonetheless, what would pass as a demand
was, however, definitely made. Asking one to comply with his obligation to support owing to the urgency of the
situation is no less a demand because it came by way of a request or a plea. As it were, the trial court found that a
demand to sustain an award of support in arrears had been made in this case and said so in its decision, thus:
From 1976, [respondents] mother now and then went to their [paternal] grandmothers house by their father and
asked for support; this notwithstanding their fathers commitment for this purpose which the latter embodied in a note
dated December 10, 1975. For twenty-one years that they needed support, [petitioner] complied with his obligation for
only two (2) years.
xxx xxx xxx
Last December 10, 1975, [petitioner] committed self for the support of his children, the [respondents] herein but
failing, plaintiffs mother asked extrajudicially for her childrens support since 1976, when she went to her mothers
house. .8 (Words in bracket and underscoring added.)
The appellate court made a parallel finding on the demand angle, formulating the same in the following wise:
We could not confer judicial approval upon [petitioners] posture of trying to evade his responsibility to give support to
his daughters simply because their mother did not make a "formal" demand therefor from him. [Petitioners] insistence
on requiring a formal demand from his wife is truly pointless, in the face of his acknowledgment of and commitment to
comply with such obligation through a note in his own handwriting. Said note [stating that he will "sustain his two
daughters Maowee and Maonaa"] also stated "as requested by their mother" thus practically confirming the fact of

such demand having been made by [respondents] mother. The trial court thus correctly ruled that [petitioners]
obligation to pay support in arrears should commence from 1976. 9(Words in bracket added).
The Court finds no adequate reason to disturb the factual determination of the CA confirmatory of that of the trial court
respecting the demand Lea made on the petitioner to secure support for the respondents. As a matter of long and
sound appellate practice, factual findings of the CA are accorded respect, if not finality, save for the most compelling
and cogent reasons.10 Not one of the well-recognized exceptions to this rule on conclusiveness of factual findings
appear to obtain in this case. Accordingly, the Court cannot grant the petitioners plea for a review of the CAs findings
bearing on the actuality that, as basis for an award of support in arrears, an extrajudicial demand for support had been
made on the petitioner as evidenced by the December 10, 1975 note adverted to. Lest it be overlooked, the
jurisdiction of the Court in a petition for review, as here, is generally limited to correction of errors of law.
Complementing that postulate is the rule that the Court is not bound to analyze and weigh all over again the evidence
already considered in the proceedings below,11 except when, as earlier indicated, compelling reasons demand a review
of the factual conclusions drawn from such evidence.
Petitioners second specification of error touches on the CAs affirmatory holding that respondents uncle, Noel Daban,
advanced the money for their support. Again, petitioners lament on the matter is a veritable call for review of factual
determinations of the two courts below. It need not, accordingly, detain us long. Suffice it to state in that regard that,
of their close relatives, the respondents appeared to have stayed longest with their uncle, Noel Daban. Noteworthy
also is the fact that petitioner, from 1976 to 1994, only gave Maowee and Maonaa token amounts for schooling when
support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance and
education,12 or, in short, whatever is necessary to keep a person alive. Logically, the sisters would, thru their mother,
turn to their uncle (Noel Daban) for their sustenance and education when petitioner failed to give the same, a failing
which stretched from their pre-schooling days to their college years. Since such failure has been established, it is not
amiss to deduce, as did the trial court and the CA, that Noel Daban who, owing to consideration of kinship, had
reasons to help, indeed lent his sister Lea money to support her children.
Pursuant to Article 207 of the Family Code, Noel Daban can rightfully exact reimbursement from the petitioner. The
provision reads:
When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the
latter, any third person may furnish support to the needy individual, with right of reimbursement from the person
obliged to give support.
Mention may also be made that, contextually, the resulting juridical relationship between the petitioner and Noel
Daban is a quasi-contract,13 an equitable principle enjoining one from unjustly enriching himself at the expense of
another.
As for the amount of support in arrears, there is also no reason to disturb the absolute figures arrived at by the two
courts below, appearing as they do to be reasonable and proper. Arbitrariness respecting the determination of the final
numbers cannot plausibly be laid on the doorsteps of the CA, and the trial court before it, considering that they fixed
such amount based on the varying needs of the respondents during the years included in the computation and to the
financial resources of the petitioner, as proved by the evidence adduced below. As a matter of law, the amount of
support which those related by marriage and family relationship is generally obliged to give each other shall be in
proportion to the resources or means of the giver and to the needs of the recipient. 14
Petitioner closes his petition by urging the Court, as it did the CA earlier, to consider a transaction that transpired after
the trial court had rendered judgment. We refer to the sale by Lea of half of what petitioner claims to be his exclusive
or capital property. As the petitioner would have this Court believe, Lea and the respondent sisters appropriated the P5
Million proceeds of the sale for themselves. Pressing on, he alleged that the amount thus received from the sale is
more than enough to fully satisfy thus release him from complying with- the underlying judgment for support,
assuming ex gratia argumenti his obligation to pay support in arrears.
Petitioners above submission is flawed by the premises holding it together. For firstly, it assumes as a fact that what
was sold for P5 Million was indeed his exclusive property. But, as the CA aptly observed, "there is no showing whether
the property subject of the transaction mentioned by [the petitioner] is a conjugal property or [his] exclusive property,"
as in fact "[respondents] mother asserts that she and [petitioner] had separately sold their respective shares on said
property."15
Secondly, the respondent sisters were not party to the sale aforementioned. Petitioners suggestion, therefore, that
part of the proceeds of the sale went to them and may be set off for what petitioner owes them by way of support in
arrears is unacceptable, being at best gratuitous and self-serving.
Petitioner, unlike any good father of a family, has been remiss in his duty to provide respondents with support
practically all throughout their growing years. At bottom, the sisters have been deprived by a neglectful father of the
basic necessities in life as if it is their fault to have been born. This disposition is thus nothing more than a belated
measure to right a wrong done the herein respondents who are no less petitioners daughters.
WHEREFORE, the instant petition is DENIED and the appealed CA decision and resolution are AFFIRMED.
Costs against petitioner.
SO ORDERED.

G.R. No. 181258

March 18, 2010
BEN-HUR NEPOMUCENO, Petitioner, vs. ARHBENCEL ANN LOPEZ, represented by her mother ARACELI
LOPEZ, Respondent.
DECISION
CARPIO MORALES, J.:
Respondent Arhbencel Ann Lopez (Arhbencel), represented by her mother Araceli Lopez (Araceli), filed a
Complaint1 with the Regional Trial Court (RTC) of Caloocan City for recognition and support against Ben-Hur
Nepomuceno (petitioner).
Born on June 8, 1999, Arhbencel claimed to have been begotten out of an extramarital affair of petitioner with Araceli;
that petitioner refused to affix his signature on her Certificate of Birth; and that, by a handwritten note dated August 7,
1999, petitioner nevertheless obligated himself to give her financial support in the amount ofP1,500 on the 15th and
30th days of each month beginning August 15, 1999.
Arguing that her filiation to petitioner was established by the handwritten note, Arhbencel prayed that petitioner be
ordered to: (1) recognize her as his child, (2) give her support pendente lite in the increased amount of P8,000 a
month, and (3) give her adequate monthly financial support until she reaches the age of majority.
Petitioner countered that Araceli had not proven that he was the father of Arhbencel; and that he was only forced to
execute the handwritten note on account of threats coming from the National Peoples Army. 2
By Order of July 4, 2001,3 Branch 130 of the Caloocan RTC, on the basis of petitioners handwritten note which it
treated as "contractual support" since the issue of Arhbencels filiation had yet to be determined during the hearing on
the merits, granted Arhbencels prayer for support pendente lite in the amount of P3,000 a month.
After Arhbencel rested her case, petitioner filed a demurrer to evidence which the trial court granted by Order dated
June 7, 2006,4 whereupon the case was dismissed for insufficiency of evidence.
The trial court held that, among other things, Arhbencels Certificate of Birth was not prima facie evidence of her
filiation to petitioner as it did not bear petitioners signature; that petitioners handwritten undertaking to provide
support did not contain a categorical acknowledgment that Arhbencel is his child; and that there was no showing that
petitioner performed any overt act of acknowledgment of Arhbencel as his illegitimate child after the execution of the
note.
On appeal by Arhbencel, the Court of Appeals, by Decision of July 20, 2007, 5 reversed the trial courts decision,
declared Arhbencel to be petitioners illegitimate daughter and accordingly ordered petitioner to give Arhbencel
financial support in the increased amount of P4,000 every 15th and 30th days of the month, or a total of P8,000 a
month.
The appellate court found that from petitioners payment of Aracelis hospital bills when she gave birth to Arhbencel
and his subsequent commitment to provide monthly financial support, the only logical conclusion to be drawn was that
he was Arhbencels father; that petitioner merely acted in bad faith in omitting a statement of paternity in his
handwritten undertaking to provide financial support; and that the amount of P8,000 a month was reasonable for
Arhbencels subsistence and not burdensome for petitioner in view of his income.
His Motion for Reconsideration having been denied by Resolution dated January 3, 2008, 6 petitioner comes before this
Court through the present Petition for Review on Certiorari.7
Petitioner contends that nowhere in the documentary evidence presented by Araceli is an explicit statement made by
him that he is the father of Arhbencel; that absent recognition or acknowledgment, illegitimate children are not
entitled to support from the putative parent; that the supposed payment made by him of Aracelis hospital bills was
neither alleged in the complaint nor proven during the trial; and that Arhbencels claim of paternity and filiation was
not established by clear and convincing evidence.
Arhbencel avers in her Comment that petitioner raises questions of fact which the appellate court had already
addressed, along with the issues raised in the present petition. 8
The petition is impressed with merit.
The relevant provisions of the Family Code9 that treat of the right to support are Articles 194 to 196, thus:
Article 194. Support compromises everything indispensable for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the financial capacity of the family.1awph!1
The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling
or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include
expenses in going to and from school, or to and from place of work.
Article 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the
whole extent set forth in the preceding article:
1. The spouses;

2.
3.
4.
5.

Legitimate ascendants and descendants;

Parents and their legitimate children and the legitimate and illegitimate children of the latter;
Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and
Legitimate brothers and sisters, whether of the full or half-blood.

Article 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to
support each other to the full extent set forth in Article 194, except only when the need for support of the brother or
sister, being of age, is due to a cause imputable to the claimant's fault or negligence. (emphasis and underscoring
supplied)
Arhbencels demand for support, being based on her claim of filiation to petitioner as his illegitimate daughter, falls
under Article 195(4). As such, her entitlement to support from petitioner is dependent on the determination of her
filiation.
Herrera v. Alba10 summarizes the laws, rules, and jurisprudence on establishing filiation, discoursing in relevant part as
follows:
Laws, Rules, and Jurisprudence Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as
legitimate children.
xxxx
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by
the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:
SEC. 39. Act or declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between the two persons is shown by evidence other than such
act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when
and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history
intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree. The reputation or tradition existing in a family previous to
the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other
family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree.
This Court's rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v.
CA, a case petitioner often cites, we stated that the issue of paternity still has to be resolved by suchconventional
evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New
Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of
record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself
and the writing must be the writing of the putative father. A notarial agreement to support a child whose filiation is
admitted by the putative father was considered acceptable evidence. Letters to the mother vowing to be a good father
to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of
live birth, proved filiation. However, a student permanent record, a written consent to a father's operation, or a
marriage contract where the putative father gave consent, cannot be taken as authentic writing. Standing alone,
neither a certificate of baptism nor family pictures are sufficient to establish filiation. (emphasis and underscoring
supplied)
In the present case, Arhbencel relies, in the main, on the handwritten note executed by petitioner which reads:
Manila, Aug. 7, 1999
I, Ben-Hur C. Nepomuceno, hereby undertake to give and provide financial support in the amount of P1,500.00 every
fifteen and thirtieth day of each month for a total of P3,000.00 a month starting Aug. 15, 1999, to Ahrbencel Ann
Lopez, presently in the custody of her mother Araceli Lopez without the necessity of demand, subject to adjustment
later depending on the needs of the child and my income.

The abovequoted note does not contain any statement whatsoever about Arhbencels filiation to petitioner. It is,
therefore, not within the ambit of Article 172(2) vis--vis Article 175 of the Family Code which admits as competent
evidence of illegitimate filiation an admission of filiation in a private handwritten instrument signed by the parent
concerned.
The note cannot also be accorded the same weight as the notarial agreement to support the child referred to in
Herrera. For it is not even notarized. And Herrera instructs that the notarial agreement must be accompanied by the
putative fathers admission of filiation to be an acceptable evidence of filiation. Here, however, not only has petitioner
not admitted filiation through contemporaneous actions. He has consistently denied it.
The only other documentary evidence submitted by Arhbencel, a copy of her Certificate of Birth, 11 has no probative
value to establish filiation to petitioner, the latter not having signed the same.
At bottom, all that Arhbencel really has is petitioners handwritten undertaking to provide financial support to her
which, without more, fails to establish her claim of filiation. The Court is mindful that the best interests of the child in
cases involving paternity and filiation should be advanced. It is, however, just as mindful of the disturbance that
unfounded paternity suits cause to the privacy and peace of the putative fathers legitimate family.
WHEREFORE, the petition is GRANTED. The Court of Appeals Decision of July 20, 2007 is SET ASIDE. The Order dated
June 7, 2006 of Branch 130 of the Caloocan City RTC dismissing the complaint for insufficiency of evidence is
REINSTATED. SO ORDERED.
G.R. No. 163209

October 30, 2009

SPOUSES PRUDENCIO and FILOMENA LIM, Petitioners, vs. MA. CHERYL S. LIM, for herself and on behalf of
her minor children LESTER EDWARD S. LIM, CANDICE GRACE S. LIM, and MARIANO S. LIM, III, Respondents.
DECISION
CARPIO, J.:
The Case
For review1 is the Decision2 of the Court of Appeals, dated 28 April 2003, ordering petitioners Prudencio and Filomena
Lim (petitioners) to provide legal support to respondents Cheryl, Lester Edward, Candice Grace and Mariano III, all
surnamed Lim (respondents).
The Facts
In 1979, respondent Cheryl S. Lim (Cheryl) married Edward Lim (Edward), son of petitioners. Cheryl bore Edward three
children, respondents Lester Edward, Candice Grace and Mariano III. Cheryl, Edward and their children resided at the
house of petitioners in Forbes Park, Makati City, together with Edwards ailing grandmother, Chua Giak and her
husband Mariano Lim (Mariano). Edwards family business, which provided him with a monthly salary of P6,000,
shouldered the family expenses. Cheryl had no steady source of income.
On 14 October 1990, Cheryl abandoned the Forbes Park residence, bringing the children with her (then all minors),
after a violent confrontation with Edward whom she caught with the in-house midwife of Chua Giak in what the trial
court described "a very compromising situation."3
Cheryl, for herself and her children, sued petitioners, Edward, Chua Giak and Mariano (defendants) in the Regional Trial
Court of Makati City, Branch 140 (trial court) for support. The trial court ordered Edward to provide monthly support
of P6,000 pendente lite.4
The Ruling of the Trial Court
On 31 January 1996, the trial court rendered judgment ordering Edward and petitioners to "jointly" provideP40,000
monthly support to respondents, with Edward shouldering P6,000 and petitioners the balance of P34,000 subject to
Chua Giaks subsidiary liability.5
The defendants sought reconsideration, questioning their liability. The trial court, while denying reconsideration,
clarified that petitioners and Chua Giak were held jointly liable with Edward because of the latters "inability x x x to
give sufficient support x x x."6
Petitioners appealed to the Court of Appeals assailing, among others, their liability to support respondents. Petitioners
argued that while Edwards income is insufficient, the law itself sanctions its effects by providing that legal support
should be "in keeping with the financial capacity of the family" under Article 194 of the Civil Code, as amended by
Executive Order No. 209 (The Family Code of the Philippines). 7
The Ruling of the Court of Appeals

In its Decision dated 28 April 2003, the Court of Appeals affirmed the trial court. On the issue material to this appeal,
that is, whether there is basis to hold petitioners, as Edwards parents, liable with him to support respondents, the
Court of Appeals held:
The law on support under Article 195 of the Family Code is clear on this matter. Parents and their legitimate children
are obliged to mutually support one another and this obligation extends down to the legitimate grandchildren and
great grandchildren.
In connection with this provision, Article 200 paragraph (3) of the Family Code clearly provides that should the person
obliged to give support does not have sufficient means to satisfy all claims, the other persons enumerated in Article
199 in its order shall provide the necessary support. This is because the closer the relationship of the relatives, the
stronger the tie that binds them. Thus, the obligation to support is imposed first upon the shoulders of the closer
relatives and only in their default is the obligation moved to the next nearer relatives and so on. 8
Petitioners sought reconsideration but the Court of Appeals denied their motion in the Resolution dated 12 April 2004.
Hence, this petition.
The Issue
The issue is whether petitioners are concurrently liable with Edward to provide support to respondents.
The Ruling of the Court
We rule in the affirmative. However, we modify the appealed judgment by limiting petitioners liability to the amount of
monthly support needed by respondents Lester Edward, Candice Grace and Mariano III only.
Petitioners Liable to Provide Support but only to their Grandchildren
By statutory9 and jurisprudential mandate,10 the liability of ascendants to provide legal support to their descendants is
beyond cavil. Petitioners themselves admit as much they limit their petition to the narrow question of when their
liability is triggered, not if they are liable. Relying on provisions 11 found in Title IX of the Civil Code, as amended, on
Parental Authority, petitioners theorize that their liability is activated only upon defaultof parental authority,
conceivably either by its termination12 or suspension13 during the childrens minority. Because at the time respondents
sued for support, Cheryl and Edward exercised parental authority over their children, 14 petitioners submit that the
obligation to support the latters offspring ends with them.
Neither the text of the law nor the teaching of jurisprudence supports this severe constriction of the scope of familial
obligation to give support. In the first place, the governing text are the relevant provisions in Title VIII of the Civil Code,
as amended, on Support, not the provisions in Title IX on Parental Authority. While both areas share a common ground
in that parental authority encompasses the obligation to provide legal support, 15 they differ in other concerns including
the duration of the obligation and its concurrence among relatives of differing degrees.16 Thus, although the obligation
to provide support arising from parental authority ends upon the emancipation of the child, 17 the same obligation
arising from spousal and general familial ties ideally lasts during the obligee's lifetime.. Also, while parental authority
under Title IX (and the correlative parental rights) pertains to parents, passing to ascendants only upon its termination
or suspension, the obligation to provide legal support passes on to ascendants not only upon default of the parents but
also for the latters inability to provide sufficient support. As we observed in another case raising the ancillary issue of
an ascendants obligation to give support in light of the fathers sufficient means:
Professor Pineda is of the view that grandchildren cannot demand support directly from their grandparents if they have
parents (ascendants of nearest degree) who are capable of supporting them. This is so because we have to follow
the order of support under Art. 199. We agree with this view.
xxxx
There is no showing that private respondent is without means to support his son; neither is there any evidence to
prove that petitioner, as the paternal grandmother, was willing to voluntarily provide for her grandson's legal support.
x x x18 (Emphasis supplied; internal citations omitted)
Here, there is no question that Cheryl is unable to discharge her obligation to provide sufficient legal support to her
children, then all school-bound. It is also undisputed that the amount of support Edward is able to give to
respondents, P6,000 a month, is insufficient to meet respondents basic needs. This inability of Edward and Cheryl to
sufficiently provide for their children shifts a portion of their obligation to the ascendants in the nearest degree, both in
the paternal (petitioners) and maternal19 lines, following the ordering in Article 199. To hold otherwise, and thus
subscribe to petitioners theory, is to sanction the anomalous scenario of tolerating extreme material deprivation of
children because of parental inability to give adequate support even if ascendants one degree removed are more than
able to fill the void.1avvphi1
However, petitioners partial concurrent obligation extends only to their descendants as this word is commonly
understood to refer to relatives, by blood of lower degree. As petitioners grandchildren by blood, only respondents
Lester Edward, Candice Grace and Mariano III belong to this category. Indeed, Cheryls right to receive support from
the Lim family extends only to her husband Edward, arising from their marital bond. 20Unfortunately, Cheryls share

from the amount of monthly support the trial court awarded cannot be determined from the records. Thus, we are
constrained to remand the case to the trial court for this limited purpose. 21
Petitioners Precluded from Availing of the Alternative Option Under
Article 204 of the Civil Code, as Amended
As an alternative proposition, petitioners wish to avail of the option in Article 204 of the Civil Code, as amended, and
pray that they be allowed to fulfill their obligation by maintaining respondents at petitioners Makati residence. The
option is unavailable to petitioners.
The application of Article 204 which provides that
The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or
by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter
alternative cannot be availed of in case there is a moral or legal obstacle thereto. (Emphasis supplied)
is subject to its exception clause. Here, the persons entitled to receive support are petitioners grandchildren and
daughter-in-law. Granting petitioners the option in Article 204 will secure to the grandchildren a well-provided future;
however, it will also force Cheryl to return to the house which, for her, is the scene of her husbands infidelity. While
not rising to the level of a legal obstacle, as indeed, Cheryls charge against Edward for concubinage did not prosper
for insufficient evidence, her steadfast insistence on its occurrence amounts to amoral impediment bringing the case
within the ambit of the exception clause of Article 204, precluding its application.
WHEREFORE, we DENY the petition. We AFFIRM the Decision of the Court of Appeals, dated 28 April 2003, and its
Resolution dated 12 April 2004 with the MODIFICATION that petitioners Prudencio and Filomena Lim are liable to
provide support only to respondents Lester Edward, Candice Grace and Mariano III, all surnamed Lim. WeREMAND the
case to the Regional Trial Court of Makati City, Branch 140, for further proceedings consistent with this ruling. SO
ORDERED.

CUSTODY OF MINORS
G.R. No. 174485

July 11, 2007

AGNES GAMBOA-HIRSCH Petitioner, vs. HON. COURT OF APPEALS and FRANKLIN HARVEY
HIRSCH, Respondents.
RESOLUTION
VELASCO, JR., J.:
This is a petition for certiorari1 under Rule 65 which seeks to set aside the June 8, 2006 Decision 2 of the Court of
Appeals (CA) in CA-G.R. SP No. 94329, which granted private respondent Franklin Harvey Hirsch (Franklin) joint custody
with petitioner Agnes Gamboa-Hirsch (Agnes) of their minor daughter Simone Noelle Hirsch (Simone); and the August
3, 2006 CA Resolution3 denying petitioners Motion for Reconsideration for lack of merit. Petitioner also prays for the
issuance of a temporary restraining order/injunction preventing the execution and implementation of the assailed June
8, 2006 CA Decision.
Franklin and Agnes were married on December 23, 2000 in the City of Bacolod, and established their conjugal dwelling
in Diniwid, Boracay Island, Malay, Aklan. On December 21, 2002, a child was born to them and was named Simone. In
2005, the couple started to have marital problems as Agnes wanted to stay in Makati City, while Franklin insisted that
they stay in Boracay Island. On March 23, 2006, Agnes came to their conjugal home in Boracay, and asked for money
and for Franklins permission for her to bring their daughter to Makati City for a brief vacation. Franklin readily agreed,
but soon thereafter discovered that neither Agnes nor their daughter Simone would be coming back to Boracay.
Franklin then filed a petition for habeas corpus before the CA for Agnes to produce Simone in court. On May 19, 2006,
the CA issued a Resolution which ordered that a writ of habeas corpus be issued ordering that Simone be brought
before said court on May 26, 2006. After a series of hearings and presentation of evidence, the CA, on June 8, 2006,
promulgated the assailed Decision granting Franklin joint custody with Agnes of their minor child. Agnes filed a Motion
for Reconsideration of this Decision, which was denied in the CAs August 3, 2006 Resolution for lack of merit.
Petitioner now comes before this Court praying that we set aside the June 8, 2006 Decision and August 3, 2006
Resolution of the CA, and that we issue a temporary restraining order/injunction on the execution and implementation
of the assailed rulings of the CA based on the following grounds:
(A)
The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it ruled upon, granted, and decided the matter of custody x x x during the May 26, 2006
hearing conducted on the petition for writ of habeas corpus in relation to and with custody of a minor under

A.M. No. 03-03-04-SC, C.A.-GR SP. No. 94329, as no reception of evidence to support said decision was had
thereon, and the honorable court merely based its decision on mere conjectures and presumptions.
(B)
The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it denied the motion for reconsideration filed by [petitioner Agnes] and only made
addendums thereon appertaining to the custody aspect in its Decision that the same is deemed necessary for
the protection of the interest of the child and a mere temporary arrangement while the case involving the
herein parties are pending before the Regional Trial Court x x x quite contrary to its pronouncements during
the May 26, 2006 hearing when the matter of custody was insisted upon by [respondent Franklin].
(C)
The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it granted joint custody in utter disregard of the provisions of the Family Code, as to minors
seven (7) years of age and below, in relation to the jurisprudence and pronouncements laid down by the
Honorable Supreme Court on the matter of the said provision.4
Acting on the petition, this Court issued its October 2, 2006 Resolution denying petitioners prayer for the issuance of a
temporary restraining order. Petitioner then filed a Motion for Reconsideration of this Resolution, and on April 11, 2007,
this Court granted petitioners Motion for Reconsideration, issued a temporary restraining order, and awarded the sole
custody of the minor, Simone, to petitioner.
This petition has merit.
The CA committed grave abuse of discretion when it granted joint custody of the minor child to both parents.
The Convention on the Rights of the Child provides that "in all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration (emphasis supplied)." 5 The Child and Youth Welfare Code, in the
same way, unequivocally provides that in all questions regarding the care and custody, among others, of the child,
his/her welfare shall be the paramount consideration. 6
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 is 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. 7 Here, the mother was not shown to be
unsuitable or grossly incapable of caring for her minor child. All told, no compelling reason has been adduced to
wrench the child from the mothers custody.1avvphi1
WHEREFORE, premises considered, the petition is GIVEN DUE COURSE. The June 8, 2006 Decision and August 3,
2006 Resolution of the CA are hereby SET ASIDE. Sole custody over Simone Noelle Hirsch is hereby AWARDED to the
mother, petitioner Agnes Gamboa-Hirsch. SO ORDERED.
G.R. No. 154994

June 28, 2005

JOYCELYN PABLO-GUALBERTO, petitioner, vs. CRISANTO RAFAELITO GUALBERTO V, respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x
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. PABLOGUALBERTO, 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 custodypendente
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 Review1 filed by Joycelyn Pablo-Gualberto under Rule
45 of the Rules of Court, assailing the August 30, 2002 Decision 2 of the Court of Appeals (CA) in CA-GR SP No. 70878.
The assailed Decision disposed as follows:

"WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED. The assailed Order of May 17,
2002 is hereby SET ASIDE and ANNULLED. The custody of the child is hereby ordered returned to [Crisanto Rafaelito
G. Gualberto V].
"The [respondent] court/Judge is hereby directed to consider, hear and resolve [petitioners] motion to lift the award of
custody pendente lite of the child to [respondent]."3
The second is a Petition for Certiorari4 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

10

and promote the administration of justice, not to hinder or delay it. Litigation should be practicable and convenient.
The error in the name of Joycelyn does not involve public policy and has not prejudiced [her].
This case was filed on March 12, 2002. Several attempts were made to serve summons on [Joycelyn] as shown by the
Sheriffs returns. It appears that on the 4th attempt on March 21, 2002, both Ma. Daisy and x x x Ronnie Nolasco,
[Joycelyns mother and stepfather, respectively,] read the contents of the documents presented after which they
returned the same.lawphil.net
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.1avvphil.zw+ 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 Certiorari7 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

11

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 x x x x x x
"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 mail12 at the Bian, Laguna Post Office on October 24, 2002. This is the date clearly stamped on the face of
the envelope13 and attested to in the Affidavit of Service14 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 Book18 that shows the list of mail matters that have been registered for
mailing on a particular day, along with the names of the senders and the addressees. That book shows that Registry
Receipt Nos. 2832-A and 2832-B, pertaining to the mailed matters for the Supreme Court, were issued on October 24,
2002.
Prematurity of the Petition

12

As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out that his Urgent Motion for Partial
Reconsideration19 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 Dismiss24 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 3825 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.27The
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 custodypendente
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 action28 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

13

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 custodypendente
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 Code31 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). 34Article
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 21135 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 sevenyears 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:

14

"[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, thebest
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
bycompelling 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

15

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.
G.R. No. 118870 March 29, 1996
NERISSA Z. PEREZ, petitioner, vs. THE COURT OF APPEALS (Ninth Division) and RAY C. PEREZ, respondents.
ROMERO, J.:p
Parties herein would have this Court duplicate the feat of King Solomon who was hailed in Biblical times for his
sagacious, if, at times unorthodox, manner of resolving conflicts, the most celebrated case being that when his
authority was invoked to determine the identity of the real mother as between two women claiming the same infant.
Since there could only be one mother, the daunting task that confronted the king/judge was to choose the true one.
In the instant case, we are faced with the challenge of deciding, as between father and mother, who should have
rightful custody of a child who bears in his person both their genes.
While there is a provision of law squarely in point, the two courts whose authority have been invoked to render a
decision have arrived at diametrically opposite conclusions.
It has fallen upon us now to likewise act as judge between the trial court, on the one hand, and the appellate, on the
other.
On the issue of custody over the minor Ray Perez II, respondent Court of Appeals ruled in favor of the boy's father Ray
C. Perez, reversing the trial court's decision to grant custody to Nerissa Z. Perez, the child's mother.
Ray Perez, private respondent, is a doctor of medicine practicing in Cebu while Nerissa, his wife who is petitioner
herein, is a registered nurse. They were married in Cebu on December 6, 1986. After six miscarriages, two operations
and a high-risk pregnancy, petitioner finally gave birth to Ray Perez II in New York on July 20, 1992.
Petitioner who began working in the United States in October 1988, used part of her earnings to build a modest house
in Mandaue City, Cebu. She also sought medical attention for her successive miscarriages in New York. She became a
resident alien in February 1992.
Private respondent stayed with her in the U.S. twice and took care of her when she became pregnant. Unlike his wife,
however, he had only a tourist visa and was not employed.
On January 17, 1993, the couple and their baby arrived in Cebu. After a few weeks, only Nerissa returned to the U.S.
She alleged that they came home only for a five-week vacation and that they all had round-trip tickets. However, her
husband stayed behind to take care of his sick mother and promised to follow her with the baby. According to Ray,
they had agreed to reside permanently in the Philippines but once Nerissa was in New York, she changed her mind and
continued working. She was supposed to come back immediately after winding up her affairs there.
When Nerissa came home a few days, before Ray II's first birthday, the couple was no longer on good terms. That their
love for each other was fading became apparent from their serious quarrels. Petitioner did not want to live near her inlaws and rely solely on her husband's meager income of P5,000.00. 1 She longed to be with her only child but he was
being kept away from her by her husband. Thus, she did not want to leave RJ (Ray Junior) with her husband and inlaws. She wished for her son to grow up with his mother.
On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced his profession. He
maintained that it would not be difficult to live here since they have their own home and a car. They could live
comfortably on his P15,000.00 monthly income 2 as they were not burdened with having to pay any debts.
Petitioner was forced to move to her parents' home on Guizo Street in Mandaue. Despite mediation by the priest who
solemnized their marriage, the couple failed to reconcile.
On July 26, 1993, Nerissa Z. Perez filed a petition for habeas corpus 3 asking respondent Ray C. Perez to surrender the
custody of their son, Ray Z. Perez II, to her.

16

On August 27, 1993, the court a quo issued an Order awarding custody of the one-year old child to his mother, Nerissa
Perez, citing the second paragraph of Article 213 of the Family Code which provides that no child under seven years of
age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. The dispositive
portion of the Order reads:
WHEREFORE, foregoing premises considered, Order is hereby issued ordering the respondent to turn over the
custody of their child Ray Cortes Perez II, his passport and round trip ticket to herein petitioner with a warning
that if he will escape together with the child for the purpose of hiding the minor child instead of complying with
this Order, that warrant for his arrest will be issued.
SO ORDERED. 4
Upon appeal by Ray Perez, the Court of Appeals, on September 27, 1994, reversed the trial court's order and awarded
custody of the boy to his father. 5
Petitioner's motion for reconsideration having been denied, 6 she filed the instant petition for review where the sole
issue is the custody of Ray Perez II, now three years old.
Respondent court differed in opinion from the trial court and ruled that there were enough reasons to deny Nerissa
Perez custody over Ray II even if the child is under seven years old. It held that granting custody to the boy's father
would be for the child's best interest and welfare. 7
Before us is the unedifying situation of a husband and wife in marital discord, struggling for custody of their only child.
It is sad that petitioner and private respondent have not found it in their hearts to understand each other and live
together once again as a family. Separated in fact, they now seek the Court's assistance in the matter of custody or
parental authority over the child.
The wisdom and necessity for the exercise of joint parental authority need not be belabored. The father and the
mother complement each other in giving nurture and providing that holistic care which takes into account the physical,
emotional, psychological, mental, social and spiritual needs of the child. By precept and example, they mold his
character during his crucial formative years.
However, the Court's intervention is sought in order that a decision may be made as to which parent shall be given
custody over the young boy. The Court's duty is to determine whether Ray Perez II will be better off with petitioner or
with private respondent. We are not called upon to declare which party committed the greater fault in their domestic
quarrel.
When the parents of the child are separated, Article 213 of the Family Code is the applicable law. It 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. (Emphasis supplied).
Since the Code does not qualify the word "separation" to mean legal separation decreed by a court, couples who are
separated in fact, such as petitioner and private respondent, are covered within its terms. 8
The Revised Rules of Court also contains a similar provision. Rule 99, section 6 (Adoption and Custody of Minors)
provides:
Sec. 6. Proceedings as to child whose parents are separated. Appeal. When husband and wife are divorced or
living separately, and apart from each other, and the questions as to the care, custody, and control of a child
or children of their marriage is brought before a Court of First Instance by petition or as an incident to any
other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody,
and control of each such child as will be for its best interest, permitting the child to choose which parent it
prefers to live with if it be over ten years of age, unless the parent chosen be unfit to take charge of the child
by reason of moral depravity, habitual drunkenness, incapacity, or poverty. . . . No child under seven years of
age shall be separated from its mother, unless the court finds there are compelling reasons therefor.
(Emphasis supplied)
The provisions of law quoted above clearly mandate that a child under seven years of age shall not be separated from
his mother unless the court finds compelling reasons to order otherwise. The use of the word "shall" in Article 213 of
the Family Code and Rule 99, section 6 of the Revised Rules of Court connotes a mandatory character. In the case
of Lacson v. San Jose-Lacson, 9 the Court declared:
The use of the word shall in article 363 10 of the Civil Code, coupled with the observations made by the Code
Commission in respect to the said legal provision, underscores its mandatory character. It prohibits in no
uncertain terms the separation of a mother and her child below seven years, unless such separation is
grounded upon compelling reasons as determined by a court. 11

17

The rationale for awarding the custody of children younger than seven years of age to their mother was explained by
the Code Commission:
The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn
away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age.
The exception allowed by the rule has to be for "compelling reasons" for the good of the child; those cases
must indeed be rare, if the mother's heart is not to be unduly hurt. If she has erred, as in cases of adultery, the
penalty of imprisonment and the divorce decree (relative divorce) will ordinarily be sufficient punishment for
her. Moreover, moral dereliction will not have any effect upon the baby who is as yet unable to understand her
situation. (Report of the Code Commission, p. 12) 12
The Family Code, in reverting to the provision of the Civil Code that a child below seven years old should not be
separated from the mother (Article 363), has expressly repealed the earlier Article 17, paragraph three of the Child
and Youth Welfare Code (Presidential Decree No. 603) which reduced the child's age to five years. 13
The general rule that a child under seven years of age shall not be separated from his mother finds its raison d'tre in
the basic need of a child for his mother's loving care. 14 Only the most compelling of reasons shall justify the court's
awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental
authority. In the past the following grounds have been considered ample justification to deprive a mother of custody
and parental authority: neglect, abandonment, 15 unemployment and immorality, 16 habitual drunkenness, 17 drug
addiction, maltreatment of the child, insanity and being sick with a communicable disease. 18
It has long been settled that in custody cases, 19 the foremost consideration is always the welfare and best interest of
the child. In fact, no less than an international instrument, the Convention on the Rights of the Child provides: "In all
actions concerning children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." 20
Courts invariably look into all relevant factors presented by the contending parents, such as their material resources,
social and moral
situations. 21
In the case at bench, financial capacity is not a determinative factor inasmuch as both parties have demonstrated that
they have ample means.
Respondent court stated that petitioner has no permanent place of work in the U.S.A. and has taken this point against
her. The records, however, show that she is employed in a New York hospital 22 and was, at the time the petition was
filed, still abroad. 23 She testified that she intends to apply for a job elsewhere, presumably to improve her work
environment and augment her income, as well as for convenience. 24 The Court takes judicial notice of the fact that a
registered nurse, such as petitioner, is still very much in demand in the United States. Unlike private respondent, a
doctor who by his own admission could not find employment there, petitioner immediately got a job in New York.
Considering her skill and experience petitioner should find no difficulty in obtaining work elsewhere, should she desire
to do so.
The decision under review casts doubt on petitioner's capability to take care of the child, particularly since she works
on twelve-hour shifts thrice weekly, at times, even at night. There being no one to help her look after the child, it is
alleged that she cannot properly attend to him. This conclusion is as unwarranted as it is unreasonable. First, her
present work schedule is not so unmanageable as to deprive her of quality time for Ray II. Quite a number of working
mothers who are away from home for longer periods of time are still able to raise a family well, applying time
management principles judiciously. Second, many a mother, finding herself in such a position, has invited her own
mother or relative to join her abroad, providing the latter with plane tickets and liberal allowances, to look after the
child until he is able to take care of himself. Others go on leave from work until such time as the child can be entrusted
to day-care centers. Delegating child care temporarily to qualified persons who run day-care centers does not detract
from being a good mother, as long as the latter exercises supervision, for even in our culture, children are often
brought up by housemaids or "yayas" under the eagle eyes of the mother. Third, private respondent's work schedule
was not presented in evidence at the trial. Although he is a general practitioner, the records merely show that he
maintains a clinic, works for several companies on retainer basis and teaches part-time. 25 Hence, respondent court's
conclusion that "his work schedule is flexible (and h)e can always find time for his son" 26 is not well-founded. Fourth,
the fact that private respondent lives near his parents and sister is not crucial in this case. Fifth, petitioner's work
schedule cited in the respondent court's decision is not necessarily permanent. Hospitals work in shifts and, given a
mother's instinctive desire to lavish upon her child the utmost care, petitioner may be expected to arrange her
schedule in such a way as to allocate time for him. Finally, it does not follow that petitioner values her career more
than her family simply because she wants to work in the United States. There are any number of reasons for a person's
seeking a job outside the country, e.g. to augment her income for the family's benefit and welfare, and for
psychological fulfillment, to name a few. In the instant case, it has been shown that petitioner earned enough from her
job to be able to construct a house for the family in Mandaue City. The record describes sketchily the relations between
Ray and Nerissa Perez. The transcripts of the three hearings are inadequate to show that petitioner did not exert
earnest efforts and make sacrifices to save her marriage.
It is not difficult to imagine how heart-rending it is for a mother whose attempts at having a baby were frustrated
several times over a period of six years to finally bear one, only for the infant to be snatched from her before he has
even reached his first year. The mother's role in the life of her child, such as Ray II, is well-nigh irreplaceable. In prose
and poetry, the depth of a mother's love has been immortalized times without number, finding as it does, its
justification, not in fantasy but in reality.

18

WHEREFORE, the petition for review is GRANTED. The decision of the Court of Appeals dated September 27, 1994 as
well as its Resolution dated January 24, 1995 are hereby REVERSED and SET ASIDE. The Order of the trial court dated
August 27, 1993 is hereby REINSTATED. Custody over the minor Ray Z. Perez II is awarded to his mother, herein
petitioner Nerissa Z. Perez. This decision is immediately executory. SO ORDERED.
G.R. No. 122906

February 7, 2002

DINAH B. TONOG, petitioner, vs. COURT OF APPEALS and EDGAR V. DAGUIMOL, respondents.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari seeking the reversal of two (2) Resolutions dated August 29, 1995 and
November 29, 1995 issued by the former Second Division 1 of the Court of Appeals in CA-G.R. SP No. 35971. The first
resolution modified the appellate courts decision promulgated in the said case, and granted custody of the minor,
Gardin Faith Belarde Tonog, to private respondent. The second resolution denied petitioners motion for
reconsideration.
The pertinent facts are:
On September 23, 1989, petitioner Dinah B. Tonog gave birth 2 to Gardin Faith Belarde Tonog, her illegitimate daughter
with private respondent Edgar V. Daguimol. Petitioner was then a nursing student while private respondent was a
licensed physician. They cohabited for a time and lived with private respondents parents and sister in the latters
house in Quezon City where the infant, Gardin Faith, was a welcome addition to the family.
A year after the birth of Gardin Faith, petitioner left for the United States of America where she found work as a
registered nurse. Gardin Faith was left in the care of her father (private respondent herein) and paternal grandparents.
On January 10, 1992, private respondent filed a petition for guardianship over Gardin Faith, docketed as Sp. Proc. No.
Q-92-11053, in the Regional Trial Court of Quezon City. On March 9, 1992, the trial court rendered judgment appointing
private respondent as legal guardian of the minor, Gardin Faith.
Petitioner avers that she learned of the judgment of the trial court rendered in Sp. Proc. No. Q-92-11053 only on April
1, 1992. Accordingly, on May 27, 1992, she filed a petition for relief from judgment. In a resolution dated September
15, 1992, the trial court set aside its original judgment and allowed petitioner to file her opposition to private
respondents petition. The latter, in turn, filed a motion for reconsideration. In a related incident, petitioner filed on
October 4, 1993, a motion to remand custody of Gardin Faith to her.
On November 18, 1994, the trial court issued a resolution denying private respondents motion for reconsideration and
granting petitioners motion for custody of their child, Gardin. Petitioner moved for immediate execution of the said
resolution.
Due to the adverse turn of events, private respondent filed a petition for certiorari before the Court of Appeals,
docketed as CA-G.R. SP No. 35971, questioning the actuations of the trial court. On March 21, 1995, the appellate
court dismissed the petition on the ground of lack of merit. However, after private respondent filed a motion for
reconsideration, the appellate court issued a Resolution3 dated August 29, 1995 modifying its decision, as follows:
Although We do find the Petition dismissible, insofar as it assails the September 15, 1993 Resolution of the respondent
Court, giving due course to private respondents Petition for Relief from Judgment, and the November 18, 1995
Resolution denying his Motion for Reconsideration, We discern a good ground to let physical custody of subject child,
Gardin Faith Belarde Tonog, continue under the petitioner, with whom the said child had been living, since birth.
While it is understandable for private respondent, as mother, to assert and seek enforcement of her legal and natural
rights as the natural guardian of her child, the emotional and psychological effects upon the latter of a change in
custody should be considered. To be sure, transfer of custody of the child from petitioner to private respondent will be
painful for the child who, all her life, has been in the company of petitioner and her paternal grandparents.
Now, inasmuch as the issue of guardianship and custody over the same child is still pending determination before the
respondent Court, the possibility of petitioners appointment as the guardian cannot be discounted. It would certainly
wreak havoc on the childs psychological make-up to give her to the custody of private respondent, only to return her
to petitioner should the latter prevail in the main case. Subjecting the child to emotional seesaw should be avoided. It
is thus more prudent to let physical custody of the child in question be with petitioner until the matter of her custody
shall have been determined by final judgment.
WHEREFORE, the Decision, promulgated here on March 21, 1995 is accordingly MODIFIED, and status quo with respect
to the physical custody of the child, Gardin Faith Belarde Tonog, is ordered. It is understood that the latter shall remain
with petitioner until otherwise adjudged.
Petitioner thus interposed the instant appeal after the appellate court denied her motion for reconsideration in its
Resolution4 dated November 29, 1995.

19

Petitioner contends that she is entitled to the custody of the minor, Gardin Faith, as a matter of law. First, as the
mother of Gardin Faith, the law confers parental authority upon her as the mother of the illegitimate minor. Second,
Gardin Faith cannot be separated from her since she had not, as of then, attained the age of seven. Employing simple
arithmetic however, it appears that Gardin Faith is now twelve years old.
In custody disputes, it is axiomatic that the paramount criterion is the welfare and well-being of the child. 5 In arriving
at its decision as to whom custody of the minor should be given, the court must take into account the respective
resources and social and moral situations of the contending parents. 6
In turn, the parents right to custody over their children is enshrined in law. Article 220 of the Family Code thus
provides that parents and individuals exercising parental authority over their unemancipated children are entitled,
among other rights, "to keep them in their company." In legal contemplation, the true nature of the parent-child
relationship encompasses much more than the implication of ascendancy of one and obedience by the other. We
explained this in Santos, Sr. v. Court of Appeals: 7
The right of custody accorded to parents springs from the exercise of parental authority. Parental authority orpatria
potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their
unemancipated children to the extent required by the latters needs. It is a mass of rights and obligations which the
law grants to parents for the purpose of the childrens physical preservation and development, as well as the
cultivation of their intellect and the education of their heart and senses. As regards parental authority, "there is no
power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the
minor."
Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases
authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental
authority only in cases of adoption, guardianship and surrender to a childrens home or an orphan institution. When a
parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is
merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite
renunciation is manifest, the law still disallows the same.
Statute sets certain rules to assist the court in making an informed decision.1wphi1 Insofar as illegitimate children
are concerned, Article 176 of the Family Code provides that illegitimate children shall be under the parental authority
of their mother. Likewise, Article 213 of the Family Code provides that "[n]o child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons to order otherwise." It will be observed that in
both provisions, a strong bias is created in favor of the mother. This is specially evident in Article 213 where it may be
said that the law presumes that the mother is the best custodian. As explained by the Code Commission:
The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from
her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed
by the rule has to be for "compelling reasons" for the good of the child; those cases must indeed be rare, if the
mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the
divorce decree (relative divorce) will ordinarily be sufficient punishment for her. Moreover, moral dereliction will not
have any effect upon the baby who is as yet unable to understand her situation. 8
This is not intended, however, to denigrate the important role fathers play in the upbringing of their children. Indeed,
we have recognized that both parents "complement each other in giving nurture and providing that holistic care which
takes into account the physical, emotional, psychological, mental, social and spiritual needs of the child." 9 Neither does
the law nor jurisprudence intend to downplay a fathers sense of loss when he is separated from his child:
While the bonds between a mother and her small child are special in nature, either parent, whether father or mother,
is bound to suffer agony and pain if deprived of custody. One cannot say that his or her suffering is greater than that of
the other parent. It is not so much the suffering, pride, and other feelings of either parent but the welfare of the child
which is the paramount consideration.10
For these reasons, even a mother may be deprived of the custody of her child who is below seven years of age for
"compelling reasons." Instances of unsuitability are neglect, abandonment, unemployment and immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable illness. 11 If older
than seven years of age, a child is allowed to state his preference, but the court is not bound by that choice. The court
may exercise its discretion by disregarding the childs preference should the parent chosen be found to be unfit, in
which instance, custody may be given to the other parent, or even to a third person. 12
In the case at bar, we are being asked to rule on the temporary custody of the minor, Gardin Faith, since it appears
that the proceedings for guardianship before the trial court have not been terminated, and no pronouncement has
been made as to who should have final custody of the minor. Bearing in mind that the welfare of the said minor as the
controlling factor, we find that the appellate court did not err in allowing her father (private respondent herein) to
retain in the meantime parental custody over her. Meanwhile, the child should not be wrenched from her familiar
surroundings, and thrust into a strange environment away from the people and places to which she had apparently
formed an attachment.
Moreover, whether a mother is a fit parent for her child is a question of fact to be properly entertained in the special
proceedings before the trial court. 13 It should be recalled that in a petition for review on certiorari, we rule only on
questions of law. We are not in the best position to assess the parties respective merits vis--vis their opposing claims
for custody. Yet another sound reason is that inasmuch as the age of the minor, Gardin Faith, has now exceeded the

20

statutory bar of seven years, a fortiori, her preference and opinion must first be sought in the choice of which parent
should have the custody over her person.
A word of caution: our pronouncement here should not be interpreted to imply a preference toward the father (herein
private respondent) relative to the final custody of the minor, Gardin Faith. Nor should it be taken to mean as a
statement against petitioners fitness to have final custody of her said minor daughter. It shall be only understood that,
for the present and until finally adjudged, temporary custody of the subject minor should remain with her father, the
private respondent herein pending final judgment of the trial court in Sp. Proc. No. Q-92-11053.
WHEREFORE, the instant petition is hereby DENIED. The trial court is directed to immediately proceed with hearing
Sp. Proc. No. Q-92-11053 upon notice of this decision. No pronouncement as to costs.
SO ORDERED.
G.R. No. 140817

December 7, 2001

SABRINA ARTADI BONDAGJY, petitioner, vs. FOUZI ALI BONDAGJY, JUDGE BENSAUDI I. ARABANI, SR., in his
capacity as presiding judge of the 3rd Shari'a District Court, Shari'a Judicial District, Zamboanga
City, respondent.
PARDO, J.:
Is a wife, a Christian who converted to Islam before her marriage to a Muslim and converted back to Catholicism upon
their separation, still bound by the moral laws of Islam in the determination of her fitness to be the custodian of her
children?
We apply civil law in the best interest of the children.
The Facts
Respondent Fouzi (then 31 years of age) and Sabrina (then 20 years of age) were married on February 3,1988, at the
Manila Hotel, Ermita, Manila under Islamic rites.1 On October 21, 1987, or four (4) months before her marriage, Sabrina
became a Muslim by conversion. However, the conversion was not registered with the Code of Muslim Personal Laws of
the Philippines.
Out of their union, they begot two (2) children, namely, Abdulaziz, born on June 13, 1989, 2 and Amouaje, born on
September 29, 1990.3 The children were born in Jeddah, Saudi Arabia.
At the time of their marriage, unknown to petitioner, respondent was still married to a Saudi Arabian woman whom he
later divorced.
After their marriage, the couple moved in with respondent's family in Makati City. In 1990, the parties migrated and
settled in Jeddah, Saudi Arabia where they lived for more than two years.
Sometime in December 1995, the children lived in the house of Sabrina's mother in 145 Tanguile Street, Ayala
Alabang. Fouzi alleged that he could not see his children until he got an order from the court. Even with a court order,
he could only see his children in school at De La Salle-Zobel, Alabang, Muntinlupa City .
On December 15, 1996, Sabrina had the children baptized as Christians 4 and their names changed from Abdulaziz
Bondagjy to Azziz Santiago Artadi and from Amouaje Bondagjy to Amouage Selina Artadi.
Respondent alleged that on various occasions Sabrina was seen with different men at odd hours in Manila, 5 and that
she would wear short skirts, sleeveless blouses, and bathing suits. 6 Such clothing are detestable under Islamic law on
customs.
Fouzi claimed that Sabrina let their children sweep their neighbor's house for a fee of P40.00 after the children come
home from school. Whenever Fouzi sees them in school, 7 the children would be happy to see him but they were afraid
to ride in his car. Instead, they would ride the jeepney in going home from school.
The Case
On March 11, 1996, respondent Fouzy Ali Bondagjy filed with the Shari'a District Court, Marawi City, an actions 8to
obtain custody of his two minor children, Abdulaziz, 10 and Amouaje, 9.
On June 6, 1996, petitioner filed her answer with motion to dismiss on the ground of lack of jurisdiction over the
persons of the parties since both parties were residents of Manila and for lack of cause of action. Petitioner likewise
moved to transfer the venue to Zamboanga, which was more accessible by plane.
On June 18, 1996, the Shari'a District Court granted petitioner's motion to transfer the venue to Zamboanga. 9

21

On June 27, 1996, respondent filed a reply 10 and motion for a temporary restraining order against petitioner. 11He
moved that petitioner desist from preventing him from exercising parental authority over his minor children.
On July 12, 1996, the court granted the motion and issued a writ of preliminary injunction. 12
On August 12, 1996, the court ordered the parties to submit their memoranda on the issue of jurisdiction.
On October 30, 1996, the court granted petitioner's motion to withdraw motion to dismiss on the issue of jurisdiction
and set the proceedings for pre-trial conference on November 14, 1996.
On November 14, 1996, respondent filed a motion to drop Joyce Artadi as defendant in the case and the trial court
issued an order:
"During the pre-trial conference held this morning, the parties made their respective offer and counter
proposals for amicable settlement. The plaintiff proposed (1) solidarity of the family, and (2) alternate custody.
The defendant advanced the proposal of reasonable visitation of the father at their residence, for which the
court will possibly fix the period or time and schedule of visitations.
"With these proposals, both parties agreed to continue the pre-trial conference on December 9, 1996.
"WHEREFORE, let the pre-trial conference be again held on December 9, 1996, at 9:00 o'clock in the
morning."13
Meantime, petitioner filed with the Regional Trial Court, Branch 256, Muntinlupa City 14 an action for nullity of marriage,
custody and support, ordered the parties to maintain status quo until further orders from said court.15
On March 2, 1999, petitioner filed another motion to dismiss 16 on the ground of lack of jurisdiction over the subject
matter of the case since P.D. No. 1083 is applicable only to Muslims. On March 3, 1999, Fouzi filed an opposition to the
motion to dismiss and argued that at the inception of the case, both parties were Muslims, Fouzi by birth and Sabrina
by conversion.
On March 29, 1999, the court denied the motion to dismiss since P.D. No. 1083 had jurisdiction over all cases of
Muslims involving custody.17
On April 23, 1999, Sabrina filed a motion to reconsider the order of March 29, 1999 denying the motion to dismiss. 18
On June 22, 1999, the court denied petitioner's motion for reconsideration. Thus"WHEREFORE, in view of the foregoing reasons, the motion for reconsideration of the defendant-movant is
hereby ordered DENIED; Defendant is further ordered to comply with the order of this Court dated July 12,
1996, to allow plaintiff to exercise his right of parental authority over their minor children with that of the
defendant in accordance with article 71, of P.D. 1083, the Code of Muslim Personal Laws.
"Let the continuation of this case be set on July 15, 1999 at 8:30 in the morning." 19
On July 15, 1999, the trial court decided to move forward to the next stage of the case and allowed respondent Fouzi
to present evidence ex-parte.
On August 18, 1999, the court issued an Order 20 giving respondent fifteen (15) days to submit his formal offer of
evidence and fifteen (15) days from receipt of transcript of stenographic notes to submit memorandum.
The Shari'a District Court's Decision
On November 16, 1999, the Shari'a Court rendered a decision, the dispositive portion of which reads:
"WHEREFORE, foregoing considered, judgment is hereby rendered:
(a) Awarding the custody of the minors Abdulaziz Artadi Bondagjy and Amouaje Artadi Bondagjy in favor of
their natural father, petitioner Fouzi Ali Bondagjy; and for this purpose ordering the respondent Sabrina Artadi
Bodagjy or any person having the care of said minors in her stead or behalf, to turn over, relinguish and
surrender the custody of said minors to their natural father, the petitioner in this case Fouzi Ali Bondagjy;
(b) Ordering the petitioner Fouzi Ali Bondagjy to ensure that the said minors are provided with reasonable
support according to his means and in keeping with the standard of his family, and, a suitable home conducive
to their physical,
(c) mental and moral development; and, with his knowledge and under reasonable circumstances allow the
respondent and natural mother of the said minors Mrs. Sabrina Artadi Bondagjy to visit her minor children
Abdulaziz Artadi Bondagjy and Amouje Artadi Bondagjy."21

22

Hence, this petition.22

The Court's Ruling
The Shari'a District Court held that P.D. No. 1083 on Custody and Guardianship does not apply to this case because the
spouses were not yet divorced.
However, the Shari' a District Court found petitioner unworthy to care for her children. Thus "A married woman, and a mother to growing children, should live a life that the community in which she lives
considers morally upright, and in a manner that her growing minor children will not be socially and morally
affected and prejudiced. It is sad to note that respondent has failed to observe that which is expected of a
married woman and a mother by the society in which she lives. xxx The evidence of this case shows the extent
of the moral depravity of the respondent, and the kind of concern for the welfare of her minor children which
on the basis thereof this Court finds respondent unfit with the custody of her minor children.
"xxx Under the general principles of Muslim law, the Muslim mother may be legally disentitled to the custody
of her minor children by reason of 'wickedness' when such wickedness is injurious to the mind of the child,
such as when she engages in 'zina' (illicit sexual relation); or when she is unworthy as a mother; and, a woman
is not worthy to be trusted with the custody of the child who is continually going out and leaving the child
hungry .(A. Baillie, Muhammadan Law, p. 435; citing Dar-ul-Muktar, p. 280)." 23
On the other hand, the Shari'a Court found that respondent Fouzi was capable both personally and financially to look
after the best interest of his minor children.24
"When he was asked during the direct examination the question that, 'if ever this Honorable Court will grant
you custody of your children will you be able to house and give support to your children?' He answered, "Of
course, even up to now I am giving support to my children; And my comment is that the father should give
everything the needs of the family and now whatever the children needs even in school, considering the past, I
have to love them, I have to care for my children. In school, even when they see something they love and like,
I buy it for them. Or sometime (sic) I send my staff and bring something for them in their house. It is very hard,
in school in front of other parents my son would still climb on my shoulder. I want to see them happy. I have
pictures of my children with me, taken only last week." 25
As a rule, factual findings of the lower courts are final and binding upon the parties. 26 The Court is not expected or
required to examine or contrast the oral and documentary evidence submitted by the parties. 27 However, although this
Court is not a trier of facts, it has the authority to review or reverse the factual findings of the lower courts if we find
that these do not conform to the evidence on record.28
In Reyes vs. Court of Appeals,29 the Court held that the exceptions to the rule that factual findings of the trial court are
final and. conclusive and may not be reviewed on appeal are the following: (1) when the inference made is manifestly
mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely
on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension
of facts; (5) when the findings of fact are conflicting; ( 6) when the Court of Appeals, in making its findings, went
beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the
findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions
without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion,
and (10) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are
contradicted by the evidence on record.1wphi1.nt
Fitness as a Mother
The burden is upon respondent to prove that petitioner is not worthy to have custody of her children. We find that the
evidence presented by the respondent was not sufficient to establish her unfitness according to Muslim law or the
Family Code.
In Pilipinas Shell Corp. vs. Court of Appeals (April 20, 2001, G. R. No. 114923), we said that in the hierarchy of
evidentiary values, proof beyond reasonable doubt is at the highest level, followed by clear and convincing evidence,
preponderance of evidence and substantial evidence, in that order. 30
The standard in the determination of sufficiency of proof, however, is not restricted to Muslim laws. The Family Code
shall be taken into consideration in deciding whether a non-Muslim woman is incompetent. What determines her
capacity is the standard laid down by the Family Code now that she is not a Muslim.
Indeed, what determines the fitness of any parent is the ability to see to the physical, educational, social and moral
welfare of the children,31 and the ability to give them a healthy environment as well as physical and financial support
taking into consideration the respective resources and social and moral situations of the parents.
The record shows that petitioner is equally financially capable of providing for all the needs of her children. The
children went to school at De La Salle Zobel School, Muntinlupa City with their tuition paid by petitioner according to
the school's certification.32

23

Parental Authority and Custody

The welfare of the minors is the controlling consideration on the issue. 33
In ascertaining the welfare and best interest of the children, courts are mandated by the Family Code to take into
account all relevant considerations.34
Article 211 of the Family Code provides that the father and mother shall jointly exercise parental authority over the
persons of their common children"
Similarly, P. D. No. 1083 is clear that where the parents are not divorced or legally separated, the father and mother
shall jointly exercise just and reasonable parental authority and fulfill their responsibility over their legitimate
children.
In Sagala-Eslao v. Court of Appeals,35 we stated:
"xxx [Parental authority] is a mass of rights and obligations which the law grants to parents for the purpose of
the children's physical preservation and development, as well as the cultivation of their intellect and the
education of their heart and senses.36 As regards parental authority, 'there is no power, but a task; no complex
of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor. 37
"xxx
"The father and mother, being the natural guardians of unemancipated children, are dutybound and entitled to
keep them in their custody and company. 38
We do not doubt the capacity and love of both parties for their children, such that they both want to have them in their
custody.
Either parent may lose parental authority over the child only for a valid reason. In cases where both parties cannot
have custody because of their voluntary separation, we take into consideration the circumstances that would lead us
to believe which parent can better take care of the children. Although we see the need for the children to have both a
mother and a father, we believe that petitioner has more capacity and time to see to the children's needs. Respondent
is a businessman whose work requires that he go abroad or be in different places most of the time. Under P.D. No. 603,
the custody of the minor children, absent a compelling reason to the contrary, is given to the mother. 39
However, the award of custody to the wife does not deprive" the husband of parental authority. In the case ofSilva v.
Court of Appeals,40 we said that:
"Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their
upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly
denied the parents; neither may it be renounced by them. Even when the parents are estranged and their
affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged.
Neither the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent
threat to the well-being of the child."
Thus, we grant visitorial rights to respondent as his Constitutionally protected natural and primary right. 41
The Fallo
WHEREFORE, the petition is hereby GRANTED. The decision in Spl. Proc. No. 13-96 is hereby SET ASIDE. Petitioner
SABRINA ARTADI BONDAGJY shall have custody over minors Abdulaziz, and Amouaje Bondagjy, until the children reach
majority age. Both spouses shall have joint responsibility over all expenses of rearing the children.
The father, FOUZI ALl BONDAGJY, shall have visitorial rights at least once a week and may take the children out only
with the written consent of the mother. No costs. SO ORDERED.
G.R. No. 114742 July 17, 1997
CARLITOS E. SILVA, petitioner, vs. HON. COURT OF APPEALS and SUZANNE T. GONZALES, respondents.
VITUG, J.:
Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their proper
upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied
the parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each
other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the
courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child.
The petition bears upon this concern.

24

Carlitos E. Silva, a married businessman, and Suzanne T. Gonzales, an unmarried local actress, cohabited without the
benefit of marriage. The union saw the birth of two children: Ramon Carlos and Rica Natalia. Not very long after, a rift
in their relationship surfaced. It began, according to Silva, when Gonzales decided to resume her acting career over his
vigorous objections. The assertion was quickly refuted by Gonzales who claimed that she, in fact, had never stopped
working throughout their relationship. At any rate, the two eventually parted ways.
The instant controversy was spawned, in February 1986, by the refusal of Gonzales to allow Silva, in apparent
contravention of a previous understanding, to have the children in his company on weekends. Silva filed a petition for
custodial rights over the children before the Regional Trial Court ("RTC"), Branch 78, of Quezon City. The petition was
opposed by Gonzales who averred that Silva often engaged in "gambling and womanizing" which she feared could
affect the moral and social values of the children.
In an order, dated 07 April 1989, the trial court adjudged:
WHEREFORE, premises considered, judgment is rendered directing respondent to allow herein
petitioner visitorial rights to his children during Saturdays and/or Sundays, but in no case should he take out
the children without the written consent of the mother or respondent herein. No pronouncement as to costs. 1
Silva appeared somehow satisfied with the judgment for only Gonzales interposed an appeal from the RTC's order to
the Court of Appeals.
In the meantime, Gonzales got married to a Dutch national. The newlyweds emigrated to Holland with Ramon Carlos
and Rica Natalia.
On 23 September 1993, the appellate tribunal ruled in favor of Gonzales; it held:
"In all questions, regarding the care, custody, education and property of the child, his welfare shall be the
paramount consideration" not the welfare of the parents (Art. 8, PD 603). Under the predicament and/or
status of both petitioner-appellee and respondent-appellant, We find it more wholesome morally and
emotionally for the children if we put a stop to the rotation of custody of said children. Allowing these children
to stay with their mother on weekdays and then with their father and the latter's live-in partner on weekends
may not be conducive to a normal up-bringing of children of tender age. There is no telling how this kind of
set-up, no matter how temporary and/or remote, would affect the moral and emotional conditions of the minor
children. Knowing that they are illegitimate is hard enough, but having to live with it, witnessing their father
living with a woman not their mother may have a more damaging effect upon them.
Article 3 of PD 603, otherwise known as the Child and Youth Welfare Code, provides in part:
Art. 3. Rights of the Child. . . .
(1) . . .
(2) . . .
(3) . . .
(4) . . .
(5) Every child has the right to be brought up in an atmosphere of morality and rectitude for the enrichment
and the strengthening of his character.
(6) . . .
(7) . . .
(8) Every child has the right to protection against exploitation, improper influences, hazards and other
conditions or circumstances prejudicial to his physical, mental emotional social and moral development.
xxx xxx xxx
With Articles 3 and 8 of PD 603, in mind, We find it to the best interest of the minor children, to deny visitorial
and/or temporary custodial rights to the father, even at the expense of hurting said parent. After all, if indeed
his love for the children is genuine and more divine than the love for himself, a little self-sacrifice and selfdenial may bring more benefit to the children. While petitioner-appellee, as father, may not intentionally
prejudice the children by improper influence, what the children may witness and hear while in their father's
house may not be in keeping with the atmosphere of morality and rectitude where they should be brought up.
The children concerned are still in their early formative years of life. The molding of the character of the child
starts at home. A home with only one parent is more normal than two separate houses (one house where
one parent lives and another house where the other parent with another woman/man lives). After all, under

25

Article 176 of the Family Code, illegitimate children are supposed to use the surname of and shall be under the
parental authority of their mother.
The child is one of the most important assets of the nation. It is thus important we be careful in rearing the
children especially so if they are illegitimates, as in this case.
WHEREFORE, in view of all the foregoing, judgment is hereby rendered giving due course to the appeal. The
Order of the Regional Trial Court of Quezon City dated April 7, 1989 is hereby reversed. Petitioner-appellee's
petition for visitorial rights is hereby denied.
SO ORDERED. 2
Silva comes to this Court for relief.
The issue before us is not really a question of child custody; instead, the case merely concerns the visitation right of a
parent over his children which the trial court has adjudged in favor of petitioner by holding that he shall have "visitorial
rights to his children during Saturdays and/or Sundays, but in no case (could) he take out the children without the
written consent of the mother . . . ." The visitation right referred to is the right of access of a noncustodial parent to his
or her child or children. 3
There is, despite a dearth of specific legal provisions, enough recognition on the inherent and natural right of parents
over their children. Article 150 of the Family Code expresses that "(f)amily relations include those . . . (2) (b)etween
parents and children; . . . ." Article 209, in relation to Article 220, of the Code states that it is the natural right and duty
of parents and those exercising parental authority to, among other things, keep children in their company and to give
them love and affection, advice and counsel, companionship and understanding. The Constitution itself speaks in
terms of the "natural and primary rights" of parents in the rearing of the youth. 4 There is nothing conclusive to
indicate that these provisions are meant to solely address themselves to legitimate relationships. Indeed, although in
varying degrees, the laws on support and successional rights, by way of examples, clearly go beyond the legitimate
members of the family and so explicitly encompass illegitimate relationships as well. 5 Then, too, and most importantly,
in the declaration of nullity of marriages, a situation that presupposes a void or inexistent marriage, Article 49 of the
Family Code provides for appropriate visitation rights to parents who are not given custody of their children.
There is no doubt that in all cases involving a child, his interest and welfare is always the paramount consideration.
The Court shares the view of the Solicitor General, who has recommended due course to the petition, that a few hours
spent by petitioner with the children, however, could not all be that detrimental to the children. Similarly, what the trial
court has observed is not entirely without merit; thus:
The allegations of respondent against the character of petitioner, even assuming as true, cannot be taken as
sufficient basis to render petitioner an unfit father. The fears expressed by respondent to the effect that
petitioner shall be able to corrupt and degrade their children once allowed to even temporarily associate with
petitioner is but the product of respondent's unfounded imagination, for no man, bereft of all moral
persuasions and goodness, would ever take the trouble and expense in instituting a legal action for the
purpose of seeing his illegitimate children. It can just be imagined the deep sorrows of a father who is deprived
of his children of tender ages. 6
The Court appreciates the apprehensions of private respondent and their well-meant concern for the children;
nevertheless, it seems unlikely that petitioner would have ulterior motives or undue designs more than a parent's
natural desire to be able to call on, even if it were only on brief visits, his own children. The trial court, in any case, has
seen it fit to understandably provide this precautionary measure, i.e., "in no case (can petitioner) take out the children
without the written consent of the mother."
WHEREFORE, the decision of the trial court is REINSTATED, reversing thereby the judgment of the appellate court
which is hereby SET ASIDE. No costs. SO ORDERED.
A.M. No. RTJ-12-2326
January 30, 2013
(Formerly A.M. OCA I.P.I. No. 11-3692-RTJ)
GEOFFREY BECKETT, Complainant, vs. JUDGE OLEGARIO R. SARMIENTO, JR., Regional Trial Court, Branch 24,
Cebu City, Respondent.
DECISION
VELASCO, JR., J.:
In all questions relating to the care, custody, education and property of the children, the latter's welfare is paramount.
This means that the best interest of the minor can override procedural rules and even the rights of parents to the
custody of their children. Since, in this case, the very life and existence of the minor is at stake and the child is in an
age when she can exercise an intelligent choice, the courts can do no less than respect, enforce and give meaning and
substance to that choice and uphold her right to live in an atmosphere conducive to her physical, moral and
intellectual development.1 x x x
The Case

26

This case arose from a complaint filed by Geoffrey Beckett charging Judge Olegario R. Sarmiento, Jr. of the Regional
Trial Court (RTC) of Cebu City, Branch 24, with gross ignorance of the law, manifest partiality and dereliction and
neglect of duty allegedly committed in relation to Sp. Proc. No. 18182-CEB, entitled Geoffrey Beckett v. Eltesa Densing
Beckett, while pending before that court.
The Antecedent Facts
Geoffrey Beckett (Beckett or Complainant), an Australian national, was previously married to Eltesa Densing Beckett
(Eltesa), a Filipina. Out of the marriage was born on June 29, 2001, Geoffrey Beckett, Jr. (Geoffrey, Jr.).
In his Complaint-Affidavit,2 Beckett alleged that their union was, from the start, far from ideal. In fact, according to him,
they eventually separated and, worse still, they sued each other.
In 2006, Eltesa filed a case against Beckett for violation of Republic Act No. (RA) 7610, otherwise known as the
Violence against Women and Children Act, followed by a suit for the declaration of nullity of their marriage, docketed
as Civil Case No. CEB -32254. Both cases ended in the sala of Judge Olegario Sarmiento, Jr. (respondent or Judge
Sarmiento). For his part, Beckett commenced criminal charges against Eltesa, one of which was for adultery.
The couples initial legal battle ended when Judge Sarmiento, on September 25, 2006 in Civil Case No. CEB-32254,
rendered judgment3 based on a compromise agreement in which Eltesa and Beckett agreed and undertook, among
others, to cause the dismissal of all pending civil and criminal cases each may have filed against the other. They
categorically agreed too that Beckett shall have full and permanent custody over Geoffrey, Jr., then five (5) years old,
subject to the visitorial rights of Eltesa.
Thereafter, Beckett left for Australia, taking Geoffrey, Jr. with him. As with his three other children from previous
relationships, so Beckett alleged, he cared and provided well for Geoffrey, Jr. Moreover, as agreed upon, they would
come and see Eltesa in Cebu every Christmas.
In 2007, Beckett obtained a divorce from Eltesa in Australia. This notwithstanding, the yearly Christmas visits
continued. In the 2010 visit, Beckett consented to have Geoffrey, Jr. stay with Eltesa even after the holidays, provided
she return the child on January 9, 2011. January 9 came and went but Geoffrey, Jr. remained with Eltesa, prompting
Beckett to file a petition against Eltesa for violation of RA 7610. Docketed as Sp. Proc. No. 18182-CEB, 4 this petition
was again raffled to the sala of Judge Sarmiento. And because Geoffrey remained in the meantime in the custody of
Eltesa, Beckett later applied in Sp. Proc. No. 18182-CEB for the issuance of a writ of habeas corpus.
Beckett further relates that, during the March 1, 2011 conference on the application for habeas corpus, Geoffrey, Jr.,
then nine (9) years old, displayed inside the courtroom hysterical conduct, shouting and crying, not wanting to let go
of Eltesa and acting as though, he, the father, was a total stranger. Despite Geoffrey Jr.s outburst, Judge Sarmiento
issued an Order5, dated March 1, 2011, directing inter alia the following: (1) Eltesa to return Geoffrey, Jr. to Beckett;
and (2) Beckett to bring the child in the pre-trial conference set for March 15, 2001.
For some reason, the turnover of Geoffrey, Jr. to Beckett did not materialize.
Beckett also alleged that while waiting for the March 15, 2011 pre-trial conference to start, he saw one Helen Sy,
purportedly a close friend of Eltesa, enter Judge Sarmientos chambers. Then, during the conference itself, Eltesa
moved for reconsideration of the courts March 1, 2011 Order, praying that it be set aside insofar as it directed her to
return the custody of Geoffrey, Jr. to Beckett. To this partial motion, Beckett requested, and was granted, a period of
five (5) days to file his comment/opposition. Additionally, Beckett sought the immediate implementation of the said
March 1, 2011 Order. But instead of enforcing said order and/or waiting for Becketts comment, Judge Sarmiento, in
open court, issued another order giving Eltesa provisional custody over Geoffrey, Jr. and at the same time directing the
Department of Social Welfare and Development (DSWD) to conduct a social case study on the child.
Weeks later, or in the March 30, 2011 setting, Beckett moved for the reconsideration of the judges March 15, 2011
Order, on the main contention that Judge Sarmiento can no longer grant provisional custody to Eltesa in light of the
adverted judgment on compromise agreement. Also, according to him, during this March 30 proceeding, respondent
judge conversed with Eltesa in Cebuano, a dialect which neither the former nor his counsel understood, and which they
(respondent and Eltesa) persisted on using despite requests that they communicate in English or Filipino. Becketts
lawyer then asked that he be allowed to confer in private with his client for a few minutes but when they returned to
the courtroom, the proceedings had already been adjourned.
As his motion for reconsideration had remained unresolved as of June 13, 2011, Beckett filed on that day an urgent
motion to resolve. Several hearings on the case were postponed because of the belated submission by the DSWD of
the case study report requested by respondent judge.
It is upon the foregoing factual backdrop that Beckett has instituted the instant complaint, docketed as A.M. OCA IPI
No. 11-3692- RTJ, later redocketed as A.M. No. RTJ-12-2326. As argued, respondent is liable for (1) gross ignorance of
the law for granting Eltesa provisional custody over Geoffrey Jr.; and (2) partiality by committing acts of serious
misconduct and irregularities in the performance of official duties, such as but not limited to allowing one Helen Sy to
enter his chambers before the March 15, 2011 hearing, his habit of conversing with Eltesa in the local dialect and for
adjourning a hearing while he was conferring with his counsel in private. Beckett predicates his charge of dereliction
and neglect of duty on respondents alleged failure to resolve his motion for reconsideration of the March 15, 2011
order giving provisional custody of his child to his mother.

27

In his answer in response to the 1st Indorsement dated July 14, 2011 of the Office of the Court of Administrator (OCA),
respondent judge denied complainants allegations of partiality and of being biased against the latter, particularly
describing his order granting Eltesa provisional custody as proper. In this regard, respondent judge averred that, per
his Order of March 30, 2011, he deferred action on Becketts motion for reconsideration of the courts March 15, 2011
Order pending submission of the Social Case Study Report, while the June 21, 2011 Order denying Becketts said
motion for reconsideration was based on that Social Case Study Report 6 of Social Welfare Officer Clavel Saycon, DWSDRegion VII, who recommended that Geoffrey, Jr. be in the care and custody of the mother. As an added observation,
respondent judge stated that Beckett did not cry "Bias" when he (respondent) approved the compromise agreement in
Civil Case CEB 32254 and when he later urged Beckett to commence habeas corpus proceedings. Attached to the
letter-answer are the case study reports submitted by the DSWD regional office, one of which was prepared by
psychologist Christine V. Duhaylungsod,7 who elicited from Geoffrey, Jr. the following information: that (1) complainant
always leaves him to the care of his older half-brother or his fathers girlfriends; (2) he was at one time sent out of the
house by one of complainants girlfriends and he had to stay in the garage alone; and (3) he never wanted to stay with
complainant whom he feared and who once locked him in his room without food. In their respective reports, Dr. Obra
and Dr. Saycon, a psychiatrist, both strongly recommended that custody over Geoffrey, Jr. be given to Eltesa.
Respondent judge also denied knowing one Helen Sy adverted to in the basic complaint and explained in some detail
why he spoke at one instance to Eltesa in Cebuano. He closed with a statement that he issued his assailed Orders in
good faith and that he had, as sought by complainant, inhibited himself from further hearing SP Proc. No. 18182-CEB.
In the Agenda Report dated March 8, 2012, the OCA regards the complaint meritorious insofar as the charges for gross
ignorance of the law is concerned given that respondent judge issued his March 15, 2011 Order granting provisional
custody in favor of Eltesa despite the existence of the judicial compromise. The OCA, thus, recommended that
respondent judge be adjudged liable for gross ignorance of the law and fined with stern warning. The inculpatory
portions of the OCAs evaluation report pertinently read:
x x x A compromise agreement that is intended to resolve a matter already under litigation is normally called a judicial
compromise. Once it is stamped with judicial imprimatur, it becomes more than a mere contract binding upon the
parties. x x x It has the force of and effect of any other judgment. x x x Thus, a compromise agreement that has been
made and duly approved by the court attains the effect and authority of res judicata x x x.
xxxx
The pertinent portion of the judgment on Compromise Agreement x x x, which granted and transferred permanent
custody of Geoffrey, Jr. to the herein complainant is unequivocal. Moreover, the same order even allowed complainant
to bring with him Geoffrey, Jr. to Australia. Thus, in granting Geoffrey, Jr.s custody to his mother in an Order issued on
15 March 2011 on a mere Motion for Partial Reconsideration, respondent judge violated a basic and fundamental
principle of res judicata. When the law is elementary, not to be aware of it constitutes gross ignorance thereof. After
all, judges are expected to have more than just a modicum of acquaintance with the statutes and procedural rules.
Hence, the respondent judge is guilty of gross ignorance of the law. 8
The OCA, however, effectively recommends the dismissal of the charge of manifest partiality and other offenses for
want of sufficient substantiation, noting that the complainant has failed to adduce substantial evidence to overcome
the presumption of regularity in the performance of judicial duties.
Anent the charge of Manifest Partiality, this Office finds the same not supported by substantial evidence. In
administrative proceedings, the complainant bears the onus of establishing, by substantial evidence, the averments in
his complaint. Complainant failed to present substantial evidence to show the alleged partiality and ignorance of
respondent judge, Mere suspicion that a judge is biased is not enough. Bare allegations of partiality will not suffice in
the absence of clear showing that will overcome the presumption that the judge dispensed justice without fear or
favor.9
The Court also notes that, contrary to complainants pretense, respondent judge had acted on his motion for
reconsideration of the contentious March 15, 2011 Order.
The OCAs recommendation for the dismissal of the complaint insofar as it charges respondent judge with manifest
partiality and dereliction and neglect of duties is well-taken. The Court cannot presume partiality and serious
misconduct and irregularities based on circumstances alleged in the complaint. Moreover, for serious misconduct to
obtain, the judicial act/s complained of should be corrupt or inspired by an intention to violate the law or persistent
disregard of well-known legal precepts.10 Nothing in the records tends to suggest that respondent judge was actuated
by malice or corrupt motives in issuing his disputed March 15, 2011 order granting Eltesa custody of Geoffrey, Jr.
despite the adverted compromise agreement.
The Issue
The remaining issue then boils down to whether or not respondent Judge Sarmiento is guilty of gross ignorance of the
law.
The Courts Ruling
Gross ignorance of the law on the part of a judge presupposes an appalling lack of familiarity with simple rules of law
or procedures and well-established jurisprudence which tends to erode the public trust in the competence and fairness
of the court which he personifies. Not to know the law as basic, almost elementary, as the Rules of Court, or acting in

28

disregard of established rule of law as if he were not aware of the same constitutes gross ignorance whence no one is
excused, especially an RTC judge.11
Complainant has charged respondent judge with gross ignorance of the law. He states in this regard that respondent
judge, in arbitrary defiance of his own Decision of September 25, 2006 which constitutes res judicata or a bar to him to
pass upon the issue of Geoffrey, Jrs. custody, granted, via his March 15, 2011 Order, provisional custody over
Geoffrey, Jr. to Eltesa. The Decision adverted to refers to the judgment on compromise agreement.
The Court cannot go along with complainants above posture.
Respondent judge, in granting provisional custody over Geoffrey, Jr. in favor of his mother, Eltesa, did not disregard the
res judicata rule. The more appropriate description of the legal situation engendered by the March 15, 2011 Order
issued amidst the persistent plea of the child not to be returned to his father, is that respondent judge exhibited
fidelity to jurisprudential command to accord primacy to the welfare and interest of a minor child. As it were, the
matter of custody, to borrow from Espiritu v. Court of Appeals, 12 "is not permanent and unalterable and can always be
re-examined and adjusted." And as aptly observed in a separate opinion in Dacasin v. Dacasin, 13 a custody agreement
can never be regarded as "permanent and unbending," the simple reason being that the situation of the parents and
even of the child can change, such that sticking to the agreed arrangement would no longer be to the latters best
interest. In a very real sense, then, a judgment involving the custody of a minor child cannot be accorded the force and
effect of res judicata.
Now to another point. In disputes concerning post-separation custody over a minor, the well-settled rule is that no
child under seven (7) years of age shall be separated from the mother, unless the court finds compelling reasons to
order otherwise.14 And if already over 7 years of age, the childs choice as to which of his parents he prefers to be
under custody shall be respected, unless the parent chosen proves to be unfit. 15 Finally, in Perez v. Court of
Appeals,16 We held that in custody cases, the foremost consideration is always the welfare and best interest of the
child, as reflected in no less than the U.N. Convention on the Rights of the Child which provides that "in all actions
concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a primary consideration." 17
In the light of the foregoing, respondent judge cannot be held guilty of the charges hurled by the complainant against
him for the reason that absent a finding of strong reasons to rule otherwise, the preference of a child over 7 years of
age as to whom he desired to live with shall be respected. Moreover, custody, even if previously granted by a
competent court in favor of a parent, is not, to reiterate, permanent. In Espiritu, 18 We ruled that:
x x x The matter of custody is not permanent and unalterable.1wphi1 If the parent who was given custody suffers a
future character change and becomes unfit, the matter of custody can always be re-examined and adjusted x x x. To
be sure, the welfare, the best interests, the benefit, and the good of the child must be determined as of the time that
either parent is chosen to be the custodian. x x x
As Rosalind and Reginald Espiritu in Espiritu, 19 Geoffrey, Jr., at the time when he persistently refused to be turned over
to his father, was already over 7 years of age. As such, he was very much capable of deciding, based on his past
experiences, with whom he wanted to stay. Noteworthy too are the results of the interviews which were reflected in the
three reports previously mentioned, excerpts from which are hereunder quoted, to wit:
x x x In so far as Geoffrey, Jr.s account of experience, being with his fathers custody is something that he is afraid of
and something he does not want to happen again. However, being with his mother is the one (sic) he is looking to (sic)
and aspires.20
xxxx
x x x Being in the custody of his mother is something (sic) he feel (sic) secure and protected and this is manifested in
the childs craving for his mothers presence all the time and the desire to be always with her that even (sic) he sleeps
he wants his mother to embrace and hug him and cries when he wakes up and he cannot see his mother. 21
xxxx
x x x He locked me in the room. He always leave (sic) me. x x x they keep fighting, Daddy and his girlfriend ... they'll
get angry with (sic) me ... I'm scared with (sic) Daddy. 22
xxxx
Meanwhile, Ms. Barbo (the caregiver or yaya of Geoffrey, Jr.), expressed peculiarities, "Sa Daddy niya, he dd (sic) not
fear his mom. Sa mommy niya, he fear (sic) his dad." 23
With these, We see no reason to sustain the charge against respondent judge for gross ignorance of the law. For
clearly, absent any evidence to the contrary, Geoffrey, Jr. chose to live with his mother for a reason, which respondent
judge, consistent with the promotion of the best interest of the child, provisionally granted through the issuance of the
disputed March 15, 2011 Order. In fact, in issuing the disputed Order, respondent judge rectified an error previously
made when he handed out the Judgment on Compromise Agreement in 2006.
WHEREFORE, premises considered, the complaint is hereby DISMISSED. SO ORDERED.

29

G.R. No. 160258

January 19, 2005

REPUBLIC OF THE PHILIPPINES, petitioner, vs. GLORIA BERMUDEZ-LORINO, respondent.

DECISION
GARCIA, J.:
Via this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Republic of the Philippines,
represented by the Office of the Solicitor General (OSG), seeks the reversal and setting aside of the decision dated
September 23, 2003 of the Court of Appeals in CA-G.R. CV No. 73884, which affirmed on appeal an earlier decision of
the Regional Trial Court (RTC) at San Mateo, Rizal in a summary judicial proceeding thereat commenced by the herein
respondent Gloria Bermudez-Lorino for the declaration of the presumptive death of her absent spouse, Francisco
Lorino, Jr., based on the provisions of Article 41 of the Family Code, for purposes of remarriage.
The facts may be summarized, as follows:
Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her husband were married on June 12, 1987. Out of this
marriage, she begot three (3) children, namely: Francis Jeno, Fria Lou and Fatima.1a\^/phi1.net
Before they got married in 1987, Gloria was unaware that her husband was a habitual drinker, possessed with violent
character/attitude, and had the propensity to go out with friends to the extent of being unable to engage in any gainful
work.
Because of her husbands violent character, Gloria found it safer to leave him behind and decided to go back to her
parents together with her three (3) children. In order to support the children, Gloria was compelled to work abroad.
From the time of her physical separation from her husband in 1991, Gloria has not heard of him at all. She had
absolutely no communications with him, or with any of his relatives.
On August 14, 2000, nine (9) years after she left her husband, Gloria filed a verified petition with the Regional Trial
Court (RTC) at San Mateo, Rizal under the rules on Summary Judicial Proceedings in the Family Lawprovided for in the
Family Code, which petition was docketed in the same court as Special Proceeding No. 325-00 SM.
On August 28, 2000, the RTC issued an order directing, inter alia, the publication of the petition in a newspaper of
general circulation, thus:
A verified petition was filed by herein petitioner through counsel alleging that she married Francisco Lorino, Jr. on June
12, 1987 but because of the violent character of his husband, she decided to go back to her parents and lived
separately from her husband. After nine (9) years, there was absolutely no news about him and she believes that he is
already dead and is now seeking through this petition for a Court declaration that her husband is judicially presumed
dead for the purpose of remarriage.
Finding the said petition to be sufficient in form and substance, the same is hereby set for hearing before this Court on
September 18, 2000 at 8:30 oclock in the morning at which place, date and time, any or all persons who may claim
any interest thereto may appear and show cause why the same should not be granted.
Let a copy of this Order be published in a newspaper of general circulation in this province once a week for three (3)
consecutive weeks and be posted in the bulletin boards of the Hall of Justice and the Municipal Hall, San Mateo, Rizal,
all at the expense of the petitioner.1awphi1.nt
Furnish the Office of the Solicitor General a copy of this Order together with a copy of the petition. Further, send a copy
of this Order to the last known address of Francisco Lorino, Jr. at 719 Burgos St., Sta. Elena, Marikina City.
SO ORDERED1
The evidence in support of the summary judicial proceeding are: the order of publication dated August 28, 2000
(Exhibit "A"); affidavit of publication dated September 16, 2000 (Exhibit "B") 2 ; copies of the newspapers where the
order appeared (Exhibits "C" to "E-1")3 ; a deposition dated September 4, 2000 of Gloria taken in Hong Kong (Exhibit
"G")4 ; Glorias affidavit dated October 21, 1999, also executed in Hong Kong (Exhibit "G-1")5 ; and a certification by
Department of Foreign Affairs Authentication Officer, Catalina C. Gonzalez, dated November 3, 1999, therein certifying
that the signature of Vice Consul Adriane Bernie C. Candolada, appearing below the jurat in Glorias affidavit of
October 21, 1999, is authentic (Exhibit "G-2")6 .
In a decision dated November 7, 2001, the RTC, finding merit in the summary petition, rendered judgment granting the
same, to wit:
WHEREFORE, this Court in view of the facts and circumstances obtaining, finds the petition with merit and hereby
grants its imprimatur to the petition. Judgment is hereby rendered declaring the presumptive death/absence of
Francisco Lorino, Jr. pursuant to Art. 41 of the New Family Code but subject to all restrictions and conditions provided
therein.

30

SO ORDERED.7
Despite the judgment being immediately final and executory under the provisions of Article 247 of the Family Code,
thus:
Art. 247. The judgment of the court shall be immediately final and executory,
the Office of the Solicitor General, for the Republic of the Philippines, nevertheless filed a Notice of Appeal. 8Acting
thereon, the RTC had the records elevated to the Court of Appeals which docketed the case as CA-G.R. CV No. 73884.
In a decision dated September 23, 2003, the Court of Appeals, treating the case as an ordinary appealed case under
Rule 41 of the Revised Rules on Civil Procedure, denied the Republics appeal and accordingly affirmed the appealed
RTC decision:
WHEREFORE, based on the foregoing premises, the instant appeal is DENIED. Accordingly, the appealed November 7,
2001 Decision of the Regional Trial Court of San Mateo, Rizal in Spec. Proc. No. 325-00 SM is hereby AFFIRMED.
SO ORDERED.9
Without filing any motion for reconsideration, petitioner Republic directly went to this Court via the instant recourse
under Rule 45, maintaining that the petition raises a pure question of law that does not require prior filing of a motion
for reconsideration.
The foregoing factual antecedents present to this Court the following issues:
WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED JURISDICTION OVER THE APPEAL ON A FINAL AND
EXECUTORY JUDGMENT OF THE REGIONAL TRIAL COURT; and
WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL DECLARATION OF PRESUMPTIVE DEATH UNDER
ARTICLE 41 OF THE FAMILY CODE WERE DULY ESTABLISHED IN THIS CASE.
The Court rules against petitioner Republic.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW, sets the tenor for
cases covered by these rules, to wit:
Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in
this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard
to technical rules.
Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly complied with the above-cited provision by
expeditiously rendering judgment within ninety (90) days after the formal offer of evidence by therein petitioner, Gloria
Bermudez-Lorino.
The problem came about when the judge gave due course to the Republics appeal upon the filing of a Notice of
Appeal, and had the entire records of the case elevated to the Court of Appeals, stating in her order of December 18,
2001, as follows:
Notice of Appeal having been filed through registered mail on November 22, 2001 by the Office of the Solicitor General
who received a copy of the Decision in this case on November 14, 2001, within the reglementary period fixed by the
Rules, let the entire records of this case be transmitted to the Court of Appeals for further proceedings.
SO ORDERED.10
In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect an
appeal, precisely because judgments rendered thereunder, by express provision of Section 247, Family Code, supra,
are "immediately final and executory". It was erroneous, therefore, on the part of the RTC to give due course to the
Republics appeal and order the transmittal of the entire records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is immediately
final and executory. As we have said in Veloria vs. Comelec, 11 "the right to appeal is not a natural right nor is it a part of
due process, for it is merely a statutory privilege." Since, by express mandate of Article 247 of the Family Code, all
judgments rendered in summary judicial proceedings in Family Law are "immediately final and executory", the right to
appeal was not granted to any of the parties therein. The Republic of the Philippines, as oppositor in the petition for
declaration of presumptive death, should not be treated differently. It had no right to appeal the RTC decision of
November 7, 2001.
It was fortunate, though, that the Court of Appeals, acting through its Special Fourth Division, with Justice Elvi John S.
Asuncion as Acting Chairman and ponente, denied the Republics appeal and affirmed without modification the final
and executory judgment of the lower court. For, as we have held in Nacuray vs. NLRC :12

31

Nothing is more settled in law than that when a judgment becomes final and executory it becomes immutable and
unalterable. The same may no longer be modified in any respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law, and whether made by the highest court of the land
(citing Nunal v. Court of Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA 26).
But, if only to set the records straight and for the future guidance of the bench and the bar, let it be stated that the
RTCs decision dated November 7, 2001, was immediately final and executory upon notice to the parties. It was
erroneous for the OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court of Appeals
acquired no jurisdiction over the case, and should have dismissed the appeal outright on that ground.
This judgment of denial was elevated to this Court via a petition for review on certiorari under Rule 45. Although the
result of the Court of Appeals denial of the appeal would apparently be the same, there is a big difference between
having the supposed appeal dismissed for lack of jurisdiction by virtue of the fact that the RTC decision sought to be
appealed is immediately final and executory, and the denial of the appeal for lack of merit. In the former, the supposed
appellee can immediately ask for the issuance of an Entry of Judgment in the RTC, whereas, in the latter, the appellant
can still raise the matter to this Court on petition for review and the RTC judgment cannot be executed until this Court
makes the final pronouncement.
The Court, therefore, finds in this case grave error on the part of both the RTC and the Court of Appeals. To stress, the
Court of Appeals should have dismissed the appeal on ground of lack of jurisdiction, and reiterated the fact that the
RTC decision of November 7, 2001 was immediately final and executory. As it were, the Court of Appeals committed
grave reversible error when it failed to dismiss the erroneous appeal of the Republic on ground of lack of jurisdiction
because, by express provision of law, the judgment was not appealable.
WHEREFORE, the instant petition is hereby DENIED for lack of merit. No pronouncement as to costs. SO ORDERED.
G.R. No. 163604

May 6, 2005

REPUBLIC OF THE PHILIPPINES, petitioner, vs. THE HON. COURT OF APPEALS (Twentieth Division), HON.
PRESIDING JUDGE FORTUNITO L. MADRONA, RTC-BR. 35 and APOLINARIA MALINAO JOMOC, respondents.
DECISION
CARPIO-MORALES, J.:
In "In the Matter of Declaration of Presumptive Death of Absentee Spouse Clemente P. Jomoc, Apolinaria Malinao
Jomoc, petitioner," the Ormoc City, Regional Trial Court, Branch 35, by Order of September 29, 1999,1 granted the
petition on the basis of the Commissioners Report2 and accordingly declared the absentee spouse, who had left his
petitioner-wife nine years earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited Article 41, par. 2 of the Family Code. Said
article provides that for the purpose of contracting a valid subsequent marriage during the subsistence of a previous
marriage where the prior spouse had been absent for four consecutive years, the spouse present must
institute summary proceedings for the declaration of presumptive death of the absentee spouse, without prejudice
to the effect of the reappearance of the absent spouse.
The Republic, through the Office of the Solicitor General, sought to appeal the trial courts order by filing a Notice of
Appeal.3
By Order of November 22, 1999s,4 the trial court, noting that no record of appeal was filed and served "as required by
and pursuant to Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure, the present case being a special proceeding,"
disapproved the Notice of Appeal.
The Republics Motion for Reconsideration of the trial courts order of disapproval having been denied by Order of
January 13, 2000,5 it filed a Petition for Certiorari6 before the Court of Appeals, it contending that the declaration of
presumptive death of a person under Article 41 of the Family Code is not a special proceeding or a case of multiple or
separate appeals requiring a record on appeal.
By Decision of May 5, 2004,7 the Court of Appeals denied the Republics petition on procedural and substantive
grounds in this wise:
At the outset, it must be stressed that the petition is not sufficient in form. It failed to attach to its petition a
certified true copy of the assailed Order dated January 13, 2000 [denying its Motion for Reconsideration of the
November 22, 1999 Order disapproving its Notice of Appeal]. Moreover, the petition questioned the [trial
courts] Order dated August 15, 1999, which declared Clemente Jomoc presumptively dead, likewise for having
been issued with grave abuse of discretion amounting to lack of jurisdiction, yet, not even a copy could be
found in the records. On this score alone, the petition should have been dismissed outright in accordance with
Sec. 3, Rule 46 of the Rules of Court.
However, despite the procedural lapses, the Court resolves to delve deeper into the substantive issue of the
validity/nullity of the assailed order.

32

The principal issue in this case is whether a petition for declaration of the presumptive death of a
person is in the nature of a special proceeding. If it is, the period to appeal is 30 days and the party
appealing must, in addition to a notice of appeal, file with the trial court a record on appeal to perfect its
appeal. Otherwise, if the petition is an ordinary action, the period to appeal is 15 days from notice or decision
or final order appealed from and the appeal is perfected by filing a notice of appeal (Section 3, Rule 41, Rules
of Court).
As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil action is one by which a party sues another for
the enforcement or protection of a right, or the prevention of redress of a wrong" while a special proceeding
under Section 3(c) of the same rule is defined as "a remedy by which a party seeks to establish a status, a
right or a particular fact (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March 2, 1999).
Considering the aforementioned distinction, this Court finds that the instant petition is in the nature of a
special proceeding and not an ordinary action. The petition merely seeks for a declaration by the trial
court of the presumptive death of absentee spouse Clemente Jomoc. It does not seek the enforcement or
protection of a right or the prevention or redress of a wrong. Neither does it involve a demand of right or a
cause of action that can be enforced against any person.
On the basis of the foregoing discussion, the subject Order dated January 13, 2000 denying OSGs Motion for
Reconsideration of the Order dated November 22, 1999 disapproving its Notice of Appeal was correctly
issued. The instant petition, being in the nature of a special proceeding, OSG should have filed, in
addition to its Notice of Appeal, a record on appeal in accordance with Section 19 of the Interim Rules
and Guidelines to Implement BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court . . . (Emphasis and
underscoring supplied)
The Republic (petitioner) insists that the declaration of presumptive death under Article 41 of the Family Code is not a
special proceeding involving multiple or separate appeals where a record on appeal shall be filed and served in like
manner.
Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the cases wherein multiple appeals are
allowed and a record on appeal is required for an appeal to be perfected. The petition for the declaration of
presumptive death of an absent spouse not being included in the enumeration, petitioner contends that a mere notice
of appeal suffices.
By Resolution of December 15, 2004, 8 this Court, noting that copy of the September 27, 2004 Resolution 9requiring
respondent to file her comment on the petition was returned unserved with postmasters notation "Party refused,"
Resolved to consider that copy deemed served upon her.
The pertinent provisions on the General Provisions on Special Proceedings, Part II of the Revised Rules of Court
entitled SPECIAL PROCEEDINGS, read:
RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
Section 1. Subject matter of special proceedings. Rules of special proceedings are provided for in the
following:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;

33

(m) Declaration of absence and death;

(n) Cancellation or correction of entries in the civil registry.
Sec. 2. Applicability of rules of civil actions. In the absence of special provisions, the rules provided for in
ordinary actions shall be, as far as practicable, applicable in special proceedings. (Underscoring supplied)
The pertinent provision of the Civil Code on presumption of death provides:
Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall
be presumed dead for all purposes, except for those of succession.
x x x (Emphasis and underscoring supplied)
Upon the other hand, Article 41 of the Family Code, upon which the trial court anchored its grant of the petition for the
declaration of presumptive death of the absent spouse, provides:
Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent marriage, the prior spouses had been absent for four
consecutive years and the spouse present had a well-founded belief that the absent spouses was already
dead. In case of disappearance where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose pf contracting the subsequent marriage under the preceding paragraph, the spouses present
must institute a summary proceeding as provided in this Code for the declaration of presumptive death
of the absentee, without prejudice to the effect of a reappearance of the absent spouse. (Emphasis and
underscoring supplied)
Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court in disapproving
petitioners Notice of Appeal, provides:
Sec. 2. Modes of appeal. (a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the
exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the
judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal
shall be required except in special proceedings and other cases of multiple or separate appeals where
the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like
manner. (Emphasis and underscoring supplied)
xxx
By the trial courts citation of Article 41 of the Family Code, it is gathered that the petition of Apolinaria Jomoc to have
her absent spouse declared presumptively dead had for its purpose her desire to contract a valid subsequent
marriage. Ergo, the petition for that purpose is a "summary proceeding," following above-quoted Art. 41, paragraph
2 of the Family Code.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the following
provision, inter alia:
xxx
Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall apply in all
casesprovided for in this Codes requiring summary court proceedings. Such cases shall be decided in
an expeditious manner without regard to technical rules. (Emphasis and underscoring supplied)
x x x,
there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary proceeding under the
Family Code, not a special proceeding under the Revised Rules of Court appeal for which calls for the filing of a Record
on Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial courts order sufficed.
That the Family Code provision on repeal, Art. 254, provides as follows:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known as the Civil
Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of
Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended, and alllaws,
decrees, executive orders, proclamations rules and regulations, or parts thereof, inconsistent therewith are
hereby repealed, (Emphasis and underscoring supplied),
seals the case in petitioners favor.

34

Finally, on the alleged procedural flaw in petitioners petition before the appellate court. Petitioners failure to attach to
his petition before the appellate court a copy of the trial courts order denying its motion for reconsideration of the
disapproval of its Notice of Appeal is not necessarily fatal, for the rules of procedure are not to be applied in a technical
sense. Given the issue raised before it by petitioner, what the appellate court should have done was to direct
petitioner to comply with the rule.
As for petitioners failure to submit copy of the trial courts order granting the petition for declaration of presumptive
death, contrary to the appellate courts observation that petitioner was also assailing it, petitioners 8-page
petition10 filed in said court does not so reflect, it merely having assailed the order disapproving the Notice of Appeal.
WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. Let the
case be REMANDED to it for appropriate action in light of the foregoing discussion. SO ORDERED.

RA 9262 & WRIT OF AMPARO

G.R. No. 168852

September 30, 2008

SHARICA MARI L. GO-TAN, Petitioner, vs. SPOUSES PERFECTO C. TAN and JUANITA L. TAN, Respondents.*
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
Resolution1 dated March 7, 2005 of the Regional Trial Court (RTC), Branch 94, Quezon City in Civil Case No. Q-05-54536
and the RTC Resolution2 dated July 11, 2005 which denied petitioner's Verified Motion for Reconsideration.
The factual background of the case:
On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and Steven L. Tan (Steven) were married. 3 Out of this union, two
female children were born, Kyra Danielle4 and Kristen Denise.5 On January 12, 2005, barely six years into the marriage,
petitioner filed a Petition with Prayer for the Issuance of a Temporary Protective Order (TPO) 6 against Steven and her
parents-in-law, Spouses Perfecto C. Tan and Juanita L. Tan (respondents) before the RTC. She alleged that Steven, in
conspiracy with respondents, were causing verbal, psychological and economic abuses upon her in violation of Section
5, paragraphs (e)(2)(3)(4), (h)(5), and (i)7 of Republic Act (R.A.) No. 9262,8 otherwise known as the "Anti-Violence
Against Women and Their Children Act of 2004."
On January 25, 2005, the RTC issued an Order/Notice9 granting petitioner's prayer for a TPO.
On February 7, 2005, respondents filed a Motion to Dismiss with Opposition to the Issuance of Permanent Protection
Order Ad Cautelam and Comment on the Petition,10 contending that the RTC lacked jurisdiction over their persons
since, as parents-in-law of the petitioner, they were not covered by R.A. No. 9262.
On February 28, 2005, petitioner filed a Comment on Opposition 11 to respondents' Motion to Dismiss arguing that
respondents were covered by R.A. No. 9262 under a liberal interpretation thereof aimed at promoting the protection
and safety of victims of violence.
On March 7, 2005, the RTC issued a Resolution 12 dismissing the case as to respondents on the ground that, being the
parents-in-law of the petitioner, they were not included/covered as respondents under R.A. No. 9262 under the wellknown rule of law "expressio unius est exclusio alterius."13
On March 16, 2005, petitioner filed her Verified Motion for Reconsideration 14 contending that the doctrine of necessary
implication should be applied in the broader interests of substantial justice and due process.
On April 8, 2005, respondents filed their Comment on the Verified Motion for Reconsideration 15arguing that petitioner's
liberal construction unduly broadened the provisions of R.A. No. 9262 since the relationship between the offender and
the alleged victim was an essential condition for the application of R.A. No. 9262.
On July 11, 2005, the RTC issued a Resolution16 denying petitioner's
Verified Motion for Reconsideration. The RTC reasoned that to include respondents under the coverage of R.A. No. 9262
would be a strained interpretation of the provisions of the law.
Hence, the present petition on a pure question of law, to wit:

35

WHETHER OR NOT RESPONDENTS-SPOUSES PERFECTO & JUANITA, PARENTS-IN-LAW OF SHARICA, MAY BE INCLUDED IN
THE PETITION FOR THE ISSUANCE OF A PROTECTIVE ORDER, IN ACCORDANCE WITH REPUBLIC ACT NO. 9262,
OTHERWISE KNOWN AS THE "ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004". 17
Petitioner contends that R.A. No. 9262 must be understood in the light of the provisions of Section 47 of R.A. No. 9262
which explicitly provides for the suppletory application of the Revised Penal Code (RPC) and, accordingly, the provision
on "conspiracy" under Article 8 of the RPC can be suppletorily applied to R.A. No. 9262; that Steven and respondents
had community of design and purpose in tormenting her by giving her insufficient financial support; harassing and
pressuring her to be ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally and
physically; that respondents should be included as indispensable or necessary parties for complete resolution of the
case.
On the other hand, respondents submit that they are not covered by R.A. No. 9262 since Section 3 thereof explicitly
provides that the offender should be related to the victim only by marriage, a former marriage, or a dating or sexual
relationship; that allegations on the conspiracy of respondents require a factual determination which cannot be done
by this Court in a petition for review; that respondents cannot be characterized as indispensable or necessary parties,
since their presence in the case is not only unnecessary but altogether illegal, considering the non-inclusion of in-laws
as offenders under Section 3 of R.A. No. 9262.
The Court rules in favor of the petitioner.
Section 3 of R.A. No. 9262 defines ''[v]iolence against women and their children'' as "any act or a series of acts
committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has
or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological
harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty."
While the said provision provides that the offender be related or connected to the victim by marriage, former marriage,
or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the RPC.
Indeed, Section 47 of R.A. No. 9262 expressly provides for the suppletory application of the RPC, thus:
SEC. 47. Suppletory Application. - For purposes of this Act, the Revised Penal Code and other applicable laws, shall
have suppletory application. (Emphasis supplied)
Parenthetically, Article 10 of the RPC provides:
ART. 10. Offenses not subject to the provisions of this Code. Offenses which are or in the future may be punishable
under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws,
unless the latter should specially provide the contrary.(Emphasis supplied)
Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity to crimes punished
under special laws, such as R.A. No. 9262, in which the special law is silent on a particular matter.
Thus, in People v. Moreno,18 the Court applied suppletorily the provision on subsidiary penalty under Article 39 of the
RPC to cases of violations of Act No. 3992, otherwise known as the "Revised Motor Vehicle Law," noting that the special
law did not contain any provision that the defendant could be sentenced with subsidiary imprisonment in case of
insolvency.
In People v. Li Wai Cheung,19 the Court applied suppletorily the rules on the service of sentences provided in Article 70
of the RPC in favor of the accused who was found guilty of multiple violations of R.A. No. 6425, otherwise known as the
"Dangerous Drugs Act of 1972," considering the lack of similar rules under the special law.
In People v. Chowdury,20 the Court applied suppletorily Articles 17, 18 and 19 of the RPC to define the words
"principal," "accomplices" and "accessories" under R.A. No. 8042, otherwise known as the "Migrant Workers and
Overseas Filipinos Act of 1995," because said words were not defined therein, although the special law referred to the
same terms in enumerating the persons liable for the crime of illegal recruitment.
In Yu v. People,21 the Court applied suppletorily the provisions on subsidiary imprisonment under Article 39 of the RPC
to Batas Pambansa (B.P.) Blg. 22, otherwise known as the "Bouncing Checks Law," noting the absence of an express
provision on subsidiary imprisonment in said special law.
Most recently, in Ladonga v. People,22 the Court applied suppletorily the principle of conspiracy under Article 8 of the
RPC to B.P. Blg. 22 in the absence of a contrary provision therein.
With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be applied suppletorily to R.A.
No. 9262 because of the express provision of Section 47 that the RPC shall be supplementary to said law. Thus,
general provisions of the RPC, which by their nature, are necessarily applicable, may be applied suppletorily.

36

Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in concert to achieve a
criminal design is shown, the act of one is the act of all the conspirators, and the precise extent or modality of
participation of each of them becomes secondary, since all the conspirators are principals. 23
It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of violence against women
and their children may be committed by an offender through another, thus:
SEC. 5. Acts of Violence Against Women and Their Children. - The crime of violence against women and their children
is committed through any of the following acts:
xxx
(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, thatalarms or
causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be
limited to, the following acts:
(1) Stalking or following the woman or her child in public or private places;
(2) Peering in the window or lingering outside the residence of the woman or her child;
(3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his
will;
(4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman
or her child; and
(5) Engaging in any form of harassment or violence; x x x. (Emphasis supplied)
In addition, the protection order that may be issued for the purpose of preventing further acts of violence against the
woman or her child may include
individuals other than the offending husband, thus:
SEC. 8. Protection Orders. x x x The protection orders that may be issued under this Act shall include any, some or all
of the following reliefs:
(a) Prohibition of the respondent from threatening to commit or committing, personally orthrough another,
any of the acts mentioned in Section 5 of this Act; 1avvphi1.net
(b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise
communicating with the petitioner, directly or indirectly; x x x (Emphasis supplied)
Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus:
SEC. 4. Construction. - This Act shall be liberally construed to promote the protection and safety of victims of
violence against women and their children. (Emphasis supplied)
It bears mention that the intent of the statute is the law 24 and that this intent must be effectuated by the courts. In the
present case, the express language of R.A. No. 9262 reflects the intent of the legislature for liberal construction as will
best ensure the attainment of the object of the law according to its true intent, meaning and spirit - the protection and
safety of victims of violence against women and children.
Thus, contrary to the RTC's pronouncement, the maxim "expressio unios est exclusio alterius" finds no application
here. It must be remembered that this maxim is only an "ancillary rule of statutory construction." It is not of universal
application. Neither is it conclusive. It should be applied only as a means of discovering legislative intent which is not
otherwise manifest and should not be permitted to defeat the plainly indicated purpose of the legislature. 25
The Court notes that petitioner unnecessarily argues at great length on the attendance of circumstances evidencing
the conspiracy or connivance of Steven and respondents to cause verbal, psychological and economic abuses upon
her. However, conspiracy is an evidentiary matter which should be threshed out in a full-blown trial on the merits and
cannot be determined in the present petition since this Court is not a trier of facts. 26 It is thus premature for petitioner
to argue evidentiary matters since this controversy is centered only on the determination of whether respondents may
be included in a petition under R.A. No. 9262. The presence or absence of conspiracy can be best passed upon after a
trial on the merits.
Considering the Court's ruling that the principle of conspiracy may be applied suppletorily to R.A. No. 9262, the Court
will no longer delve on whether respondents may be considered indispensable or necessary parties. To do so would be
an exercise in superfluity.

37

WHEREFORE, the instant petition is GRANTED. The assailed Resolutions dated March 7, 2005 and July 11, 2005 of
the Regional Trial Court, Branch 94, Quezon City in Civil Case No. Q-05-54536 are hereby PARTLY REVERSED and
SET ASIDE insofar as the dismissal of the petition against respondents is concerned. SO ORDERED.

G.R. No. 182795

June 5, 2008
ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA PIA, petitioners, vs. NAPICO HOMEOWNERS
ASSN., I XIII, INC., ET AL., respondents.
RESOLUTION
REYES, R.T., J.:
THE present petition filed on May 26, 2008 seeks the issuance of a Writ of Amparo upon the following premise:
Petitioners were deprived of their liberty, freedom and/or rights to shelter enshrined and embodied in our
Constitution, as the result of these nefarious activities of both the Private and Public Respondents. This ardent
request filed before this Honorable Supreme Court is the only solution to this problem via this newly advocated
principles incorporated in the Rules the "RULE ON THE WRIT OF AMPARO." 1
It appears that petitioners are settlers in a certain parcel of land situated in Barangay Manggahan, Pasig City. Their
dwellings/houses have either been demolished as of the time of filing of the petition, or is about to be demolished
pursuant to a court judgment.
While they attempted to focus on issuance of what they claimed to be fraudulent and spurious land titles, to wit:
Petitioners herein are desirous to help the government, the best way they can, to unearth these so-called
"syndicates" clothed with governmental functions, in cahoots with the "squatting syndicates" - - - - the low
so defines. If only to give its proper meanings, the Government must be the first one to cleans (sic) its ranks
from these unscrupulous political protges. If unabated would certainly ruin and/or destroy the efficacy of the
Torrens System of land registration in this Country. It is therefore the ardent initiatives of the herein Petitioners,
by way of the said prayer for the issuance of the Writ of Amparo, that these unprincipled Land Officials be
summoned to answer their participation in the issuances of these fraudulent and spurious
titles, NOW, in the hands of the Private Respondents. The Courts of Justice, including this
Honorable Supreme Court, are likewise being made to believe that said titles in the possession of
the Private Respondents were issued untainted with frauds.2
what the petition ultimately seeks is the reversal of this Courts dismissal of petitions in G.R. Nos. 177448, 180768,
177701, 177038, thus:
That, Petitioners herein knew before hand that: there can be no motion for reconsideration for the second or
third time to be filed before this Honorable Supreme Court. As such therefore, Petitioners herein are aware of
the opinion that this present petition should not in any way be treated as such motions fore reconsideration.
Solely, this petition is only for the possible issuance of the writ of amparo, although it might affect the previous
rulings of this Honorable Supreme Court in these cases, G.R. Nos. 177448, 180768, 177701 and 177038.
Inherent in the powers of the Supreme Court of the Philippines is to modify, reverse and set aside,
even its own previous decision, that can not be thwarted nor influenced by any one, but, only on
the basis of merits and evidence. This is the purpose of this petition for theWrit of Amparo.3
We dismiss the petition.
The Rule on the Writ of Amparo provides:
Section 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life,
liberty and security is violated or threatened with violation by an unlawful act or omission of a public official
or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Emphasis supplied.)
The threatened demolition of a dwelling by virtue of a final judgment of the court, which in this case was affirmed with
finality by this Court in G.R. Nos. 177448, 180768, 177701, 177038, is not included among the enumeration of rights
as stated in the above-quoted Section 1 for which the remedy of a writ of amparo is made available. Their claim to
their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not
constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo.
Besides, the factual and legal basis for petitioners claim to the land in question is not alleged in the petition at all. The
Court can only surmise that these rights and interest had already been threshed out and settled in the four cases cited
above. No writ of amparo may be issued unless there is a clear allegation of the supposed factual and legal basis of
the right sought to be protected.
Under Section 6 of the same rules, the court shall issue the writ upon the filing of the petition, only if on its face, the
court ought to issue said writ.
Section 6. Issuance of the Writ. Upon the filing of the petition, the court, justice or judge shall immediately
order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the

38

seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her
own hand, and may deputize any officer or person to serve it.
The writ shall also set the date and time for summary hearing of the petition which shall not be later than
seven (7) days from the date of its issuance.
Considering that there is no legal basis for its issuance, as in this case, the writ will not be issued and the petition will
be dismissed outright.
This new remedy of writ of amparo which is made available by this Court is intended for the protection of the highest
possible rights of any person, which is his or her right to life, liberty and security. The Court will not spare any time or
effort on its part in order to give priority to petitions of this nature. However, the Court will also not waste its precious
time and effort on matters not covered by the writ.
WHEREFORE, the petition is DISMISSED. SO ORDERED.

G.R. No. 182484

June 17, 2008

DANIEL MASANGKAY TAPUZ, AURORA TAPUZ-MADRIAGA, LIBERTY M. ASUNCION, LADYLYN BAMOS

MADRIAGA, EVERLY TAPUZ MADRIAGA, EXCEL TAPUZ, IVAN TAPUZ AND MARIAN TIMBAS, petitioners, vs.
HONORABLE JUDGE ELMO DEL ROSARIO, in his capacity as Presiding Judge of RTC Br. 5 Kalibo, SHERIFF
NELSON DELA CRUZ, in his capacity as Sheriff of the RTC, THE PHILIPPINE NATIONAL POLICE stationed in
Boracay Island, represented by the PNP STATION COMMANDER, THE HONORABLE COURT OF APPEALS IN
CEBU 18th DIVISION, SPOUSES GREGORIO SANSON & MA. LOURDES T. SANSON,respondents.
RESOLUTION
BRION, J.:
Before us for the determination of sufficiency of form and substance (pursuant to Sections 1 and 4 of Rule 65 of the
Revised Rules of Court; Sections 1 and 5 of the Rule on the Writ of Amparo;1 and Sections 1 and 6 of theRule on the
Writ of Habeas Data2) is the petition for certiorari and for the issuance of the writs of amparo and habeas data filed by
the above-named petitioners against the Honorable Judge Elmo del Rosario [in his capacity as presiding judge of RTC
Br. 5, Kalibo], Sheriff Nelson de la Cruz [in his capacity as Sheriff of the RTC], the Philippine National Police stationed in
Boracay Island, represented by the PNP Station Commander, the Honorable Court of Appeals in Cebu, 18 th Division,
and the spouses Gregorio Sanson and Ma. Lourdes T. Sanson, respondents.
The petition and its annexes disclose the following material antecedents:
The private respondents spouses Gregorio Sanson and Ma. Lourdes T. Sanson (the "private respondents"), filed with
the Fifth Municipal Circuit Trial Court of Buruanga-Malay, Aklan (the "MCTC") a complaint3 dated 24 April 2006
for forcible entry and damages with a prayer for the issuance of a writ of preliminary mandatory injunction against
the petitioners Daniel Masangkay Tapuz, Aurora Tapuz-Madriaga, Liberty M. Asuncion, Ladylyn Bamos Madriaga, Everly
Tapuz Madriaga, Excel Tapuz, Ivan Tapuz and Marian Timbas (the "petitioners") and other John Does numbering about
120. The private respondents alleged in their complaint that: (1) they are the registered owners under TCT No. 35813
of a 1.0093-hectare parcel of land located at Sitio Pinaungon, Balabag, Boracay, Malay, Aklan (the "disputed land"); (2)
they were the disputed land's prior possessors when the petitioners - armed with bolos and carrying suspected
firearms and together with unidentified persons numbering 120 - entered the disputed land by force and intimidation,
without the private respondents' permission and against the objections of the private respondents' security men, and
built thereon a nipa and bamboo structure.
In their Answer4 dated 14 May 2006, the petitioners denied the material allegations of the complaint. They essentially
claimed that: (1) they are the actual and prior possessors of the disputed land; (2) on the contrary, the private
respondents are the intruders; and (3) the private respondents' certificate of title to the disputed property is spurious.
They asked for the dismissal of the complaint and interposed a counterclaim for damages.
The MCTC, after due proceedings, rendered on 2 January 2007 a decision 5 in the private respondents' favor. It found
prior possession - the key issue in forcible entry cases - in the private respondents' favor, thus:
"The key that could unravel the answer to this question lies in the Amended Commissioner's Report and Sketch
found on pages 245 to 248 of the records and the evidence the parties have submitted. It is shown in the
Amended Commissioner's Report and Sketch that the land in question is enclosed by a concrete and cyclone
wire perimeter fence in pink and green highlighter as shown in the Sketch Plan (p. 248). Said perimeter fence
was constructed by the plaintiffs 14 years ago. The foregoing findings of the Commissioner in his report and
sketch collaborated the claim of the plaintiffs that after they acquired the land in question on May 27, 1993
through a Deed of Sale (Annex 'A', Affidavit of Gregorio Sanson, p. 276, rec.), they caused the construction of
the perimeter fence sometime in 1993 (Affidavit of Gregorio Sanson, pp. 271-275, rec.).
From the foregoing established facts, it could be safely inferred that the plaintiffs were in actual physical
possession of the whole lot in question since 1993 when it was interrupted by the defendants (sic) when on
January 4, 2005 claiming to (sic) the Heirs of Antonio Tapuz entered a portion of the land in question with view

39

of inhabiting the same and building structures therein prompting plaintiff Gregorio Sanson to confront them
before BSPU, Police Chief Inspector Jack L. Wanky and Barangay Captain Glenn Sacapao. As a result of their
confrontation, the parties signed an Agreement (Annex 'D', Complaint p. 20) wherein they agreed to vacate the
disputed portion of the land in question and agreed not to build any structures thereon.
The foregoing is the prevailing situation of the parties after the incident of January 4, 2005 when the plaintiff
posted security guards, however, sometime on or about 6:30 A.M. of April 19, 2006, the defendants some with
bolos and one carrying a sack suspected to contain firearms with other John Does numbering about 120
persons by force and intimidation forcibly entered the premises along the road and built a nipa and bamboo
structure (Annex 'E', Complaint, p. 11) inside the lot in question which incident was promptly reported to the
proper authorities as shown by plaintiffs' Certification (Annex 'F', Complaint, p. 12) of the entry in the police
blotter and on same date April 19, 2006, the plaintiffs filed a complaint with the Office of the Lupong
Tagapamayapa of Barangay Balabag, Boracay Island, Malay, Aklan but no settlement was reached as shown in
their Certificate to File Action (Annex 'G', Complaint, p. 13); hence the present action.
Defendants' (sic) contend in their answer that 'prior to January 4, 2005, they were already occupants of the
property, being indigenous settlers of the same, under claim of ownership by open continuous, adverse
possession to the exclusion of other (sic)'. (Paragraph 4, Answer, p. 25).
The contention is untenable. As adverted earlier, the land in question is enclosed by a perimeter fence
constructed by the plaintiffs sometime in 1993 as noted by the Commissioner in his Report and reflected in his
Sketch, thus, it is safe to conclude that the plaintiffs where (sic) in actual physical possession of the land in
question from 1993 up to April 19, 2006 when they were ousted therefrom by the defendants by means of
force. Applying by analogy the ruling of the Honorable Supreme Court in the case of Molina, et al. vs. De
Bacud, 19 SCRA 956, if the land were in the possession of plaintiffs from 1993 to April 19, 2006, defendants'
claims to an older possession must be rejected as untenable because possession as a fact cannot be
recognized at the same time in two different personalities.
Defendants likewise contend that it was the plaintiffs who forcibly entered the land in question on April 18,
2006 at about 3:00 o'clock in the afternoon as shown in their Certification (Annex 'D', Defendants' Position
Paper, p. 135, rec.).
The contention is untenable for being inconsistent with their allegations made to the commissioner who
constituted (sic) the land in question that they built structures on the land in question only on April 19, 2006
(Par. D.4, Commissioner's Amended Report, pp. 246 to 247), after there (sic) entry thereto on even date.
Likewise, said contention is contradicted by the categorical statements of defendants' witnesses, Rowena
Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo Pinaranda, in their Joint Affidavit (pp. 143'144, rec.) [sic] categorically stated 'that on or about April 19, 2006, a group of armed men entered the
property of our said neighbors and built plastic roofed tents. These armed men threatened to drive our said
neighbors away from their homes but they refused to leave and resisted the intruding armed men'.
From the foregoing, it could be safely inferred that no incident of forcible entry happened on April 18, 2006 but
it was only on April 19, 2006 when the defendants overpowered by their numbers the security guards posted
by the plaintiffs prior to the controversy.
Likewise, defendants (sic) alleged burnt and other structures depicted in their pictures attached as annexes to
their position paper were not noted and reflected in the amended report and sketch submitted by the
Commissioner, hence, it could be safely inferred that these structures are built and (sic) situated outside the
premises of the land in question, accordingly, they are irrelevant to the instant case and cannot be considered
as evidence of their actual possession of the land in question prior to April 19, 2006 6."
The petitioners appealed the MCTC decision to the Regional Trial Court ("RTC," Branch 6 of Kalibo, Aklan) then presided
over by Judge Niovady M. Marin ("Judge Marin").
On appeal, Judge Marin granted the private respondents' motion for the issuance of a writ of preliminary mandatory
injunction through an Order dated 26 February 2007, with the issuance conditioned on the private respondents'
posting of a bond. The writ7 - authorizing the immediate implementation of the MCTC decision - was actually issued by
respondent Judge Elmo F. del Rosario (the "respondent Judge") on 12 March 2007 after the private respondents had
complied with the imposed condition. The petitioners moved to reconsider the issuance of the writ; the private
respondents, on the other hand, filed a motion for demolition.
The respondent Judge subsequently denied the petitioners' Motion for Reconsideration and to Defer Enforcement of
Preliminary Mandatory Injunction in an Order dated 17 May 20078.
Meanwhile, the petitioners opposed the motion for demolition. 9 The respondent Judge nevertheless issued via a Special
Order10 a writ of demolition to be implemented fifteen (15) days after the Sheriff's written notice to the petitioners to
voluntarily demolish their house/s to allow the private respondents to effectively take actual possession of the land.
The petitioners thereafter filed on 2 August 2007 with the Court of Appeals, Cebu City, a Petition for Review 11(under
Rule 42 of the 1997 Rules of Civil Procedure) of the Permanent Mandatory Injunction and Order of Demolition
of the RTC of Kalibo, Br. 6 in Civil Case No. 7990.

40

Meanwhile, respondent Sheriff Nelson R. dela Cruz issued the Notice to Vacate and for Demolition on 19 March 2008. 12
It was against this factual backdrop that the petitioners filed the present petition last 29 April 2008. The petition
contains and prays for three remedies, namely: a petition for certiorari under Rule 65 of the Revised Rules of Court; the
issuance of a writ of habeas data under the Rule on the Writ of Habeas Data; and finally, the issuance of the writ of
amparo under the Rule on the Writ of Amparo.
To support the petition and the remedies prayed for, the petitioners present factual positions diametrically opposed to
the MCTC's findings and legal reasons. Most importantly, the petitioners maintain their claims of prior possession of
the disputed land and of intrusion into this land by the private respondents. The material factual allegations of the
petition - bases as well of the petition for the issuance of the writ of amparo - read:
"29. On April 29, 2006 at about 9:20 a.m. armed men sporting 12 gauge shot guns intruded into the
property of the defendants [the land in dispute]. They were not in uniform. They fired their shotguns at the
defendants. Later the following day at 2:00 a.m. two houses of the defendants were burned to ashes.
30. These armed men [without uniforms] removed the barbed wire fence put up by defendants to protect their
property from intruders. Two of the armed men trained their shotguns at the defendants who resisted their
intrusion. One of them who was identified as SAMUEL LONGNO y GEGANSO, 19 years old, single, and a
resident of Binun-an, Batad, Iloilo, fired twice.
31. The armed men torched two houses of the defendants reducing them to ashes. [...]
32. These acts of TERRORISM and (heinous crime) of ARSON were reported by one of the HEIRS OF
ANTONIO TAPUZ [...]. The terrorists trained their shotguns and fired at minors namely IVAN
GAJISAN and MICHAEL MAGBANUA, who resisted their intrusion. Their act is a blatant violation of
the law penalizing Acts of Violence against women and children, which is aggravated by the use of
high-powered weapons.
[]
34. That the threats to the life and security of the poor indigent and unlettered petitioners continue because
the private respondents Sansons have under their employ armed men and they are influential with the police
authorities owing to their financial and political clout.
35. The actual prior occupancy, as well as the ownership of the lot in dispute by defendants and the atrocities
of the terrorists [introduced into the property in dispute by the plaintiffs] are attested by witnesses who are
persons not related to the defendants are therefore disinterested witnesses in the case namely: Rowena Onag,
Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo Penarada. Likewise, the affidavit of Nemia T.
Carmen is submitted to prove that the plaintiffs resorted to atrocious acts through hired men in their bid to
unjustly evict the defendants.13"
The petitioners posit as well that the MCTC has no jurisdiction over the complaint for forcible entry that the private
respondents filed below. Citing Section 33 of The Judiciary Reorganization Act of 1980, as amended by Republic Act
No. 7691,14 they maintain that the forcible entry case in fact involves issues of title to or possession of real property or
an interest therein, with the assessed value of the property involved exceeding P20,000.00; thus, the case should be
originally cognizable by the RTC. Accordingly, the petitioners reason out that the RTC - to where the MCTC decision was
appealed - equally has no jurisdiction to rule on the case on appeal and could not have validly issued the assailed
orders.
OUR RULING
We find the petitions for certiorari and issuance of a writ of habeas data fatally defective, both in
substance and in form. The petition for the issuance of the writ of amparo, on the other hand, is fatally
defective with respect to content and substance.
The Petition for Certiorari
We conclude, based on the outlined material antecedents that led to the petition, that the petition for certiorari to
nullify the assailed RTC orders has been filed out of time. It is not lost on us that the petitioners have a pending
petition with the Court of Appeals (the "CA petition") for the review of the same RTC orders now assailed in the present
petition, although the petitioners never disclosed in the body of the present petition the exact status of their pending
CA petition. The CA petition, however, was filed with the Court of Appeals on 2 August 2007, which indicates to us that
the assailed orders (or at the very least, the latest of the interrelated assailed orders) were received on 1 August
2007 at the latest. The present petition, on the other hand, was filed on April 29, 2008 or more than eight months
from the time the CA petition was filed. Thus, the present petition is separated in point of time from the assumed
receipt of the assailed RTC orders by at least eight (8) months, i.e., beyond the reglementary period of sixty (60)
days15 from receipt of the assailed order or orders or from notice of the denial of a seasonably filed motion for
reconsideration.
We note in this regard that the petitioners' counsel stated in his attached "Certificate of Compliance with Circular #188 of the Supreme Court"16 ("Certificate of Compliance") that "in the meantime the RTC and the Sheriff issued a

41

NOTICE TO VACATE AND FOR DEMOLITION not served to counsel but to the petitioners who sent photo copy of the
same NOTICE to their counsel on April 18, 2008 by LBC." To guard against any insidious argument that the present
petition is timely filed because of this Notice to Vacate, we feel it best to declare now that the counting of the 60-day
reglementary period under Rule 65 cannot start from the April 18, 2008 date cited by the petitioners' counsel. The
Notice to Vacate and for Demolition is not an order that exists independently from the RTC orders assailed in this
petition and in the previously filed CA petition. It is merely a notice, made in compliance with one of the assailed
orders, and is thus an administrative enforcement medium that has no life of its own separately from the assailed
order on which it is based. It cannot therefore be the appropriate subject of an independent petition for certiorari under
Rule 65 in the context of this case. The April 18, 2008 date cannot likewise be the material date for Rule 65 purposes
as the above-mentioned Notice to Vacate is not even directly assailed in this petition, as the petition's Prayer patently
shows.17
Based on the same material antecedents, we find too that the petitioners have been guilty of willful and deliberate
misrepresentation before this Court and, at the very least, of forum shopping.
By the petitioners' own admissions, they filed a petition with the Court of Appeals (docketed as CA - G.R. SP No. 02859)
for the review of the orders now also assailed in this petition, but brought the present recourse to us, allegedly
because "the CA did not act on the petition up to this date and for the petitioner (sic) to seek relief in the CA would be
a waste of time and would render the case moot and academic since the CA refused to resolve pending urgent
motions and the Sheriff is determined to enforce a writ of demolition despite the defect of LACK OF JURISDICTION."18
Interestingly, the petitioners' counsel - while making this claim in the body of the petition - at the same time
represented in his Certificate of Compliance19 that:
"x x x
(e) the petitioners went up to the Court of Appeals to question the WRIT OF PRELIMINARY INJUNCTION copy of
the petition is attached (sic);
(f) the CA initially issued a resolution denying the PETITION because it held that the ORDER TO
VACATE AND FOR DEMOLITION OF THE HOMES OF PETITIONERS is not capable of being the subject
of a PETITION FOR RELIEF, copy of the resolution of the CA is attached hereto; (underscoring supplied)
(g) Petitioners filed a motion for reconsideration on August 7, 2007 but up to this date the same had not been
resolved copy of the MR is attached (sic).
x x x"
The difference between the above representations on what transpired at the appellate court level is replete with
significance regarding the petitioners' intentions. We discern -- from the petitioners' act of misrepresenting in the body
of their petition that "the CA did not act on the petition up to this date" while stating the real Court of Appeals action in
the Certification of Compliance -- the intent to hide the real state of the remedies the petitioners sought below in order
to mislead us into action on the RTC orders without frontally considering the action that the Court of Appeals had
already undertaken.
At the very least, the petitioners are obviously seeking to obtain from us, via the present petition, the same relief that
it could not wait for from the Court of Appeals in CA-G.R. SP No. 02859. The petitioners' act of seekingagainst the
same parties the nullification of the same RTC orders before the appellate court and before us at the same time,
although made through different mediums that are both improperly used, constitutes willful and deliberate forum
shopping that can sufficiently serve as basis for the summary dismissal of the petition under the combined application
of the fourth and penultimate paragraphs of Section 3, Rule 46; Section 5, Rule 7; Section 1, Rule 65; and Rule 56, all
of the Revised Rules of Court. That a wrong remedy may have been used with the Court of Appeals and possibly with
us will not save the petitioner from a forum-shopping violation where there is identity of parties, involving the same
assailed interlocutory orders, with the recourses existing side by side at the same time.
To restate the prevailing rules, "forum shopping is the institution of two or more actions or proceedings involving the
same parties for the same cause of action, either simultaneously or successively, on the supposition that one or the
other court would make a favorable disposition. Forum shopping may be resorted to by any party against whom an
adverse judgment or order has been issued in one forum, in an attempt to seek a favorable opinion in another, other
than by appeal or a special civil action for certiorari. Forum shopping trifles with the courts, abuses their processes,
degrades the administration of justice and congest court dockets. Willful and deliberate violation of the rule against it
is a ground for summary dismissal of the case; it may also constitute direct contempt." 20
Additionally, the required verification and certification of non-forum shopping is defective as one (1) of the seven (7)
petitioners - Ivan Tapuz - did not sign, in violation of Sections 4 and 5 of Rule 7; Section 3, Rule 46; Section 1, Rule 65;
all in relation with Rule 56 of the Revised Rules of Court. Of those who signed, only five (5) exhibited their postal
identification cards with the Notary Public.
In any event, we find the present petition for certiorari, on its face and on the basis of the supporting attachments, to
be devoid of merit. The MCTC correctly assumed jurisdiction over the private respondents' complaint, which
specifically alleged a cause for forcible entry and not - as petitioners may have misread or misappreciated - a case
involving title to or possession of realty or an interest therein. Under Section 33, par. 2 of The Judiciary Reorganization
Act, as amended by Republic Act (R.A.) No. 7691, exclusive jurisdiction over forcible entry and unlawful detainer cases

42

lies with the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts. These first-level courts
have had jurisdiction over these cases - called accion interdictal - even before the R.A. 7691 amendment, based on the
issue of pure physical possession (as opposed to the right of possession). This jurisdiction is regardless of the assessed
value of the property involved; the law established no distinctions based on the assessed value of the property forced
into or unlawfully detained. Separately from accion interdictalare accion publiciana for the recovery of the right of
possession as a plenary action, and accion reivindicacion for the recovery of ownership.21 Apparently, these latter
actions are the ones the petitioners refer to when they cite Section 33, par. 3, in relation with Section 19, par. 2 of The
Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691, in which jurisdiction may either be with
the first-level courts or the regional trial courts,depending on the assessed value of the realty subject of the litigation.
As the complaint at the MCTC was patently for forcible entry, that court committed no jurisdictional error correctible by
certiorari under the present petition.
In sum, the petition for certiorari should be dismissed for the cited formal deficiencies, for violation of
the non-forum shopping rule, for having been filed out of time, and for substantive deficiencies.
The Writ of Amparo
To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the
number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to
address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or
security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a
remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or
commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the
Rule on the Writ of Amparo - in line with the extraordinary character of the writ and the reasonable certainty that its
issuance demands - requires that every petition for the issuance of the Pwrit must be supported by justifying
allegations of fact, to wit:
"(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if
the name is unknown or uncertain, the respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or threatened with
violation by an unlawful act or omission of the respondent, and how such threat or violation is
committed with the attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and
addresses of the investigating authority or individuals, as well as the manner and conduct of the
investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved
party and the identity of the person responsible for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs." 22
The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts
determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or
violation of the rights to life, liberty and security of the aggrieved party was or is being committed.
The issuance of the writ of amparo in the present case is anchored on the factual allegations heretofore quoted, 23 that
are essentially repeated in paragraph 54 of the petition. These allegations are supported by the following documents:
"(a) Joint Affidavit dated 23 May 2006 of Rowena B. Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and
Edgardo Pinaranda, supporting the factual positions of the petitioners, id., petitioners' prior possession, private
respondents' intrusion and the illegal acts committed by the private respondents and their security guards on
19 April 2006;
(b) Unsubscribed Affidavit of Nemia Carmen y Tapuz, alleging the illegal acts (firing of guns, etc.) committed by
a security guard against minors - descendants of Antonio Tapuz;
(c) Unsubscribed Affidavit of Melanie Tapuz y Samindao, essentially corroborating Nemia's affidavit;
(d) Certification dated 23 April 2006 issued by Police Officer Jackson Jauod regarding the incident of petitioners'
intrusion into the disputed land;
(e) Certification dated 27 April 2006 issued by Police Officer Allan R. Otis, narrating the altercation between the
Tapuz family and the security guards of the private respondents, including the gun-poking and shooting
incident involving one of the security guards;

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(f) Certification issued by Police Officer Christopher R. Mendoza, narrating that a house owned by Josiel Tapuz,
Jr., rented by a certain Jorge Buenavente, was accidentally burned by a fire."
On the whole, what is clear from these statements - both sworn and unsworn - is the overriding involvement of
property issues as the petition traces its roots to questions of physical possession of the property disputed by the
private parties. If at all, issues relating to the right to life or to liberty can hardly be discerned except to the extent that
the occurrence of past violence has been alleged. The right to security, on the other hand, is alleged only to the extent
of the threats and harassments implied from the presence of "armed men bare to the waist" and the alleged pointing
and firing of weapons. Notably, none of the supporting affidavits compellingly show that the threat to the
rights to life, liberty and security of the petitioners is imminent or is continuing.
A closer look at the statements shows that at least two of them - the statements of Nemia Carreon y Tapuz and
Melanie Tapuz are practically identical and unsworn. The Certification by Police Officer Jackson Jauod, on the other
hand, simply narrates what had been reported by one Danny Tapuz y Masangkay, and even mentions that the burning
of two residential houses was "accidental."
As against these allegations are the cited MCTC factual findings in its decision in the forcible entry case which rejected
all the petitioners' factual claims. These findings are significantly complete and detailed, as they were made under a
full-blown judicial process, i.e., after examination and evaluation of the contending parties' positions, evidence and
arguments and based on the report of a court-appointed commissioner.
We preliminarily examine these conflicting factual positions under the backdrop of a dispute (with incidents giving rise
to allegations of violence or threat thereof) that was brought to and ruled upon by the MCTC; subsequently
brought to the RTC on an appeal that is still pending; still much later brought to the appellate court without
conclusive results; and then brought to us on interlocutory incidents involving a plea for the issuance of the writ of
amparo that, if decided as the petitioners advocate, may render the pending RTC appeal moot.
Under these legal and factual situations, we are far from satisfied with the prima facie existence of the ultimate facts
that would justify the issuance of a writ of amparo. Rather than acts of terrorism that pose a continuing threat to
the persons of the petitioners, the violent incidents alleged appear to us to be purely property-relatedand focused on
the disputed land. Thus, if the petitioners wish to seek redress and hold the alleged perpetrators criminally
accountable, the remedy may lie more in the realm of ordinary criminal prosecution rather than on the use of the
extraordinary remedy of the writ of amparo.
Nor do we believe it appropriate at this time to disturb the MCTC findings, as our action may carry the unintended
effect, not only of reversing the MCTC ruling independently of the appeal to the RTC that is now in place, but also of
nullifying the ongoing appeal process. Such effect, though unintended, will obviously wreak havoc on the orderly
administration of justice, an overriding goal that the Rule on the Writ of Amparo does not intend to weaken or negate.
Separately from these considerations, we cannot fail but consider too at this point the indicators, clear and patent to
us, that the petitioners' present recourse via the remedy of the writ of amparo is a mere subterfuge to negate the
assailed orders that the petitioners sought and failed to nullify before the appellate court because of the use of an
improper remedial measure. We discern this from the petitioners' misrepresentations pointed out above; from their
obvious act of forum shopping; and from the recourse itself to the extraordinary remedies of the writs of certiorari and
amparo based on grounds that are far from forthright and sufficiently compelling. To be sure, when recourses in the
ordinary course of law fail because of deficient legal representation or the use of improper remedial measures, neither
the writ of certiorari nor that of amparo - extraordinary though they may be - will suffice to serve as a curative
substitute. The writ of amparo, particularly, should not issue when applied for as a substitute for the appeal or
certiorari process, or when it will inordinately interfere with these processes - the situation obtaining in the present
case.
While we say all these, we note too that the Rule on the Writ of Amparo provides for rules on the institution of separate
actions,24 for the effect of earlier-filed criminal actions,25 and for the consolidation of petitions for the issuance of a writ
of amparo with a subsequently filed criminal and civil action. 26 These rules were adopted to promote an orderly
procedure for dealing with petitions for the issuance of the writ of amparo when the parties resort to other parallel
recourses.
Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and the reported
acts of violence and harassment, we see no point in separately and directly intervening through a writ of amparo in the
absence of any clear prima facie showing that the right to life, liberty or security - the personalconcern that the writ is
intended to protect - is immediately in danger or threatened, or that the danger or threat is continuing. We see no
legal bar, however, to an application for the issuance of the writ, in a proper case, by motion in a pending case on
appeal or on certiorari, applying by analogy the provisions on the co-existence of the writ with a separately filed
criminal case.
The Writ of Habeas Data
Section 6 of the Rule on the Writ of Habeas Data requires the following material allegations of ultimate facts in a
petition for the issuance of a writ of habeas data:
"(a) The personal circumstances of the petitioner and the respondent;

44

(b) The manner the right to privacy is violated or threatened and how it affects the right to life,
liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or information;
(d) The location of the files, registers or databases, the government office, and the person in
charge, in possession or in control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the
database or information or files kept by the respondent.
In case of threats, the relief may include a prayer for an order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and equitable."
Support for the habeas data aspect of the present petition only alleges that:
"1. [ ] Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so that the PNP may release the report
on the burning of the homes of the petitioners and the acts of violence employed against them by the private
respondents, furnishing the Court and the petitioners with copy of the same;
[]
66. Petitioners apply for a WRIT OF HABEAS DATA commanding the Philippine National Police [PNP] to produce
the police report pertaining to the burning of the houses of the petitioners in the land in dispute and likewise
the investigation report if an investigation was conducted by the PNP."
These allegations obviously lack what the Rule on Writ of Habeas Data requires as a minimum, thus rendering the
petition fatally deficient. Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to
privacy related to the right to life, liberty or security. The petition likewise has not alleged, much less demonstrated,
any need for information under the control of police authorities other than those it has already set forth as integral
annexes. The necessity or justification for the issuance of the writ, based on the insufficiency of previous efforts made
to secure information, has not also been shown. In sum, the prayer for the issuance of a writ of habeas data is nothing
more than the "fishing expedition" that this Court - in the course of drafting the Rule on habeas data - had in mind in
defining what the purpose of a writ of habeas data is not. In these lights, the outright denial of the petition for the
issuance of the writ of habeas data is fully in order.
WHEREFORE, premises considered, we hereby DISMISS the present petition OUTRIGHT for deficiencies of form and
substance patent from its body and attachments.SO ORDERED.

45