Z. Luna, ATTY. LUNA’s son of the first marriage. Gregorio Z.
Luna thenleased out the
Lavadia vs heirs of Juan Luna
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 171914 July 23, 2014
SOLEDAD L. LAVADIA, Petitioner,
vs.
HEIRS OF JUAN LUCES LUNA, represented by GREGORIO Z. LUNA and
EUGENIA ZABALLERO-LUNA,Respondents.
DECISION
BERSAMIN, J.:
Divorce between Filipinos is void and ineffectual under the nationality rule adopted by
Philippine law. Hence, any settlement of property between the parties of the first
marriage involving Filipinos submitted as an incident of a divorce obtained in a foreign
country lacks competent judicial approval, and cannot be enforceable against the
assets of the husband who contracts a subsequent marriage.
The Case
The petitioner, the second wife of the late Atty. Juan Luces Luna, appeals the adverse
decision promulgated on November 11, 2005, whereby the Court of Appeals (CA)
1
affirmed with modification the decision rendered on August 27, 2001 by the Regional
Trial Court (RTC), Branch 138, in Makati City. The CA thereby denied her right in the
2
25/100 pro indiviso share of the husband in a condominium unit, and in the law books
of the husband acquired during the second marriage.
Antecedents
The antecedent facts were summarized by the CA as follows:
ATTY. LUNA, a practicing lawyer, was at first a name partner in the prestigious law
firm Sycip, Salazar, Luna, Manalo, Hernandez & Feliciano Law Offices at that time
when he was living with his first wife, herein intervenor-appellant Eugenia Zaballero-
Luna (EUGENIA), whom he initially married ina civil ceremony conducted by the
Justice of the Peace of Parañaque, Rizal on September 10, 1947 and later
solemnized in a church ceremony at the Pro-Cathedral in San Miguel, Bulacan on
September 12, 1948. In ATTY. LUNA’s marriage to EUGENIA, they begot seven (7)
children, namely: Regina Maria L. Nadal, Juan Luis Luna, Araceli Victoria L. Arellano,
Ana Maria L. Tabunda, Gregorio Macario Luna, Carolina Linda L. Tapia, and Cesar
Antonio Luna. After almost two (2) decades of marriage, ATTY. LUNA and EUGENIA
eventually agreed to live apart from each other in February 1966 and agreed to
separation of property, to which end, they entered into a written agreement entitled
"AGREEMENT FOR SEPARATION AND PROPERTY SETTLEMENT" dated
November 12, 1975, whereby they agreed to live separately and to dissolve and
liquidate their conjugal partnership of property.
On January 12, 1976, ATTY. LUNA obtained a divorce decree of his marriage with
EUGENIA from the Civil and Commercial Chamber of the First Circumscription of the
Court of First Instance of Sto. Domingo, Dominican Republic. Also in Sto.Domingo,
Dominican Republic, on the same date, ATTY. LUNA contracted another marriage,
this time with SOLEDAD. Thereafter, ATTY. LUNA and SOLEDAD returned to the
Philippines and lived together as husband and wife until 1987.
Sometime in 1977, ATTY. LUNA organized a new law firm named: Luna, Puruganan,
Sison and Ongkiko (LUPSICON) where ATTY. LUNA was the managing partner.
On February 14, 1978, LUPSICON through ATTY. LUNA purchased from Tandang
Sora Development Corporation the 6th Floor of Kalaw-Ledesma Condominium
Project(condominium unit) at Gamboa St., Makati City, consisting of 517.52 square
meters, for ₱1,449,056.00, to be paid on installment basis for 36months starting on
April 15, 1978. Said condominium unit was to be usedas law office of LUPSICON.
After full payment, the Deed of Absolute Sale over the condominium unit was
executed on July 15, 1983, and CCT No. 4779 was issued on August 10, 1983, which
was registered bearing the following names:
"JUAN LUCES LUNA, married to Soledad L. Luna (46/100); MARIO E. ONGKIKO,
married to Sonia P.G. Ongkiko (25/100); GREGORIO R. PURUGANAN, married to
Paz A. Puruganan (17/100); and TERESITA CRUZ SISON, married to Antonio J.M.
Sison (12/100) x x x" Subsequently, 8/100 share of ATTY. LUNA and 17/100 share of
Atty. Gregorio R. Puruganan in the condominium unit was sold to Atty. Mario E.
Ongkiko, for which a new CCT No. 21761 was issued on February 7, 1992 in the
following names:
"JUAN LUCES LUNA, married to Soledad L. Luna (38/100); MARIO E. ONGKIKO,
married to Sonia P.G. Ongkiko (50/100); TERESITA CRUZ SISON, married to
Antonio J.M. Sison (12/100) x x x"
Sometime in 1992, LUPSICON was dissolved and the condominium unit was
partitioned by the partners but the same was still registered in common under CCT
No. 21716. The parties stipulated that the interest of ATTY. LUNA over the
condominium unit would be 25/100 share. ATTY. LUNA thereafter established and
headed another law firm with Atty. Renato G. Dela Cruzand used a portion of the
office condominium unit as their office. The said law firm lasted until the death of
ATTY. JUAN on July 12, 1997.
After the death of ATTY. JUAN, his share in the condominium unit including the
lawbooks, office furniture and equipment found therein were taken over by Gregorio
25/100 portion of the condominium unit belonging to his father to Atty. Renato G. De
la Cruz who established his own law firm named Renato G. De la Cruz & Associates.
The 25/100 pro-indiviso share of ATTY. Luna in the condominium unit as well as the
law books, office furniture and equipment became the subject of the complaint filed by
SOLEDAD against the heirs of ATTY. JUAN with the RTC of Makati City, Branch 138,
on September 10, 1999, docketed as Civil Case No. 99-1644. The complaint alleged
that the subject properties were acquired during the existence of the marriage
between ATTY. LUNA and SOLEDAD through their joint efforts that since they had no
children, SOLEDAD became co-owner of the said properties upon the death of ATTY.
LUNA to the extent of ¾ pro-indiviso share consisting of her ½ share in the said
properties plus her ½ share in the net estate of ATTY. LUNA which was bequeathed
to her in the latter’s last will and testament; and thatthe heirs of ATTY. LUNA through
Gregorio Z. Luna excluded SOLEDAD from her share in the subject properties. The
complaint prayed that SOLEDAD be declared the owner of the ¾ portion of the
subject properties;that the same be partitioned; that an accounting of the rentals on
the condominium unit pertaining to the share of SOLEDAD be conducted; that a
receiver be appointed to preserve ad administer the subject properties;and that the
heirs of ATTY. LUNA be ordered to pay attorney’s feesand costs of the suit to
SOLEDAD. 3
Ruling of the RTC
On August 27, 2001, the RTC rendered its decision after trial upon the
aforementioned facts, disposing thusly:
4
WHEREFORE, judgment is rendered as follows:
(a) The 24/100 pro-indiviso share in the condominium unit located at the
SIXTH FLOOR of the KALAW LEDESMA CONDOMINIUM PROJECT
covered by Condominium Certificate of Title No. 21761 consisting of FIVE
HUNDRED SEVENTEEN (517/100) SQUARE METERS is adjudged to
have been acquired by Juan Lucas Luna through his sole industry;
(b) Plaintiff has no right as owner or under any other concept over the
condominium unit, hence the entry in Condominium Certificate of Title No.
21761 of the Registry of Deeds of Makati with respect to the civil status of
Juan Luces Luna should be changed from "JUAN LUCES LUNA married
to Soledad L. Luna" to "JUAN LUCES LUNA married to Eugenia Zaballero
Luna";
(c) Plaintiff is declared to be the owner of the books Corpus Juris, Fletcher
on Corporation, American Jurisprudence and Federal Supreme Court
Reports found in the condominium unit and defendants are ordered to
deliver them to the plaintiff as soon as appropriate arrangements have
been madefor transport and storage.
No pronouncement as to costs.
SO ORDERED. 5
Decision of the CA
Both parties appealed to the CA. 6
On her part, the petitioner assigned the following errors to the RTC, namely:
I. THE LOWER COURT ERRED IN RULING THAT THE CONDOMINIUM
UNIT WAS ACQUIRED THRU THE SOLE INDUSTRY OF ATTY. JUAN
LUCES LUNA;
II. THE LOWER COURT ERRED IN RULING THAT
PLAINTIFFAPPELLANT DID NOT CONTRIBUTE MONEY FOR THE
ACQUISITION OF THE CONDOMINIUM UNIT;
III. THE LOWER COURT ERRED IN GIVING CREDENCE TO
PORTIONS OF THE TESTIMONY OF GREGORIO LUNA, WHO HAS NO
ACTUAL KNOWLEDGE OF THE ACQUISITION OF THE UNIT, BUT
IGNORED OTHER PORTIONS OF HIS TESTIMONY FAVORABLE TO
THE PLAINTIFF-APPELLANT;
IV. THE LOWER COURT ERRED IN NOT GIVING SIGNIFICANCE TO
THE FACT THAT THE CONJUGAL PARTNERSHIP BETWEEN LUNA
AND INTERVENOR-APPELLANT WAS ALREADY DISSOLVED AND
LIQUIDATED PRIOR TO THE UNION OF PLAINTIFF-APPELLANT AND
LUNA;
V. THE LOWER COURT ERRED IN GIVING UNDUE SIGNIFICANCE TO
THE ABSENCE OF THE DISPOSITION OF THE CONDOMINIUM UNIT
IN THE HOLOGRAPHIC WILL OF THE PLAINTIFF-APPELLANT;
VI. THE LOWER COURT ERRED IN GIVING UNDUE SIGNIFICANCE
TO THE FACTTHAT THE NAME OF PLAINTIFF-APPELLANT DID NOT
APPEAR IN THE DEED OF ABSOLUTE SALE EXECUTED BY
TANDANG SORA DEVELOPMENT CORPORATION OVER THE
CONDOMINIUM UNIT;
VII. THE LOWER COURT ERRED IN RULING THAT NEITHER ARTICLE
148 OF THE FAMILYCODE NOR ARTICLE 144 OF THE CIVIL CODE OF
THE PHILIPPINES ARE APPLICABLE;
VIII. THE LOWER COURT ERRED IN NOT RULING THAT THE CAUSE
OF ACTION OF THE INTERVENOR-APPELLANT HAS BEEN BARRED
BY PESCRIPTION AND LACHES; and
 IX. THE LOWER COURT ERRED IN NOT EXPUNGING/DISMISSING
THE INTERVENTION FOR FAILURE OF INTERVENOR-APPELLANT TO
PAY FILING FEE. 7
In contrast, the respondents attributedthe following errors to the trial court, to wit:
I. THE LOWER COURT ERRED IN HOLDING THAT CERTAIN FOREIGN
LAW BOOKS IN THE LAW OFFICE OF ATTY. LUNA WERE BOUGHT
WITH THE USE OF PLAINTIFF’S MONEY;
II. THE LOWER COURT ERRED IN HOLDING THAT PLAINTIFF
PROVED BY PREPONDERANCE OF EVIDENCE (HER CLAIM OVER)
THE SPECIFIED FOREIGN LAW BOOKS FOUND IN ATTY. LUNA’S
LAW OFFICE; and
III. THE LOWER COURT ERRED IN NOT HOLDING THAT, ASSUMING
PLAINTIFF PAID FOR THE SAID FOREIGN LAW BOOKS, THE RIGHT
TO RECOVER THEM HAD PRESCRIBED AND BARRED BY LACHES
AND ESTOPPEL. 8
On November 11, 2005, the CA promulgated its assailed modified decision, holding 9
and ruling:
EUGENIA, the first wife, was the legitimate wife of ATTY. LUNA until the latter’s death
on July 12, 1997. The absolute divorce decree obtained by ATTY. LUNA inthe
Dominican Republic did not terminate his prior marriage with EUGENIA because
foreign divorce between Filipino citizens is not recognized in our jurisdiction. x x x
xxxx
WHEREFORE, premises considered, the assailed August 27, 2001 Decision of the
RTC of MakatiCity, Branch 138, is hereby MODIFIEDas follows:
(a) The 25/100 pro-indiviso share in the condominium unit at the SIXTH
FLOOR of the KALAW LEDESMA CONDOMINIUM PROJECT covered by
Condominium Certificate of Title No. 21761 consisting of FIVE HUNDRED
SEVENTEEN (517/100) (sic) SQUARE METERS is hereby adjudged to
defendants-appellants, the heirs of Juan Luces Luna and Eugenia
Zaballero-Luna (first marriage), having been acquired from the sole funds
and sole industry of Juan Luces Luna while marriage of Juan Luces Luna
and Eugenia Zaballero-Luna (first marriage) was still subsisting and valid;
(b) Plaintiff-appellant Soledad Lavadia has no right as owner or under any
other concept over the condominium unit, hence the entry in
Condominium Certificate of Title No. 21761 of the Registry of Deeds
ofMakati with respect to the civil status of Juan Luces Luna should be
changed from "JUAN LUCES LUNA married to Soledad L. Luna" to
"JUAN LUCES LUNA married to Eugenia Zaballero Luna";
(c) Defendants-appellants, the heirs of Juan Luces Luna and Eugenia
Zaballero-Luna(first marriage) are hereby declared to be the owner of the
books Corpus Juris, Fletcher on Corporation, American Jurisprudence and
Federal Supreme Court Reports found in the condominium unit.
No pronouncement as to costs.
SO ORDERED. 11
On March 13, 2006, the CA denied the petitioner’s motion for reconsideration.
12 13
Issues
In this appeal, the petitioner avers in her petition for review on certiorarithat:
A. The Honorable Court of Appeals erred in ruling that the Agreement for
Separation and Property Settlement executed by Luna and Respondent
Eugenia was unenforceable; hence, their conjugal partnership was not
dissolved and liquidated;
B. The Honorable Court of Appeals erred in not recognizing the
Dominican Republic court’s approval of the Agreement;
C. The Honorable Court of Appeals erred in ruling that Petitioner failed to
adduce sufficient proof of actual contribution to the acquisition of purchase
of the subjectcondominium unit; and
D. The Honorable Court of Appeals erred in ruling that Petitioner was not
entitled to the subject law books. 14
The decisive question to be resolved is who among the contending parties should be
entitled to the 25/100 pro indivisoshare in the condominium unit; and to the law books
(i.e., Corpus Juris, Fletcher on Corporation, American Jurisprudence and Federal
Supreme Court Reports).
The resolution of the decisive question requires the Court to ascertain the law that
should determine, firstly, whether the divorce between Atty. Luna and Eugenia
Zaballero-Luna (Eugenia) had validly dissolved the first marriage; and, secondly,
whether the second marriage entered into by the late Atty. Luna and the petitioner
entitled the latter to any rights in property. Ruling of the Court
We affirm the modified decision of the CA.
1. Atty. Luna’s first marriage with Eugenia
subsisted up to the time of his death
The first marriage between Atty. Luna and Eugenia, both Filipinos, was solemnized in
the Philippines on September 10, 1947. The law in force at the time of the
solemnization was the Spanish Civil Code, which adopted the nationality rule. The
Civil Codecontinued to follow the nationality rule, to the effect that Philippine laws
relating to family rights and duties, or to the status, condition and legal capacity of
persons were binding upon citizens of the Philippines, although living
abroad. Pursuant to the nationality rule, Philippine laws governed thiscase by virtue
15
of bothAtty. Luna and Eugenio having remained Filipinos until the death of Atty. Luna
on July 12, 1997 terminated their marriage.
From the time of the celebration ofthe first marriage on September 10, 1947 until the
present, absolute divorce between Filipino spouses has not been recognized in the
Philippines. The non-recognition of absolute divorce between Filipinos has remained
even under the Family Code, even if either or both of the spouses are residing
16
abroad. Indeed, the only two types of defective marital unions under our laws have
17
beenthe void and the voidable marriages. As such, the remedies against such
defective marriages have been limited to the declaration of nullity ofthe marriage and
the annulment of the marriage.
It is true that on January 12, 1976, the Court of First Instance (CFI) of Sto. Domingo in
the Dominican Republic issued the Divorce Decree dissolving the first marriage of
Atty. Luna and Eugenia. Conformably with the nationality rule, however, the divorce,
18
even if voluntarily obtained abroad, did not dissolve the marriage between Atty. Luna
and Eugenia, which subsisted up to the time of his death on July 12, 1997. This
finding conforms to the Constitution, which characterizes marriage as an inviolable
10 social institution, and regards it as a special contract of permanent union between a
19
man and a woman for the establishment of a conjugal and family life. The non-
20
recognition of absolute divorce in the Philippines is a manifestation of the respect for
the sanctity of the marital union especially among Filipino citizens. It affirms that the
extinguishment of a valid marriage must be grounded only upon the death of either
spouse, or upon a ground expressly provided bylaw. For as long as this public policy
on marriage between Filipinos exists, no divorce decree dissolving the marriage
between them can ever be given legal or judicial recognition and enforcement in this
jurisdiction.
2. The Agreement for Separation and Property Settlement
was void for lack of court approval
The petitioner insists that the Agreement for Separation and Property Settlement
(Agreement) that the late Atty. Luna and Eugenia had entered into and executed in
connection with the divorce proceedings before the CFI of Sto. Domingo in the
Dominican Republic to dissolve and liquidate their conjugal partnership was
enforceable against Eugenia. Hence, the CA committed reversible error in decreeing
otherwise.
The insistence of the petitioner was unwarranted.
Considering that Atty. Luna and Eugenia had not entered into any marriage
settlement prior to their marriage on September 10, 1947, the system of relative
community or conjugal partnership of gains governed their property relations. This is
because the Spanish Civil Code, the law then in force at the time of their marriage,
did not specify the property regime of the spouses in the event that they had not
entered into any marriage settlement before or at the time of the marriage. Article 119
of the Civil Codeclearly so provides, to wit:
Article 119. The future spouses may in the marriage settlements agree upon absolute
or relative community of property, or upon complete separation of property, or upon
any other regime. In the absence of marriage settlements, or when the same are void,
the system of relative community or conjugal partnership of gains as established in
this Code, shall govern the property relations between husband and wife.
Article 142 of the Civil Codehas defined a conjugal partnership of gains thusly:
Article 142. By means of the conjugal partnership of gains the husband and wife place
in a common fund the fruits of their separate property and the income from their work
or industry, and divide equally, upon the dissolution of the marriage or of the
partnership, the net gains or benefits obtained indiscriminately by either spouse
during the marriage.
The conjugal partnership of gains subsists until terminated for any of various causes
of termination enumerated in Article 175 of the Civil Code, viz:
Article 175. The conjugal partnership of gains terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled;
(4) In case of judicial separation of property under Article 191.
The mere execution of the Agreement by Atty. Luna and Eugenia did not per
sedissolve and liquidate their conjugal partnership of gains. The approval of the
Agreement by a competent court was still required under Article 190 and Article 191
of the Civil Code, as follows:
Article 190. In the absence of an express declaration in the marriage settlements, the
separation of property between spouses during the marriage shall not take place save
in virtue of a judicial order. (1432a)
Article 191. The husband or the wife may ask for the separation of property, and it
shall be decreed when the spouse of the petitioner has been sentenced to a penalty
which carries with it civil interdiction, or has been declared absent, or when legal
separation has been granted.
xxxx
The husband and the wife may agree upon the dissolution of the conjugal partnership
during the marriage, subject to judicial approval. All the creditors of the husband and
of the wife, as well as of the conjugal partnership shall be notified of any petition for
judicialapproval or the voluntary dissolution of the conjugal partnership, so that any
such creditors may appear atthe hearing to safeguard his interests. Upon approval of
the petition for dissolution of the conjugal partnership, the court shall take such
measures as may protect the creditors and other third persons.
After dissolution of the conjugal partnership, the provisions of articles 214 and 215
shall apply. The provisions of this Code concerning the effect of partition stated in
articles 498 to 501 shall be applicable. (1433a)
But was not the approval of the Agreement by the CFI of Sto. Domingo in the
Dominican Republic sufficient in dissolving and liquidating the conjugal partnership of
gains between the late Atty. Luna and Eugenia?
The query is answered in the negative. There is no question that the approval took
place only as an incident ofthe action for divorce instituted by Atty. Luna and Eugenia,
for, indeed, the justifications for their execution of the Agreement were identical to the
grounds raised in the action for divorce. With the divorce not being itself valid and
21
enforceable under Philippine law for being contrary to Philippine public policy and
public law, the approval of the Agreement was not also legally valid and enforceable
under Philippine law. Consequently, the conjugal partnership of gains of Atty. Luna
and Eugenia subsisted in the lifetime of their marriage.
3. Atty. Luna’s marriage with Soledad, being bigamous,
was void; properties acquired during their marriage
were governed by the rules on co-ownership
What law governed the property relations of the second marriage between Atty. Luna
and Soledad?
The CA expressly declared that Atty. Luna’s subsequent marriage to Soledad on
January 12, 1976 was void for being bigamous, on the ground that the marriage
22
between Atty. Luna and Eugenia had not been dissolved by the Divorce Decree
rendered by the CFI of Sto. Domingo in the Dominican Republic but had subsisted
until the death of Atty. Luna on July 12, 1997.
The Court concurs with the CA.
In the Philippines, marriages that are bigamous, polygamous, or incestuous are void.
Article 71 of the Civil Codeclearly states:
Article 71. All marriages performed outside the Philippines in accordance with the
laws in force in the country where they were performed, and valid there as such, shall
also be valid in this country, except bigamous, polygamous, or incestuous marriages
as determined by Philippine law.
Bigamy is an illegal marriage committed by contracting a second or subsequent
marriage before the first marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means of a judgment rendered in
the proper proceedings. A bigamous marriage is considered void ab initio.
23 24
Due to the second marriage between Atty. Luna and the petitioner being void ab
initioby virtue of its being bigamous, the properties acquired during the bigamous
marriage were governed by the rules on co-ownership, conformably with Article 144
of the Civil Code, viz:
Article 144. When a man and a woman live together as husband and wife, but they
are not married, ortheir marriage is void from the beginning, the property acquired by
eitheror both of them through their work or industry or their wages and salaries shall
be governed by the rules on co-ownership.(n)
In such a situation, whoever alleges co-ownership carried the burden of proof to
confirm such fact.1âwphi1 To establish co-ownership, therefore, it became imperative for
the petitioner to offer proof of her actual contributions in the acquisition of property.
Her mere allegation of co-ownership, without sufficient and competent evidence,
would warrant no relief in her favor. As the Court explained in Saguid v. Court of
Appeals: 25
In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue
of co-ownership ofproperties acquired by the parties to a bigamous marriage and an
adulterous relationship, respectively, we ruled that proof of actual contribution in the
acquisition of the property is essential. The claim of co-ownership of the petitioners
therein who were parties to the bigamous and adulterousunion is without basis
because they failed to substantiate their allegation that they contributed money in the
purchase of the disputed properties. Also in Adriano v. Court of Appeals, we ruled that
the fact that the controverted property was titled in the name of the parties to an
adulterous relationship is not sufficient proof of coownership absent evidence of
actual contribution in the acquisition of the property.
As in other civil cases, the burden of proof rests upon the party who, as determined
by the pleadings or the nature of the case, asserts an affirmative issue. Contentions
must be proved by competent evidence and reliance must be had on the strength of
the party’s own evidence and not upon the weakness of the opponent’s defense. This
applies with more vigor where, as in the instant case, the plaintiff was allowed to
present evidence ex parte.1âwphi1 The plaintiff is not automatically entitled to the relief
prayed for. The law gives the defendantsome measure of protection as the plaintiff
must still prove the allegations in the complaint. Favorable relief can be granted only
after the court isconvinced that the facts proven by the plaintiff warrant such relief.
Indeed, the party alleging a fact has the burden of proving it and a mereallegation is
not evidence. 26
The petitioner asserts herein that she sufficiently proved her actual contributions in
the purchase of the condominium unit in the aggregate amount of at least
₱306,572.00, consisting in direct contributions of ₱159,072.00, and in repaying the
loans Atty. Luna had obtained from Premex Financing and Banco Filipino totaling
₱146,825.30; and that such aggregate contributions of ₱306,572.00 corresponded to
27
almost the entire share of Atty. Luna in the purchase of the condominium unit
amounting to ₱362,264.00 of the unit’s purchase price of ₱1,449,056.00. The 28
petitioner further asserts that the lawbooks were paid for solely out of her personal
funds, proof of which Atty. Luna had even sent her a "thank you" note; that she had
29
the financial capacity to make the contributions and purchases; and that Atty. Luna
could not acquire the properties on his own due to the meagerness of the income
derived from his law practice.
Did the petitioner discharge her burden of proof on the co-ownership?
In resolving the question, the CA entirely debunked the petitioner’s assertions on her
actual contributions through the following findings and conclusions, namely:
SOLEDAD was not able to prove by preponderance of evidence that her own
independent funds were used to buy the law office condominium and the law books
subject matter in contentionin this case – proof that was required for Article 144 of the
New Civil Code and Article 148 of the Family Code to apply – as to cases where
properties were acquired by a man and a woman living together as husband and wife
but not married, or under a marriage which was void ab initio. Under Article 144 of the
New Civil Code, the rules on co-ownership would govern. But this was not readily
applicable to many situations and thus it created a void at first because it applied only
if the parties were not in any way incapacitated or were without impediment to marry
each other (for it would be absurd to create a co-ownership where there still exists a
prior conjugal partnership or absolute community between the man and his lawful
wife). This void was filled upon adoption of the Family Code. Article 148 provided that:
only the property acquired by both of the parties through their actual joint contribution
of money, property or industry shall be owned in common and in proportion to their
respective contributions. Such contributions and corresponding shares were prima
faciepresumed to be equal. However, for this presumption to arise, proof of actual
contribution was required. The same rule and presumption was to apply to joint
deposits of money and evidence of credit. If one of the parties was validly married to
another, his or her share in the co-ownership accrued to the absolute community or
conjugal partnership existing in such valid marriage. If the party who acted in bad faith
was not validly married to another, his or her share shall be forfeited in the manner
provided in the last paragraph of the Article 147. The rules on forfeiture applied even
if both parties were in bad faith. Co-ownership was the exception while conjugal
partnership of gains was the strict rule whereby marriage was an inviolable social
institution and divorce decrees are not recognized in the Philippines, as was held by
the Supreme Court in the case of Tenchavez vs. Escaño, G.R. No. L-19671,
November 29, 1965, 15 SCRA 355, thus:
xxxx
As to the 25/100pro-indivisoshare of ATTY. LUNA in the condominium unit,
SOLEDAD failed to prove that she made an actual contribution to purchase the said
property. She failed to establish that the four (4) checks that she presented were
indeed used for the acquisition of the share of ATTY. LUNA in the condominium unit.
This was aptly explained in the Decision of the trial court, viz.:
"x x x The first check, Exhibit "M" for ₱55,000.00 payable to Atty. Teresita Cruz Sison
was issued on January 27, 1977, which was thirteen (13) months before the
Memorandum of Agreement, Exhibit "7" was signed. Another check issued on April
29, 1978 in the amount of ₱97,588.89, Exhibit "P" was payable to Banco Filipino.
According to the plaintiff, thiswas in payment of the loan of Atty. Luna. The third check
which was for ₱49,236.00 payable to PREMEX was dated May 19, 1979, also for
payment of the loan of Atty. Luna. The fourth check, Exhibit "M", for ₱4,072.00 was
dated December 17, 1980. None of the foregoing prove that the amounts delivered by
plaintiff to the payees were for the acquisition of the subject condominium unit. The
connection was simply not established. x x x"
SOLEDAD’s claim that she made a cash contribution of ₱100,000.00 is
unsubstantiated. Clearly, there is no basis for SOLEDAD’s claim of co-ownership over
the 25/100 portion of the condominium unit and the trial court correctly found that the
same was acquired through the sole industry of ATTY. LUNA, thus:
"The Deed of Absolute Sale, Exhibit "9", covering the condominium unit was in the
name of Atty. Luna, together with his partners in the law firm. The name of the plaintiff
does not appear as vendee or as the spouse of Atty. Luna. The same was acquired
for the use of the Law firm of Atty. Luna. The loans from Allied Banking Corporation
and Far East Bank and Trust Company were loans of Atty. Luna and his partners and
plaintiff does not have evidence to show that she paid for them fully or partially. x x x"
The fact that CCT No. 4779 and subsequently, CCT No. 21761 were in the name of
"JUAN LUCES LUNA, married to Soledad L. Luna" was no proof that SOLEDAD was
a co-owner of the condominium unit. Acquisition of title and registration thereof are
two different acts. It is well settled that registration does not confer title but merely
confirms one already existing. The phrase "married to" preceding "Soledad L. Luna" is
merely descriptive of the civil status of ATTY. LUNA.
SOLEDAD, the second wife, was not even a lawyer. So it is but logical that
SOLEDAD had no participation in the law firm or in the purchase of books for the law
firm. SOLEDAD failed to prove that she had anything to contribute and that she
actually purchased or paid for the law office amortization and for the law books. It is
more logical to presume that it was ATTY. LUNA who bought the law office space and
the law books from his earnings from his practice of law rather than embarrassingly
beg or ask from SOLEDAD money for use of the law firm that he headed. 30
The Court upholds the foregoing findings and conclusions by the CA both because
they were substantiated by the records and because we have not been shown any
reason to revisit and undo them. Indeed, the petitioner, as the party claiming the co-
ownership, did not discharge her burden of proof. Her mere allegations on her
contributions, not being evidence, did not serve the purpose. In contrast, given the
31
subsistence of the first marriage between Atty. Luna and Eugenia, the presumption
that Atty. Luna acquired the properties out of his own personal funds and effort
remained. It should then be justly concluded that the properties in litislegally pertained
to their conjugal partnership of gains as of the time of his death. Consequently, the
sole ownership of the 25/100 pro indivisoshare of Atty. Luna in the condominium unit,
and of the lawbooks pertained to the respondents as the lawful heirs of Atty. Luna.
WHEREFORE, the Court AFFIRMS the decision promulgated on November 11, 2005;
and ORDERS the petitioner to pay the costs of suit.
SO ORDERED.
Orion saving bank vs Suzuki
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 205487 November 12, 2014
ORION SAVINGS BANK, Petitioner,
vs.
SHIGEKANE SUZUKI, Respondent.
DECISION
BRION, J.:
Before us is the Petition for Review on Certiorari filed by petitioner Orion
1
Savings Bank (Orion) under Rule 45 of the Rules of Court, assailing the
decision dated August 23, 2012 and the resolution dated January 25, 2013 of
2 3
the Court of Appeals (CA) in CA-G.R. CV No. 94104.
The Factual Antecedents
In the first week of August 2003, respondent Shigekane Suzuki (Suzuki), a
Japanese national, met with Ms. Helen Soneja (Soneja) to inquire about a
condominium unit and a parking slot at Cityland Pioneer, Mandaluyong City,
allegedly owned by Yung Sam Kang (Kang), a Korean national and a Special
Resident Retiree's Visa (SRRV) holder.
At the meeting, Soneja informed Suzuki that Unit No. 536 [covered by
Condominium Certificate of Title (CCT) No. 18186] and Parking Slot No. 42
4
[covered by CCT No. 9118] were for sale for ₱3,000,000.00. Soneja likewise
5
assured Suzuki that the titles to the unit and the parking slot were clean. After a
brief negotiation, the parties agreed to reduce the price to ₱2,800,000.00. On
August 5, 2003, Suzuki issued Kang a Bank of the Philippine Island (BPI) Check
No. 83349 for One Hundred Thousand Pesos (₱100,000.00) as reservation
6
fee. On August 21, 2003, Suzuki issued Kang another check, BPI Check No.
7
83350, this time for ₱2,700,000.00 representing the remaining balance of the
8 The CA Ruling
purchase price. Suzuki and Kang then executed a Deed of Absolute Sale dated
August 26, 2003 covering Unit No. 536 and Parking Slot No. 42. Soon after,
9
Suzuki took possession of the condominium unit and parking lot, and
commenced the renovation of the interior of the condominium unit.
Kang thereafter made several representations with Suzuki to deliver the titles to
the properties, which were then allegedly in possession of Alexander Perez
(Perez, Orion’s Loans Officer) for safekeeping. Despite several verbal demands,
Kang failed to deliver the documents. Suzuki later on learned that Kang had left
the country, prompting Suzuki to verify the status of the properties with the
Mandaluyong City Registry of Deeds.
Before long, Suzuki learned that CCT No. 9118 representing the title to the
Parking Slot No. 42 contained no annotations although it remained under the
name of Cityland Pioneer. This notwithstanding, Cityland Pioneer, through
Assistant Vice President Rosario D. Perez, certified that Kang had fully paid the
purchase price of Unit. No. 536 and Parking Slot No. 42. CCT No. 18186
10 11
representing the title to the condominium unit had no existing encumbrance,
except for anannotation under Entry No. 73321/C-10186 which provided that
any conveyance or encumbrance of CCT No. 18186 shall be subject to approval
by the Philippine Retirement Authority (PRA). Although CCT No. 18186
contained Entry No. 66432/C-10186 dated February 2, 1999 representing a
mortgage in favor of Orion for a ₱1,000,000.00 loan, that annotation was
subsequently cancelled on June 16, 2000 by Entry No. 73232/T. No. 10186.
Despite the cancellation of the mortgage to Orion, the titles to the properties
remained in possession of Perez.
To protect his interests, Suzuki thenexecuted an Affidavit of Adverse
Claim dated September 8, 2003, withthe Registry of Deeds of Mandaluyong
12
City, annotated as Entry No. 3292/C-No. 18186 in CCT No. 18186. Suzuki then
demanded the delivery of the titles. Orion, (through Perez), however, refused to
13
surrender the titles, and cited the need to consult Orion’s legal counsel as its
reason.
On October 14, 2003, Suzuki received a letter from Orion’s counsel dated
October 9, 2003, stating that Kang obtained another loan in the amount of
₱1,800,000.00. When Kang failed to pay, he executed a Dacion en Pagodated
February 2, 2003, in favorof Orion covering Unit No. 536. Orion, however, did
not register the Dacion en Pago, until October 15, 2003.
On October 28, 2003, Suzuki executed an Affidavit of Adverse Claim over
Parking Slot No. 42 (covered by CCT No. 9118) and this was annotated as
Entry No. 4712/C-No. 9118 in the parking lot’s title.
On January 27, 2004, Suzuki filed a complaint for specific performance and
damages against Kang and Orion. At the pre-trial, the parties made the
following admissions and stipulations:
1. That as of August 26, 2003, Kang was the registered owner of Unit
No. 536 and Parking Slot No. 42;
2. That the mortgage in favor ofOrion supposedly executed by Kang,
with Entry No. 66432/C-10186 dated February 2, 1999, was
subsequently cancelled by Entry No. 73232/T No. 10186 dated June
16, 2000;
3. That the alleged Dacion en Pagowas never annotated in CCT Nos.
18186 and 9118;
4. That Orion only paid the appropriate capital gains tax and the
documentary stamp tax for the alleged Dacion en Pago on October
15, 2003;
5. That Parking Slot No. 42, covered by CCT No. 9118, was never
mortgaged to Orion; and
6. That when Suzuki bought the properties, he went to Orion to
obtain possession of the titles.
The RTC Ruling
In its decision dated June 29, 2009, the Regional Trial Court (RTC), Branch
14
213, Mandaluyong City ruled infavor of Suzuki and ordered Orion to deliver the
CCT Nos. 18186 and 9118 to Suzuki.
The court found that Suzuki was an innocent purchaser for value whose rights
over the properties prevailed over Orion’s. The RTC further noted that Suzuki
exerted efforts to verify the status of the properties but he did not find any
existing encumbrance inthe titles. Although Orion claims to have purchased the
property by way of a Dacion en Pago, Suzuki only learned about it two (2)
months after he bought the properties because Orion never bothered to register
or annotate the Dacion en Pagoin CCT Nos. 18186 and 9116.
The RTC further ordered Orion and Kang to jointly and severally pay Suzuki
moral damages, exemplary damages, attorney’s fees, appearance fees,
expenses for litigation and cost ofsuit. Orion timely appealed the RTC decision
with the CA.
On August 23, 2012, the CA partially granted Orion’s appeal and sustained the
RTC insofar as it upheld Suzuki’s right over the properties. The CA further noted
that Entry No. 73321/C-10186 pertaining to the withdrawal of investment of an
SRRV only serves as a warning to an SRRV holder about the implications of a
conveyance of a property investment. It deviated from the RTC ruling, however,
by deleting the award for moral damages, exemplary damages, attorney’s fees,
expenses for litigation and cost of suit.
Orion sought a reconsideration of the CA decision but the CA denied the motion
in its January 25, 2013 resolution. Orion then filed a petition for review on
certiorariunder Rule 45 with this Court.
The Petition and Comment
Orion’s petition is based on the following grounds/arguments: 15
1. The Deed of Sale executed by Kang in favor of Suzuki is null and
void. Under Korean law, any conveyance of a conjugal property
should be made with the consent of both spouses;
2. Suzuki is not a buyer in good faith for he failed to check the
owner’s duplicate copies of the CCTs;
3. Knowledge of the PRA restriction under Entry No. 73321/C-10186,
which prohibits any conveyance or encumbrance of the property
investment, defeats the alleged claim of good faith by Suzuki; and
4. Orion should not be faulted for exercising due diligence.
In his Comment, Suzuki asserts that the issue on spousal consent was
16
belatedly raised on appeal. Moreover, proof of acquisition during the marital
coverture is a condition sine qua nonfor the operation of the presumption of
conjugal ownership. Suzuki additionally maintains that he is a purchaser in
17
good faith, and is thus entitled to the protection of the law.
The Court’s Ruling
We deny the petition for lack of merit.
The Court may inquire into conclusions of fact when the inference made is
manifestly mistaken
In a Rule 45 petition, the latitude of judicial review generally excludes a factual
and evidentiary re-evaluation, and the Court ordinarily abides by the uniform
factual conclusions of the trial court and the appellate court. In the present
18
case, while the courts below both arrived at the same conclusion, there appears
tobe an incongruence in their factual findings and the legal principle they
applied to the attendant factual circumstances. Thus, we are compelled to
examine certain factual issues in the exercise of our sound discretion to correct
any mistaken inference that may have been made. 19
Philippine Law governs the transfer of real property
Orion believes that the CA erred in not ruling on the issue of spousal consent.
We cannot uphold this position, however, because the issue of spousal consent
was only raised on appeal to the CA. It is a well-settled principle that points of
law, theories, issues, and arguments not brought to the attention of the trial
court cannot be raised for the first time on appeal and considered by a
reviewing court. To consider these belated arguments would violate basic
20
principles of fairplay, justice, and due process.
Having said these, we shall nonetheless discuss the issues Orion belatedly
raised, if only to put an end to lingering doubts on the correctness of the denial
of the present petition.
It is a universal principle thatreal or immovable property is exclusively subject to
the laws of the country or state where it is located. The reason is found in the
21
very nature of immovable property — its immobility. Immovables are part of the
country and so closely connected to it that all rights over them have their natural
center of gravity there. 22
Thus, all matters concerning the titleand disposition ofreal property are
determined by what is known as the lex loci rei sitae, which can alone prescribe
the mode by which a title canpass from one person to another, or by which an
interest therein can be gained or lost. This general principle includes all rules
23
governing the descent, alienation and transfer of immovable property and the
validity, effect and construction of wills and other conveyances. 24
This principle even governs the capacity of the person making a deed relating to
immovable property, no matter what its nature may be. Thus, an instrument will
be ineffective to transfer title to land if the person making it is incapacitated by
the lex loci rei sitae, even though under the law of his domicile and by the law of
the place where the instrument is actually made, his capacity is undoubted. 25
On the other hand, property relations between spouses are governed principally
by the national law of the spouses. However, the party invoking the application
26
of a foreign law has the burden of proving the foreign law. The foreign law is a
question of fact to be properly pleaded and proved as the judge cannot take
judicial notice of a foreign law. He is presumed to know only domestic or the
27
law of the forum. 28
To prove a foreign law, the party invoking it must present a copy thereof and
comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court
which reads:
SEC. 24. Proof of official record. — The record of public documents referred to
in paragraph (a) of Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of the embassy or legation, consul
general, consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country inwhich the record is
kept, and authenticated by the seal of his office. (Emphasis supplied)
SEC. 25. What attestation ofcopy must state. — Whenever a copy of a
document or record is attested for the purpose of the evidence, the attestation
must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must be under the
official seal of the attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court.
Accordingly, matters concerning the title and disposition of real property shall be
governed by Philippine law while issues pertaining to the conjugal natureof the
property shall be governed by South Korean law, provided it is proven as a fact.
In the present case, Orion, unfortunately failed to prove the South Korean law
on the conjugal ownership ofproperty. It merely attached a "Certification from
the Embassy of the Republic of Korea" to prove the existence of Korean Law.
29
This certification, does not qualify as sufficient proof of the conjugal nature of
the property for there is no showing that it was properly authenticated bythe seal
of his office, as required under Section 24 of Rule 132. 30
Accordingly, the International Law doctrine of presumed-identity approachor
processual presumption comes into play, i.e., where a foreign law is not pleaded
or, evenif pleaded, is not proven, the presumption is that foreign law is the same
as Philippine Law. 31
Under Philippine Law, the phrase "Yung Sam Kang ‘married to' Hyun Sook
Jung" is merely descriptive of the civil status of Kang. In other words, the
32
import from the certificates of title is that Kang is the owner of the properties as
they are registered in his name alone, and that he is married to Hyun Sook
Jung.
We are not unmindful that in numerous cases we have held that registration of
the property in the name of only one spouse does not negate the possibility of it
being conjugal or community property. In those cases, however, there was
33
proof that the properties, though registered in the name of only one spouse,
were indeed either conjugal or community properties. Accordingly, we see no
34
reason to declare as invalid Kang’s conveyance in favor of Suzuki for the
supposed lack of spousal consent.
The petitioner failed to adduce sufficient evidence to prove the due execution of
the Dacion en Pago
Article 1544 of the New Civil Codeof the Philippines provides that:
ART. 1544. If the same thing should have been sold to different vendees, the
ownership shall be transferred to the person who may have first taken
possession thereof in good faith, if it should be movable property.
Should it be immovable property, the ownership shall belong to the person
acquiring it who in good faith first recorded it in the Registry of Property.
Should there be no inscription, the ownership shall pertain to the person who in
good faith was first in the possession; and, in the absence thereof, to the person
who presents the oldest title, provided there is good faith.
The application of Article 1544 of the New Civil Code presupposes the
existence of two or more duly executed contracts of sale. In the present case,
the Deed of Sale dated August 26, 2003 between Suzuki and Kang was
35
admitted by Orion and was properly identified by Suzuki’s witness Ms. Mary
36
Jane Samin (Samin). 37
It is not disputed, too, that the Deed of Sale dated August 26, 2003 was
consummated. In a contract of sale, the seller obligates himself to transfer the
ownership of the determinate thing sold, and to deliver the same to the buyer,
who obligates himself to pay a price certain to the seller. The execution of the
38
notarized deed of saleand the actual transfer of possession amounted to
delivery that produced the legal effect of transferring ownership to Suzuki. 39
On the other hand, although Orion claims priority in right under the principle of
prius tempore, potior jure (i.e.,first in time, stronger in right), it failedto prove the
existence and due execution of the Dacion en Pagoin its favor.
At the outset, Orion offered the Dacion en Pagoas Exhibit "5"with submarkings
"5-a" to "5-c" to prove the existence of the February 6, 2003 transaction in its
Formal Offer dated July 20, 2008. Orion likewise offered in evidence the
supposed promissory note dated September 4, 2002 as Exhibit "12"to prove the
existence of the additional ₱800,000.00 loan. The RTC, however, denied the
admission of Exhibits "5" and "12,"among others, in its order dated August 19,
2008 "since the same [were] not identified in court by any witness." 40
Despite the exclusion of its most critical documentary evidence, Orion failed to
make a tender ofexcluded evidence, as provided under Section 40, Rule 132 of
the Rules of Court. For this reason alone, we are prevented from seriously
considering Exhibit "5" and its submarkings and Exhibit "12" in the present
petition.
Moreover, even if we consider Exhibit "5" and its submarkings and Exhibit "12"
in the present petition, the copious inconsistencies and contradictions in the
testimonial and documentary evidence of Orion, militate against the conclusion
that the Dacion en Pagowas duly executed. First, there appears to be no due
and demandable obligation when the Dacion en Pago was executed, contrary to
the allegations of Orion. Orion’s witness Perez tried to impress upon the RTC
that Kang was in default in his ₱1,800,000.00 loan. During his direct
examination, he stated:
ATTY. CRUZAT:
Q: Okay, so this loan of ₱1.8 million, what happened to this loan, Mr.
Witness?
A: Well it became past due, there has been delayed interest payment
by Mr. Kangand...
Q: So what did you do after there were defaults[?]
A: We have to secure the money or the investment of the bank
through loans and we have executed a dacion en pagobecause Mr.
Kang said he has no money. So we just execute[d] the dacion en
pago rather than going through the Foreclosure proceedings.
xxxx
Q: Can you tell the court when was this executed?
A: February 6, 2003, your Honor. 41
A reading of the supposed promissory note, however, shows that there was
nodefault to speak of when the supposed Dacion en Pagowas executed.
Based on the promissory note, Kang’s loan obligation wouldmature only on
August 27, 2003. Neither can Orion claim that Kang had been in default in his
installment payments because the wordings of the promissory note provide that
"[t]he principal of this loanand its interest and other charges shall be paid by
me/us in accordance hereunder: SINGLE PAYMENT LOANS. "There was thus
42
no due and demandable loan obligation when the alleged Dacion en Pago was
executed.
Second, Perez, the supposed person who prepared the Dacion en
Pago,appears to only have a vague idea of the transaction he supposedly
prepared. During his cross-examination, he testified:
ATTY. DE CASTRO:
Q: And were you the one who prepared this [dacion en pago] Mr.
witness?
A: Yes, sir. I personally prepared this.
xxxx
Q: So this 1.8 million pesos is already inclusive of all the penalties,
interest and surcharge due from Mr. Yung Sam Kang?
A: It’s just the principal, sir.
Q: So you did not state the interest [and] penalties?
A: In the [dacion en pago], we do not include interest, sir. We may
actually includethat but....
Q: Can you read the Second Whereas Clause, Mr. Witness?
A: Whereas the first party failed to pay the said loan to the second
party and as of February 10, 2003, the outstanding obligation which
is due and demandable principal and interest and other charges
included amounts to ₱1,800,000.00 pesos, sir.
xxxx
Q: You are now changing your answer[.] [I]t now includes interest
and other charges, based on this document?
A: Yes, based on that document, sir. 43
Third, the Dacion en Pago,mentioned that the ₱1,800,000.00 loan
was secured by a real estate mortgage. However, no document was
ever presented to prove this real estate mortgage aside from it being
mentioned in the Dacion en Pago itself.
ATTY. DE CASTRO:
Q: Would you know if there is any other document like a supplement
to that Credit Line Agreement referring to this 1.8 million peso loan
by Mr. Yung Sam Kang which says that there was a subsequent
collateralization or security given by Mr. Yung [Sam]
Kang for the loan?
xxxx
A: The [dacion en pago], sir. 44
Fourth,the Dacion en Pago was first mentioned only two (2) months after Suzuki
and Samin demanded the delivery of the titles sometime in August 2003,and
after Suzuki caused the annotation of his affidavit of adverse claim. Records
show that it was only on October 9, 2003, when Orion, through its counsel,
Cristobal Balbin Mapile & Associates first spoke of the Dacion en Pago. Not 45
even Perez mentioned any Dacion en Pago on October 1, 2003, when he
personally received a letter demanding the delivery of the titles.Instead, Perez
refused to accept the letter and opted to first consult with his lawyer.46
Notably, even the October 9, 2003 letter contained material inconsistencies in
its recital of facts surrounding the execution of the Dacion en Pago. In particular,
it mentioned that "on [September 4, 2002], after paying the original loan, [Kang]
applied and was granted a new Credit Line Facility by [Orion] x x x for ONE
MILLION EIGHT HUNDRED THOUSAND PESOS (₱1,800,000.00)." Perez,
however, testified that there was "no cash movement" in the original
₱1,000,000.00 loan. In his testimony, he said:
COURT:
xxxx
Q: Would you remember what was the subject matter of that real
estate mortgage for that first ₱1,000,000.00 loan?
A: It’s a condominium Unit in Cityland, sir.
xxxx
Q: Would you recall if there was any payment by Mr. Yung Sam
Kang of this ₱1,000,000.00 loan?
A: None sir.
Q: No payments?
A: None sir.
Q: And from 1999 to 2002, there was no payment, either by way of
payment to the principal, by way ofpayment of interest, there was no
payment by Mr. Yung Sam Kang of this loan?
A: Literally, there was no actual cash movement, sir.
Q: There was no actual cash?
A: Yes, sir.
Q: And yet despite no payment, the bank Orion Savings Bank still
extended an ₱800,000.00 additional right?
A: Yes, sir. 47
Fifth, it is undisputed that notwithstanding the supposed execution of theDacion
en Pago on February 2, 2003, Kang remained in possession of the
condominium unit. In fact, nothing in the records shows that Orion even
bothered to take possession of the property even six (6) months after the
supposed date of execution of the Dacion en Pago. Kang was even able to
transfer possession of the condominium unit to Suzuki, who then made
immediate improvements thereon. If Orion really purchased the condominium
unit on February 2, 2003 and claimed to be its true owner, why did it not assert
its ownership immediately after the alleged sale took place? Why did it have to
assert its ownership only after Suzuki demanded the delivery of the titles?
These gaps have remained unanswered and unfilled.
In Suntay v. CA, we held that the most prominent index of simulation is the
48
complete absence of anattempt on the part of the vendee to assert his rights of
ownership over the property in question. After the sale, the vendee should have
entered the land and occupied the premises. The absence of any attempt on the
part of Orion to assert its right of dominion over the property allegedly soldto it is
a clear badge of fraud. That notwithstanding the execution of the Dacion en
Pago, Kang remained in possession of the disputed condominium unit – from
the time of the execution of the Dacion en Pagountil the property’s subsequent
transfer to Suzuki – unmistakably strengthens the fictitious nature of the Dacion
en Pago.
These circumstances, aside from the glaring inconsistencies in the documents
and testimony of Orion’s witness, indubitably prove the spurious nature of the
Dacion en Pago.
The fact that the Dacion en Pago
is a notarized document does not
support the conclusion that the
sale it embodies is a true
conveyance
Public instruments are evidence of the facts that gave rise to their execution and
are to be considered as containing all the terms of the agreement. While a
49
notarized document enjoys this presumption, "the fact that a deed is notarized is
not a guarantee of the validity of its contents." The presumption of regularity of
50
notarized documents is not absolute and may be rebutted by clear and
convincing evidence to the contrary. 51
In the present case, the presumption cannot apply because the regularity in the
execution of the Dacion en Pago and the loan documents was challenged in the
proceedings below where their prima facievalidity was overthrown by the highly
questionable circumstances surrounding their execution. 52
Effect of the PRA restriction on
the validity of Suzuki’s title to the
property
Orion argues that the PRA restriction in CCT No. 18186 affects the conveyance
to Suzuki. In particular, Orion assails the status of Suzuki as a purchaser in
good faith in view of the express PRA restriction contained in CCT No. 18186. 53
We reject this suggested approachoutright because, to our mind, the PRA
restriction cannot affect the conveyance in favor of Suzuki. On this particular
point, we concur withthe following findings of the CA:
x x x the annotation merely servesas a warning to the owner who holds a
Special Resident Retiree’s Visa(SRRV) that he shall lose his visa if he disposes
his property which serves as his investment in order to qualify for such status.
Section 14 of the Implementing Investment Guidelines under Rule VIII-A of the
Rules and Regulations Implementing Executive Order No. 1037, Creating the
Philippine Retirement Park System Providing Funds Therefor and For Other
Purpose ( otherwise known as the Philippine Retirement Authority) states:
Section 14. Should the retiree-investor withdraw his investment from the
Philippines, or transfer the same to another domestic enterprise, orsell, convey
or transfer his condominium unit or units to another person, natural or juridical
without the prior approval of the Authority, the Special Resident Retiree’s Visa
issued to him, and/or unmarried minor child or children[,] may be cancelled or
revoked by the Philippine Government, through the appropriate government
department or agency, upon recommendation of the Authority. 54
Moreover, Orion should not be allowed to successfully assail the good faith of
Suzuki on the basis of the PRA restriction. Orion knew of the PRA restriction
when it transacted with Kang. Incidentally, Orion admitted accommodating
Kang’s request to cancel the mortgage annotation despite the lack of payment
to circumvent the PRA restriction. Orion, thus, is estopped from impugning the
validity of the conveyance in favor of Suzuki on the basis of the PRA restriction
that Orion itself ignored and "attempted" to circumvent.
With the conclusion that Orion failed to prove the authenticity of the Dacion en
Pago, we see no reason for the application of the rules on double sale under
Article 1544 of the New Civil Code. Suzuki, moreover, successfully adduced
sufficient evidence to establish the validity of conveyance in his favor.
WHEREFORE, premises considered, we DENY the petition for lack of merit.
Costs against petitioner Orion Savings Bank.
SO ORDERED.
Del Socorro vs
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 193707 December 10, 2014
NORMA A. DEL SOCORRO, for and in behalf of her minor child
RODERIGO NORJO VAN WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules
of Court seeking to reverse and set aside the Orders dated February 19, 2010
1
and September 1, 2010, respectively, of the Regional Trial Court of Cebu City
(RTC-Cebu), which dismissed the criminal case entitled People of the
Philippines v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal Case
No. CBU-85503, for violation of Republic Act (R.A.) No. 9262, otherwise known
as the Anti-Violence Against Women and Their Children Act of 2004.
The following facts are culled from the records:
Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van
Wilsem contracted marriage in Holland on September 25, 1990. On January 19,
2
1994, they were blessed with a son named Roderigo Norjo Van Wilsem, who at
the time of the filing of the instant petition was sixteen (16) years of age.
Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a
Divorce Decree issued by the appropriate Court of Holland. At that time, their
4
son was only eighteen (18) months old. Thereafter, petitioner and her son came
5
home to the Philippines. 6
According to petitioner, respondent made a promise to provide monthly support
to their son in the amount of Two Hundred Fifty (250) Guildene (which is
equivalent to Php17,500.00 more or less). However, since the arrival of
7
petitioner and her son in the Philippines, respondent never gave support to the
son, Roderigo. 8
Not long thereafter, respondent cameto the Philippines and remarried in
Pinamungahan, Cebu, and since then, have been residing thereat. Respondent 9
and his new wife established a business known as Paree Catering, located at
Barangay Tajao, Municipality of Pinamungahan, Cebu City. To date, all the
10
parties, including their son, Roderigo, are presently living in Cebu City. 11
On August 28, 2009, petitioner, through her counsel, sent a letter demanding for
support from respondent. However, respondent refused to receive the letter.
Because of the foregoing circumstances, petitioner filed a complaint affidavit
with the Provincial Prosecutor of Cebu City against respondent for violation of
Section 5, paragraph E(2) of R.A. No. 9262 for the latter’s unjust refusal to
support his minor child with petitioner. Respondent submitted his counter-
13
affidavit thereto, to which petitioner also submitted her reply-
affidavit. Thereafter, the Provincial Prosecutor of Cebu City issued a Resolution
14
recommending the filing of an information for the crime charged against herein
respondent.
The information, which was filed with the RTC-Cebu and raffled to Branch 20
thereof, states that:
That sometime in the year 1995 and up to the present, more or less, in the
Municipality of Minglanilla, Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and
there wilfully, unlawfully and deliberately deprive, refuse and still continue to
deprive his son RODERIGO NORJO VAN WILSEM, a fourteen (14) year old
minor, of financial support legally due him, resulting in economic abuse to the
victim. CONTRARY TO LAW. 15
Upon motion and after notice and hearing, the RTC-Cebu issued a Hold
Departure Order against respondent. Consequently, respondent was arrested
16
and, subsequently, posted bail. Petitioner also filed a Motion/Application of
17
Permanent Protection Order to which respondent filed his Opposition. Pending 18
the resolution thereof, respondent was arraigned. Subsequently, without the
19
RTC-Cebu having resolved the application of the protection order, respondent
filed a Motion to Dismiss on the ground of: (1) lack of jurisdiction over the
offense charged; and (2) prescription of the crime charged. 20
On February 19, 2010, the RTC-Cebu issued the herein assailed
Order, dismissing the instant criminal case against respondent on the ground
21
that the facts charged in the information do not constitute an offense with
respect to the respondent who is an alien, the dispositive part of which states:
WHEREFORE, the Court finds that the facts charged in the information do not
constitute an offense with respect to the accused, he being an alien, and
accordingly, orders this case DISMISSED.
The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his
provisional liberty is hereby cancelled (sic) and ordered released.
SO ORDERED.
Cebu City, Philippines, February 19, 2010. 22
Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating
respondent’s obligation to support their child under Article 195 of the Family 23
Code, thus, failure to do so makes him liable under R.A. No. 9262 which
"equally applies to all persons in the Philippines who are obliged to support their
minor children regardless of the obligor’s nationality." 24
On September 1, 2010, the lower court issued an Order denying petitioner’s
25
Motion for Reconsideration and reiterating its previous ruling. Thus:
x x x The arguments therein presented are basically a rehash of those
advanced earlier in the memorandum of the prosecution. Thus, the court hereby
reiterates its ruling that since the accused is a foreign national he is not subject
to our national law (The Family Code) in regard to a parent’s duty and obligation
to givesupport to his child. Consequently, he cannot be charged of violating R.A.
9262 for his alleged failure to support his child. Unless it is conclusively
established that R.A. 9262 applies to a foreigner who fails to give support tohis
child, notwithstanding that he is not bound by our domestic law which mandates
a parent to give such support, it is the considered opinion of the court that no
prima faciecase exists against the accused herein, hence, the case should be
dismissed.
WHEREFORE, the motion for reconsideration is hereby DENIED for lack of
merit.
3
SO ORDERED.
Cebu City, Philippines, September 1, 2010. 26
Hence, the present Petition for Review on Certiorari raising the following issues:
1. Whether or not a foreign national has an obligation to support his
minor child under Philippine law; and
2. Whether or not a foreign national can be held criminally liable
under R.A. No. 9262 for his unjustified failure to support his minor
child.27
At the outset, let it be emphasized that We are taking cognizance of the instant
petition despite the fact that the same was directly lodged with the Supreme
Court, consistent with the ruling in Republic v. Sunvar Realty Development
Corporation, which lays down the instances when a ruling of the trial court may
28
be brought on appeal directly to the Supreme Court without violating the
12
doctrine of hierarchy of courts, to wit:
x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule
45 Petition with this Court, in case only questions of law are raised or involved.
This latter situation was one that petitioners found themselves in when they filed
the instant Petition to raise only questions of law. In Republic v. Malabanan, the
Court clarified the three modes of appeal from decisions of the RTC, to wit: (1)
by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment
was rendered in a civil or criminal action by the RTC in the exercise of its
original jurisdiction; (2) by a petition for review under Rule 42, whereby
judgment was rendered by the RTC in the exercise of its appellate jurisdiction;
and (3) by a petition for review on certiorari before the Supreme Court under
Rule 45. "The first mode of appeal is taken to the [Court of Appeals] on
questions of fact or mixed questions of fact and law. The second mode of
appeal is brought to the CA on questions of fact, of law, or mixed questions of
fact and law. The third mode of appealis elevated to the Supreme Court only on
questions of law." (Emphasis supplied)
There is a question of law when the issue does not call for an examination of
the probative value of the evidence presented or of the truth or falsehood of the
facts being admitted, and the doubt concerns the correct application of law and
jurisprudence on the matter. The resolution of the issue must rest solely on what
the law provides on the given set of circumstances. 29
Indeed, the issues submitted to us for resolution involve questions of law – the
response thereto concerns the correct application of law and jurisprudence on a
given set of facts, i.e.,whether or not a foreign national has an obligation to
support his minor child under Philippine law; and whether or not he can be held
criminally liable under R.A. No. 9262 for his unjustified failure to do so.
It cannot be negated, moreover, that the instant petition highlights a novel
question of law concerning the liability of a foreign national who allegedly
commits acts and omissions punishable under special criminal laws, specifically
in relation to family rights and duties. The inimitability of the factual milieu of the
present case, therefore, deserves a definitive ruling by this Court, which will
eventually serve as a guidepost for future cases. Furthermore, dismissing the
instant petition and remanding the same to the CA would only waste the time,
effort and resources of the courts. Thus, in the present case, considerations of
efficiency and economy in the administration of justice should prevail over the
observance of the hierarchy of courts.
Now, on the matter of the substantive issues, We find the petition meritorious.
Nonetheless, we do not fully agree with petitioner’s contentions.
To determine whether or not a person is criminally liable under R.A. No. 9262, it
is imperative that the legal obligation to support exists.
Petitioner invokes Article 195 of the Family Code, which provides the parent’s
30
obligation to support his child. Petitioner contends that notwithstanding the
existence of a divorce decree issued in relation to Article 26 of the Family
Code, respondent is not excused from complying with his obligation to support
31
his minor child with petitioner.
On the other hand, respondent contends that there is no sufficient and clear
basis presented by petitioner that she, as well as her minor son, are entitled to
financial support. Respondent also added that by reason of the Divorce
32
Decree, he is not obligated topetitioner for any financial support. 33
On this point, we agree with respondent that petitioner cannot rely on Article
195 of the New Civil Code in demanding support from respondent, who is a
34
foreign citizen, since Article 15 of the New Civil Code stresses the principle of
35
nationality. In other words, insofar as Philippine laws are concerned, specifically
the provisions of the Family Code on support, the same only applies to Filipino
citizens. By analogy, the same principle applies to foreigners such that they are
governed by their national law with respect to family rights and duties. 36
The obligation to give support to a child is a matter that falls under family rights
and duties. Since the respondent is a citizen of Holland or the Netherlands, we
agree with the RTC-Cebu that he is subject to the laws of his country, not to
Philippinelaw, as to whether he is obliged to give support to his child, as well as
the consequences of his failure to do so. 37
In the case of Vivo v. Cloribel, the Court held that –
38
Furthermore, being still aliens, they are not in position to invoke the provisions
of the Civil Code of the Philippines, for that Code cleaves to the principle that
family rights and duties are governed by their personal law, i.e.,the laws of the
nation to which they belong even when staying in a foreign country (cf. Civil
Code, Article 15). 39
It cannot be gainsaid, therefore, that the respondent is not obliged to support
petitioner’s son under Article195 of the Family Code as a consequence of the
Divorce Covenant obtained in Holland. This does not, however, mean that
respondent is not obliged to support petitioner’s son altogether.
In international law, the party who wants to have a foreign law applied to a
dispute or case has the burden of proving the foreign law. In the present case,
40
respondent hastily concludes that being a national of the Netherlands, he is
governed by such laws on the matter of provision of and capacity to
support. While respondent pleaded the laws of the Netherlands in advancing
41
his position that he is not obliged to support his son, he never proved the same.
It is incumbent upon respondent to plead and prove that the national law of the
Netherlands does not impose upon the parents the obligation to support their
child (either before, during or after the issuance of a divorce decree), because
Llorente v. Court of Appeals, has already enunciated that:
42
True, foreign laws do not prove themselves in our jurisdiction and our courts are
not authorized to takejudicial notice of them. Like any other fact, they must be
alleged and proved. 43
In view of respondent’s failure to prove the national law of the Netherlands in his
favor, the doctrine of processual presumption shall govern. Under this doctrine,
if the foreign law involved is not properly pleaded and proved, our courts will
presume that the foreign law is the same as our local or domestic or internal
law. Thus, since the law of the Netherlands as regards the obligation to support
44
has not been properly pleaded and proved in the instant case, it is presumed to
be the same with Philippine law, which enforces the obligation of parents to
support their children and penalizing the non-compliance therewith.
Moreover, while in Pilapil v. Ibay-Somera, the Court held that a divorce
45
obtained in a foreign land as well as its legal effects may be recognized in the
Philippines in view of the nationality principle on the matter of status of persons,
the Divorce Covenant presented by respondent does not completely show that
he is notliable to give support to his son after the divorce decree was issued.
Emphasis is placed on petitioner’s allegation that under the second page of the
aforesaid covenant, respondent’s obligation to support his child is specifically
stated, which was not disputed by respondent.
46
We likewise agree with petitioner that notwithstanding that the national law of
respondent states that parents have no obligation to support their children or
that such obligation is not punishable by law, said law would still not find
applicability,in light of the ruling in Bank of America, NT and SA v. American
Realty Corporation, to wit:
47
In the instant case, assuming arguendo that the English Law on the matter were
properly pleaded and proved in accordance with Section 24, Rule 132 of the
Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-
Gonzales, said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to a sound and
established public policy of the forum, the said foreign law, judgment or order
shall not be applied.
Additionally, prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and good customs
shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.
The public policy sought to be protected in the instant case is the principle
imbedded in our jurisdiction proscribing the splitting up of a single cause of
action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent
—
If two or more suits are instituted on the basis of the same cause of action, the
filing of one or a judgment upon the merits in any one is available as a ground
for the dismissal of the others. Moreover, foreign law should not be applied
when its application would work undeniable injustice to the citizens or residents
of the forum. To give justice is the most important function of law; hence, a law,
or judgment or contract that is obviously unjust negates the fundamental
principles of Conflict of Laws.48
Applying the foregoing, even if the laws of the Netherlands neither enforce a
parent’s obligation to support his child nor penalize the noncompliance
therewith, such obligation is still duly enforceable in the Philippines because it
would be of great injustice to the child to be denied of financial support when the
latter is entitled thereto.
We emphasize, however, that as to petitioner herself, respondent is no longer
liable to support his former wife, in consonance with the ruling in San Luis v.
San Luis, to wit:
49
As to the effect of the divorce on the Filipino wife, the Court ruled that she
should no longerbe considered marriedto the alien spouse. Further, she should
not be required to perform her marital duties and obligations. It held:
To maintain, as private respondent does, that, under our laws, petitioner has to
be considered still married to private respondent and still subject to a wife's
obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner
should not be obliged to live together with, observe respect and fidelity, and
render support to private respondent. The latter should not continue to be one of
her heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to be served.
(Emphasis added) 50
Based on the foregoing legal precepts, we find that respondent may be made
liable under Section 5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing
to give support topetitioner’s son, to wit:
SECTION 5. Acts of Violence Against Women and Their Children.- The crime of
violence against women and their children is committed through any of the
following acts:
xxxx
(e) Attempting to compel or compelling the woman or her child to engage in
conduct which the woman or her child has the right to desist from or desist from
conduct which the woman or her child has the right to engage in, or attempting
to restrict or restricting the woman's or her child's freedom of movement or
conduct by force or threat of force, physical or other harm or threat of physical
or other harm, or intimidation directed against the woman or child. This shall
include, butnot limited to, the following acts committed with the purpose or effect
of controlling or restricting the woman's or her child's movement or conduct:
xxxx
(2) Depriving or threatening to deprive the woman or her children of financial
support legally due her or her family, or deliberately providing the woman's
children insufficient financial support; x x x x
(i) Causing mental or emotional anguish, public ridicule or humiliation to the
woman or her child, including, but not limited to, repeated verbal and emotional
abuse, and denial of financial support or custody of minor childrenof access to
the woman's child/children. 51
Under the aforesaid special law, the deprivation or denial of financial support to
the child is considered anact of violence against women and children.
In addition, considering that respondent is currently living in the Philippines, we
find strength in petitioner’s claim that the Territoriality Principle in criminal law, in
relation to Article 14 of the New Civil Code, applies to the instant case, which
provides that: "[p]enal laws and those of public security and safety shall be
obligatory upon all who live and sojourn in Philippine territory, subject to the
principle of public international law and to treaty stipulations." On this score, it is
indisputable that the alleged continuing acts of respondent in refusing to support
his child with petitioner is committed here in the Philippines as all of the parties
herein are residents of the Province of Cebu City. As such, our courts have
territorial jurisdiction over the offense charged against respondent. It is likewise
irrefutable that jurisdiction over the respondent was acquired upon his arrest.
Finally, we do not agree with respondent’s argument that granting, but not
admitting, that there is a legal basis for charging violation of R.A. No. 9262 in
the instant case, the criminal liability has been extinguished on the ground of
prescription of crime under Section 24 of R.A. No. 9262, which provides that:
52
SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall
prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall
prescribe in ten (10) years.
The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No.
9262 is a continuing offense, which started in 1995 but is still ongoing at
53
present. Accordingly, the crime charged in the instant case has clearly not
prescribed.
Given, however, that the issue on whether respondent has provided support to
petitioner’s child calls for an examination of the probative value of the evidence
presented, and the truth and falsehood of facts being admitted, we hereby
remand the determination of this issue to the RTC-Cebu which has jurisdiction
over the case.
WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010
and September 1, 2010, respectively, of the Regional Trial Court of the City of
Cebu are hereby REVERSED and SET ASIDE. The case is REMANDED to the
same court to conduct further proceedings based on the merits of the case.
SO ORDERED.
Abbas vs abbas
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 183896 January 30, 2013
SYED AZHAR ABBAS, Petitioner,
vs.
GLORIA GOO ABBAS, Respondent.
DECISION
VELASCO, JR., J.:
This is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, questioning the Decision1 of the Court of Appeals (CA) dated
March 11, 2008 in CA-G.R. CV No. 86760, which reversed the Decision2 in Civil
Case No. 03-0382-CFM dated October 5, 2005 of the Regional Trial Court
(RTC), Branch 109, Pasay City, and the CA Resolution dated July 24, 2008,
denying petitioner's Motion for Reconsideration of the CA Decision.
The present case stems from a petition filed by petitioner Syed Azhar Abbas
(Syed) for the declaration of nullity of his marriage to Gloria Goo-Abbas (Gloria)
with the RTC of Pasay City, docketed as Civil Case No. 03-0382-CFM, and
raffled to RTC Branch 109. Syed alleged the absence of a marriage license, as
provided for in Article 4, Chapter I, Title 1 of Executive Order No. 269, otherwise
known as the Family Code of the Philippines, as a ground for the annulment of
his marriage to Gloria.
In the Marriage Contract3 of Gloria and Syed, it is stated that Marriage License
No. 9969967, issued at Carmona, Cavite on January 8, 1993, was presented to
the solemnizing officer. It is this information that is crucial to the resolution of
this case.
At the trial court, Syed, a Pakistani citizen, testified that he met Gloria, a Filipino
citizen, in Taiwan in 1991, and they were married on August 9, 1992 at the
Taipei Mosque in Taiwan.4 He arrived in the Philippines in December of 1992.
On January 9, 1993, at around 5 o’clock in the afternoon, he was at his mother-
in-law’s residence, located at 2676 F. Muñoz St., Malate, Manila, when his
mother-in-law arrived with two men. He testified that he was told that he was
going to undergo some ceremony, one of the requirements for his stay in the
Philippines, but was not told of the nature of said ceremony. During the
ceremony he and Gloria signed a document. He claimed that he did not know
that the ceremony was a marriage until Gloria told him later. He further testified
that he did not go to Carmona, Cavite to apply for a marriage license, and that
he had never resided in that area. In July of 2003, he went to the Office of the
Civil Registrar of Carmona, Cavite, to check on their marriage license, and was
asked to show a copy of their marriage contract wherein the marriage license
number could be found.5 The Municipal Civil Registrar, Leodivinia C.
Encarnacion, issued a certification on July 11, 2003 to the effect that the
marriage license number appearing in the marriage contract he submitted,
Marriage License No. 9969967, was the number of another marriage license
issued to a certain Arlindo Getalado and Myra Mabilangan.6 Said certification
reads as follows:
11 July 2003
TO WHOM IT MAY CONCERN:
This is to certify as per Registry Records of Marriage License filed in this office,
Marriage License No. 9969967 was issued in favor of MR. ARLINDO
GETALADO and MISS MYRA MABILANGAN on January 19, 1993.
No Marriage License appear [sic] to have been issued to MR. SYED AZHAR
ABBAS and MISS GLORIA F. GOO on January 8, 1993.
This certification is being issued to Mr. Syed Azhar Abbas for whatever legal
purpose or intents it may serve.7
On cross-examination, Syed testified that Gloria had filed bigamy cases against
him in 2001 and 2002, and that he had gone to the Municipal Civil Registrar of
Carmona, Cavite to get certification on whether or not there was a marriage
license on advice of his counsel.8
Petitioner also presented Norberto Bagsic (Bagsic), an employee of the
Municipal Civil Registrar of Carmona, Cavite. Bagsic appeared under a letter of
authority from the Municipal Civil Registrar of Carmona, Cavite, and brought
documents pertaining to Marriage License No. 9969967, which was issued to
Arlindo Getalado and Myra Mabilangan on January 20, 1993.9
Bagsic testified that their office issues serial numbers for marriage licenses and
that the numbers are issued chronologically.10 He testified that the certification
dated July 11, 2003, was issued and signed by Leodivina Encarnacion,
Registrar of the Municipality of Carmona, Cavite, certifying that Marriage
License No. 9969967 was issued for Arlindo Getalado and Myra Mabilangan on
January 19, 1993, and that their office had not issued any other license of the
same serial number, namely 9969967, to any other person.11
For her part, Gloria testified on her own behalf, and presented Reverend Mario
Dauz, Atty. Lorenzo Sanchez, Felicitas Goo and May Ann Ceriola.
Reverend Mario Dauz (Rev. Dauz) testified that he was a minister of the Gospel
and a barangay captain, and that he is authorized to solemnize marriages within
the Philippines.12 He testified that he solemnized the marriage of Syed Azhar
Abbas and Gloria Goo at the residence of the bride on January 9, 1993.13 He
stated that the witnesses were Atty. Lorenzo Sanchez (Atty. Sanchez) and Mary
Ann Ceriola.14 He testified that he had been solemnizing marriages since 1982,
and that he is familiar with the requirements.15 Rev. Dauz further testified that
Atty. Sanchez gave him the marriage license the day before the actual wedding,
and that the marriage contract was prepared by his secretary.16 After the
solemnization of the marriage, it was registered with the Local Civil Registrar of
Manila, and Rev. Dauz submitted the marriage contract and copy of the
marriage license with that office.17
Atty. Sanchez testified that he was asked to be the sponsor of the wedding of
Syed Abbas and Gloria Goo by the mother of the bride, Felicitas Goo.18 He
testified that he requested a certain Qualin to secure the marriage license for
the couple, and that this Qualin secured the license and gave the same to him
on January 8, 1993.19 He further testified that he did not know where the
marriage license was obtained.20 He attended the wedding ceremony on
January 9, 1993, signed the marriage contract as sponsor, and witnessed the
signing of the marriage contract by the couple, the solemnizing officer and the
other witness, Mary Ann Ceriola.21
Felicitas Goo testified that Gloria Goo is her daughter and Syed Azhar Abbas is
her son-in-law, and that she was present at the wedding ceremony held on
January 9, 1993 at her house.22 She testified that she sought the help of Atty.
Sanchez at the Manila City Hall in securing the marriage license, and that a
week before the marriage was to take place, a male person went to their house
with the application for marriage license.23 Three days later, the same person
went back to their house, showed her the marriage license before returning it to
Atty. Sanchez who then gave it to Rev. Dauz, the solemnizing officer.24 She
further testified that she did not read all of the contents of the marriage license,
and that she was told that the marriage license was obtained from
Carmona.25 She also testified that a bigamy case had been filed by Gloria
against Syed at the Regional Trial Court of Manila, evidenced by an information
for Bigamy dated January 10, 2003, pending before Branch 47 of the Regional
Trial Court of Manila.26
As to Mary Ann Ceriola’s testimony, the counsels for both parties stipulated that:
(a) she is one of the sponsors at the wedding of Gloria Goo and Syed Abbas on
January 9, 1993; (b) she was seen in the wedding photos and she could identify
all the persons depicted in said photos; and (c) her testimony corroborates that
of Felicitas Goo and Atty. Sanchez.
The respondent, Gloria, testified that Syed is her husband, and presented the
marriage contract bearing their signatures as proof.27 She and her mother
sought the help of Atty. Sanchez in securing a marriage license, and asked him
to be one of the sponsors. A certain Qualin went to their house and said that he
will get the marriage license for them, and after several days returned with an
application for marriage license for them to sign, which she and Syed did. After
Qualin returned with the marriage license, they gave the license to Atty.
Sanchez who gave it to Rev. Dauz, the solemnizing officer. Gloria testified that
she and Syed were married on January 9, 1993 at their residence.28
Gloria further testified that she has a daughter with Syed, born on June 15,
1993.29
Gloria also testified that she filed a bigamy case against Syed, who had married
a certain Maria Corazon Buenaventura during the existence of the previous
marriage, and that the case was docketed as Criminal Case No. 02A-03408,
with the RTC of Manila.30
Gloria stated that she and Syed had already been married on August 9, 1992 in
Taiwan, but that she did not know if said marriage had been celebrated under
Muslim rites, because the one who celebrated their marriage was Chinese, and
those around them at the time were Chinese.31
The Ruling of the RTC
In its October 5, 2005 Decision, the Pasay City RTC held that no valid marriage
license was issued by the Municipal Civil Registrar of Carmona, Cavite in favor
of Gloria and Syed, as Marriage License No. 9969967 had been issued to
Arlindo Getalado and Myra Mabilangan, and the Municipal Civil Registrar of
Carmona, Cavite had certified that no marriage license had been issued for
Gloria and Syed.32 It also took into account the fact that neither party was a
resident of Carmona, Cavite, the place where Marriage License No. 9969967
was issued, in violation of Article 9 of the Family Code.33 As the marriage was
not one of those exempt from the license requirement, and that the lack of a
valid marriage license is an absence of a formal requisite, the marriage of Gloria
and Syed on January 9, 1993 was void ab initio.
The dispositive portion of the Decision reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the petitioner, and
against the respondent declaring as follows:
1. The marriage on January 9, 1993 between petitioner Syed Azhar
Abbas and respondent Gloria Goo-Abbas is hereby annulled;
2. Terminating the community of property relations between the
petitioner and the respondent even if no property was acquired
during their cohabitation by reason of the nullity of the marriage of
the parties.
3. The Local Civil Registrar of Manila and the Civil Registrar General,
National Statistics Office, are hereby ordered to cancel from their
respective civil registries the marriage contracted by petitioner Syed
Azhar Abbas and respondent Gloria Goo-Abbas on January 9, 1993
in Manila.
SO ORDERED.34
Gloria filed a Motion for Reconsideration dated November 7, 2005, but the RTC
denied the same, prompting her to appeal the questioned decision to the Court
of Appeals.
The Ruling of the CA
In her appeal to the CA, Gloria submitted the following assignment of errors:
I (3) A marriage ceremony which takes place with the appearance of
THE LOWER COURT ERRED IN DECLARING THE MARRIAGE
BETWEEN THE PETITIONER AND RESPONDENT AS NULL AND
VOID DUE TO THE ABSENCE OF A MARRIAGE LICENSE
DESPITE EVIDENCE CLEARLY SHOWING THAT THERE WAS
ONE.
II
THE LOWER COURT ERRED IN NOT CONSIDERING, AS A
REQUISITE OF A VALID MARRIAGE, THE OVERWHELMING
EVIDENCE SHOWING THAT A MARRIAGE CEREMONY TOOK
PLACE WITH THE APPEARANCE OF THE CONTRACTING
PARTIES BEFORE THE SOLEMNIZING OFFICER AND THEIR
PERSONAL DECLARATION THAT THEY TOOK EACH OTHER AS
HUSBAND AND WIFE IN THE PRESENCE OF NOT LESS THAN
TWO WITNESSES OF LEGAL AGE.
III
THE LOWER COURT ERRED IN NOT RULING ON THE ISSUE OF
ESTOPPEL BY LACHES ON THE PART OF THE PETITIONER, AN
ISSUE TIMELY RAISED IN THE COURT BELOW.35
The CA gave credence to Gloria’s arguments, and granted her appeal. It held
that the certification of the Municipal Civil Registrar failed to categorically state
that a diligent search for the marriage license of Gloria and Syed was
conducted, and thus held that said certification could not be accorded probative
value.36 The CA ruled that there was sufficient testimonial and documentary
evidence that Gloria and Syed had been validly married and that there was
compliance with all the requisites laid down by law.37
It gave weight to the fact that Syed had admitted to having signed the marriage
contract. The CA also considered that the parties had comported themselves as
husband and wife, and that Syed only instituted his petition after Gloria had filed
a case against him for bigamy.38
The dispositive portion of the CA Decision reads as follows:
WHEREFORE, premises considered, the appeal is GRANTED. The Decision
dated 05 October 2005 and Order dated 27 January 2006 of the Regional Trial
Court of Pasay City, Branch 109, in Civil Case No. 03-0382-CFM are
REVERSED and SET ASIDE and the Petition for Declaration of Nullity of
Marriage is DISMISSED. The marriage between Shed [sic] Azhar Abbas and
Gloria Goo Abbas contracted on 09 January 1993 remains valid and subsisting.
No costs.
SO ORDERED.39
Syed then filed a Motion for Reconsideration dated April 1, 200840 but the same
was denied by the CA in a Resolution dated July 24, 2008.41
Hence, this petition.
Grounds in Support of Petition
I
THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS
ERROR OF LAW IN CITING REPUBLIC VS. COURT OF APPEALS
AS THE SAME IS DIAMETRICALLY INCONSISTENT AND
CONTRARY TO THE COURT’S OWN FINDINGS AND
CONCLUSIONS IN THIS CASE.
II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
REVERSING AND SETTING ASIDE, WITHOUT ANY FACTUAL
AND LEGAL BASIS, THE DECISION OF THE REGIONAL TRIAL
COURT GRANTING THE PETITION FOR DECLARATION OF
NULLITY OF MARRIAGE.42
The Ruling of this Court
The petition is meritorious.
As the marriage of Gloria and Syed was solemnized on January 9, 1993,
Executive Order No. 209, or the Family Code of the Philippines, is the
applicable law. The pertinent provisions that would apply to this particular case
are Articles 3, 4 and 35(3), which read as follows:
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in
Chapter 2 of this Title; and
the contracting parties before the solemnizing officer and their
personal declaration that they take each other as husband and wife
in the presence of not less than two witnesses of legal age.
Art. 4. The absence of any of the essential or formal requisites shall render the
marriage void ab initio, except as stated in Article 35(2).
A defect in any of the essential requisites shall render the marriage voidable as
provided in Article 45.
An irregularity in the formal requisites shall not affect the validity of the marriage
but the party or parties responsible for the irregularity shall be civilly, criminally
and administratively liable.
Art. 35. The following marriages shall be void from the beginning:
xxxx
(3) Those solemnized without a license, except those covered by the preceding
Chapter.
There is no issue with the essential requisites under Art. 2 of the Family Code,
nor with the formal requisites of the authority of the solemnizing officer and the
conduct of the marriage ceremony. Nor is the marriage one that is exempt from
the requirement of a valid marriage license under Chapter 2, Title I of the Family
Code. The resolution of this case, thus, hinges on whether or not a valid
marriage license had been issued for the couple. The RTC held that no valid
marriage license had been issued. The CA held that there was a valid marriage
license.
We find the RTC to be correct in this instance.
Respondent Gloria failed to present the actual marriage license, or a copy
thereof, and relied on the marriage contract as well as the testimonies of her
witnesses to prove the existence of said license. To prove that no such license
was issued, Syed turned to the office of the Municipal Civil Registrar of
Carmona, Cavite which had allegedly issued said license. It was there that he
requested certification that no such license was issued. In the case of Republic
v. Court of Appeals43 such certification was allowed, as permitted by Sec. 29,
Rule 132 of the Rules of Court, which reads:
SEC. 28. Proof of lack of record. – A written statement signed by an officer
having the custody of an official record or by his deputy that after diligent
search, no record or entry of a specified tenor is found to exist in the records of
his office, accompanied by a certificate as above provided, is admissible as
evidence that the records of his office contain no such record or entry.
In the case of Republic, in allowing the certification of the Civil Registrar of
Pasig to prove the non-issuance of a marriage license, the Court held:
The above Rule authorized the custodian of the documents to certify that
despite diligent search, a particular document does not exist in his office or that
a particular entry of a specified tenor was not to be found in a register. As
custodians of public documents, civil registrars are public officers charged with
the duty, inter alia, of maintaining a register book where they are required to
enter all applications for marriage licenses, including the names of the
applicants, the date the marriage license was issued and such other relevant
data.44
The Court held in that case that the certification issued by the civil registrar
enjoyed probative value, as his duty was to maintain records of data relative to
the issuance of a marriage license.
The Municipal Civil Registrar of Carmona, Cavite, where the marriage license of
Gloria and Syed was allegedly issued, issued a certification to the effect that no
such marriage license for Gloria and Syed was issued, and that the serial
number of the marriage license pertained to another couple, Arlindo Getalado
and Myra Mabilangan. A certified machine copy of Marriage License No.
9969967 was presented, which was issued in Carmona, Cavite, and indeed, the
names of Gloria and Syed do not appear in the document.
In reversing the RTC, the CA focused on the wording of the certification, stating
that it did not comply with Section 28, Rule 132 of the Rules of Court.
The CA deduced that from the absence of the words "despite diligent search" in
the certification, and since the certification used stated that no marriage license
appears to have been issued, no diligent search had been conducted and thus
the certification could not be given probative value.
To justify that deduction, the CA cited the case of Republic v. Court of
Appeals.45 It is worth noting that in that particular case, the Court, in sustaining
the finding of the lower court that a marriage license was lacking, relied on the
Certification issued by the Civil Registrar of Pasig, which merely stated that the
alleged marriage license could not be located as the same did not appear in
their records. Nowhere in the Certification was it categorically stated that the
officer involved conducted a diligent search, nor is a categorical declaration
absolutely necessary for Sec. 28, Rule 132 of the Rules of Court to apply.
Under Sec. 3(m), Rule 131 of the Rules of Court, it is a disputable presumption
that an official duty has been regularly performed, absent contradiction or other
evidence to the contrary. We held, "The presumption of regularity of official acts
may be rebutted by affirmative evidence of irregularity or failure to perform a
duty."46 No such affirmative evidence was shown that the Municipal Civil
Registrar was lax in performing her duty of checking the records of their office,
thus the presumption must stand. In fact, proof does exist of a diligent search
having been conducted, as Marriage License No. 996967 was indeed located
and submitted to the court. The fact that the names in said license do not
correspond to those of Gloria and Syed does not overturn the presumption that
the registrar conducted a diligent search of the records of her office.
It is telling that Gloria failed to present their marriage license or a copy thereof to
the court. She failed to explain why the marriage license was secured in
Carmona, Cavite, a location where, admittedly, neither party resided. She took
no pains to apply for the license, so she is not the best witness to testify to the
validity and existence of said license. Neither could the other witnesses she
presented prove the existence of the marriage license, as none of them applied
for the license in Carmona, Cavite. Her mother, Felicitas Goo, could not even
testify as to the contents of the license, having admitted to not reading all of its
contents. Atty. Sanchez, one of the sponsors, whom Gloria and Felicitas Goo
approached for assistance in securing the license, admitted not knowing where
the license came from. The task of applying for the license was delegated to a
certain Qualin, who could have testified as to how the license was secured and
thus impeached the certification of the Municipal Civil Registrar as well as the
testimony of her representative. As Gloria failed to present this Qualin, the
certification of the Municipal Civil Registrar still enjoys probative value.
It is also noted that the solemnizing officer testified that the marriage contract
and a copy of the marriage license were submitted to the Local Civil Registrar of
Manila. Thus, a copy of the marriage license could have simply been secured
from that office and submitted to the court. However, Gloria inexplicably failed to
do so, further weakening her claim that there was a valid marriage license
issued for her and Syed.
In the case of Cariño v. Cariño,47 following the case of Republic,48 it was held
that the certification of the Local Civil Registrar that their office had no record of
a marriage license was adequate to prove the non-issuance of said license. The
case of Cariño further held that the presumed validity of the marriage of the
parties had been overcome, and that it became the burden of the party alleging
a valid marriage to prove that the marriage was valid, and that the required
marriage license had been secured.49 Gloria has failed to discharge that burden,
and the only conclusion that can be reached is that no valid marriage license
was issued. It cannot be said that there was a simple irregularity in the marriage
license that would not affect the validity of the marriage, as no license was
presented by the respondent. No marriage license was proven to have been
issued to Gloria and Syed, based on the certification of the Municipal Civil
Registrar of Carmona, Cavite and Gloria’s failure to produce a copy of the
alleged marriage license.
To bolster its ruling, the CA cited other evidence to support its conclusion that
Gloria and Syed were validly married. To quote the CA:
Moreover, the record is replete with evidence, testimonial and documentary,
that appellant and appellee have been validly married and there was
compliance with all the requisites laid down by law. Both parties are legally
capacitated to marry. A certificate of legal capacity was even issued by the
Embassy of Pakistan in favor of appellee. The parties herein gave their
consent freely. Appellee admitted that the signature above his name in
the marriage contract was his. Several pictures were presented
showing appellant and appellee, before the solemnizing officer, the
witnesses and other members of appellant’s family, taken during the
marriage ceremony, as well as in the restaurant where the lunch was
held after the marriage ceremony. Most telling of all is Exhibit "5-C"
which shows appellee signing the Marriage Contract.
xxxx
The parties have comported themselves as husband and wife and has [sic] one
offspring, Aliea Fatima Goo Abbas, who was born on 15 June 1993. It took
appellee more than ten (10) years before he filed on 01 August 2003 his Petition
for Declaration of Nullity of Marriage under Article 4 of the Family Code. We
take serious note that said Petition appears to have been instituted by him only
after an Information for Bigamy (Exhibit "1") dated 10 January 2003 was filed
against him for contracting a second or subsequent marriage with one Ma.
Corazon (Maryam) T. Buenaventura. We are not ready to reward (appellee) by
declaring the nullity of his marriage and give him his freedom and in the process
allow him to profit from his own deceit and perfidy.50
All the evidence cited by the CA to show that a wedding ceremony was
conducted and a marriage contract was signed does not operate to cure the
absence of a valid marriage license. Article 4 of the Family Code is clear when it
says, "The absence of any of the essential or formal requisites shall render the
marriage void ab initio, except as stated in Article 35(2)." Article 35(3) of the
Family Code also provides that a marriage solemnized without a license is void
from the beginning, except those exempt from the license requirement under
Articles 27 to 34, Chapter 2, Title I of the same Code.51 Again, this marriage
cannot be characterized as among the exemptions, and thus, having been
solemnized without a marriage license, is void ab initio. 1âwphi1
As to the motive of Syed in seeking to annul his marriage to Gloria, it may well
be that his motives are less than pure, that he seeks to evade a bigamy suit. Be
that as it may, the same does not make up for the failure of the respondent to
prove that they had a valid marriage license, given the weight of evidence
presented by petitioner. The lack of a valid marriage license cannot be
attributed to him, as it was Gloria who took steps to procure the same. The law
must be applied. As the marriage license, a formal requisite, is clearly absent,
the marriage of Gloria and Syed is void ab initio.
WHEREFORE, in light of the foregoing, the petition is hereby GRANTED. The
assailed Decision dated March 11, 2008 and Resolution dated July 24, 2008 of
the Court of Appeals in CA-G.R. CV No. 86760 are hereby REVERSED and
SET ASIDE. The Decision of the Regional Trial Court, Branch 109, Pasay City
dated October 5, 2005 in Civil Case No. 03-0382-CFM annulling the marriage of
petitioner with respondent on January 9, 1993 is hereby REINSTATED.
No costs.
SO ORDERED.
Geronimo vs santos (chan robles)
THIRD DIVISION
G.R. No. 197099, September 28, 2015
EUGENIO SAN JUAN GERONIMO, Petitioner, v. KAREN
SANTOS, Respondent.
DECISION
VILLARAMA, JR., J.:
At bar is a petition for review on certiorari of the Decision1 and Resolution2 of the
Court of Appeals (CA) in CA-G.R. CV No. 88650 promulgated on January 17,
2011 and May 24, 2011, respectively, which affirmed the Decision 3 of the
Regional Trial Court (RTC) of Malolos City, Bulacan, Branch 8. Both courts a
quo ruled that the subject document titled Pagmamana sa Labas ng Hukuman is
null and void, and ordered herein petitioner Eugenio San Juan Geronimo
(Eugenio), who was previously joined by his brother Emiliano San Juan
Geronimo (Emiliano) as co-defendant, to vacate the one-half portion of the
subject 6,542-square meter property and surrender its possession to respondent
Karen Santos. In a Resolution4 dated November 28, 2011, this Court ordered the
deletion of the name of Emiliano from the title of the instant petition as co-
petitioner, viz.:
x x x The Court resolves:chanRoblesvirtualLawlibrary
xxxx
� claim of petitioner that the birth certificate appeared to have been tampered,
(2)to AMEND the title of this petition to read
"Eugenio San Juan Geronimo, petitioner vs.
Karen Santos, respondent," considering the
sworn statement of Eugenio San Juan Geronimo
that he does not know whether his brother is still
alive and that his brother did not verify the
instant petition; x x x5
The following facts were found by the trial court and adopted by the appellate
court in its assailed Decision, viz.:
On April 17, 2001, plaintiff Karen Santos, claiming to be the only child of
deceased Rufino and Caridad Geronimo filed a complaint for annulment of
document and recovery of possession against the defendants Eugenio and
Emiliano Geronimo who are the brothers of her father. She alleged that with the
death of her parents, the property consisting of one-half of the parcel of land
located at San Jose, Paombong, Bulacan with Tax Declaration No. 99-02017-
00219 and belonging to her parents was passed on to her by the law on
intestacy; that lately, she discovered that defendants executed a document
entitled Pagmamana sa Labas ng Hukuman declaring themselves as the only
heirs of spouses Rufino and Caridad and adjudicating to themselves the property
in question; and that consequently they took possession and were able to
transfer the tax declaration of the subject property to their names. She prayed
that the document Exhibit C be annulled and the tax declaration of the land
transferred to her, and that the defendants vacate the property and pay her
damages.
In an amended answer, the defendants denied the allegation that plaintiff was
the only child and sole heir of their brother. They disclosed that the deceased
Rufino and Caridad Geronimo were childless and took in as their ward the
plaintiff who was in truth, the child of Caridad's sister. They claimed that the
birth certificate of the plaintiff was a simulated document. It was allegedly
impossible for Rufino and Caridad to have registered the plaintiff in Sta. Maria,
Ilocos Sur because they had never lived or sojourned in the place and Caridad,
who was an elementary teacher in Bulacan never filed any maternity leave
during the period of her service from August 1963 until October 1984.
The plaintiff took the stand and testified that her parents were Rufino and
Caridad Geronimo. The defendants Eugenio and Emiliano were the half-brothers
of her father Rufino, being the children of Rufino's father Marciano Geronimo
with another woman Carmen San Juan. Rufino co-owned Lot 1716 with the
defendants' mother Carmen, and upon his death in 1980, when the plaintiff was
only 8 years old, his share in the property devolved on his heirs. In 1998, some
18 years later, Caridad and she executed an extra-judicial settlement of Rufino's
estate entitled Pagmamanahan Sa Labas ng Hukuman Na May Pagtalikod Sa
Karapatan, whereby the plaintiffs mother Caridad waived all her rights to
Rufino's share and in the land in question to her daughter the plaintiff. Be that
as it may, in 1985, guardianship proceedings appeared to have been instituted
with the Regional Trial Court of Malolos by Caridad in which it was established
that the plaintiff was the minor child of Caridad with her late husband Rufino.
Caridad was thus appointed guardian of the person and estate of the plaintiff.
The plaintiff further declared that she and her mother had been paying the real
estate taxes on the property, but in 2000, the defendants took possession of the
land and had the tax declaration transferred to them. This compelled her to file
the present case.
Eugenio Geronimo, the defendant, disputes the allegation that the plaintiff is the
only child and legal heir of his brother Rufino. He disclosed that when Rufino's
wife could not bear a child, the couple decided to adopt the plaintiff who was
Caridad's niece from Sta. Maria, Ilocos Sur. It was in 1972, 13 years after the
marriage, when Karen joined her adoptive parents' household. Believing that in
the absence of a direct heir, his brother Emiliano and he should succeed to the
estate of their brother, they executed in 2000 an extra-judicial settlement
called Pagmamana sa Labas ng Hukuman.
Eugenio was able to obtain a copy of the plaintiffs alleged birth certificate. It had
irregular features, such as that it was written in pentel pen, the entry in the
box date of birth was erased and the word and figure April 6, 1972 written and
the name Emma Da�o was superimposed on the entry in the box intended for
the informant's signature.
Two more witnesses were adduced. Atty. Elmer Lopez, a legal consultant of the
DECS in Bulacan brought the plaintiffs service record as an elementary school
teacher at Paombong[,] Bulacan to show that she did not have any maternity
leave during the period of her service from March 11, 1963 to October 24, 1984,
and a certification from the Schools Division Superintendent that the plaintiff did
not file any maternity leave during her service. He declared that as far as the
service record is concerned, it reflects the entry and exit from the service as well
as the leaves that she availed of. Upon inquiry by the court, he clarified that
the leaves were reflected but the absences were not. Testifying on the plaintiffs
birth certificate, Exhibit 14, Arturo Reyes, a representative of the NSO,
confirmed that there was an alteration in the date of birth and signature of the
informant. In view of the alterations, he considered the document questionable. 6
On October 27, 2006, the trial court ruled in favor of respondent, viz.:
WHEREFORE, judgment is hereby rendered as follows:chanRoblesvirtualLawlibrary
1. Declaring the document Pagmamana sa Labas ng Hukuman dated March 9,
2000 executed in favor of Eugenio San Juan-Geronimo and Emilio San Juan-
Geronimo as null and void;ChanRoblesVirtualawlibrary
2. Annulling Tax Declaration No. 99-02017-01453 of the subject property in the
names of Eugenio San Juan-Geronimo and Emiliano San Juan-
Geronimo;ChanRoblesVirtualawlibrary
3. Ordering defendants Eugenio San Juan-Geronimo and Emiliano San Juan-
Geronimo to vacate the 1/2 portion of the subject property and to surrender the
possession to the plaintiff;ChanRoblesVirtualawlibrary
4. Ordering the defendants to pay the plaintiff the amount of [P]30,000.00 as
attorney's fees;ChanRoblesVirtualawlibrary
5. To pay the costs of the suit.
SO ORDERED.7
The trial court ruled that respondent is the legal heir - being the legitimate child
- of the deceased spouses Rufino and Caridad Geronimo (spouses Rufino and
Caridad). It found that respondent's filiation was duly established by the
certificate of live birth which was presented in evidence. The RTC dismissed the
specifically on the entries pertaining to the date of birth of respondent and the
name of the informant. The trial court held that petitioner failed to adduce
evidence to explain how the erasures were done. Petitioner also failed to prove
that the alterations were due to the fault of respondent or another person who
was responsible for the act. In the absence of such contrary evidence, the RTC
relied on the prima facie presumption of the veracity and regularity of the birth
certificate as a public document.
The trial court further stated that even granting arguendo that the birth
certificate is questionable, the filiation of respondent has already been
sufficiently proven by evidence of her open and continuous possession of the
status of a legitimate child under Article 172 of the Family Code of the
Philippines. The RTC considered the following overt acts of the deceased spouses
as acts of recognition that respondent is their legitimate child: they sent her to
school and paid for her tuition fees; Caridad made respondent a beneficiary of
her burial benefits from the Government Service Insurance System; and,
Caridad filed a petition for guardianship of respondent after the death of her
husband Rufino. Lastly, the trial court held that to be allowed to impugn the
filiation and status of respondent, petitioner should have brought an action for
the purpose under Articles 170 and 171 of the Family Code. Since petitioner
failed to file such action, the trial court ruled that respondent alone is entitled to
the ownership and possession of the subject land owned by Rufino. The
extrajudicial settlement executed by petitioner and his brother was therefore
declared not valid and binding as respondent is Rufino's only compulsory heir.
On appeal, petitioner raised the issue on the alterations in the birth certificate of
respondent and the offered evidence of a mere certification from the Office of
the Civil Registry instead of the birth certificate itself. According to petitioner,
respondent's open and continuous possession of the status of a legitimate child
is only secondary evidence to the birth certificate itself. Respondent questioned
if it was legally permissible for petitioner to question her filiation as a legitimate
child of the spouses Rufino and Caridad in the same action for annulment of
document and recovery of possession that she herself filed against petitioner
and his then co-defendant. Respondent argued that the conditions enumerated
under Articles 170 and 171 of the Family Code, giving the putative father and
his heirs the right to bring an action to impugn the legitimacy of the child, are
not present in the instant case. She further asserted that the Family
Code contemplates a direct action, thus her civil status may not be assailed
indirectly or collaterally in this suit.
In the assailed Decision dated January 17, 2011, the appellate court held that
under Article 170, the action to impugn the legitimacy of the child must be
reckoned from either of these two dates: the date the child was born to the
mother during the marriage, or the date when the birth of such child was
recorded in the civil registry. The CA found no evidence or admission that
Caridad indeed gave birth to respondent on a specific date. It further resolved
that the birth certificate presented in this case, Exhibit 14, does not qualify as
the valid registration of birth in the civil register as envisioned by the law, viz.:
x x x The reason is that under the statute establishing the civil register, Act No.
3753, the declaration of the physician or midwife in attendance at the birth or in
default thereof, that declaration of either parent of the newborn child, shall be
sufficient for the registration of birth in the civil register. The document in
question was signed by one Emma Da�o who was not identified as either the
parent of the plaintiff or the physician or midwife who attended to her birth.
Exhibit 14, legally, cannot be the birth certificate envisioned by the law;
otherwise, with an informant as shadowy as Emma Da�o, the floodgates to
spurious filiations will be opened. Neither may the order of the court Exhibit E be
treated as the final judgment mentioned in Article 172 as another proof of
filiation. The final judgment mentioned refers to a decision of a competent court
finding the child legitimate. Exhibit G is merely an order granting letters of
guardianship to the parent Caridad based on her representations that she is the
mother of the plaintiff.8
Noting the absence of such record of birth, final judgment or admission in a
public or private document that respondent is the legitimate child of the spouses
Rufino and Caridad, the appellate court � similar to the trial court - relied on
Article 172 of the Family Code which allows the introduction and admission of
secondary evidence to prove one's legitimate filiation via open and continuous
possession of the status of a legitimate child. The CA agreed with the trial court
that respondent has proven her legitimate filiation, viz.:
We agree with the lower court that the plaintiff has proven her filiation by open
and continuous possession of the status of a legitimate child. The evidence
consists of the following: (1) the plaintiff was allowed by her putative parents to
bear their family name Geronimo; (2) they supported her and sent her to school
paying for lier tuition fees and other school expenses; (3) she was the
beneficiary of the burial benefits of Caridad before the GSIS; (4) after the death
of Rufino, Caridad applied for and was appointed legal guardian of the person
and property of the plaintiff from the estate left by Rufino; and (5) both Caridad
and the plaintiff executed an extrajudicial settlement of the estate of Rufino on
the basis of the fact that they are both the legal heirs of the deceased.
It is clear that the status enjoyed by the plaintiff as the legitimate child of Rufino
and Caridad has been open and continuous, x x x The conclusion follows that the
plaintiff is entitled to the property left by Rufino to the exclusion of his brothers,
the defendants, which consists of a one-half share in Lot 1716.9
Petitioners moved for reconsideration10 but the motion was denied in the
assailed Resolution dated May 24, 2011. Hence, this petition raising the
following assignment of errors:
I. THAT THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS
DISCRETION, AMOUNTING TO LACK OF JURISDICTION, WHEN IT
ALLOWED THE INTRODUCTION OF SECONDARY EVIDENCE AND
RENDERED JUDGMENT BASED THEREON NOTWITHSTANDING THE
EXISTENCE OF PRIMARY EVIDENCE OF BIRTH CERTIFICATE [EXHIBIT
14].
II. THAT THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS
DISCRETION, AMOUNTING TO LACK OF JURISDICTION WHEN IT
RULED THAT PETITIONERS HAVE NO PERSONALITY TO IMPUGN
RESPONDENT'S LEGITIMATE FILIATION.11
On the first issue, petitioner argues that secondary evidence to prove one's
filiation is admissible only if there is no primary evidence, i.e, a record of birth or
an authentic admission in writing.12 Petitioner asserts that herein respondent's
birth certificate, Exhibit 14, constitutes the primary evidence enumerated under
Article 172 of the Family Code and the ruling of both courts a quo that the
document is not the one "envisioned by law" should have barred the introduction
of secondary evidence. Petitioner expounds this proposition, viz.:
The findings of the courts a quo that the birth certificate [Exhibit 14] is not [the]
one envisioned by law finds support in numerous cases decided by the
Honorable Supreme Court. Thus, a certificate of live birth purportedly identifying
the putative father is not competent evidence as to the issue of paternity, when
there is no showing that the putative father had a hand in the preparation of
said certificates, and the Local Civil Registrar is devoid of authority to record the
paternity of an illegitimate child upon the information of a third person. Where
the birth certificate and the baptismal certificate are per se inadmissible in
evidence as proof of filiation, they cannot be admitted indirectly as
circumstantial evidence to prove the same. x x x
x x x The birth certificate Exhibit 14 contains erasures. The date of birth
originally written in ball pen was erased and the date April 6, 1972 was
superimposed using a pentel pen; the entry on the informant also originally
written in ball pen was erased and the name E. Da�o was superimposed using
also a pentel pen; there is no signature as to who received it from the office of
the registry. Worst, respondent Karen confirms the existence of her birth
certificate when she introduced in evidence [Exhibit A] a mere Certification from
the Office of the Local Civil Registrar of Sta. Maria, Ilocos Sur, which highlighted
more suspicions of its existence, thus leading to conclusion and presumption
that if such evidence is presented, it would be adverse to her claim. True to the
suspicion, when Exhibit 14 was introduced by the petitioner and testified on by
no less than the NSO representative, Mr. Arturo Reyes, and confirmed that there
were alterations which renders the birth certificate questionable.
Argued differently, with the declaration that the birth certificate is a nullity or
falsity, the courts a quo should have stopped there, ruled that respondent Karen
is not the child of Rufino, and therefore not entitled to inherit from the estate.13
On the second issue, petitioner alleges that the CA gravely erred and abused its
discretion amounting to lack of jurisdiction when it ruled that he does not have
personality to impugn respondent's legitimate filiation.14 While petitioner admits
that the CA "did not directly rule on this particular issue,"15 he nonetheless
raises the said issue as an error since the appellate court affirmed the decision
of the trial court. Petitioner argues that in so affirming, the CA also adopted the
ruling of the trial court that the filiation of respondent is strictly personal to
respondent's alleged father and his heirs under Articles 170 and 171 of
the Family Code,16 thereby denying petitioner the "right to impugn or question
the filiation and status of the plaintiff."17 Petitioner argues, viz.:
x x x [T]he lower court's reliance on Articles 170 and 171 of the Family Code is
totally misplaced, with due respect. It should be read in conjunction with the
other articles in the same chapter on paternity and filiation of the Family Code. A
careful reading of said chapter would reveal that it contemplates situations
where a doubt exists that a child is indeed a man's child, and the father [or, in
proper cases, his heirs] denies the child's filiation. It does not refer to situations
where a child is alleged not to be the child at all of a particular couple.
Petitioners are asserting not merely that respondent Karen is not a legitimate
child of, but that she is not a child of Rufino Geronimo at all. x x x18
We grant the petition.
Despite its finding that the birth certificate which respondent offered in evidence
is questionable, the trial court ruled that respondent is a legitimate child and the
sole heir of deceased spouses Rufino and Caridad. The RTC based this conclusion
on secondary evidence that is similar to proof admissible under the second
paragraph of Article 172 of the Family Code to prove the filiation of legitimate
children, viz.:
ART. 172. The filiation of legitimate children is established by any of the
following:chanRoblesvirtualLawlibrary
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the following evidence, the legitimate filiation shall be proved
by:chanRoblesvirtualLawlibrary
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
Petitioner argues that such secondary evidence may be admitted only in a direct
action under Article 172 because the said provision of law is meant to be
instituted as a separate action, and proof of filiation cannot be raised as a
collateral issue as in the instant case which is an action for annulment of
document and recovery of possession.
Petitioner is correct that proof of legitimacy under Article 172, or illegitimacy
under Article 175, should only be raised in a direct and separate action instituted
to prove the filiation of a child. The rationale behind this procedural prescription
is stated in the case of Tison v. Court of Appeals,19viz.:
x x x [W]ell settled is the rule that the issue of legitimacy cannot be attacked
collaterally.
The rationale for these rules has been explained in this wise:
"The presumption of legitimacy in the Family Code xxx actually fixes a civil
status for the child born in wedlock, and that civil status cannot be attacked
collaterally. The legitimacy of the child can be impugned only in a direct action
brought for that purpose, by the proper parties, and within the period limited by
law.
The legitimacy of the child cannot be contested by way of defense or as
a collateral issue in another action for a different purpose. The necessity
of an independent action directly impugning the legitimacy is more clearly
expressed in the Mexican Code (Article 335) which provides: 'The contest of the
legitimacy of a child by the husband or his heirs must be made by proper
complaint before the competent court; any contest made in any other way is
void.' This principle applies under our Family Code. Articles 170 and 171 of the
code confirm this view, because they refer to "the action to impugn the
legitimacy."
This action can be brought only by the husband or his heirs and within the
periods fixed in the present articles.
Upon the expiration of the periods provided in Article 170, the action to impugn
the legitimacy of a child can no longer be brought. The status conferred by the
presumption, therefore, becomes fixed, and can no longer be questioned. The
obvious intention of the law is to prevent the status of a child born in wedlock
from being in a state of uncertainty for a long time. It also aims to force early
action to settle any doubt as to the paternity of such child, so that the evidence
material to the matter, which must necessarily be facts occurring during the
period of the conception of the child, may still be easily available.
xxxx
Only the husband can contest the legitimacy of a child born to his wife. He is the
one directly confronted with the scandal and ridicule which the infidelity of his
wife produces; and he should decide whether to conceal that infidelity or expose
it, in view of the moral and economic interest involved. It is only in exceptional
cases that his heirs are allowed to contest such legitimacy. Outside of these
cases, none - even his heirs - can impugn legitimacy; that would amount to an
insult to his memory."20
What petitioner failed to recognize, however, is that this procedural rule is
applicable only to actions where the legitimacy - or illegitimacy - of a child is at
issue. This situation does not obtain in the case at bar.
In the instant case, the filiation of a child - herein respondent - is not at issue.
Petitioner does not claim that respondent is not the legitimate child of his
deceased brother Rufino and his wife Caridad. What petitioner alleges is that
respondent is not the child of the deceased spouses Rufino and Caridad at; all.
He proffers this allegation in his Amended Answer before the trial court by way
of defense that respondent is not an heir to his brother Rufino. When petitioner
alleged that respondent is not a child of the deceased spouses Rufino and
Caridad in the proceedings below, jurisprudence shows that the trial court was
correct in admitting and ruling on the secondary evidence of respondent - even
if such proof is similar to the evidence admissible under the second paragraph of
Article 172 and despite the instant case not being a direct action to prove one's
filiation. In the following cases, the courts a quo and this Court did not bar the
introduction of secondary evidence in actions which involve allegations that the
opposing party is not the child of a particular couple � even if such evidence is
similar to the kind of proof admissible under the second paragraph of Article
172.
In the 1994 case of Benitez-Badua v. Court of Appeals,21 therein deceased
spouses Vicente Benitez (Vicente) and Isabel Chipongian (Isabel) owned various
properties while they were still living. Isabel departed in 1982, while Vicente
died intestate in 1989. In 1990, Vicente's sister (Victoria Benitez-Lirio) and
nephew (Feodor Benitez Aguilar) instituted an action before the trial court for
the issuance of letters of administration of his estate in favor of Feodor. In the
said proceedings, they alleged that Vicente was "survived by no other heirs or
relatives be they ascendants or descendants, whether legitimate, illegitimate or
legally adopted x x x."22 They further argued that one "Marissa Benitez[-]Badua
who was raised and cared for by them since childhood is, in fact, not related to
them by blood, nor legally adopted, and is therefore not a legal heir [of
Vicente]."23 Marissa opposed the petition and proffered evidence to prove that
she is an heir of Vicente. Marissa submitted the following evidence, viz.:
1. her Certificate of Live Birth (Exh. 3);ChanRoblesVirtualawlibrary
2. Baptismal Certificate (Exh. 4);ChanRoblesVirtualawlibrary
3. Income Tax Returns and Information Sheet for Membership with the GSIS of
the late Vicente naming her as his daughter (Exhs. 10 to 21); and
4. School Records (Exhs. 5 & 6).
She also testified that the said spouses reared and continuously treated her as
their legitimate daughter.24
Feodor and his mother Victoria offered mostly testimonial evidence to show that
the spouses Vicente and Isabel failed to beget a child during their marriage.
They testified that the late Isabel, when she was 36 years old, was even referred
to an obstetrician-gynecologist for treatment. Victoria, who was 77 years old at
the time of her testimony, also categorically stated that Marissa was not the
biological child of the said spouses who were unable to physically
procreate.25cralawred
The trial court, relying on Articles 166 and 170 of the Family Code, declared
Marissa as the legitimate daughter and sole heir of the spouses Vicente and
Isabel. The appellate court: reversed the RTC's ruling holding that the trial court
erred in applying Articles 166 and 170 of the Family Code. On appeal to this
Court, we affirmed the reversal made by the appellate court, viz.:
A careful reading of the above articles will show that they do not contemplate
a situation, like in the instant case, where a child is alleged not to be the
child of nature or biological child of a certain couple. Rather, these articles
govern a situation where a husband (or his heirs) denies as his own a child of his
wife. Thus, under Article 166, it is the husband who can impugn the legitimacy
of said child by proving: (1) it was physically impossible for him to have sexual
intercourse, with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child; (2) that for biological or other
scientific reasons, the child could not have been his child; (3) that in case of
children conceived through artificial insemination, the written authorization or
ratification by either parent was obtained through mistake, fraud, violence,
intimidation or undue influence. Articles 170 and 171 reinforce this reading as
they speak of the prescriptive period within which the husband or any of his
heirs should file the action impugning the legitimacy of said child. Doubtless
then, the appellate court did not err when it refused to apply these
articles to the case at bench. For the case at bench is not one where the
heirs of the late Vicente are contending that petitioner is not his child by
Isabel. Rather, their clear submission is that petitioner was not born to Vicente
and Isabel. Our ruling in Cabatbat-Lim vs. Intermediate Appellate Court, 166
SCRA 451, 457 cited in the impugned decision is apropos, viz:
"Petitioners' recourse to Article 263 of the New Civil Code [now Art. 170 of the
Family Code] is not well-taken. This legal provision refers to an action to impugn
legitimacy. It is inapplicable to this case because this is not an action to impugn
the legitimacy of a child, but an action of the private respondents to claim their
inheritance as legal heirs of their childless deceased aunt. They do not claim
that petitioner Violeta Cabatbat Lim is an illegitimate child of the
deceased, but that she is not the decedent's child at all. Being neither
legally adopted child, nor an acknowledged natural child, nor a child by legal
fiction of Esperanza Cabatbat, Violeta is not a legal heir of the deceased." 26
Similarly, the 2001 case of Labagala v. Santiago27 originated from a complaint
for recovery of title, ownership and possession before the trial court.
Respondents therein contended that petitioner is not the daughter of the
decedent Jose and sought to recover from her the 1/3 portion of the subject
property pertaining to Jose but which came into petitioner's sole possession
upon Jose's death. Respondents sought to prove that petitioner is not the
daughter of the decedent as evidenced by her birth certificate which did not
itself indicate the name of Jose as her father. Citing the case of Sayson v. Court
of Appealsand Article 263 of the Civil Code (now Article 170 of the Family
Code),28 petitioner argued that respondents cannot impugn her filiation
collaterally since the case was not an action impugning a child's legitimacy but
one for recovery of title, ownership and possession of property. We ruled in this
case that petitioner's reliance on Article 263 of the Civil Code is misplaced and
respondents may impugn the petitioner's filiation in an action for recovery of
title and possession. Thus, we affirmed the ruling of the appellate court that the
birth certificate of petitioner Labagala proved that she "was born of different
parents, not Jose and his wife."29 Citing the aforecited cases of Benitez-Badua
and Lim v. Intermediate Appellate Court,30 we stated, viz.:
This article should be read in conjunction with the other articles in the same
chapter on paternity and filiation in the Civil Code. A careful reading of said
chapter would reveal that it contemplates situations where a doubt exists that a
child is indeed a man's child by his wife, and the husband (or, in proper cases,
his heirs) denies the child's filiation. It does not refer to situations where a child
is alleged not to be the child at all of a particular couple. 31
Article 263 refers to an action to impugn the legitimacy of a child, to assert and
prove that a person is not a man's child by his wife. However, the present
case is not one impugning petitioner's legitimacy. Respondents are
asserting not merely that petitioner is not a legitimate child of Jose, but
that she is not a child of Jose at all.x x x32
Be that as it may, even if both courts a quo were correct in admitting secondary
evidence similar to the proof admissible under Article 172 of the Family Code in
this action for annulment of document and recovery of possession, we are
constrained to rule after a meticulous examination of the evidence on record
that all proof points to the conclusion that herein respondent is not a child of the
deceased spouses Rufino and Caridad. While we ascribe to the general principle
that this Court is not a trier of facts,33 this rule admits of the following
exceptions where findings of fact may be passed upon and reviewed by this
Court, viz.:
(1) When the conclusion is a finding grounded entirely on speculation, surmises
or conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference
made is manifestly mistaken, absurd or impossible (Luna v. Linatok, 74 Phil. 15
[1942]); (3) Where there is a grave abuse of discretion (Buyco v. People, 95
Phil. 453 [1955]); (4) When the judgment is based on a misapprehension of
facts (Cruz v. Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact are
conflicting (Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.); (6) When the
Court of Appeals, in making its findings, went beyond the issues of the case and
the same is contrary to the admissions of both appellant and appellee
(Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]); (7) The
findings of the Court of Appeals are contrary to those of the trial court (Garcia v.
Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593
[1986]); (8) When the findings of fact are conclusions without citation of specific
evidence on which they are based (Ibid.,); (9) When the facts set forth in the
petition as well as in the petitioners' main and reply briefs are not disputed by
the respondents (Ibid.,); and (10) The finding of fact of the Court of Appeals is
premised on the supposed absence of evidence and is contradicted by the
evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970]).34
It is clear in the case at bar that the ruling of both courts a quo declaring
respondent as a legitimate child and sole heir of the deceased spouses Rufino
and Caridad is one based on a misapprehension of facts.
A mere cursory reading of the birth certificate of respondent would show that it
was tampered specifically on the entries pertaining to the date of birth of
respondent and the name of the informant. Using pentel ink, the date of birth of
respondent - April 6, 1972 - and the name of the informant -Emma Da�o - were
both superimposed on the document. Despite these glaring erasures, the trial
court still relied on the prima facie presumption of the veracity and regularity of
the birth certificate for failure of petitioner to explain how the erasures were
done and if the alterations were due to the fault of respondent. It thus ruled that
respondent's filiation was duly established by the birth certificate. The appellate
court did not agree with this finding and instead ruled that the birth certificate
presented does not qualify as the valid registration of birth in the civil register as
envisioned by the law. We reiterate the relevant pronouncement of the CA, viz.:
x x x The document in question was signed by one Emma Da�o who was not
identified as either the parent of the plaintiff or the physician or midwife who
attended to her birth. Exhibit 14, legally, cannot be the birth certificate
envisioned by the law; otherwise, with an informant as shadowy as Emma
Da�o, the floodgates to spurious filiations will be opened. Neither may the order
of the court Exhibit E be treated as the final judgment mentioned in Article 172
as another proof of filiation. The final judgment mentioned refers to a decision of
a competent court finding the child legitimate. Exhibit G is merely an order
granting letters of guardianship to the parent Caridad based on her
representations that she is the mother of the plaintiff.35
Nonetheless, the appellate court agreed with the trial court that respondent has
proven her filiation by showing that she has enjoyed that open and continuous
possession of the status of a legitimate child of the deceased spouses Rufino and
Caridad, viz.:
x x x The evidence consists of the following: (1) the plaintiff was allowed by her
putative parents to bear their family name Geronimo; (2) they supported her
and sent her to school paying for her tuition fees and other school expenses; (3)
she was the beneficiary of the burial benefits of Caridad before the GS1S; (4)
after the death of Rufino, Caridad applied for and. was appointed legal guardian
of the person and property of the plaintiff from the estate left by Rufino; and (5)
both Caridad and the plaintiff executed an extrajudicial settlement of the estate
of Rufino on the basis of the fact that they are both the legal heirs of the
deceased.36
We do not agree with the conclusion of both courts a quo. The appellate court
itself ruled that the irregularities consisting of the superimposed entries on the
date of birth and the name of the informant made the document questionable.
The corroborating testimony of Arturo Reyes, a representative of the NSO,
further confirmed that the entries on the date of birth and the signature of the
informant are alterations on the birth certificate which rendered the document
questionable. To be sure, even the respondent herself did not offer any evidence
to explain such irregularities on her own birth certificate. These irregularities and
the totality of the following circumstances surrounding the alleged birth of
respondent are sufficient to overthrow the presumption of regularity attached to
respondent's birth certificate, viz.:
1. The identity of one Emma Da�o, whose name was superimposed as the
informant regarding the birth of respondent, remains unknown.
2. The testimony of Atty. Elmer De Dios Lopez, a legal consultant of the
Department of Education in Bulacan, proved that the deceased Caridad did not
have any maternity leave during the period of her service from March 11, 1963
to October 24, 1984 as shown by her Service Record as an elementary school
teacher at Paombong, Bulacan. This was corroborated by a certification from Dr.
Teofila R. Villanueva, Schools Division Superintendent, that she did not file any
maternity leave during her service. No testimonial or documentary evidence was
also offered to prove that the deceased Caridad ever had a pregnancy.
3. Based on the birth certificate, respondent was born in 1972 or 13 years into
the marriage of the deceased spouses Rufino and Caridad. When respondent
was born, Caridad was already 40 years old. There are no hospital records of
Caridad's delivery, and while it may have been possible for her to have given
birth at her own home, this could have been proven by medical or non-medical
records or testimony if they do, in fact, exist.
4. It is worthy to note that respondent was the sole witness for herself in the
instant case.
Finally, we also find that the concurrence of the secondary evidence relied upon
by both courts a quodoes not sufficiently establish the one crucial fact in this
case: that respondent is indeed a child of the deceased spouses. Both the RTC
and the CA ruled that respondent is a legitimate child of her putative parents
because she was allowed to bear their family name "Geronimo", they supported
her and her education, she was the beneficiary of the burial benefits of Caridad
in her GSIS policy, Caridad applied for and was appointed as her legal guardian
in relation to the estate left by Rufino, and she and Caridad executed an
extrajudicial settlement of the estate of Rufino as his legal heirs.
In the case of Rivera v. Heirs of Romnaldo Villanueva37 which incisively discussed
its parallelisms and contrasts with the case of Benitez-Badua v. Court of
Appeals,38 we ruled that the presence of a similar set of circumstances - which
were relied upon as secondary proof by both courts a quo in the case at bar -
does not establish that one is,a child of the putative parents. Our discussion in
the Rivera case is instructive, viz.:
In Benitez-Badua v. Court of Appeals, Marissa Benitez-Badua, in attempting to
prove that she was the sole heir of the late Vicente Benitez, submitted a
certificate of live birth, a baptismal certificate, income tax returns and an
information sheet for membership in the Government Service Insurance System
of the decedent naming her as his daughter, and her school records. She also
testified that she had been reared and continuously treated as Vicente's
daughter.
By testimonial evidence alone, to the effect that Benitez-Badua's alleged parents
had been unable to beget children, the siblings of Benitez-Badua's supposed
father were able to rebut all of the documentary evidence indicating her filiation.
One fact that was counted against Benitez-Badua was that her supposed mother
Isabel Chipongian, unable to bear any children even after ten years of marriage,
all of a sudden conceived and gave birth to her at the age of 36.
Of great significance to this controversy was the following pronouncement:
But definitely, the mere registration of a child in his or her birth
certificate as the child of the supposed parents is not a valid adoption,
does not confer upon the child the status of an adopted child and the
legal rights of such child, and even amounts to simulation of the child's birth
or falsification of his or her birth certificate, which is a public document,
(emphasis ours)
Furthermore, it is well-settled that a record of birth is merely a prima
facie evidence of the facts contained therein. It is not conclusive evidence of the
truthfulness of the statements made there by the interested parties. Following
the logic of Benitez, respondent Angelina and her co-defendants in SD-857
should have adduced evidence of her adoption, in view of the contents of her
birth certificate. The records, however, are bereft of any such evidence.
There are several parallels between this case and Benitez-Badua that are simply
too compelling to ignore. First, both Benitez-Badua and respondent Angelina
submitted birth certificates as evidence of filiation. Second, both claimed to be
children of parents relatively advanced in age. Third, both claimed to have been
born after their alleged parents had lived together childless for several years.
There are, however, also crucial differences between Benitez-Badua and this
case which ineluctably support the conclusion that respondent Angelina was not
Gonzales' daughter, whether illegitimate or adopted. Gonzales, unlike Benitez-
Badua's alleged mother Chipongian, was not only 36 years old but 44 years old,
and on the verge of menopause at the time of the alleged birth. Unlike
Chipongian who had been married to Vicente Benitez for only 10 years, Gonzales
had been living childless with Villanueva for 20 years. Under the circumstances,
we hold that it was not sufficiently established that respondent Angelina was
Gonzales' biological daughter, nor even her adopted daughter. Thus, she cannot
inherit from Gonzales. Since she could not have validly participated in Gonzales'
estate, the extrajudicial partition which she executed with Villanueva on August
8, 1980 was invalid.39
In view of these premises, we are constrained to disagree with both courts a
quo and rule that the confluence of the circumstances and the proof presented in
this case do not lead to the conclusion that respondent is a child of the deceased
spouses.
WHEREFORE, the petition is hereby GRANTED. The assailed Decision and
Resolution of the Court of Appeals in CA-G.R. CV No. 88650 dated January 17,
2011 and May 24, 2011, respectively, are REVERSED and SET ASIDE. The
Complaint in Civil Case No. 268-M-2001 for Annulment of Document and
Recovery of Possession is hereby ordered DISMISSED.
With costs against the respondent.
SO ORDERED.chanroblesvirtuallawlibrary
arado heirs vs alcoran july 8, 2015
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 163362 July 8, 2015
ALEJANDRA ARADO HEIRS: JESUSA ARADO, VICTORIANO ALCORIZA,
PEDRO ARADO, HEIRS: JUDITHO ARADO, JENNIFER ARADO, BOBBIE
ZITO ARADO, SHIRLY ABAD, ANTONIETA ARADO, NELSON SOMOZA,
JUVENIL ARADO, NICETAS VENTULA, and NILA ARADO, PEDRO ARADO,
TOMASA V. ARADO, Petitioners,
vs.
ANACLETO ALCORAN and ELENETTESUNJACO, Respondents.
DECISION
BERSAMIN, J.:
Under review on certiorari is the decision promulgated on February 28,
2003, whereby the Court of Appeals (CA) affirmed the judgment rendered on
1
January 15, 1997 by the Regional Trial Court, Branch 43, in Dumaguete City
(RTC) dismissing the complaint and the counterclaim for being without merit.
2
Antecedents
Raymundo Alcoran (Raymundo) was married to Joaquina Arado (Joaquina),
and their marriage produced a son named Nicolas Alcoran (Nicolas). In turn,
Nicolas married Florencia Limpahan (Florencia), but their union had no 4
offspring. During their marriage, however, Nicolas had an extramarital affair with
Francisca Sarita (Francisca), who gave birth to respondent Anacleto Alcoran
(Anacleto) on July 13, 1951 during the subsistence of Nicolas' marriage to
5
Florencia. In 1972, Anacleto married Elenette Sunjaco.
6 7
Raymundo died in 1939, while Nicolas died in 1954. Likewise, Florencia died in
1960, and Joaquina in 1981. 8
Florencia had three siblings, namely: Sulpicio, Braulia and Veronica
Limpahan. Joaquina had four siblings, i.e., Alejandra, Nemesio, Celedonia and
9
Melania, all surnamed Arado. Nemesio had six children, namely: (1) Jesusa,
10
who was married to Victoriano Alcoriza; (2) Pedro, who was married to Tomasa
Arado; (3) Teodorico; (4) Josefina; (5) Gliceria; and (6) Felicisima. During the
11
pendency of the case, Pedro died, and was substituted by his following heirs, to
wit: (1) Juditho and his spouse, Jennifer Ebrole; (2) Bobbie Zito and his spouse,
Shirly Abad; (3) Juvenil and his spouse, Nicetas Ventula; (4) Antonieta and her
spouse, Nelson Somoza; and (5) Nila.
On January 14, 1992, Alejandra, Jesusa, Victoriano Alcoriza, Pedro and
Tomasa filed in the RTC a complaint for recovery of property and damages
(with application for a writ of preliminary mandatory injunction) against Anacleto
and Elenette. Named as unwilling co-plaintiffs were Sulpicio, Braulia and
13
Veronica Limpahan, along with Teodorico, Josefina, Gliceria and Felicisima.
The properties subject of the action were the following: ( 1) Lot No. 4100,
covered by Original Certificate of Title (OCT) No. OV-1379; (2) Lot No. 4054,
covered by OCT No. OV-1380; (3) a parcel of land covered by Tax Declaration
No. 6065; ( 4) a parcel of land covered by Tax Declaration No. 20470; (5) a
parcel of land covered by Tax Declaration No. 11-028-A; (6) Lot No. 709
covered by OCT No. OV-7784; (7) a parcel of land covered by Tax Declaration
No. 87-011-215-A; (8) a parcel of land covered by Tax Declaration No. 87-011-
217; (9) Lot No. 5234 covered by OCT No. 3489-A; and (10) Lot No. 5224
covered by Tax Declaration No. 8-201. The parties later stipulated that the first
14
eight of the subject properties had previously belonged to Raymundo, while the
last two had been the paraphemal properties of Joaquina. 15
The plaintiffs alleged in their complaint that when Raymundo died in 1939, his
properties were inherited by his son Nicolas alone "as it was during the period of
the old Civil Code, where the spouse could not inherit but only a share of the
usufruct, which was extinguished upon the death of the usufructuary;" that
when Nicolas died in 1954 without issue, half of his properties were inherited by
his wife, Florencia, and the other half by his mother, Joaquina; that Florencia
was, in turn, succeeded by her siblings Sulpicio, Braulia and Veronica; that
during the marriage of Nicolas and Florencia, the former had an affair with
Francisca, from which affair Anacleto was born, but it was unknown whether he
was the spurious son of Nicolas; that Nicolas did not recognize Anacleto as his
spurious child during Nicolas' lifetime; hence, Anacleto was not entitled to inherit
from Nicolas; that nonetheless, Anacleto claimed entitlement to the properties
as the heir of Nicolas and by virtue of the will executed by Joaquina; that the will
was void for not having been executed according to the formalities of the law,
and the same did not reflect the true intention of Joaquina; that the supposed
testator did not acknowledge the will, which was not submitted for probate; that
they were the rightful heirs to the properties; that notwithstanding their repeated
demands for the return of the properties, the defendants persistently refused;
that a writ of preliminary mandatory injunction should issue to prevent the
defendants from further violating their rights in the properties; and that the
defendants should be ordered to reconvey the properties, and to pay
₱20,000.00 as actual damages, ₱20,000.00 as moral and exemplary damages,
and ₱20,000.00 as attorney's fees. 17
In their answer, the defendants (respondents herein) countered that Anacleto
18
was expressly recognized by Nicolas as the latter's son, a fact evidenced by the
certificate of birth of Anacleto; that Anacleto thus had the right to inherit the
properties from Nicolas; that because Anacleto was still too young when Nicolas
died, the administration of the properties passed to Anacleto's grandmother,
Joaquina; that Joaquina executed a last will and testament in Anacleto's favor;
that Joaquina's possession of the properties was for and in behalf of Anacleto,
who had been living with her since his birth; that such possession began in
1954 when Nicolas died and continued until Joaquina' s death in 1981; that
Anacleto then took over the possession of the properties to the exclusion of all
others; that granting for the sake of argument that the plaintiffs had rights in the
properties, the same were already lost through laches, estoppel and
prescription; and that Anacleto was the rightful owner of the properties, and his
ownership and possession should not be disturbed.
By way of counterclaim, the defendants prayed that the plaintiffs be ordered to
pay ₱50,000.00 as moral damages, In ,000.00 "as initial expenses as costs of
this litigation which will increase as the case progresses" and Pl0,000.00 as
19
attorney's fees.
Veronica Limpahan and Sulpicio Limpahan likewise filed their Answer to the 20
complaint, stating that they were not interested in pursuing any claim of
ownership in the properties; that assuming that they were entitled, they were
abandoning their rights, interests, title and participation in the properties; and
that they be excluded from further court processes.
Judgment of the RTC
On January 15, 1997, the RTC rendered judgment, decreeing thusly:
Wherefore, premises considered, judgment is hereby rendered dismissing the
complaint and the counterclaim for lack of merit.
3
Costs against the plaintiffs.
SO ORDERED. 21
The RTC opined that Anacleto established that he was really the acknowledged
illegitimate son of Nicolas. It cited the certificate of birth of Anacleto (Exhibit 4)
and Page 53, Book 4, Register No. 214 of the Register of Births of the
Municipality of Bacong (Exhibit 3 ), which proved that Nicolas had himself
caused the registration of Anacleto' s birth by providing the details thereof and
indicating that he was the father of Anacleto. It observed that the name of
Nicolas appeared under the column "Remarks" in the register of births, which
was the space provided for the name of the informant; that because the
plaintiffs did not present evidence to refute the entry in the register of births, the
12
entry became conclusive with respect to the facts contained therein; that
Anacleto' s claim of recognition was bolstered by his baptismal certificate
(Exhibit F), in which was indicated that his parents were Nicolas Alcoran and
Francisca Sarita; that also presented was a picture taken during the wake of
Nicolas (Exhibit 5) showing the young Anacleto being carried by Joaquina, and
also Nicolas' wife, Florencia; that in addition, the school records of Anacleto
(Exhibit 6) showed that Joaquina stood as his guardian during his grade school
years; that when Anacleto got married, it was Joaquina who gave consent to his
marriage because he was then still a minor (Exhibit 8); and that Joaquina
executed her will in 1978 (Exhibit 9), bequeathing the subject properties to
Anacleto, but the will was yet to be probated. As the case was filed during the
effectivity of the Family Code, the RTC ruled that Articles 172, 173 and 175 of
22 23 24
the Family Code allowed Anacleto to establish his filiation during his lifetime
through the record of his birth appearing in the civil register. It further ruled that
because there were no legitimate children of Nicolas who contested Anacleto's
right to inherit, the rule on the separation of the legitimate from the illegitimate
family was rendered irrelevant; and that, accordingly, Anacleto was entitled to
possess the subject properties upon having established that he was the
acknowledged illegitimate son of Nicolas. Consequently, it also dismissed the
defendants' counterclaim for lack of sufficient basis.
The plaintiffs appealed to the CA. 25
Decision of the CA
On February 28, 2003, the CA promulgated its decision, affirming the judgment
26
of the RTC in this wise:
16
WHEREFORE, premises considered, the instant appeal is hereby DISMISSED.
Accordingly, the Decision of the Regional Trial Court of Dumaguete City, Branch
43 stands.
The CA sustained the ruling of the RTC to the effect that Anacleto was an
acknowledged illegitimate son of Nicolas. It agreed that the Register of Births of
the Municipality of Bacong, Negros Oriental showed that Nicolas was the father
of Anacleto, and that the former had supplied the information on the latter's
birth. It declared that the plaintiffs did not rebut the filiation of Anacleto by
contrary evidence; that the baptismal certificate of Anacleto and the picture
taken during the wake of Nicolas further showed that Anacleto had been
acknowledged by Nicolas; that based on the Articles 172, 173 and 175 of the
Family Code, the law applicable at the time of the filing of the case, Anacleto's
filiation was established by the record of his birth appearing in the civil register;
and that Anacleto possessed rights in the subject properties.
Anent the successional rights of the parties, the CA pronounced that after
Raymundo died in 1939, his wife, Joaquina, and his son, Nicolas, inherited his
properties; that when Nicolas died in 1954, he was survived by Joaquina (his
mother), Florencia (his legitimate wife), and Anacleto (his illegitimate son); that
Joaquina was entitled to one-half of Nicolas' estate, and the remaining half
should be divided between Florencia and Anacleto; that in 1960, when Florencia
died without issue, the share she had inherited from Nicolas was inherited by
her siblings Sulpicio, Braulia and Veronica; and that when Joaquina died in
1981, she was survived by her sibling Alejandra; her nieces Jesusa, Josefina, 27
Gliceria and Felicisima; her nephews Pedro and Teodorico; and her illegitimate
grandson, Anacleto.
The CA declared that the plaintiffs were already barred from asserting their
rights in the properties by estoppel by laches; that Joaquina had executed her
last will and testament on April 19, 1978, whereby she bequeathed her
properties to Anacleto; that the properties were thus transmitted to Anacleto
upon her death in 1981; that the plaintiffs filed their complairtt in the RTC only
on January 14, 1992; that it would be unjust to award the subject properties to
the plaintiffs who had slept on their rights for a long time; and that the plaintiffs
could probably pursue their claim in the appropriate intestate or testate
proceedings.
The plaintiffs filed a Motion for Reconsideration, but the CA denied their motion
28
on March 24, 2004.
Issues
In this appeal, the plaintiffs, herein petitioners, implore the Court to nullify the
29
assailed rulings of the CA, and to determine once and for all the following
issues:
(a) Whether Anacleto Alcoran is the illegitimate son of Nicolas
Alcoran x x x; and
(b) Whether he is entitled to the properties in litigation. 30
The petitioners insist that Anacleto was not duly recognized as Nicolas'
illegitimate son; that inasmuch as Anacleto was born to Francisca during the
subsistence of Nicolas' marriage to Florencia, Anacleto could only be the
spurious child of Nicolas; that there was no law for the acknowledgment of a
spurious child; that even if Anacleto would be given the benefit of the doubt and
be considered a natural child, Article 278 of the Civil Code states that
"[r]ecognition shall be made in the record of birth, a will, a statement before a
court of record, or in any authentic writing;" that the appearance of the father's
name in the certificate of birth alone, without his actual intervention, was
insufficient to prove paternity; that the mere certificate by the civil registrar that
the father himself registered the child, without the father's signature, was not
proof of the father's voluntary acknowledgment; that the baptismal certificate
was insufficient proof of paternity; and that if there was ground for Anacleto's
recognition, the period to claim recognition already prescribed.
The petitioners reject the claim of Anacleto that Joaquina bequeathed the
subject properties to him by last will and testament. They assail the validity and
due execution of the will, which was not submitted for probate; that the joint
affidavit allegedly executed in favor of Anacleto by Sulpicio, Braulia and
Veronica Limpahan, with Josefina, Gliceria and Felicisima Arado, whereby they
ceded their rights in the subject properties in favor of Anacleto, was
unwarranted; and that the veracity of the affidavit was doubtful because it was
purportedly inconsistent with Anacleto' s stance that he had inherited the
properties in his own right.
In turn, the defendants, herein respondents, counter that Nicolas recognized
Anacleto as his illegitimate child because Nicolas had himself caused the
registration of Anacleto's birth; that the petitioners' allegation of prescription
lacked basis inasmuch as Anacleto was not seeking compulsory recognition;
and that Anacleto had already been voluntarily recognized by Nicolas as his
illegitimate son.
Ruling of the Court
We affirm the dismissal of the petitioners' complaint by the RTC, albeit for
different reasons.
The complaint filed by the petitioners in the RTC to recover the subject
properties is properly characterized as an accion reivindicatoria. According to
Caneza v. Bautista, an "[a}ccion reivindicatoria seeks the recovery of
31
ownership and includes the jus utendi and the }us fruendi brought in the proper
regional trial court. Accion reivindicatoria is an action whereby plaintiff alleges
ownership over a parcel of land and seeks recovery of its full possession." In
essence, the petitioners seek to put an end to Anacleto's possession of the
properties on the basis of their being the rightful heirs considering that Anacleto,
being the spurious child of Nicolas, held no successional rights in the estate of
Nicolas.
The burden of proof to establish the averments of the complaint by
preponderance of evidence pertained to the petitioners as the plaintiffs. In that
regard, we have discoursed on preponderance of evidence in Amoroso v.
Alegre, Jr., thusly:
32
"Preponderance of evidence" is the weight, credit, and value of the aggregate
evidence on either side and is usually considered to be synonymous with the
term "greater weight of the evidence" or "greater weight of the credible
evidence." Preponderance of evidence is a phrase which, in the last analysis,
means probability of the truth. It is evidence which is more convincing to the
court as worthy of belief than that which is offered in opposition thereto. If
plaintiff claims a right granted or created by law, he must prove his claim by
competent evidence. He must rely on the strength of his own evidence and not
upon the weakness of that of his opponent. (Bold underscoring for emphasis)
The petitioners did not discharge their burden of proof.
At the outset, the Court affirms the holding by the RTC and the CA that the
provisions of the Family Code should apply because the petitioners' complaint
33
was filed, litigated and decided by the RTC during the effectivity of the Family
Code. Under the Family Code, the classification of children is limited to either
legitimate or illegitimate. Illegitimate filiation is proved in accordance with Article
34
175 of the Family Code, to wit:
ART. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged parent.
On the other hand, legitimate filiation is established in accordance with Articles
172 and 173 of the Family Code, which state:
ART. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved
by:
(1) The open and continuous possession of the status of a legitimate
child; or
(2) Any other means allowed by the Rules of Court and special laws.
ART. 173. The action to claim legitimacy may be brought by the child during his
or her lifetime and shall be transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the heirs shall have a period of
five years within which to institute the action.
The action already commenced by the child shall survive notwithstanding the
death of either or both of the parties.
Rightly enough, the RTC and the CA unanimously concluded that Nicolas had
duly acknowledged Anacleto as his illegitimate son. The birth certificate of
Anacleto appearing in the Register of Births of the Municipality of Bacong,
Negros Oriental (Exhibits 3, 3-A) showed that Nicolas had himself caused the
registration of the birth of Anacleto. The showing was by means of the name of
Nicolas appearing in the column "Remarks" in Page 53, Book 4, Register No.
214 of the Register of Births. Based on the certification (Exhibit 3-B) issued by
the Local Civil Registrar of the Municipality of Bacong, Negros Oriental, the
column in the Register of Births entitled "Remarks" (Observaciones) was the
space provided for the name of the informant of the live birth to be registered.
Considering that Nicolas, the putative father, had a direct hand in the
preparation of the birth certificate, reliance on the birth certificate of Anacleto as
evidence of his paternity was fully warranted. 35
Anacleto's baptismal certificate (Exhibit 7) was of no consequence in
determining his filiation. We have already held in Cabatania v. Court of
Appeals that "while a baptismal certificate may be considered a public
36
document, it can only serve as evidence of the administration of the sacrament
on the date specified but not the veracity of the entries with respect to the child's
paternity;" and that baptismal certificates were "per se inadmissible in evidence
as proof of filiation," and thus "cannot be admitted indirectly as circumstantial
evidence to prove [filiation]." Hence, we attach no probative value to the
baptismal certificate as proof of the filiation of Anacleto.
The weight accorded by the R TC and the CA to the picture depicting the young
Anacleto in the arms of Joaquina as she stood beside the coffin of the departed
Nicolas (Exhibit 5) was also undeserved. At best, the picture merely manifested
that it was Joaquina who had acknowledged her filiation with Anacleto.
Cautioning against the admission in evidence of a picture of similar nature, we
have pointed out in Solinap v. Locsin, Jr. that: 37
[R]espondent's photograph with his mother near the coffin of the late Juan C.
Locsin cannot and will not constitute proof of filiation, lest we recklessly set a
very dangerous precedent that would encourage and sanction fraudulent
claims. Anybody can have a picture taken while standing before a coffin with
others and thereafter utilize it in claiming the estate of the deceased.
The school records of Anacleto (Exhibit 6), which evinced that Joaquina was the
guardian of Anacleto in his grade school years, and the marriage contract
between Anacleto and Elenette (Exhibits 8 to 8-C), which indicated that
Joaquina had given consent to Anacleto's marriage, did not have the evidentiary
value accorded by the RTC and the CA. Joaquina's apparent recognition of
Anacleto mattered little, for, as we stressed in Cenido v. Apacionado, the38
recognition "must be made personally by the parent himself or herself, not by
any brother, sister or relative; after all, the concept of recognition speaks of a
voluntary declaration by the parent, of if the parent refuses, by judicial authority,
to establish the paternity or maternity of children born outside wedlock."
The lack of probative value of the respondents' aforecited corroborative
evidence notwithstanding, Anacleto 's recognition as Nicolas' illegitimate child
remained beyond question in view of the showing that Nicolas had personally
and directly acknowledged Anacleto as his illegitimate son.
How should the acknowledgment of Anacleto by Nicolas affect the respective
rights of the parties in relation to the specific properties subject of the
complaint?
To recall, the parties stipulated that the first eight of the subject properties had
previously belonged to Raymundo, while the remaining two had been the
paraphernal properties of Joaquina.
With Raymundo having died in 1939, the Spanish Civil Code of 1889 was the
governing law on succession. Under Article 807 thereof, Joaquina and Nicolas,
39
i.e., the surviving spouse and the legitimate son of Raymundo, were the forced
heirs who acquired legal title to Raymundo's estate upon his death. In
accordance with Article 834 thereof, Nicolas was entitled to inherit the entire
40
estate of Raymundo, while Joaquina was entitled to a portion in usufruct equal
to the one third portion available for betterment.
When Nicolas died in 1954, the Civil Code of the Philippines was already in
effect. Under Article 1000 thereof, the heirs entitled to inherit from Nicolas's
41 42
estate were Joaquina (his mother), Florencia (his surviving spouse), and
Anacleto (his acknowledged illegitimate son). Said heirs became co-owners of
the properties comprising the entire estate of Nicolas prior to the estate's
partition in accordance with Article 1078 of the Civil Code.
43
Anacleto had an established right to inherit from Nicolas, whose estate included
the first eight of the subject properties that had previously belonged to
Raymundo Anacleto became a co-owner of said properties, pro indiviso, when
Nicolas died in 1954. Likewise, Joaquina succeeded to, and became a pro
44
indiviso co-owner of, the properties that formed part of the estate of Nicolas.
When Joaquina died in 1981, her hereditary estate included the two remaining
properties, as well as her share in the estate of Nicolas. Inasmuch as Joaquina
died without any surviving legitimate descendant, ascendant, illegitimate child or
spouse, Article 1003 of the Civil Code mandated that her collateral relatives
45
should inherit her entire estate.
Contrary to the rulings of the lower courts, Anacleto was barred by law from
inheriting from the estate of Joaquina. To start with, Anacleto could not inherit
1âwphi1
from Joaquina by right of representation of Nicolas, the legitimate son of
Joaquina. Under Article 992 of the Civil Code, an illegitimate child has no right
46
to inherit ab intestato from the legitimate children and relatives of his father or
mother; in the same manner, such children or relatives shall not inherit from the
illegitimate child. As certified in Diaz v. Intermediate Appellate Court, the right
47
of representation is not available to illegitimate descendants of legitimate
children in the inheritance of a legitimate grandparent. And, secondly, Anacleto
could not inherit from the estate of Joaquina by virtue of the latter's last will and
testament, i.e., the Katapusan Tugon (Testamento) (Exhibit K). Article 838 of
the Civil Code dictates that no will shall pass either real or personal property
unless the same is proved and allowed in accordance with the Rules of Court.
We have clarified in Gallanosa v. Arcangel that in order that a will may take
48
effect, "it has to be probated, legalized or allowed in the proper testamentary
proceeding. The probate of the will is mandatory." It appears that such will
remained ineffective considering that the records are silent as to whether it had
ever been presented for probate, and had been allowed by a court of competent
jurisdiction. The petitioners alleged this fact in their complaint, and the
respondents did not controvert the allegation. In the absence of proof showing
that the supposed will of Joaquina had been duly approved by the competent
court, we hold that it had not been so approved. Hence, we cannot sustain the
CA' s ruling to the effect that Joaquina had bequeathed her properties to
Anacleto by will, and that the properties had been transmitted to him upon her
death.
As the petitioners were among the collateral relatives of Joaquina, they are the
ones entitled to inherit from her estate.
Nonetheless, the petitioners' appeal still fails because the parties did not
establish that the estates of Raymundo, Nicolas and Joaquina had been
respectively settled with finality through the appropriate testate or intestate
proceedings, and partitioned in due course. Unless there was a proper and valid
partition of the assets of the respective estates of Raymundo, Nicolas and
Joaquina, whether extrajudicially or judicially, their heirs could not adjudicate
unto themselves and claim specific portions of their estates, because, as we
have declared in Carvajal v. Court of Appeals: 49
x x x Unless a project of partition is effected, each heir cannot claim ownership
over a definite portion of the inheritance. Without partition, either by agreement
between the parties or by judicial proceeding, a co-heir cannot dispose of a
specific portion of the estate. For where there are two or more heirs, the whole
estate of the decedent is, before its partition, owned in common by such heirs.
Upon the death of a person, each of his heirs becomes the undivided owner of
the whole estate left with respect to the part or portion which might be
adjudicated to him, a community of ownership being thus formed among the co-
owners of the estate or co-heirs while it remains undivided.
Without the showing that the respective estates of Raymundo, Nicolas and
Joaquina had been previously partitioned, the Court concludes and holds that
none of the parties herein can lay claim over any of the disputed specific
properties. The petitioners cannot contend, therefore, that they were the rightful
owners of the properties of the late Joaquina to the exclusion of Anacleto. Thus,
we uphold the dismissal of the petitioners' complaint for recovery of such
properties.
WHEREFORE, the Court AFFIRMS the decision promulgated on February 28,
2003 by the Court of Appeals; and ORDERS the petitioners to pay the costs of
suit.
Castro vs gregorio (chAN robles)
SECOND DIVISION
G.R. No. 188801, October 15, 2014
ROSARIO MATA CASTRO AND JOANNE BENEDICTA CHARISSIMA M.
CASTRO, A.K.A. "MARIA SOCORRO M. CASTRO" AND "JAYROSE M.
CASTRO," Petitioners, v. JOSE MARIA JED LEMUEL GREGORIO AND ANA
MARIA REGINA GREGORIO, Respondents.
DECISION
LEONEN, J.:
The policy of the law is clear. In order to maintain harmony, there must be a
showing of notice and consent. This cannot be defeated by mere procedural
devices. In all instances where it appears that a spouse attempts to adopt a
child out of wedlock, the other spouse and other legitimate children must be
personally notified through personal service of summons. It is not enough that
they be deemed notified through constructive service.
This is a petition for review on certiorari1 assailing the decision2 of the Court of
Appeals in CA-G.R. SP No. 101021, which denied the petition for annulment of
judgment filed by petitioners. The petition before the appellate court sought to
annul the judgment of the trial court that granted respondents' decree of
adoption.3chanrobleslaw
The case originally stemmed from the adoption of Jose Maria Jed Lemuel
Gregorio (J�d) and Ana Maria Regina Gregorio (Regina) by Atty. Jose G. Castro
(Jose). Jose is the estranged husband of Rosario Mata Castro (Rosario) and the
father of Joanne Benedicta Charissima M. Castro (Joanne), also known by her
baptismal name, "Maria Socorro M. Castro" and her nickname, "Jayrose."
Rosario alleged that she and Jose were married on August 5, 1962 in Laoag City.
Their marriage had allegedly been troubled. They had a child, Rose Marie, who
was born in 1963, but succumbed to congenital heart disease and only lived for
nine days. Rosario allegedly left Jose after a couple of months because of the
incompatibilities between them.4chanrobleslaw
Rosario and Jose, however, briefly reconciled in 1969. Rosario gave birth to
Joanne a year later. She and Jose allegedly lived as husband and wife for about
a year even if she lived in Manila and Jose stayed in Laoag City. Jose would visit
her in Manila during weekends. Afterwards, they separated permanently because
Rosario alleged that Jose had homosexual tendencies.5 She insisted, however,
that they "remained friends for fifteen (15) years despite their
separation(.)"6chanrobleslaw
On August 1, 2000, Jose filed a petition7 for adoption before the Regional Trial
Court of Batac, Ilocos Norte. In the petition, he alleged that Jed and Regina were
his illegitimate children with Lilibeth Fernandez Gregorio (Lilibeth), 8 whom
Rosario alleged was his erstwhile housekeeper.9 At the time of the filing of the
petition, Jose was 70 years old.10chanrobleslaw
According to the Home Study Report11 conducted by the Social Welfare Officer of
the trial court, Jose belongs to a prominent and respected family, being one of
the three children of former Governor Mauricio Castro.
He was also a well-known lawyer in Manila and Ilocos Norte.12 The report
mentioned that he was once married to Rosario, but the marriage did not
produce any children.13 It also stated that he met and fell in love with Lilibeth in
1985, and Lilibeth was able to bear him two children, Jed on August 1987, and
Regina on March 1989.14 Under "Motivation for Adoption," the social welfare
officer noted:chanRoblesvirtualLawlibrary
Since, he has no child with his marriaged [sic] to Rosario Mata, he was not able
to fulfill his dreams to parent a child. However, with the presence of his 2
illegitimate children will fulfill his dreams [sic] and it is his intention to legalize
their relationship and surname. . . .15
At the time of the report, Jose was said to be living with Jed and Regina
temporarily in Batac, Ilocos Norte.16 The children have allegedly been in his
custody since Lilibeth's death in July 1995.17chanrobleslaw
On October 16, 2000, the trial court approved the adoption, 18 having ruled that In Dare Adventure Farm Corporation v. Court of Appeals:50chanrobleslaw
"[n]o opposition had been received by this Court from any person including the
government which was represented by the Office of the Solicitor General." 19 A
A petition for annulment of judgment is a remedy in equity so exceptional in
certificate of finality20 was issued on February 9, 2006.
nature that it may be availed of only when other remedies are wanting, and only
if the judgment, final order or final resolution sought, to be annulled was
Meanwhile, on July 3, 2006, Rosario, through her lawyer, Atty. Rene V.
rendered by a court lacking jurisdiction or through extrinsic fraud. Yet, the
Saguisag, filed a complaint for disbarment against Jose with the Integrated Bar
remedy, being exceptional in character, is not allowed to be so easily and readily
of the Philippines.21 In her complaint, she alleged that Jose had been remiss in
abused by parties aggrieved by the final judgments, orders or resolutions. The
providing support for their daughter, Joanne, for the past 36 years.22 She
Court has thus instituted safeguards by limiting the grounds for the annulment
alleged that she single-handedly raised and provided financial support to Joanne
to lack of jurisdiction and extrinsic fraud, and by prescribing in Section 1 of Rule
while Jose had been showering gifts to his driver and alleged lover, Larry R.
47 of the Rules of Court that the petitioner should show that the ordinary
Rentegrado (Larry), and even went to the extent of adopting Larry's two
remedies of new trial, appeal, petition for relief or other appropriate remedies
children, Jed and Regina, without her and Joanne's knowledge and consent.23She
are no longer available through no fault of the petitioner. A petition for
also alleged that Jose made blatant lies to the trial court by alleging that Jed and
annulment that ignores or disregards any of the safeguards cannot prosper.
Regina were his illegitimate children with Larry's wife, Lilibeth, to cover up for
his homosexual relationship with Larry.24chanrobleslaw
The attitude of judicial reluctance towards the annulment of a judgment, final
order or final resolution is understandable, for the remedy disregards the time-
In his answer before the Integrated Bar of the Philippines, Jose denies being
honored doctrine of immutability and unalterability of final judgments, a solid
remiss in his fatherly duties to Joanne during her minority. He alleged that he
corner stone in the dispensation of justice by the courts. The doctrine of
always offered help, but it was often declined.25 He also alleged that he adopted
immutability and unalterability serves a two-fold purpose, namely: (a) to avoid
Jed and Regina because they are his illegitimate children. He denied having
delay in the administration of justice and thus, procedurally, to make orderly the
committed any of the falsification alluded to by Rosario. He also stated that he
discharge of judicial business; and (b) to put an end to judicial controversies, at
had suffered a stroke in 1998 that left him paralyzed. He alleged that his income
the risk of occasional errors, which is precisely why the courts exist. As to the
had been diminished because several properties had to be sold to pay for
first, a judgment that has acquired finality becomes immutable and unalterable
medical treatments.26 He then implored the Integrated Bar of the Philippines to
and is no longer to be modified in any respect even if the modification is meant
weigh on the case with "justice and equity."27chanrobleslaw
to correct an erroneous conclusion of fact or of law, and whether the
modification is made by the court that rendered the decision or by the highest
On October 8, 2006, Jose died in Laoag City, Ilocos Norte.28chanrobleslaw
court of the land. As to the latter, controversies cannot drag on indefinitely
because fundamental considerations of public policy and sound practice demand
On October 18, 2007, Rosario and Joanne filed a petition for annulment of
that the rights and obligations of every litigant must not hang in suspense for an
judgment under Rule 47 of the Rules of Civil Procedure with the Court of
indefinite period of time.51 (Emphasis supplied)
Appeals, seeking to annul the October 16, 2000 decision of the trial court
approving Jed and Regina's adoption. 29chanrobleslaw
Because of the exceptional nature of the remedy, there are only two grounds by
which annulment of judgment may be availed of: extrinsic fraud, which must be
In their petition, Rosario and Joanne allege that they learned of the adoption
brought four years from discovery, and lack of jurisdiction, which must be
sometime in 2005.30 They allege that Rosario's affidavit of consent, marked by
brought before it is barred by estoppel or laches.52chanrobleslaw
the trial court as "Exh. K,"31 was fraudulent.32 They also allege that Jed and
Regina's birth certificates showed different sets of information, such as the age
Lack of jurisdiction under this rule means lack of jurisdiction over the nature of
of their mother, Lilibeth, at the time she gave birth. They argue that one set of
the action or subject matter, or lack of jurisdiction over the parties.53 Extrinsic
birth certificates states the father to be Jose and in another set of National
fraud, on the other hand, is "[that which] prevents a party from having a trial or
Statistic Office certificates shows the father to be Larry, Jose's driver and alleged
from presenting his entire case to the court, or [that which] operates upon
lover.33 It was further alleged that Jed and Regina are not actually Jose's
matters pertaining not to the judgment itself but to the manner in which it is
illegitimate children but the legitimate children of Lilibeth and Larry who were
procured."54chanrobleslaw
married at the time of their birth.34chanrobleslaw
The grant of adoption over respondents should be annulled as the trial court did
On May 26, 2009, the Court of Appeals denied the petition.
not validly acquire jurisdiction over the proceedings, and the favorable decision
was obtained through extrinsic fraud.
While admittedly, no notice was given by the trial court to Rosario and Joanne of
the adoption, the appellate court ruled that there is "no explicit provision in the
Jurisdiction over adoption proceedings
rules that the spouse and legitimate child of the adopter . . . should be
vis-a-vis the law on adoption
personally notified of the hearing."35chanrobleslaw
Petitioners argue that they should have been given notice by the trial court of
The appellate court "abhor[red] the mind baffling scheme employed by [Jose] in
the adoption, as adoption laws require their consent as a requisite in the
obtaining an adoption decree in favor of [his illegitimate children] to the
proceedings.
prejudice of the interests of his legitimate heirs"36 but stated that its hands were
bound by the trial court decision that had already attained "finality and
Petitioners are correct.
immutability."37chanrobleslaw
It is settled that "the jurisdiction of the court is determined by the statute in
The appellate court also ruled that the alleged fraudulent information contained
force at the time of the commencement of the action."55 As Jose filed the
in the different sets of birth certificates required the determination of the
petition for adoption on August 1, 2000, it is Republic Act No. 855256 which
identities of the persons stated therein and was, therefore, beyond the scope of
applies over the proceedings. The law on adoption requires that the adoption by
the action for annulment of judgment. The alleged fraud was also perpetrated
the father of a child born out of wedlock obtain not only the consent of his wife
during the trial and could not be classified as extrinsic fraud, which is required in
but also the consent of his legitimate children.
an action for annulment of judgment.38chanrobleslaw
Under Article III, Section 7 of Republic Act No. 8552, the husband must first
When Rosario and Joanne's motion for reconsideration was denied on July 10,
obtain the consent of his wife if he seeks to adopt his own children born out of
2009,39 they filed this petition.
wedlock:chanRoblesvirtualLawlibrary
The issue before this court is whether the Court of Appeals erred in denying the
petition for annulment for failure of petitioners to (1) show that the trial court ARTICLE III
lacked jurisdiction and (2) show the existence of extrinsic fraud. ELIGIBILITY

In their petition, petitioners argue that the appellate court erred in its application SEC. 7. Who May Adopt. � The following may adopt:chanroblesvirtuallawlibrary
of the law on extrinsic fraud as ground to annul a judgment.40 They argue that
because of the fabricated consent obtained by Jose and the alleged false Husband and wife shall jointly adopt, except in the following cases:chanroblesvirtuallawlibrary
information shown in the birth certificates presented as evidence before the trial
court,41 they were not given the opportunity to oppose the petition since the (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
entire proceedings were concealed from them.42chanrobleslaw
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter:
Petitioners also argue that the appellate court misunderstood and misapplied the Provided, however, That the other spouse has signified, his/her consent thereto;
law on jurisdiction despite the denial of due process, notice, and non-inclusion of or
indispensable parties.43 They argue that the adoption of illegitimate children
requires the consent, not only of the spouse, but also the legitimate children 10 (iii) if the spouses are legally separated from each other. . . (Emphasis supplied)
years or over of the adopter, and such consent was never secured from
Joanne.44chanrobleslaw The provision is mandatory. As a general rule, the husband and wife must file a
joint petition for adoption. The rationale for this is stated in In Re: Petition for
Respondents, however, argue in their comment that petitioners could not have Adoption of Michelle P. Lim:57chanrobleslaw
been deprived of their day in court since their interest was "amply protected by
the participation and representation of the Solicitor General through the
The use of the word "shall" in the above-quoted provision means that joint
deputized public prosecutor."45chanrobleslaw
adoption by the husband and the wife is mandatory. This is in consonance with
the concept of joint parental authority over the child which is the ideal situation.
Respondents also argue that there was constructive notice through publication
As the child to be adopted is elevated to the level of a legitimate child, it is but
for three consecutive weeks in a newspaper of general circulation, which
natural to require the spouses to adopt jointly. The rule also insures harmony
constitutes not only notice to them but also notice to the world of the adoption
between the spouses.58
proceedings.46 They argue that since the alleged fraud was perpetrated during
the trial, it cannot be said to be extrinsic fraud but intrinsic fraud, which is not a
The law provides for several exceptions to the general rule, as in a situation
ground for annulment of judgment.47 They also argue that petitioners were not
where a spouse seeks to adopt his or her own children born out of wedlock. In
indispensable parties because adoption is an action in rem and, as such, the only
this instance, joint adoption is not necessary. However, the spouse seeking to
indispensable party is the state.48chanrobleslaw
adopt must first obtain the consent of his or her spouse.
The petition is granted.
In the absence of any decree of legal separation or annulment, Jose and Rosario
remained legally married despite their de facto separation. For Jose to be eligible
Annulment of judgment under Rule 47
to adopt Jed and Regina, Rosario must first signify her consent to the adoption.
of the Rules of Civil Procedure�
Jose, however, did not validly obtain Rosario's consent. His submission of a
fraudulent affidavit of consent in her name cannot be considered compliance of
Under Rule 47, Section 1 of the Rules of Civil Procedure, a party may file an
the requisites of the law. Had Rosario been given notice by the trial court of the
action with the Court of Appeals to annul judgments or final orders and
proceedings, she would have had a reasonable opportunity to contest the
resolutions in civil actions of Regional Trial Courts. This remedy will only be
validity of the affidavit. Since her consent was not obtained, Jose was ineligible
available if "the ordinary remedies of new trial, appeal, petition for relief or other
to adopt.
appropriate remedies are no longer available through no fault of the
petitioner."49chanrobleslaw
The law also requires the written consent of the adopter's children if they are 10
years old or older. In Article III, Section 9 of Republic Act No. 8552: chanRoblesvirtualLawlibrary
SEC. 9. Whose Consent is Necessary to the Adoption. � After being properly
counseled and informed of his/her right to give or withhold his/her approval of
the adoption, the written consent of the following to the adoption is hereby
required:chanroblesvirtuallawlibrary
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of
the adopter(s) and adoptee, if any; (Emphasis supplied)
The consent of the adopter's other children is necessary as it ensures harmony
among the prospective siblings. It also sufficiently puts the other children on
notice that they will have to share their parent's love and care, as well as their
future legitimes, with another person.
It is undisputed that Joanne was Jose and Rosario's legitimate child and that she
was over 10 years old at the time of the adoption proceedings. Her written
consent, therefore, was necessary for the adoption to be valid.
To circumvent this requirement, however, Jose manifested to the trial court that
he and Rosario were childless, thereby preventing Joanne from being notified of
the proceedings. As her written consent was never obtained, the adoption was
not valid.
For the adoption to be valid, petitioners' consent was required by Republic Act
No. 8552. Personal service of summons should have been effected on the
spouse and all legitimate children to ensure that their substantive rights are
protected. It is not enough to rely on constructive notice as in this case.
Surreptitious use of procedural technicalities cannot be privileged over
substantive statutory rights.
Since the trial court failed to personally serve notice on Rosario and Joanne of
the proceedings, it never validly acquired jurisdiction.
There was extrinsic fraud
The appellate court, in denying the petition, ruled that while fraud may have
been committed in this case, it was only intrinsic fraud, rather than extrinsic
fraud. This is erroneous.
In People v. Court of Appeals and Socorro Florece:59chanrobleslaw
Extrinsic fraud refers to any fraudulent act of the prevailing party in litigation
committed outside of the trial of the case, whereby the defeated party is
prevented from fully exhibiting his side of the case by fraud or
deception practiced on him by his opponent, such as by keeping him
away from court, by giving him a false promise of a compromise, or where the
defendant never had the knowledge of the suit, being kept in ignorance by the
acts of the plaintiff, or where an attorney fraudulently or without authority
connives at his defeat.60 (Emphasis supplied)
An action for annulment based on extrinsic fraud must be brought within four
years from discovery.61Petitioners alleged that they were made aware of the
adoption only in 2005. The filing of this petition on October 18, 2007 is within
the period allowed by the rules.
The badges of fraud are present in this case.
First, the petition for adoption was filed in a place that had no relation to any of
the parties. Jose was a resident of Laoag City, llocos Norte. 62 Larry and Lilibeth
were residents of Barangay 6, Laoag City.63 Jed and Regina were born in San
Nicolas, Ilocos Norte.64 Rosario and Joanne were residents of Para�aque City,
Manila.65 The petition for adoption, however, was filed in the Regional Trial Court
of Batac, Ilocos Norte.66 The trial court gave due course to the petition on Jose's
bare allegation in his petition that he was a resident of Batac,67 even though it is
admitted in the Home Study Report that he was a practicing lawyer in Laoag
City.68chanrobleslaw
Second, using the process of delayed registration, 69 Jose was able to secure
birth certificates for Jed and Regina showing him to be the father and Larry as
merely the informant.70 Worse still is that two different sets of fraudulent
certificates were procured: one showing that Jose and Lilibeth were married on
December 4, 1986 in Manila,71 and another wherein the portion for the mother's
name was not filled in at all.72 The birth certificates of Jed and Regina from the
National Statistics Office, however, show that their father was Larry R.
Rentegrado.73 These certificates are in clear contradiction to the birth certificates
submitted by Jose to the trial court in support of his petition for adoption.
Third, Jose blatantly lied to the trial court when he declared that his motivation
for adoption was because he and his wife, Rosario, were childless, 74 to the
prejudice of their daughter, Joanne. The consent of Rosario to the adoption was
also disputed by Rosario and alleged to be fraudulent. 75chanrobleslaw
All these tactics were employed by Jose, not only to induce the trial court in
approving his petition, but also to prevent Rosario and Joanne from participating
in the proceedings or opposing the petition.
The appellate court erroneously classified the fraud employed by Jose as intrinsic
on the basis that they were "forged instruments or perjured
testimonies"76 presented during the trial. It failed to understand, however, that
fraud is considered intrinsic when the other party was either present at the trial
or was a participant in the proceedings when such instrument or testimony was
presented in court, thus:chanRoblesvirtualLawlibrary
[I]ntrinsic fraud refers to the acts of a party at a trial that prevented a fair and
just determination of the case, but the difference is that the acts or things, like
falsification and false testimony, could have been litigated and determined at the
trial or adjudication of the case. In other words, intrinsic fraud does not deprive
the petitioner of his day in court because he can guard against that kind of fraud
through so many means, including a thorough trial preparation, a skillful, cross-
examination, resorting to the modes of discovery, and proper scientific or
forensic applications. Indeed, forgery of documents and evidence for use at the
trial and perjury in court testimony have been regarded as not preventing the
participation of any party in the proceedings, and are not, therefore, constitutive
of extrinsic fraud.77 (Emphasis supplied)
When fraud is employed by a party precisely to prevent the participation of any
other interested party, as in this case, then the fraud is extrinsic, regardless of
whether the fraud was committed through the use of forged documents or
perjured testimony during the trial.
Jose's actions prevented Rosario and Joanne from having a reasonable
opportunity to contest the adoption. Had Rosario and Joanne been allowed to
participate, the trial court would have hesitated to grant Jose's petition since he
failed to fulfill the necessary requirements under the law. There can be no other
conclusion than that because of Jose's acts, the trial court granted the decree of
adoption under fraudulent circumstances.
The law itself provides for penal sanctions for those who violate its provisions.
Under Article VII, Section 21 of Republic Act No. 8552:chanRoblesvirtualLawlibrary
ARTICLE VII
VIOLATIONS AND PENALTIES
SEC. 21. Violations and Penalties. �����
�
(a) The penalty of imprisonment ranging from six (6) years and one (1)
day to twelve (12) years and/or a fine not less than Fifty thousand
pesos (P50,000.00), but not more than Two hundred thousand pesos
(P200,000.00) at the discretion of the court shall be imposed on any
person who shall commit any of the following acts:
(i) obtaining consent for an adoption through coercion, undue influence,
fraud, improper material inducement, or other similar acts;
(ii) non-compliance with the procedures and safeguards provided by the
law for adoption; or
(iii) subjecting or exposing the child to be adopted to danger, abuse, or
exploitation.
(b) Any person who shall cause the fictitious registration of the birth of a
child under the name(s) of a person(s) who is not his/her biological
parent(s) shall be guilty of simulation of birth, and shall be punished
by prision mayor in its medium period and a fine not exceeding Fifty
thousand pesos (P50.000.00). (Emphasis supplied)
Unfortunately, Jose's death carried with it the extinguishment of any of his
criminal liabilities.78 Republic Act No. 8552 also fails to provide any provision on
the status of adoption decrees if the adoption is found to have been obtained
fraudulently. Petitioners also cannot invoke Article VI, Section 19 of Republic Act
No. 855279 since rescission of adoption can only be availed of by the adoptee.
Petitioners, therefore, are left with no other remedy in law other than the
annulment of the judgment.
The fraud employed in this case has been to Joanne's prejudice. There is reason
to believe that Joanne has grown up having never experienced the love and care
of a father, her parents having separated a year after her birth. She has never
even benefited from any monetary support from her father. Despite all these
adversities, Joanne was able to obtain a medical degree from the University of
the Philippines College of Medicine80 and is now working as a doctor in
Canada.81 These accomplishments, however, are poor substitutes if the injustice
done upon her is allowed to continue.
WHEREFORE, the petition is GRANTED. The decision dated October 16, 2000
of the Regional Trial Court of Batac, Ilocos Norte, Branch 17 in SP. Proc. No.
3445-17 is rendered NULL and VOID.
SO ORDERED.
Carpio, (Chairperson), Del Castillo, Mendoza, and Reyes,* JJ., concur.
Calimag vs macapaz (chan robles)
THIRD DIVISION
G.R. No. 191936, June 01, 2016
VIRGINIA D. CALIMAG, Petitioner, v. HEIRS OF SILVESTRA N. MACAPAZ,
REPRESENTED BY ANASTACIO P. MACAPAZ, JR., Respondents.
DECISION
REYES, J.:
This is a petition for review on certiorari1 assailing the Decision2 of the Court of
Appeals (CA) promulgated on October 20, 2009 in CA-G.R. CV No. 90907 which
affirmed with modification the Decision3 dated September 28, 2007 of the
Regional Trial Court (RTC) of Makati City, Branch 147, in Civil Case No. 06-173,
an action for annulment of deed of sale and cancellation of title with damages.
The CA Resolution4 dated April 5, 2010 denied the motion for reconsideration
thereof.
The Facts
Virginia D. Calimag (petitioner) co-owned the property, the subject matter of
this case, with Silvestra N. Macapaz (Silvestra).
On the other hand, Anastacio P. Macapaz, Jr. (Anastacio, Jr.) and Alicia
Macapaz-Ritua (Alicia) (respondents) are the children of Silvestra's brother,
Anastacio Macapaz, Sr. (Anastacio, Sr.) and Fidela O. Poblete Vda. de Macapaz
(Fidela).
The subject property, with a total area of 299 square meters, is located at No.
1273 Bo. Visaya Street, Barangay Guadalupe Nuevo, Makati City, and was duly
registered in the names of the petitioner (married to Demetrio Calimag) and
Silvestra under Transfer Certificate of Title (TCT) No. 183088.5 In said certificate
of title, appearing as Entry No. 02671 is an annotation of an Adverse Claim of
Fidela asserting rights and interests over a portion of the said property
measuring 49.5 sq m.6
On November 11, 2002, Silvestra died without issue. On July 7, 2005, TCT No.
183088 was cancelled and a new certificate of title, TCT No. 221466, 7 was
issued in the name of the petitioner by virtue of a Deed of Sale8 dated January
18, 2005 whereby Silvestra allegedly sold her 99-sq-m portion to the petitioner
for P300,000.00. Included among the documents submitted for the purpose of
cancelling TCT No. 183088 was an Affidavit9 dated July 12, 2005 purportedly
executed by both the petitioner and Silvestra. It was stated therein that the
affidavit of adverse claim filed by Fidela was not signed by the Deputy Register
of Deeds of Makati City, making the same legally ineffective. On September 16,
2005, Fidela passed away.10
On December 15, 2005, Anastacio, Jr. filed a criminal complaint for two counts
of falsification of public documents under Articles 171 and 172 of the Revised
Penal Code against the petitioner.11 However, said criminal charges were
eventually dismissed.
On March 2, 2006, the respondents, asserting that they are the heirs of
Silvestra, instituted the action for Annulment of Deed of Sale and Cancellation of
TCT No. 221466 with Damages against the petitioner and the Register of Deeds
of Makati City.12
In her Answer with Compulsory Counterclaim,13 the petitioner averred that the
respondents have no legal capacity to institute said civil action on the ground
that they are illegitimate children of Anastacio, Sr. As such, they have no right
over Silvestra's estate pursuant to Article 992 of the Civil Code which prohibits
illegitimate children from inheriting intestate from the legitimate children and
relatives of their father and mother.
After trial, the RTC found for the respondents and rendered its Decision on
September 28, 2007.14 The fallo of the RTC decision reads:
WHEREFORE, premises considered, judgment is rendered as follows:
1. Declaring the Deed of Sale purportedly executed by [Silvestra] in
favor of [the petitioner] on January 18, 2005 over a parcel of land
covered by TCT No. 183088 of the Registry of Deeds of Makati City,
as Null and Void;
2. Ordering the Registrar of Deeds of Makati City to cancel TCT No.
221466 issued in the name of [the petitioner], the same having been
issued on the basis of a fraudulent/falsified Deed of Sale, and
thereafter to reinstate TCT No. 183088 issued in the name of [the
petitioner] and [Silvestra] with all the liens and encumbrances
annotated thereon, including the adverse claim of [Fidela]; [and]
3. Ordering [the petitioner] to pay the [respondents] the sum of
PI00,000.00 as moral damages and another P100,000.00 as
exemplary damages, P50,000.00 as and by way of attorney's fees,
plus costs of suit.
[The petitioner's] counter-claim is dismissed for lack of merit.
SO ORDERED.15
The RTC found that the Deed of Sale dated January 18, 2005 presented for the
cancellation of TCT No. 183088 was a forgery considering that Silvestra, who
purportedly executed said deed of sale died on November 11, 2002, about three
years before the execution of the said Deed of Sale.16 Respecting the
respondents' legal capacity to sue, the RTC favorably ruled in this wise:
Demetrio Calimag, Jr. sought, but failed, to impugn the personality of the
[respondents] to initiate this action as the alleged heirs of [Silvestra]. The
marriage between [Anastacio Sr.J and [FidclaJ is evidenced by the
Certificate of (canonical) Marriage (Exh. "M"). The name 'Fidela Obera
Poblete' is indicated in [the respondents'] respective birth certificates
as the mother's maiden name but Fidela signed the same as the
informant as "Fidela P. Macapaz". In both birth certificates, "Anastacio
Nator Macapaz" is indicated as the name of the father. 17 (Emphasis ours)
Ruling of the CA
Aggrieved, the petitioner elevated her case to the CA resting on the argument
that the respondents are without legal personality to institute the civil action for
cancellation of deed of sale and title on the basis of their claimed status as
legitimate children of Anastacio, Sr., the brother and sole heir of the deceased,
Silvestra.18
On October 20, 2009, the CA rendered its Decision affirming the RTC decision
with modification as to the amount of damages. The fallo of the assailed decision
reads:
WHEREFORE, premises considered, the present appeal is hereby DISMISSED, for
lack of merit. The Decision dated September 28, 2007 of the [RTC] of Makati
City, Branch 147 in Civil Case No. 06-173 is hereby AFFIRMED with
MODIFICATION in that the award of moral and exemplary damages is hereby
reduced from PI00,000.00 to P50,000.00, respectively.
With costs against the [petitioner].
SO ORDERED.19
The CA sustained the RTC ruling that the cancellation of TCT No. 183088 and the
issuance of TCT No. 221466 in the name of the petitioner were obtained through
forgery. As to the question of whether the respondents are legal heirs of
Silvestra and thus have the legal capacity to institute the action, the CA ruled in
this wise:
Reviewing the evidence on record, we concur with the trial court in sustaining
the appellees' legitimate filiation to Silvestra's brother [Anastacio, Sr.] The trial
court found unsuccessful the attempt of Atty. Demetrio Calimag, Jr. to assail the
validity of marriage between [Anastacio, Sr.] and [Fidela] with a certification
from the NSO that their office has no record of the certificate of marriage of
[Anastacio, Sr.] and [Fidela], and further claiming the absence of a marriage
license.
The best proof of marriage between man and wife is a marriage contract. A
certificate of marriage issued by the Most Holy Trinity Parish, Alang[-]alang,
Leyte (Exh. "M") as well as a copy of the marriage contract were duly submitted
in evidence by the [respondents].
xxxx
The Marriage Contract (Exh. "U") in this case clearly reflects a marriage license
number and in the absence of a certification from the local civil registrar that no
such marriage license was issued, the marriage between [Anastacio, Sr.] and
[Fidela] may not be invalidated on that ground.
x x x.
xxxx
Every intendment of the law leans toward legalizing matrimony. Persons
dwelling together in apparent matrimony are presumed, in the absence of any
counterpresumption or evidence special to the case, to be in fact married. This
jurisprudential attitude towards marriage is based on the prima
facie presumption that a man and a woman deporting themselves as husband
and wife have entered into a lawful contract of marriage. The Courts look upon
this presumption with great favor. It is not to be lightly repelled; on the
contrary, the presumption is of great weight.
Here, the fact of marriage between [Anastacio, Sr.] and [Fidela] was established
by competent and substantial proof. [The respondents] who were conceived and
born during the subsistence of said marriage are therefore presumed to be
legitimate children of [Anastacio, Sr.], in the absence of any contradicting
evidence.20 (Citations omitted)
The petitioner sought reconsideration,21 but her motion was denied in the
Resolution22 dated April 5, 2010.
Hence, this petition.
Notably, even before the CA, the petitioner never assailed the factual finding
that forgery was indeed committed to effect the cancellation of TCT No. 183088
and the consequent transfer of title of the property in her name. Verily, in this
petition, the petitioner continues to assail the legal capacity of the respondents
to institute the present action. Invoking the provisions of Article 992 of the Civil
Code,23 the petitioner insists that the respondents have no legal right over the
estate left by Silvestra for being illegitimate children of Anastacio, Sr.
While the petitioner does not question that Anastacio, Sr. is the legal heir of
Silvestra, she, however, claims that the respondents failed to establish their
legitimate filiation to Anastacio, Sr. considering that the marriage between
Anastacio, Sr. and Fidela was not sufficiently proven. According to the petitioner,
the marriage contract24 presented by the respondents is not admissible under
the Best Evidence Rule for being a mere fax copy or photocopy of an alleged
marriage contract, and which is not even authenticated by the concerned Local
Civil Registrar. In addition, there is no mark or stamp showing that said
document was ever received by said office. Further, while the respondents also
presented a Certificate of (Canonical) Marriage,25 the petitioner asserts that the
same is not the marriage license required under Articles 3 and 4 of the Family
Code;26 that said Certificate of (Canonical) Marriage only proves that a marriage
ceremony actually transpired between Anastacio, Sr. and Fidela. 27cralawred
Moreover, the petitioner contends that the certificates of live birth of the
respondents do not conclusively prove that they are legitimate children of
Anastacio, Sr.
In their Comment,28 the respondents reiterate the finding and ruling of the CA
that the petitioner's argument has no leg to stand on considering that one's
legitimacy can only be questioned in a direct action seasonably filed by a party
who is related to the former either by consanguinity or affinity.29
Thereupon, the resolution of this case rests upon this fundamental issue:
whether or not the respondents are legal heirs of Silvestra.
Ruling of the Court
The petition is bereft of merit.
While it is true that a person's legitimacy can only be questioned in a direct
action seasonably filed by the proper party, as held in Spouses Fidel v. Hon. CA,
et al.,30 this Court however deems it necessary to pass upon the respondents'
relationship to Silvestra so as to determine their legal rights to the subject
property. Besides, the question of whether the respondents have the legal
capacity to sue as alleged heirs of Silvestra was among the issues agreed upon
by the parties in the pre-trial.
At first blush, the documents presented as proof of marriage between Anastacio,
Sr. and Fidela, viz: (1) fax or photo copy of the marriage contract, and (2) the
canonical certificate of marriage, cannot be used as legal basis to establish the
fact of marriage without running afoul with the Rules on Evidence of the Revised
Rules of Court. Rule 130, Section 3 of the Rules on Evidence provides that:
"When the subject of the inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself, x x x." Nevertheless,
a reproduction of the original document can still be admitted as secondary
evidence subject to certain requirements specified by law. In Dantis v.
Maghinang, Jr.,31 it was held that:
A secondary evidence is admissible only upon compliance with Rule 130, Section
5, which states that: when the original has been lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its execution or existence and the
cause of its unavailability without bad faith on his part, may prove its contents
by a copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated. Accordingly, the offeror of the
secondary evidence is burdened to satisfactorily prove the predicates thereof,
namely: (1) the execution or existence of the original; (2) the loss and
destruction of the original or its non-production in court; and (3) the
unavailability of the original is not due to bad faith on the part of the
proponent/offeror. Proof of the due execution of the document and its
subsequent loss would constitute the basis for the introduction of secondary
evidence, x x x.32 (Citation omitted)
On the other hand, a canonical certificate of marriage is not a public document.
As early as in the case of United States v. Evangelista,33 it has been settled that
church registries of births, marriages, and deaths made subsequent to the
promulgation of General Orders No. 68 and the passage of Act No. 190 are no
longer public writings, nor are they kept by duly authorized public
officials.34 They are private writings and their authenticity must therefore be
proved as are all other private writings in accordance with the rules of
evidence.35 Accordingly, since there is no showing that the authenticity and due
execution of the canonical certificate of marriage of Anastacio, Sr. and Fidela
was duly proven, it cannot be admitted in evidence.
Notwithstanding, it is well settled that other proofs can be offered to establish
the fact of a solemnized marriage.36 Jurisprudence teaches that the fact of
marriage may be proven by relevant evidence other than the marriage
certificate. Hence, even a person's birth certificate may be recognized as
competent evidence of the marriage between his parents.37
Thus, in order to prove their legitimate filiation, the respondents presented their
respective Certificates of Live Birth issued by the National Statistics
Office38 where Fidela signed as the Informant in item no. 17 of both documents.
A perusal of said documents shows that the respondents were apparently born
to the same parents � their father's name is Anastacio Nator Macapaz, while
their mother's maiden name is Fidela Overa Poblete. In item no. 24 thereof
where it asks: "24. DATE AND PLACE OF MARRIAGE OF PARENTS (For legitimate
birth)" it was stated therein that respondents' parents were married on "May 25,
1955 in Alang-alang, Leyte."39
The petitioner asserts that said documents do not conclusively prove the
respondents' legitimate filiation, albeit, without offering any evidence to the
contrary. The certificates of live birth contain no entry stating whether the
respondents are of legitimate or illegitimate filiation, making said documents
unreliable and unworthy of weight and value in the determination of the issue at
hand.
Moreover, the petitioner states that in the respondents' certificates of live birth,
only the signature of Fidela appears, and that they were not signed by
Anastacio, Sr. She argues that the birth certificate must be signed by the father
in order to be competent evidence to establish filiation, whether legitimate or
illegitimate, invoking Roces v. Local Civil Registrar of Manila40 where it was held
that a birth certificate not signed by the alleged father is not competent
evidence of paternity.41
The petitioner's contentions are untenable.
"A certificate of live birth is a public document that consists of entries (regarding
the facts of birth) in public records (Civil Registry) made in the performance of a
duty by a public officer (Civil Registrar)."42Thus, being public documents, the
respondents' certificates of live birth are presumed valid, and are prima
facie evidence of the truth of the facts stated in them.43
"Prima facie evidence is defined as evidence good and sufficient on its face. Such
evidence as, in the judgment of the law, is sufficient to establish a given fact, or
the group or chain of facts constituting the party's claim or defense and which if
not rebutted or contradicted, will remain sufficient."44
The petitioner's assertion that the birth certificate must be signed by the father
in order to be a competent evidence of legitimate filiation does not find support
in law and jurisprudence. In fact, the petitioner's reliance on Roces45 is
misplaced considering that what was sought to be proved is the fact of paternity
of an illegitimate child, and not legitimate filiation.
Verily, under Section 5 of Act No. 3753,46 the declaration of either parent of the
new-born legitimate child shall be sufficient for the registration of his birth in the
civil register, and only in the registration of birth of an illegitimate child does the
law require that the birth certificate be signed and sworn to jointly by the
parents of the infant, or only by the mother if the father refuses to acknowledge
the child.
The pertinent portion of Section 5 of Act No. 3753 reads:
Sec. 5. Registration and Certification of Birth. - The declaration of the physician
or midwife in attendance at the birth or, in default thereof, the declaration of
cither parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration shall be exempt
from the documentary stamp tax and shall be sent to the local civil registrar not
later than thirty days after the birth, by the physician, or midwife in attendance
at the birth or by either parent of the newly born child.
In such declaration, the persons above mentioned shall certify to the following
facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names,
citizenship, and religion of parents or, in case the father is not known, of the
mother alone; (d) civil status of parents; (e) place where the infant was born; if)
and such other data as may be required in the regulations to be issued.
xxxx
In case of an illegitimate child, the birth certificate shall be signed and
sworn to jointly by the parents of the infant or only the mother if the
father refuses. In the latter case, it shall not be permissible to state or reveal
in the document the name of the father who refuses to acknowledge the child, or
to give therein any information by which such father could be identified, x x x
(Emphasis Ours)
Forsooth, the Court finds that the respondents' certificates of live birth were duly
executed consistent with the provision of the law respecting the registration of
birth of legitimate children. The fact that only the signatures of Fidela appear on
said documents is of no moment because Fidela only signed as
the declarant or informant of the respondents' fact of birth as legitimate
children.
Nonetheless, the respondents' certificates of live birth also intimate that
Anastacio, Sr. and Fidela had openly cohabited as husband and wife for a
number of years, as a result of which they had two children � the second child,
Anastacio, Jr. being born more than three years after their first child, Alicia.
Verily, such fact is admissible proof to establish the validity of marriage. Court
Resolution dated February 13, 2013 in GR. No. 183262 entitled Social Security
System (SSS) v. Lourdes S. Enobiso47 had the occasion to state:
Sarmiento v. CA is instructive anent the question of what other proofs can be
offered to establish the fact of a solemnized marriage, viz:
chanRoblesvirtualLawlibrary
In Trinidad vs. Court of Appeals, et al., this Court ruled that as proof of
marriage may be presented: a) testimony of a witness to the matrimony;
b) the couple's public and open cohabitation as husband and wife after
the alleged wedlock; c) the birth and baptismal certificate of children born
during such union; and d) the mention of such nuptial in subsequent
documents.48 (Citations omitted and emphasis ours)
Moreover, in a catena of cases,49 it has been held that, "[p]ersons dwelling
together in apparent matrimony are presumed, in the absence of any counter
presumption or evidence special to the case, to be in fact married. The reason is
that such is the common order of society, and if the parties were not what they
thus hold themselves out as being, they would be living in the constant violation
of decency and of law. A presumption established by our Code of Civil Procedure
is 'that a man and a woman deporting themselves as husband and wife have
entered into a lawful contract of marriage.' Semper praesumitur pro
matrimonio � Always presume marriage."50
Furthermore, as the established period of cohabitation of Anastacio, Sr. and
Fidela transpired way before the effectivity of the Family Code, the strong
presumption accorded by then Article 220 of the Civil Code in favor of the
validity of marriage cannot be disregarded. Thus:
Art. 220. In case of doubt, all presumptions favor the solidarity of the family.
Thus, every intendment of law or facts leans toward the validity of marriage, the
indissolubility of the marriage bonds, the legitimacy of children, the community
of property during marriage, the authority of parents over their children, and the
validity of defense for any member of the family in case of unlawful aggression.
WHEREFORE, premises considered, the petition is hereby DENIED. The
Decision dated October 20, 2009 and Resolution dated April 5, 2010 of the Court
of Appeals in CA-G.R. CV No. 90907 are AFFIRMED.
SO ORDERED.
Public vs Sarenogon 2016
SECOND DIVISION
February 10, 2016
G.R. No. 199194
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
JOSE B. SAREÑOGON, JR., Respondent.
DECISION
DEL CASTILLO, J.:
A petition for certiorari pursuant to Rule 65 of the Rules of Court is the proper remedy to
challenge a trial court's declaration of presumptive death under Article 41 ofThe Family
Code of the Philippines (Family Code).
1 2
This Petition for Review on Certiorari assails the October 24, 2011 Decision of the Court of
3 4
Appeals (CA) in CA-GR. SP No. 04158-MIN dismissing the Petition for Certiorari filed by
petitioner Republic of the Philippines (Republic).
Factual Antecedents
On November 4, 2008, respondent Jose B. Sareñogon, Jr. (Jose) filed a Petition before the 5
Regional Trial Court (RTC) of Ozamiz City-Branch 15 for the declaration of presumptive
6
death of his wife, Netchie S. Sareñogon (Netchie).
7 8
In an Amended Order dated Februrary 11, 2009, the RTC set the Petition for initial hearing
on April 16, 2009. It likewise directed the publication of said Order in a newspaper of general
circulation in the cities of Tangub, Ozamiz and Oroquieta, all in the province of Misamis
Occidental. Nobody opposed the Petition. Trial then followed. 9 10
Jose testified that he first met Netchie in Clarin, Misamis Occidental in 1991. They later 11
became sweethearts and on August 10, 1996, they got married in civil rites at the Manila
City Hall. However, they lived together as husband and wife for a month only because he
12
left to work as a seaman while Netchie went to Hongkong as a domestic helper. For three 13
months, he did not receive any communication from Netchie. He likewise had no idea about
14
her whereabouts. While still abroad, he tried to contact Netchie’s parents, but failed, as the
15
latter had allegedly left Clarin, Misamis Occidental. He returned home after his contract
16
expired. He then inquired from Netchie’s relatives and friends about her whereabouts, but
17
they also did not know where she was. Because of these, he had to presume that his wife
18
Netchie was already dead. He filed the Petition before the RTC so he could contract
19
another marriage pursuant to Article 41 of the Family Code. 20
Jose’s testimony was corroborated by his older brother Joel Sareñogon, and by Netchie’s
aunt, Consuelo Sande. These two witnesses testified that Jose and Netchie lived together
21
as husband and wife only for one month prior to their leaving the Philippines for separate
destinations abroad. These two added that they had no information regarding Netchie’s
22
location. 23
Ruling of the Regional Trial Court
In its Decision dated January 31, 2011 in Spec. Proc. No. 045-08, the RTC held that Jose
24
had established by preponderance of evidence that he is entitled to the relief prayed for
under Article 41 of the Family Code. The RTC found that Netchie had disappeared for more
25
than four years, reason enough for Jose to conclude that his wife was indeed already
dead. The dispositive portion of the Decision reads:
26
VIEWED IN THE LIGHT OF THE FOREGOING, judgment is hereby rendered declaring
respondent presumptively dead for purposes of remarriage of petitioner.
SO ORDERED. 27
Artemio Panganiban further therein pointed out that the correct remedy to challenge the
RTC Decision was to institute a petition for certiorari under Rule 65, and not a petition for
review under Rule 45. 50

Proceedings before the Court of Appeals

We expounded on this appellate procedure in Republic v. Tango: 51

On April 19, 2011, the Republic, through the Office of the Solicitor General (OSG), elevated
the judgment of the RTC to the CA via a Petition for Certiorari under Rule 65 of the Revised
28

Rules of Court. This case presents an opportunity for us to settle the rule on appeal of judgments rendered
in summary proceedings under the Family Code and accordingly, refine our previous
decisions thereon.
In its Decision of October 24, 2011, the CA held that the Republic used the wrong recourse
29

by instituting a petition for certiorari under Rule 65 of the Revised Rules of Court. The CA
perceived no error at all in the RTC’s judgment granting Jose’s Petition for the declaration of Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN
the presumptive death of his wife, Netchie. The CA thus held in effect that the Republic’s THE FAMILY LAW, establishes the rules that govern summary court proceedings in the
appeal sought to correct or review the RTC’s alleged misappreciation of evidence which Family Code:
could not translate into excess or lack of jurisdiction amounting to grave abuse of
discretion. The CA noted that the RTC properly caused the publication of the Order setting
30

the case for initial hearing. The CA essentially ruled that, "[a] writ of certiorari may not be
31 ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply
used to correct a lower court’s evaluation of the evidence and factual findings. In other in all cases provided for in this Code requiring summary court proceedings. Such cases shall
words, it is not a remedy for mere errors of judgment, which are correctible by an be decided in an expeditious manner without regard to technical rules.
appeal." The CA then disposed of the case in this wise:
32

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters
WHEREFORE, the petition for certiorari is dismissed. two and three of the same title. It states:

SO ORDERED. 33 ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable. (Emphasis supplied.)
Issues

In plain text, Article 247 in Chapter 2 of the same title reads:

The Republic filed the instant Petition raising the following issues:
34

THE HONORABLE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN ITS
ASSAILED DECISION BECAUSE:
I had of the trial court’s judgment in a summary proceeding for the declaration of presumptive
THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW
IN DISMISSING THE REPUBLIC’S PETITION FOR REVIEW ON CERTIORARI UNDER
RULE 65, ON THE GROUND THAT THE PROPER REMEDY SHOULD HAVE BEEN TO
APPEAL THE RTC DECISION, BECAUSE IMMEDIATELY FINAL AND EXECUTORY
JUDGMENTS OR DECISIONS ARE NOT APPEALABLE UNDER THE EXPRESS
ART. 247. The judgment of the court shall be immediately final and executory.
By express provision of law, the judgment of the court in a summary proceeding shall
be immediately final and executory. As a matter of course, it follows that no appeal can be
death of an absent spouse under Article 41 of the Family Code. It goes without saying,
however, that an aggrieved party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of
Appeals in accordance with the Doctrine of Hierarchy of Courts. To be sure, even if the
Court’s original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the
Court of Appeals in certain cases, such concurrence does not sanction an unrestricted
freedom of choice of court forum. x x x (Citation omitted; Underscoring supplied)
52

PROVISION OF LAW.

II
THE ALLEGED EFFORTS OF RESPONDENT IN LOCATING HIS MISSING WIFE DO NOT
SUFFICIENTLY SUPPORT A "WELLFOUNDED BELIEF" THAT RESPONDENT’S ABSENT
"In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for
the declaration of presumptive death may file a petition for certiorari with the CA on the
ground that, in rendering judgment thereon, the trial court committed grave abuse of
discretion amounting to lack of jurisdiction. From the Decision of the CA, the aggrieved party
may elevate the matter to this Court via a petition for review on certiorari under Rule 45 of
the Rules of Court."53

WIFE X X X IS PROBABLY DEAD. 35

In fact, in Republic v. Narceda, we held that the OSG availed of the wrong remedy when it
54

Petitioner’s Arguments filed a notice of appeal under Rule 42 with the CA to question the RTC’s Decision declaring
the presumptive death of Marina B. Narceda. 55

The Republic insists that a petition for certiorari under Rule 65 of the Revised Rules of Court
is the proper remedy to challenge an RTC’s immediately final and executory Decision on a Above all, this Court’s ruling in Republic v. Cantor made it crystal clear that the OSG
56

presumptive death. 36
properly availed of a petition for certiorari under Rule 65 to challenge the RTC’s Order
therein declaring Jerry Cantor as presumptively dead. 1âw phi1

The Republic claims that based on jurisprudence, Jose’s alleged efforts in locating Netchie
did not engender or generate a well-founded belief that the latter is probably dead. It 37
Based on the foregoing, it is clear that the Republic correctly availed of certiorari under Rule
maintains that even as Jose avowedly averred that he exerted efforts to locate Netchie, Jose 65 of the Revised Rules of Court in assailing before the CA the aforesaid RTC’s Decision.
inexplicably failed to enlist the assistance of the relevant government agencies like the
Philippine National Police, the National Bureau of Investigation, the Department of Foreign
Affairs, the Bureau of Immigration, the Philippine Overseas Employment Administration, or The "well-founded belief" requisite
the Overseas Workers Welfare Administration. It likewise points out that Jose did not
38
under Article 41 of the Family Code is
present any disinterested person to corroborate his allegations that the latter was indeed complied with only upon a showing that
missing and could not be found. It also contends that Jose did not advert to circumstances,
39
sincere honest-to-goodness efforts had
events, occasions, or situations that would prove that he did in fact make a comprehensive indeed been made to ascertain whether
search for Netchie. The Republic makes the plea that courts should ever be vigilant and
40
the absent spouse is still alive or is
wary about the propensity of some erring spouses in resorting to Article 41 of the Family already dead
Code for the purpose of terminating their marriage. 41

We now proceed to determine whether the RTC properly granted Jose’s Petition.
Finally, the Republic submits that Jose did not categorically assert that he wanted to have
Netchie declared presumptively dead because he intends to get married again, an essential
premise of Article 41 of the Family Code. 42 Article 41 of the Family Code pertinently provides that:

Respondent’s Arguments
Jose counters that the CA properly dismissed the Republic’s Petition because the latter’s
petition is erected upon the ground that the CA did not correctly weigh or calibrate the
evidence on record, or assigned to the evidence its due worth, import or significance; and
that such a ground does not avail in a petition for certiorari under Rule 65 of the Revised
Rules of Court. Jose also contends that the Republic should have instead filed a motion for
43
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
spouse had been absent for four consecutive years and the spouse present had a well-
founded belief that the absent spouse 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.

reconsideration of the RTC’s Decision of January 31, 2011, reasoning out that a motion for
44 For the purpose of contracting the subsequent marriage under the preceding paragraph the
reconsideration is a plain, speedy and adequate remedy in law. Jose furthermore submits spouse present must institute a summary proceeding as provided in this Code for the
that the RTC did not act arbitrarily or capriciously in granting his petition because it even declaration of presumptive death of the absentee, without prejudice to the effect of
dutifully complied with the publication requirement. He moreover argues that to sustain the
45 reappearance of the absent spouse. (83a)
present petition would allow the executive branch to unduly make inroads into judicial
territory. Finally, he insists that the trial court’s factual findings are entitled to great weight
46

and respect as these were arrived after due deliberation. 47 In Republic v. Cantor, we further held that:
57

This Court’s Ruling Before a judicial declaration of presumptive death can be obtained, it must be shown that the
prior spouse had been absent for four consecutive years and the present spouse had a well-
founded belief that the prior spouse was already dead. Under Article 41 of the Family Code,
This Court finds the Republic’s petition meritorious. there are four essential requisites for the declaration of presumptive death:

A petition for certiorari under Rule 65 1. That the absent spouse has been missing for four consecutive years, or two consecutive
of the Rules of Court is the proper years if the disappearance occurred where there is danger of death under the circumstances
remedy to question the RTC’s Decision laid down in Article 391 of the Civil Code;
in a summary proceeding for the
declaration of presumptive death
2. That the present spouse wishes to remarry;

In the 2005 case of Republic v. Bermudez-Lorino, we held that the RTC’s Decision on a
48

Petition for declaration of presumptive death pursuant to Article 41 of the Family Code is 3. That the present spouse has a well-founded belief that the absentee is dead; and,
immediately final and executory. Thus, the CA has no jurisdiction to entertain a notice of
appeal pertaining to such judgment. Concurring in the result, Justice (later Chief Justice)
49
4. That the present spouse files a summary proceeding for the declaration of presumptive
death of the absentee. 58
(Underscoring supplied)
With respect to the third element (which seems to be the element that in this case invites
extended discussion), the holding is that the –
mere absence of the spouse (even for such period required by the law), or lack of news that
such absentee is still alive, failure to communicate [by the absentee spouse or invocation of
the] general presumption on absence under the Civil Code [would] not suffice. This
conclusion proceeds from the premise that Article 41 of the Family Code places upon the
present spouse the burden of proving the additional and more stringent requirement of "well-
founded belief" which can only be discharged upon a due showing of proper and honest-to-
goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but,
more importantly, that the absent spouse is [either] still alive or is already dead.
xxxx
The law did not define what is meant by "well-founded belief." It depends upon the
circumstances of each particular case. Its determination, so to speak, remains on a case-to-
case basis. To be able to comply with this requirement, the present spouse must prove that
his/her belief was the result of diligent and reasonable efforts and inquiries to locate the
absent spouse and that based on these efforts and inquiries, he/she believes that under the
circumstances, the absent spouse is already dead. It requires exertion of active effort (not a
mere passive one). (Emphasis omitted; underscoring supplied)
59
In the case at bar, the RTC ruled that Jose has "well-founded belief" that Netchie was
already dead upon the following grounds:
(1) Jose allegedly tried to contact Netchie’s parents while he was still out of the country, but
did not reach them as they had allegedly left Clarin, Misamis Occidental;
(2) Jose believed/presumed that Netchie was already dead because when he returned
home, he was not able to obtain any information that Netchie was still alive from Netchie’s
relatives and friends;
(3) Jose’s testimony to the effect that Netchie is no longer alive, hence must be presumed
dead, was corroborated by Jose’s older brother, and by Netchie’s aunt, both of whom
testified that he (Jose) and Netchie lived together as husband and wife only for one
month and that after this, there had been no information as to Netchie’s whereabouts.
In the above-cited case of Republic v. Cantor, this Court held that the present spouse
60
(Maria Fe Espinosa Cantor) merely conducted a "passive search" because she simply made
unsubstantiated inquiries from her in-laws, from neighbors and friends. For that reason, this
Court stressed that the degree of diligence and reasonable search required by law is not met
(1) when there is failure to present the persons from whom the present spouse allegedly
made inquiries especially the absent spouse’s relatives, neighbors, and friends, (2) when
there is failure to report the missing spouse’s purported disappearance or death to the police
or mass media, and (3) when the present spouse’s evidence might or would only show that
the absent spouse chose not to communicate, but not necessarily that the latter was indeed
dead. The rationale for this palpably stringent or rigorous requirement has been marked out
61
thus:
x x x [T]he Court, fully aware of the possible collusion of spouses in nullifying their marriage,
has consistently applied the "strict standard" approach. This is to ensure that a petition for
declaration of presumptive death under Article 41 of the Family Code is not used as a tool to
conveniently circumvent the laws. Courts should never allow procedural shortcuts and
should ensure that the stricter standard required by the Family Code is met. x x x
The application of this stricter standard becomes even more imperative if we consider the
State’s policy to protect and strengthen the institution of marriage. Since marriage serves as
the family’s foundation and since it is the state’s policy to protect and strengthen the family
as a basic social institution, marriage should not be permitted to be dissolved at the whim of
the parties. x x x
x x x [I]t has not escaped this Court’s attention that the strict standard required in petitions
for declaration of presumptive death has not been fully observed by the lower courts. We
need only to cite the instances when this Court, on review, has consistently ruled on the
sanctity of marriage and reiterated that anything less than the use of the strict standard
necessitates a denial. To rectify this situation, lower courts are now expressly put on notice
of the strict standard this Court requires in cases under Article 41 of the Family Code."
(Citations omitted)62
Given the Court’s imposition of "strict standard" in a petition for a declaration of presumptive
death under Article 41 of the Family Code, it must follow that there was no basis at all for the
RTC’s finding that Jose’s Petition complied with the requisites of Article 41 of the Family
Code, in reference to the "well-founded belief" standard. If anything, Jose’s pathetically
anemic efforts to locate the missing Netchie are notches below the required degree of
stringent diligence prescribed by jurisprudence. For, aside from his bare claims that he had
inquired from alleged friends and relatives as to Netchie’s whereabouts, Jose did not call to
the witness stand specific individuals or persons whom he allegedly saw or met in the
course of his search or quest for the allegedly missing Netchie. Neither did he prove that he
sought the assistance of the pertinent government agencies as well as the media. Nor did he
show that he undertook a thorough, determined and unflagging search for Netchie, say for at
least two years (and what those years were), and naming the particular places, provinces,
cities, barangays or municipalities that he visited, or went to, and identifying the specific
persons he interviewed or talked to in the course of his search.
WHEREFORE, the Petition is GRANTED. The Decision dated October 24, 2011 of the Court
of Appeals in CA-G.R. SP No. 04158-MIN is REVERSED AND SET ASIDE. The
respondent’s Petition in said Spec. Proc. No. 045-08 is accordingly DISMISSED.
SO ORDERED.
Borlongan vs bdo 2017
SPECIAL THIRD DIVISION
April 5, 2017
G.R. No. 217617
CARMELITA T. BORLONGAN, Petitioner,
vs.
BANCO DE ORO (formerly EQUITABLE PCI BANK), Respondent.
RESOLUTION
VELASCO, JR, J.:
Nature of the Case
Before the Court are two consolidated petitions invariably assailing the foreclosure sale of a
property without properly serving the summons upon its owners.
Factual Antecedents
Sometime in 1976, Eliseo Borlongan, Jr. (Eliseo) and his wife Carmelita, acquired a real
property located at No. 111, Sampaguita St., Valle Verde II, Pasig City covered by Transfer
Certificate of Title (TCT) No. 0421 (the subject property). In 2012, they went to the Registry
of Deeds of Pasig City to obtain a copy of the TCT in preparation for a prospective sale of
the subject property. To their surprise, the title contained an annotation that the property
covered thereby was the subject of an execution sale in Civil Case (CC) No. 03-0713
pending before Branch 134 of the Regional Trial Court of Makati City (Makati RTC).
Petitioner immediately procured a copy of the records of CC No. 03- 0713 and found out that
respondent Banco de Oro (BDO), formerly Equitable PCI Bank, filed a complaint for sum of
money against Tancho
Corporation, the principal debtor of loan obligations obtained from the bank. Likewise
impleaded were several persons, including Carmelita, who supposedly signed four (4)
security agreements totaling ₱l3,500,000 to guarantee the obligations of Tancho
Corporation.
It appears from the records of CC No. 03-0713 that on July 2, 2003, the Makati R TC issued
an Order directing the service of summons to all the defendants at the business address of
Tancho Corporation provided by BDO: Fumakilla Compound, Amang Rodriguez Avenue,
Brgy. Dela Paz, Pasig City (Fumakilla Compound).
Parenthetically, the records of CC No. 03-0713 show that respondent BDO already
foreclosed the Fumakilla Compound as early as August 21, 2000, following Tancho
Corporation's failure to pay its obligation, and BDO already consolidated its ownership of the
property on November 16, 2001.
Understandably, on July 31, 2003, the process server filed an Officer's Return stating that
summons remained unserved as the "defendants are no longer holding office at [Fumakilla
Compound]."
On October 27, 2003, after the single attempt at personal service on Carmelita and her co-
defendants, BDO moved for leave to serve the summons by publication. On October 28,
2003, the RTC granted the motion.
On August 10, 2004, BDO filed an ex-parte Motion for the Issuance of a Writ of Attachment
against the defendants, including Carmelita. During the hearing on the motion, BDO
submitted a copy of the title of the subject property. The Makati RTC thereafter granted
BDO's motion and a Writ of Attachment was issued against the defendants in CC No. 03-
0713, effectively attaching the subject property on behalf of BDO.
On December 20, 2005, BDO filed an ex-parte motion praying, among others, that the
summons and the complaint be served against Carmelita at the subject property. The Makati
RTC granted the motion. On February 9, 2006, the Sheriff filed a return stating that no actual
personal service was made as Carmelita "is no longer residing at the given address and the
said address is for 'rent,' as per information gathered from the security guard on duty."
On May 30, 2006, however, BDO filed a manifestation stating that it had complied with the
October 28, 2003 Order of the Makati RTC having caused the publication of the alias
summons and the complaint in People's Taliba on May 15, 2006.
Thereafter, upon BDO's motion, the Makati RTC declared the defendants in CC No. 03-
0713, including Carmelita, in default. BDO soon after proceeded to present its evidence ex-
parte.
On November 29, 2007, the Makati RTC rendered a Decision holding the defendants in CC
No. 03-0713 liable to pay BDO ₱32,543,856.33 plus 12% interest per annum from the time
of the filing of the complaint until fully paid and attorney's fees. The Makati RTC decision
was published on June 9, 2008.
On August 20, 2008, the Makati RTC issued a Writ of Execution upon BDO's motion. The
Order states that in the event that the judgment obligors cannot pay all or part of the
obligation, the sheriff shall levy upon the properties of the defendants to satisfy the award.
On October 28, 2008, the Makati R TC' s sheriff filed a Report stating that he tried to serve
the Writ of Execution upon the defendants at Fumakilla Compound but he was not able to do
so since the defendants were no longer holding office thereat. The Sheriff also reported that,
on the same day, he went to the subject property to serve the execution but likewise failed in
his attempt since Carmelita was no longer residing at the said address.
On November 11, 2008, BDO filed a Motion to Conduct Auction of the subject property. The
motion was granted by the Makati RTC on May 5, 2009 so that the subject property was sold
to BDO, as the highest bidder, on October 6, 2009.
Following the discovery of the sale of their property, Eliseo executed an affidavit of adverse
claim and, on January 21, 2013, filed a Complaint for Annulment of Surety Agreements,
Notice of Levy on Attachment, Auction Sale and Other Documents, docketed as CC No.
73761, with the Regional Trial Court of Pasig City (Pasig RTC). 1
He alleged in his Complaint that the subject property is a family home that belongs to the
conjugal partnership of gains he established with his wife. He further averred that the alleged
surety agreements upon which the attachment of the property was anchored were signed by
his wife without his consent and did not redound to benefit their family. Thus, he prayed that
the surety agreements and all other documents and processes, including the ensuing
attachment, levy and execution sale, based thereon be nullified.
BDO filed a Motion to Dismiss the Complaint, asserting that the Pasig RTC has no
jurisdiction to hear Eliseo's Complaint, the case was barred by res judicata given the
Decision and orders of the Makati RTC, and, finally, the Complaint failed to state a cause of
action.
In an Order dated May 31, 2013, the Pasig R TC dismissed the case citing lack of
jurisdiction. The RTC held that it could not pass upon matters already brought before the R
TC Makati and, citing Spouses Ching v.Court of Appeals, the husband of a judgment debtor
2 limited period or perpetually;
is not a stranger to a case who can file a separate and independent action to determine the
validity of the levy and sale of a property.
On a motion for reconsideration filed by Eliseo, the Pasig RTC reinstated the case with
qualification. Relying on Buado v. Court of Appeals, the Pasig RTC held that since majority
3
of Eliseo's causes of action were premised on a claim that the obligation contracted by his
wife has not redounded to their family, and, thus, the levy on their property was illegal, his
filing of a separate action is not an encroachment on the jurisdiction of the Makati R TC,
which ordered the attachment and execution in the first place.
The Pasig RTC clarified, however, that it cannot annul the surety agreements supposedly
signed by Carmelita since Eliseo was not a party to those agreements and the validity and
efficacy of these contracts had already been decided by the Makati RTC.
Both Eliseo and BDO referred the Pasig RTC's Decision to the Court of Appeals (CA).
In its petition, docketed as CA-G.R. SP No. 133994, BDO contended that it was an error for
the Pasig RTC to apply Buado as it does not apply squarely to the circumstances of the
case and has not superseded Ching. BDO maintained that by reinstating the complaint,
Pasig R TC has violated the rule prohibiting non-interference by one court with the orders of
a coequal court.
In its January 20, 2015 Decision, the appellate court granted BDO's petition and ordered the
4 evidence adduced by the applicant (herein petitioner). The evidence submitted during the
Pasig RTC to cease from hearing CC No. 73761 commenced by Eliseo. In so ruling, the CA
held that Eliseo is not a stranger who can initiate an action independent from the case where
the attachment and execution sale were ordered. Thus, the CA concluded that in opting to
review the validity of the levy and execution sale of the subject property pursuant to the
judgment of the Makati RTC, the Pasig RTC acted without jurisdiction.
Eliseo moved for, but was denied, reconsideration by the appellate court. Hence, he came to
this Court via a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
docketed as G.R. No. 218540.
On August 19, 2015, the Court issued a Resolution denying Eliseo's petition. Eliseo begs to
differ and takes exception from the said holding in his motion for reconsideration dated
October 5, 2015, which is presently for Resolution by this Court.
Meanwhile, on an ex-parte omnibus motion filed by BDO, the Makati RTC ordered the
issuance of a Writ of Possession and the issuance of a new TCT covering the subject
property in favor of the respondent bank.
Arguing that the Makati R TC had not acquired jurisdiction over her person as the service of
the summons and the other processes of the court was defective, Carmelita filed a Petition
for Annulment of Judgment (With Urgent Prayer for Issuance of Temporary Restraining
Order and/or Writ of Preliminary Injunction) with the CA, docketed as CA-G.R. SP No.
134664.
Before the CA can act on the Petition for Annulment, the Borlongans found posted on the
subject property a Writ of Possession dated August 1, 2014 and a Notice to Vacate dated
August 29, 2014.
In its Resolution dated November 12, 2014, the appellate court denied Carmelita's prayer
5
for the issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction (WPI).
Aggrieved, Carmelita interposed a motion for the reconsideration of the CA's November 12,
2014 Resolution. On March 23, 2015, however, the appellate court denied her motion for
reconsideration, holding that "upon the expiration of the redemption period, the right of the
purchaser to the possession of the foreclosed property becomes absolute."
Thus, on April 27, 2015, Carmelita filed a Petition for Review, docketed as G.R. No. 217617,
before this Court, ascribing to the appellate court the commission of serious reversible
errors. The Court denied the petition on June 22, 2015. Hence, on September 1, 2015,
Carmelita interposed a Motion for Reconsideration urging the Court to take a second hard
look at the facts of the case and reconsider its stance.
Considering that both cases originated from the same facts and involved interrelated issues,
on January 25, 2016, the Court resolved to consolidate G.R. No. 218540 with G.R. No.
217617.
Issues
The question posed in G.R. No. 217617 is whether or not the CA erred in refusing to issue a
TRO and/or WPI stopping the consolidation of BDO's ownership over the subject property.
On the other hand, the issue in G.R. No. 218540 revolves around whether the Pasig RTC
has jurisdiction to hear and decide a case filed by the non-debtor husband to annul the levy
and execution sale of the subject property ordered by the Makati RTC against his wife.
Our Ruling
A reexamination of the antecedents and arguments in G.R. Nos. 217617 and 218540
compels the reversal of the appellate court's resolutions in both cases.
G.R. No. 217617
The Issuance of a TRO/WPI is not a
prejudgment of the main case
On the propriety of CA' s refusal to issue a TRO/WPI, it is worthy to note that Section 3, Rule
58 of the Rules of Court provides the grounds for the issuance of a preliminary injunction,
viz:
Section 3. Grounds for issuance of preliminary injunction. - A preliminary injunction may be
granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or part of
such relief consists in restraining the commission or continuance of the act or
acts complained of, or in requiring the performance of an act or acts either for a
(b) That the commission, continuance or non-performance of the act or acts
complained of during the litigation would probably work injustice to the
applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting
to do, or is procuring or suffering to be done some act or acts probably in
violation of the rights of the applicant respecting the subject of the action or
proceeding, and tending to render the judgment ineffectual.
From the foregoing provision, it is clear that a writ of preliminary injunction is warranted
where there is a showing that there exists a right to be protected and that the acts against
which the writ is to be directed violate an established right. Otherwise stated, for a court to
decide on the propriety of issuing a TRO and/or a WPI, it must only inquire into the existence
of two things: (1) a clear and unmistakable right that must be protected; and (2) an urgent
and paramount necessity for the writ to prevent serious damage.
In Levi Strauss (Phils.) Inc. v. Vogue Traders Clothing Company, the Court already
6
explained that the issuance of a TRO is not conclusive of the outcome of the case as it
requires but a sampling of the evidence, viz:
Indeed, a writ of preliminary injunction is generally based solely on initial and incomplete
hearing of the incident is not conclusive, for only a "sampling" is needed to give the
trial court an idea of the justification for its issuance pending the decision of the case
on the merits. As such, the findings of fact and opinion of a court when issuing the writ of
preliminary injunction are interlocutory in nature. Moreover, the sole object of a
preliminary injunction is to preserve the status quo until the merits of the case can be
heard. Since Section 4 of Rule 58 of the Rules of Civil Procedure gives the trial courts
sufficient discretion to evaluate the conflicting claims in an application for a provisional writ
which often involves a factual determination, the appellate courts generally will not interfere
in the absence of manifest abuse of such discretion. A writ of preliminary injunction
would become a prejudgment of a case only when it grants the main prayer in the
complaint or responsive pleading, so much so that there is nothing left for the trial court to
try except merely incidental matters. (emphasis supplied)
Notably, the primary prayer of the Petition for Annulment before the appellate court is the
declaration of the nullity of the proceedings in the R TC and its Decision dated November
29, 2007; it is not merely confined to the prevention of the issuance of the writ of possession
and the consolidation of the ownership of the subject property in BDO's name-the concerns
of the prayer for the TRO and/or WPI.
Indeed, the petitioner's prayer for the issuance of a TRO and/or WPI was intended to
preserve the status quo ante, and not to pre-empt the appellate court's decision on the
7
merits of her petition for annulment. Thus, it was a grievous error on the part of the CA to
deny her of this provisional remedy.
The appellate court's error is readily apparent given the stark existence of the grounds for
the issuance of a writ of preliminary injunction.
On the first ground, petitioner has a clear and unmistakable right that must be protected.
This right is not just her proprietary rights over the subject property but her constitutionally
protected right to due process before she can be deprived of her property. No less than
Section 1 of the Bill of Rights of the 1987 Constitution mandates that:
No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws. (emphasis supplied)
In its classic formulation, due process means that any person with interest to the thing in
litigation must be notifiedand given an opportunity to def end that interest. Thus, as the
8
essence of due process lies in the reasonable opportunity to be heard and to submit any
evidence the defendant may have in support of her defense, she must be properly served
the summons of the court. In other words, the service of summons is a vital and
indispensable ingredient of due process and compliance with the rules regarding the
9
service of the summons is as much an issue of due process as it is of
jurisdiction. Unfortunately, as will be discussed, it would seem that the Constitutional right
10
of the petitioner to be properly served the summons and be notified has been disregarded by
the officers of the trial court.
At this very juncture, the existence of the second ground for the issuance of a TRO and/or
WPI is self-evident. Without a TRO and/or WPI enjoining the respondent bank from
continuing in the possession and consolidating the ownership of the subject property,
petitioner's right to be afforded due process will unceasingly be violated.
It need not be stressed that a continuous violation of constitutional rights is by itself a grave
and irreparable injury that this or any court cannot plausibly tolerate.
Without a doubt, the appellate court should have acted intrepidly and issued the TRO and/or
WPI posthaste to protect the constitutional rights of petitioner, as it is duty-bound to do.
The performance of official duty was
not regular
Regrettably, the appellate court fell short in the fulfillment of its mandate and instead relied
on the disputable presumption that "official duty has been regularly performed." The Court
cannot subscribe to the position taken by the appellate court.
As a rule, summons should be personally served on a defendant. When summons
cannot be served personally within a reasonable period of time, substituted service may be
resorted to. Service of summons by publication can be resorted to only if the defendant's
"whereabouts are unknown and cannot be ascertained by diligent inquiry." The relevant
sections of Rule 14 of the Rules of Court provide, thus:
SEC. 6. Service in person on defendant. - Whenever practicable, the summons shall be
served by handing a copy thereof to the defendant in person, or, if he refuses to receive and
sign for it, by tendering it to him.
SEC. 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within
a reasonable time as provided in the preceding section, service may be effected (a) by
leaving copies of the summons at the defendant's residence with some person of suitable
age and discretion then residing therein, or (b) by leaving the copies at defendant's office or
regular place of business with some competent person in charge thereof.
xxxx
SEC. 14. Service upon defendant whose identity or whereabouts are unknown. - In any
action where the defendant is designated as an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by
leave of court, be effected upon him by publication in a newspaper of general circulation and
in such places and for such time as the court may order.
It is, therefore, proper to state that the hierarchy and rules in the service of summons are as
follows:
(1) Personal service;
(2) Substituted service, if for justifiable causes the defendant cannot be served
within a reasonable time; and
(3) Service by publication, whenever the defendant's whereabouts are unknown
and cannot be ascertained by diligent inquiry.
Simply put, personal service of summons is the preferred mode. And, the rules on the
service of summons other than by personal service may be used only as prescribed
and only in the circumstances authorized by statute. Thus, the impossibility of prompt
personal service must be shown by stating that efforts have been made to find the
defendant personally and that such efforts have failed before substituted service may be
availed. Furthermore, their rules must be followed strictly, faithfully and fully as they are
11
extraordinary in character and considered in derogation of the usual method of service.
In Manotoc v. Court of Appeals, the Court enumerated and explained the requirements to
12
effect a valid service of summons other than by personal service, viz:
(1) Impossibility of Prompt Personal Service
xxxx
Sheriffs are asked to discharge their duties on the service of summons with due care, utmost
diligence, and reasonable promptness and speed so as not to prejudice the expeditious
dispensation of justice. Thus, they are enjoined to try their best efforts to accomplish
personal service on defendant. On the other hand, since the defendant is expected to try to
avoid and evade service of summons, the sheriff must be resourceful, persevering, canny,
and diligent in serving the process on the defendant. For substituted service of summons
to be available, there must be several attempts by the sheriff to personally serve the
summons within a reasonable period [of one month) which eventually resulted in
failure to prove impossibility of prompt service. "Several attempts" means at least
three (3) tries, preferably on at least two different dates. In addition, the sheriff must
cite why such efforts were unsuccessful. It is only then that impossibility of service
can be confirmed or accepted.
(2) Specific Details in the Return
The sheriff must describe in the Return of Summons the facts and circumstances
surrounding the attempted personal service. The efforts made to find the defendant
and the reasons behind the failure must be clearly narrated in detail in the Return. The
date and time of the attempts on personal service, the inquiries made to locate the
defendant, the name/s of the occupants of the alleged residence or house of defendant and
all other acts done, though futile, to serve the summons on defendant must be specified in
the Return to justify substituted service. The form on Sheriffs Return of Summons on
Substituted Service prescribed in the Handbook for Sheriffs published by the Philippine
Judicial Academy requires a narration of the efforts made to find the defendant personally
and the fact of failure. Supreme Court Administrative Circular No. 5 dated November 9, 1989
requires that "impossibility of prompt service should be shown by stating the efforts
made to find the defendant personally and the failure of such efforts," which should
be made in the proof of service.
In the case now before Us, the summons was served on the petitioner by publication. Yet,
the circumstances surrounding the case do not justify the resort.
Consider: in July 2003, the sheriff attempted to serve the summons on the defendants,
including petitioner Carmelita, at Fumakilla Compound, i.e., at the property already
foreclosed, acquired, and possessed by the respondent bank as early as August 2001.
Immediately after this single attempt at personal service in July 2003, the respondent bank
moved in October 2003 for leave to serve the summons by publication (and not even
substituted service), which motion the RTC granted.
Clearly, there was no diligent effort made to find the petitioner and properly serve her the
summons before the service by publication was allowed. Neither was it impossible to locate
the residence of petitioner and her whereabouts.
It should be noted that the principal obligor in CC No. 03-0713 was Tancho Corporation and
petitioner Carmelita was impleaded only because she supposedly signed a surety
agreement as a director. As a juridical person, Tancho Corporation is required to file
mandatory corporate papers with the Securities and Exchange Commission (SEC), such as
its General Information Sheet (GIS). In 1997 and 2000, the GIS filed by Tancho Corporation
with the SEC provided the names of its directors and their addresses. One of these directors
included petitioner Carmelita with her address listed at 41 Chicago St., Quezon City. The
GIS of Tancho Corporation was readily available to the public including the RTC's process
server and respondent bank.
Patently, it cannot be plausibly argued that it was impossible to find the petitioner and
personally serve her with summons. In like manner, it can hardly be stated that the process
server regularly performed his duty.
The subject property was not
foreclosed by the respondent bank;
right of BDO to the possession of the
subject property is questionable
Still unwilling to issue the TRO and/or WPI fervently prayed for by petitioner, the appellate
court held that "upon the expiration of the redemption period, the right of the purchaser to
the possession of the foreclosed property becomes absolute." This Court cannot affirm the
appellate court's ruling.
At the outset, it must be pointed out that the subject property was never mortgaged to, much
less foreclosed by, the respondent bank. Thus, it was error for the CA to refer to the subject
property as "foreclosed property."
Rather, as disclosed by the records, the possession of the subject property was acquired by
BDO through attachment and later by execution sale. However, it is presumptive to state
that the right of BDO over the possession of the subject property is now absolute
considering that there is an action that questions the validity of the bank's acquisition over
the same property.
In Cometa v. Intermediate Appellate Court, we explained that the expiration of the
13
redemption period does not automatically vest in the auction purchaser an absolutely
possessory right over the property, viz:
From the foregoing discussion, it can be seen that the writ of possession may issue in favor
of a purchaser in an execution sale when the deed of conveyance has been executed and
delivered to him after the period of redemption has expired and no redemption has been
made by the judgment debtor.
A writ of possession is complementary to a writ of execution (see Vda. de Bogacki v. Inserto,
111 SCRA 356, 363), and in an execution sale, it is a consequence of a writ of execution, a
public auction sale, and the fulfillment of several other conditions for conveyance set by law.
The issuance of a writ of possession is dependent on the valid execution of the procedural
stages preceding it. Any flaw afflicting any of its stages, therefore, could affect the validity of
its issuance.
In the case at bar, the validity of the levy and sale of the properties is directly put in
issue in another case by the petitioners. This Court finds it an issue which requires pre-
emptive resolution. For if the respondent acquired no interest in the property by virtue
of the levy and sale, then, he is not entitled to its possession.
The respondent appellate court's emphasis on the failure of The petitioner to redeem the
properties within the period required by law is misplaced because redemption, in this
case, is inconsistent with the petitioner's claim of invalidity of levy and sale.
Redemption is an implied admission of the regularity of the sale and would estop the
petitioner from later impugning its validity on that ground. (emphasis supplied)
Thus, even given the expiration of the redemption period, a TRO and/or WPI is still
obtainable and warranted where the validity of the acquisition of the possession is afflicted
by Constitutional and procedural infirmities.
G.R. No. 218540
Eliseo can file an independent action
for the annulment of the attachment
of their conjugal property
As to the question of the Pasig RTC' s jurisdiction to hear Eliseo's complaint, we cannot
subscribe to BDO' s contention that Eliseo cannot file a separate and independent action for
the annulment of the levy on their conjugal property.
Section 16, Rule 39 of the Rules of Court allows third-party claimants of properties under
execution to vindicate their claims to the property in a separate action with another court. It
states, thus:
SECTION 16. Proceedings Where Property Claimed by Third Person. - If the property levied
on is claimed by any person other than the judgment obligor or his agent, and such person
makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of
such right or title, and serves the same upon the officer making the levy and a copy thereof
upon the judgment obligee, the officer shall not be bound to keep the property, unless such
judgment obligee, on demand of the officer, files a bond approved by the court to indemnify
the third-party claimant in a sum not less than the value of the property levied on. In case of
disagreement as to such value, the same shall be determined by the court issuing the writ of
execution. No claim for damages for the taking or keeping of the property may be enforced
against the bond unless the action therefor is filed within one hundred twenty (120) days
from the date of the filing of the bond.
The officer shall not be liable for damages for the taking or keeping of the property, to any
third-party claimant if such bond is filed. Nothing herein contained shall prevent such
claimant or any third person from vindicating his claim to the property in a separate
action, or prevent the judgment obligee from claiming damages in the same or a separate
action against a third-party claimant who filed a frivolous or plainly spurious claim. (emphasis
supplied)
Clearly, the availability of the remedy provided under the foregoing provision requires only
that that the claim is a third-party or a "stranger" to the case. The poser then is this: is the
husband, who was not a party to the suit but whose conjugal property was executed on
account of the other spouse's debt, a "stranger" to the suit? In Buado v. Court of
Appeals, this Court had the opportunity to clarify that, to resolve the issue, it must first be
14
determined whether the debt had redounded to the benefit of the conjugal partnership or not.
In the negative, the spouse is a stranger to the suit who can file an independent separate
action, distinct from the action in which the writ was issued. We held, thus:
A third-party claim must be filed [by] a person other than the judgment debtor or his agent. In
other words, only a stranger to the case may file a third-party claim.
This leads us to the question: Is the husband, who was not a party to the suit but whose
conjugal property is being executed on account of the other spouse being the judgment
obligor, considered a "stranger?"
xxxx
Pursuant to Mariano however, it must further be settled whether the obligation of the
judgment debtor redounded to the benefit of the conjugal partnership or not.
Petitioners argue that the obligation of the wife arising from her criminal liability is
chargeable to the conjugal partnership. We do not agree.
1âw phi 1
There is no dispute that contested property is conjugal in nature. Article 122 of the Family
Code explicitly provides that payment of personal debts contracted by the husband or the
wife before or during the marriage shall not be charged to the conjugal partnership except
insofar as they redounded to the benefit of the family.
xxxx
Parenthetically, by no stretch of imagination can it be concluded that the civil obligation
arising from the crime of slander committed by Erlinda redounded to the benefit of the
conjugal partnership.
To reiterate, conjugal property cannot be held liable for the personal obligation
contracted by one spouse, unless some advantage or benefit is shown to have
accrued to the conjugal partnership.
xxxx
Hence, the filing of a separate action by respondent is proper and jurisdiction is thus vested
on Branch 21. (emphasis supplied)
In the present case, it is not disputed that the conjugal property was attached on the basis
of a surety agreement allegedly signed by Carmelita for and in behalf of Tancho
Corporation. In our 2004 Decision in Spouses Ching v. Court of Appeals, we 15
elucidated that there is no presumption that the conjugal partnership is benefited
when a spouse enters into a contract of surety, holding thusly:
In this case, the private respondent failed to prove that the conjugal partnership of the
petitioners was benefited by the petitioner-husband's act of executing a continuing guaranty
and suretyship agreement with the private respondent for and in behalf of PBMCI. The
contract of loan was between the private respondent and the PBMCI, solely for the benefit of
the latter. No presumption can be inferred from the fact that when the petitioner-
husband entered into an accommodation agreement or a contract of surety, the
conjugal partnership would thereby be benefited. The private respondent was
burdened to establish that such benefit redounded to the conjugal partnership.
It could be argued that the petitioner-husband was a member of the Board of Directors of
PBMCI and was one of its top twenty stockholders, and that the shares of stocks of the
petitioner-husband and his family would appreciate if the PBMCI could be rehabilitated
through the loans obtained; that the petitioner-husband's career would be enhanced should
PBMCI survive because of the infusion of fresh capital. However, these are not the benefits
contemplated by Article 161 of the New Civil Code. The benefits must be those directly
resulting from the loan. They cannot merely be a by-product or a spin-off of the loan
itself.
This is different from the situation where the husband borrows money or receives services to
be used for his own business or profession. In the Ayala case, we ruled that it is such a
contract that is one within the term "obligation for the benefit of the conjugal partnership."
Thus:
xxxx
The Court held in the same case that the rulings of the Court in Cobb-Perez and G-Tractors,
Inc. are not controlling because the husband, in those cases, contracted the obligation for
his own business. In this case, the petitioner-husband acted merely as a surety for the loan
contracted by the PBMCI from the private respondent. (emphasis supplied)
Furthermore, it is not apparent from the records of this case that BDO had established the
benefit to the conjugal partnership flowing from the surety agreement allegedly signed by
Carmelita. Thus, Eliseo's claim over the subject property lodged with the RTC Pasig is
proper, with the latter correctly exercising jurisdiction thereon.
Besides, BDO's reliance on Spouses Ching v. Court of Appeals (2003) is improper. In the
16
present case, Eliseo and his wife discovered the attachment of their conjugal property only
after the finality of the decision by the R TC Makati. There was, therefore, no opportunity for
Eliseo to intervene in the case before the R TC Makati which attached the conjugal property,
as a motion to intervene can only be filed "at any time before rendition of judgment by the
trial court." This spells the whale of difference between the case at bar and the earlier
17
Spouses Ching. Unlike in the present case, the debtor in the case cited by BDO was
properly informed of the collection suit and his spouse had the opportunity to question the
attachment of their conjugal property before the court that issued the levy on attachment, but
simply refused to do so. Thus, to now deny Eliseo the opportunity to question the attachment
made by the R TC Makati in a separate and independent action will be to, again, refuse him
the due process of law before their property is taken. As this Court is duty-bound to protect
and enforce Constitutional rights, this we cannot allow.
WHEREFORE, the petitions are GRANTED.
(1) The January 20, 2015 Decision and May 26, 2015 Resolution of the Court of
Appeals in CA-G.R. SP No. 133994 are hereby REVERSED and SETASIDE.
The Regional Trial Court of Pasig, Branch 155 is ordered to continue with the
proceedings and decide Civil Case No. 73761 with reasonable dispatch.
(2) The November 12, 2014 and March 23, 2015 Resolutions of the appellate
court in CA-G.R. SP No. 134664 are REVERSED and SETASIDE.
Accordingly, let a Temporary Restraining Order (TRO) be issued enjoining, prohibiting, and
preventing respondent Banco De Oro, its assigns, transferees, successors, or any and all
other persons acting on its behalf from possessing, selling, transferring, encumbering or
otherwise exercising acts of ownership over the property subject of the controversy. Said
TRO shall remain valid and effective until such time as the rights and interests of the parties
in CA-G.R. SP No. 134664 shall have been determined and finally resolved.
SO ORDERED.
Grande vs Antonio 2014
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 206248 February 18, 2014
GRACE M. GRANDE, Petitioner,
vs.
PATRICIO T. ANTONIO, Respondent.
DECISION
VELASCO, JR., J.:
Before this Court is a Petition for Review on Certiorari under Rule 45, assailing the July 24,
2012 Decision and March 5, 2013 Resolution of the Court of Appeals (CA) in CA-G.R. CV
1 2
No. 96406.
As culled from the records, the facts of this case are:
Petitioner Grace Grande (Grande) and respondent Patricio Antonio (Antonio) for a period of
time lived together as husband and wife, although Antonio was at that time already married
to someone else. Out of this illicit relationship, two sons were born: Andre Lewis (on
3
February 8, 1998) and Jerard Patrick (on October 13, 1999). The children were not
4
expressly recognized by respondent as his own in the Record of Births of the children in the
Civil Registry. The parties’ relationship, however, eventually turned sour, and Grande left for
the United States with her two children in May 2007. This prompted respondent Antonio to
file a Petition for Judicial Approval of Recognition with Prayer to take Parental Authority,
Parental Physical Custody, Correction/Change of Surname of Minors and for the Issuance of
Writ of Preliminary Injunction before the Regional Trial Court, Branch 8 of Aparri, Cagayan
(RTC), appending a notarized Deed of Voluntary Recognition of Paternity of the children. 5
On September 28, 2010, the RTC rendered a Decision in favor of herein respondent
Antonio, ruling that "[t]he evidence at hand is overwhelming that the best interest of the
children can be promoted if they are under the sole parental authority and physical custody
of [respondent Antonio]." Thus, the court a quo decreed the following:
6
WHEREFORE, foregoing premises considered, the Court hereby grants [Antonio’s] prayer
for recognition and the same is hereby judicially approved. x x x Consequently, the Court
forthwith issues the following Order granting the other reliefs sought in the Petition, to wit:
a. Ordering the Office of the City Registrar of the City of Makati to cause the
entry of the name of [Antonio] as the father of the aforementioned minors in
their respective Certificate of Live Birth and causing the correction/change
and/or annotation of the surnames of said minors in their Certificate of Live Birth
from Grande to Antonio;
b. Granting [Antonio] the right to jointly exercise Parental Authority with
[Grande] over the persons of their minor children, Andre Lewis Grande and
Jerard Patrick Grande;
c. Granting [Antonio] primary right and immediate custody over the parties’
minor children Andre Lewis Grandre and Jerard Patrick Grande who shall stay
with [Antonio’s] residence in the Philippines from Monday until Friday evening
and to [Grande’s] custody from Saturday to Sunday evening;
d. Ordering [Grande] to immediately surrender the persons and custody of
minors Andre Lewis Grande and Jerard Patrick Grande unto [Antonio] for the
days covered by the Order;
e. Ordering parties to cease and desist from bringing the aforenamed minors
outside of the country, without the written consent of the other and permission
from the court.
f. Ordering parties to give and share the support of the minor children Andre
Lewis Grande and Jerard Patrick Grande in the amount of ₱30,000 per month
at the rate of 70% for [Antonio] and 30% for [Grande]. (Emphasis supplied.)
7
Aggrieved, petitioner Grande moved for reconsideration. However, her motion was denied
by the trial court in its Resolution dated November 22, 2010 for being pro forma and for lack
8
of merit.
Petitioner Grande then filed an appeal with the CA attributing grave error on the part of the
RTC for allegedly ruling contrary to the law and jurisprudence respecting the grant of sole
custody to the mother over her illegitimate children. In resolving the appeal, the appellate
9
court modified in part the Decision of the RTC. The dispositive portion of the CA Decision
reads:
WHEREFORE, the appeal is partly GRANTED. Accordingly, the appealed Decision of the
Regional Trial Court Branch 8, Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED
in part and shall hereinafter read as follows:
a. The Offices of the Civil Registrar General and the City Civil Registrar of
Makati City are DIRECTED to enter the surname Antonio as the surname of
Jerard Patrick and Andre Lewis, in their respective certificates of live birth, and
record the same in the Register of Births;
 b. [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre
Lewis to the custody of their mother herein appellant, Grace Grande who by
virtue hereof is hereby awarded the full or sole custody of these minor children;
c. [Antonio] shall have visitorial rights at least twice a week, and may only take
the children out upon the written consent of [Grande]; and
d. The parties are DIRECTED to give and share in support of the minor children
Jerard Patrick and Andre Lewis in the amount of ₱30,000.00 per month at the
rate of 70% for [Antonio] and 30% for [Grande]. (Emphasis supplied.)
In ruling thus, the appellate court ratiocinated that notwithstanding the father’s recognition of
his children, the mother cannot be deprived of her sole parental custody over them absent
the most compelling of reasons. Since respondent Antonio failed to prove that petitioner
10
Grande committed any act that adversely affected the welfare of the children or rendered her
unsuitable to raise the minors, she cannot be deprived of her sole parental custody over
their children.
The appellate court, however, maintained that the legal consequence of the recognition
made by respondent Antonio that he is the father of the minors, taken in conjunction with the
universally protected "best-interest-of-the-child" clause, compels the use by the children of
the surname "ANTONIO." 11
As to the issue of support, the CA held that the grant is legally in order considering that not
only did Antonio express his willingness to give support, it is also a consequence of his
acknowledging the paternity of the minor children. Lastly, the CA ruled that there is no
12
reason to deprive respondent Antonio of his visitorial right especially in view of the
constitutionally inherent and natural right of parents over their children. 13
Not satisfied with the CA’s Decision, petitioner Grande interposed a partial motion for
reconsideration, particularly assailing the order of the CA insofar as it decreed the change of
the minors’ surname to "Antonio." When her motion was denied, petitioner came to this
Court via the present petition. In it, she posits that Article 176 of the Family Code––as
amended by Republic Act No. (RA) 9255, couched as it is in permissive language––may not
be invoked by a father to compel the use by his illegitimate children of his surname without
the consent of their mother.
We find the present petition impressed with merit.
The sole issue at hand is the right of a father to compel the use of his surname by his
illegitimate children upon his recognition of their filiation. Central to the core issue is the
application of Art. 176 of the Family Code, originally phrased as follows:
Illegitimate children shall use the surname and shall be under the parental authority of their
mother, and shall be entitled to support in conformity with this Code. The legitime of each
illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this
modification, all other provisions in the Civil Code governing successional rights shall remain
in force.
This provision was later amended on March 19, 2004 by RA 9255 which now reads:
14
Art. 176. – Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code.
However, illegitimate children may use the surname of their father if their filiation has been
expressly recognized by their father through the record of birth appearing in the civil register,
or when an admission in a public document or private handwritten instrument is made by the
father. Provided, the father has the right to institute an action before the regular courts to
prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of
one-half of the legitime of a legitimate child. (Emphasis supplied.)
From the foregoing provisions, it is clear that the general rule is that an illegitimate child shall
use the surname of his or her mother. The exception provided by RA 9255 is, in case his or
her filiation is expressly recognized by the father through the record of birth appearing in the
civil register or when an admission in a public document or private handwritten instrument is
made by the father. In such a situation, the illegitimate child may use the surname of the
father.
In the case at bar, respondent filed a petition for judicial approval of recognition of the
filiation of the two children with the prayer for the correction or change of the surname of the
minors from Grande to Antonio when a public document acknowledged before a notary
public under Sec. 19, Rule 132 of the Rules of Court is enough to establish the paternity of
15
his children. But he wanted more: a judicial conferment of parental authority, parental
custody, and an official declaration of his children’s surname as Antonio.
Parental authority over minor children is lodged by Art. 176 on the mother; hence,
respondent’s prayer has no legal mooring. Since parental authority is given to the mother,
then custody over the minor children also goes to the mother, unless she is shown to be
unfit.
Now comes the matter of the change of surname of the illegitimate children. Is there a legal
basis for the court a quo to order the change of the surname to that of respondent?
Clearly, there is none. Otherwise, the order or ruling will contravene the explicit and
unequivocal provision of Art. 176 of the Family Code, as amended by RA 9255.
Art. 176 gives illegitimate children the right to decide if they want to use the surname of their
father or not. It is not the father (herein respondent) or the mother (herein petitioner) who is
granted by law the right to dictate the surname of their illegitimate children.
Nothing is more settled than that when the law is clear and free from ambiguity, it must be
taken to mean what it says and it must be given its literal meaning free from any
interpretation. Respondent’s position that the court can order the minors to use his
16
surname, therefore, has no legal basis.
On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity,
one must abide by its words. The use of the word "may" in the provision readily shows that
an acknowledged illegitimate child is under no compulsion to use the surname of his
illegitimate father. The word "may" is permissive and operates to confer discretion upon the
17
illegitimate children.
It is best to emphasize once again that the yardstick by which policies affecting children are
to be measured is their best interest. On the matter of children’s surnames, this Court has,
time and again, rebuffed the idea that the use of the father’s surname serves the best
interest of the minor child. In Alfon v. Republic, for instance, this Court allowed even a
18
legitimate child to continue using the surname of her mother rather than that of her legitimate
father as it serves her best interest and there is no legal obstacle to prevent her from using
the surname of her mother to which she is entitled. In fact, in Calderon v. Republic, this 19
Court, upholding the best interest of the child concerned, even allowed the use of a surname
different from the surnames of the child’s father or mother. Indeed, the rule regarding the
use of a child’s surname is second only to the rule requiring that the child be placed in the
best possible situation considering his circumstances.
In Republic of the Philippines v. Capote, We gave due deference to the choice of an
20
illegitimate minor to use the surname of his mother as it would best serve his interest, thus:
The foregoing discussion establishes the significant connection of a person’s name to his
identity, his status in relation to his parents and his successional rights as a legitimate or
illegitimate child. For sure, these matters should not be taken lightly as to deprive those who
may, in any way, be affected by the right to present evidence in favor of or against such
change.
The law and facts obtaining here favor Giovanni’s petition. Giovanni availed of the proper
remedy, a petition for change of name under Rule 103 of the Rules of Court, and complied
with all the procedural requirements. After hearing, the trial court found (and the appellate
court affirmed) that the evidence presented during the hearing of Giovanni’s petition
sufficiently established that, under Art. 176 of the Civil Code, Giovanni is entitled to change
his name as he was never recognized by his father while his mother has always recognized
him as her child. A change of name will erase the impression that he was ever recognized
by his father. It is also to his best interest as it will facilitate his mother’s intended petition to
have him join her in the United States. This Court will not stand in the way of the
reunification of mother and son. (Emphasis supplied.)
An argument, however, may be advanced advocating the mandatory use of the father’s
surname upon his recognition of his illegitimate children, citing the Implementing Rules and
Regulations (IRR) of RA 9255, which states:
21
Rule 7. Requirements for the Child to Use the Surname of the Father
7.1 For Births Not Yet Registered
7.1.1 The illegitimate child shall use the surname of the father if a public document is
executed by the father, either at the back of the Certificate of Live Birth or in a separate
document.
7.1.2 If admission of paternity is made through a private instrument, the child shall use the
surname of the father, provided the registration is supported by the following documents:
xxxx
7.2. For Births Previously Registered under the Surname of the Mother
7.2.1 If filiation has been expressly recognized by the father, the child shall use the surname
of the father upon the submission of the accomplished AUSF [Affidavit of Use of the
Surname of the Father].
7.2.2 If filiation has not been expressly recognized by the father, the child shall use the
surname of the father upon submission of a public document or a private handwritten
instrument supported by the documents listed in Rule 7.1.2.
7.3 Except in Item 7.2.1, the consent of the illegitimate child is required if he/she has
reached the age of majority. The consent may be contained in a separate instrument duly
notarized.
xxxx
Rule 8. Effects of Recognition
8.1 For Births Not Yet Registered
8.1.1 The surname of the father shall be entered as the last name of the child in the
Certificate of Live Birth. The Certificate of Live Birth shall be recorded in the Register of
Births.
xxxx
8.2 For Births Previously Registered under the Surname of the Mother
8.2.1 If admission of paternity was made either at the back of the Certificate of Live Birth or
in a separate public document or in a private handwritten document, the public document or
AUSF shall be recorded in the Register of Live Birth and the Register of Births as follows:
"The surname of the child is hereby changed from (original surname) to (new surname)
pursuant to RA 9255."
The original surname of the child appearing in the Certificate of Live Birth and Register of
Births shall not be changed or deleted.
8.2.2 If filiation was not expressly recognized at the time of registration, the public document
or AUSF shall be recorded in the Register of Legal Instruments. Proper annotation shall be
made in the Certificate of Live Birth and the Register of Births as follows:
"Acknowledged by (name of father) on (date). The surname of the child is hereby changed
from (original surname) on (date) pursuant to RA 9255." (Emphasis supplied.)
Nonetheless, the hornbook rule is that an administrative issuance cannot amend a
legislative act. In MCC Industrial Sales Corp. v. Ssangyong Corporation, We held:
22
After all, the power of administrative officials to promulgate rules in the implementation of a
statute is necessarily limited to what is found in the legislative enactment itself. The
implementing rules and regulations of a law cannot extend the law or expand its coverage,
as the power to amend or repeal a statute is vested in the Legislature. Thus, if a discrepancy
occurs between the basic law and an implementing rule or regulation, it is the former that
prevails, because the law cannot be broadened by a mere administrative issuance — an
administrative agency certainly cannot amend an act of Congress.
Thus, We can disregard contemporaneous construction where there is no ambiguity in law
and/or the construction is clearly erroneous. What is more, this Court has the constitutional
23
prerogative and authority to strike down and declare as void the rules of procedure of special
courts and quasi- judicial bodies when found contrary to statutes and/or the
24
Constitution. Section 5(5), Art. VIII of the Constitution provides:
25
Sec. 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform
for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court. (Emphasis supplied.)
Thus, We exercise this power in voiding the above-quoted provisions of the IRR of RA 9255
insofar as it provides the mandatory use by illegitimate children of their father’s surname
upon the latter’s recognition of his paternity.
To conclude, the use of the word "shall" in the IRR of RA 9255 is of no moment. The clear,
unambiguous, and unequivocal use of "may" in Art. 176 rendering the use of an illegitimate
father’s surname discretionary controls, and illegitimate children are given the choice on the
surnames by which they will be known.
At this juncture, We take note of the letters submitted by the children, now aged thirteen (13)
and fifteen (15) years old, to this Court declaring their opposition to have their names
changed to "Antonio." However, since these letters were not offered before and evaluated
26
by the trial court, they do not provide any evidentiary weight to sway this Court to rule for or
against petitioner. A proper inquiry into, and evaluation of the evidence of, the children's
27
choice of surname by the trial court is necessary.
WHEREFORE, the instant petition is PARTIALLY GRANTED. The July 24, 2012 Decision of
the Court of Appeals in CA-G.R. CV No. 96406 is MODIFIED, the dispositive portion of
which shall read:
WHEREFORE, the appeal is partly GRANTED. Accordingly. the appealed Decision of the
Regional Trial Court Branch 8, Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED
in part and shall hereinafter read as follows:
a. [Antonio] is ORDERED to deliver the minor children Jerard Patrick and Andre
Lewis to the custody of their mother herein appellant, Grace Grande who by
virtue hereof is hereby awarded the full or sole custody of these minor children;
b. [Antonio] shall have visitation rights at least twice a week, and may only take
28
the children out upon the written consent of [Grande]:
c. The parties are DIRECTED to give and share in support of the minor children
Jerard Patrick and Andre Lewis in the amount of ₱30,000.00 per month at the
rate of 70% for [Antonio] and 30% for [Grande]; and
d. The case is REMANDED to the Regional Trial Court, Branch 8 of Aparri,
Cagayan for the sole purpose of determining the surname to be chosen by the
children Jerard Patrick and Andre Lewis.
Rule 7 and Rule 8 of the Office of the Civil Registrar General Administrative Order No. 1,
Series of 2004 are DISAPPROVED and hereby declared NULL and VOID.
SO ORDERED.
In the matter of the petition for cancellation of
birth of yuhares and avee barcelote tinitigan
august 7, 2018
SECOND DIVISION
August 7, 2017
G.R. No. 222095
IN THE MATTER OF PETITION FOR CANCELLATION OF CERTIFICATES OF LIVE
BIRTH OFYUHARES JAN BARCELOTE TINITIGAN AND AVEE KYNNA NOELLE
BARCELOTE TINITIGAN JONNA KARLA BAGUIO BARCELOTE, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, RICKY O. TINITIGAN, and LOCAL CIVIL
REGISTRAR, DAVAO CITY,Respondents,
DECISION
CARPIO, J.:
The Case
This petition for review assails the 5 March 2015 Decision and the December 2015
1 2 3
Resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 03223-MIN reversing the 28
February 2013 Decision of the Regional Trial Court of Davao City, Branch 15 (RTC) in SPC.
4
PROC. No. 12,007-12.
The Facts
In an Amended Petition dated 20 September 2012 filed before the RTC, petitioner Jonna
5
Karla Baguio Barcelote (Barcelote) stated the following facts:
On 24 June 2008, she bore a child out of wedlock with a married man named Ricky O.
Tinitigan (Tinitigan) in her relative's residence in Sibulan, Santa Cruz, Davao del Sur. She
was not able to register the birth of their child, whom she named Yohan Grace Barcelote,
because she did not give birth in a hospital. To hide her relationship with Tinitigan, she
remained in Santa Cruz, Davao del Sur while Tinitigan lived with his legitimate family in
Davao City and would only visit her. On 24 August 2011, she bore another child with
Tinitigan, whom she named as Joshua Miguel Barcelote. Again, she did not register his birth
to avoid humiliation, ridicule, and possible criminal charges. Thereafter, she lost contact with
Tinitigan and she returned to Davao City.
When her first child needed a certificate of live birth for school admission, Barcelote finally
decided to register the births of both children. She, then, returned to Santa Cruz, Davao del
Sur to register their births. The Local Civil Registrar of Santa Cruz approved the late
registration of the births of Yohan Grace Barcelote and Joshua Miguel Barcelote, with
Registry Nos. 2012-1344 and 2012-1335, respectively, after submitting proof that the
National Statistics Office (NSO) has no record of both births on file.
However, upon submission of the copies of the late registration of the births to the NSO,
Barcelote was informed that there were two certificates of live birth (subject birth certificates)
with the same name of the mother and the years of birth of the children in their office. The
subject birth certificates registered by the Local Civil Registrar of Davao City state the
following:
1. Birth Certificate with Registry No. 2008-21709:
a. Name: Avee Kyna Noelle Barcelote Tinitigan;
b. Date of Birth: June 4, 2008;
c. Place of Birth: EUP Family Care Clinic, Holy Cross Agdao Davao
City;
d. Informant: Ricky O. Tinitigan.
2. Birth Certificate with Registry No. 2011-28329:
a. Name: Yuhares Jan Barcelote Tinitigan;
b. Date of Birth: August 14, 2011 6
c. Place of Birth: EUP Family Care Clinic, Holy Cross Agdao Davao
City;
d. Informant: Ricky O. Tinitigan.
Thus, Barcelote filed a petition with the RTC for the cancellation of the subject birth
certificates registered by Tinitigan without her knowledge and participation, and for
containing erroneous entries.
After complying with the jurisdictional requirements, Barcelote was allowed to present
evidence ex parte. In her testimony, Barcelote reiterated her allegations in the petition and
emphasized that the subject birth certificates were registered by her children's biological
father, Tinitigan, without her knowledge. She also testified that the subject birth certificates
reflected wrong entries, but she did not present any other evidence.
The Ruling of the RTC
On 28 February 2013, the RTC ruled in favor of Barcelote and ordered the cancellation of
the subject birth certificates, to wit:
WHEREFORE, premises considered, the petition is hereby GRANTED. Accordingly, the
registration of the Certificate of Live Birth of Yuhares Jan Barcelote Tinitigan and Avee
Kynna Noelle Barcelote Tinitigan, respectively intended for Joshua Miguel Barcelote and
Yohan Grace Barcelote, by their putative father Ricky Tinitigan at the Local Civil Registrar of
Davao City without the con[ s ]ent or knowledge of their mother, herein petitioner, Jonna
Karla Baguio Barcelote, is hereby ordered cancelled.
The Civil Registrar of the Office of the Local Civil Registry of Davao City is directed/ordered
to cause the cancellation of:
[i] the birth certificate of Avee Kynna Noelle Barcelote Tinitigan
under Registry No. 2008-21709, and
[ii] the certificate of live birth of Yuhares Jan Barcelote Tinitigan
under Registry No. 2011-28329.
SO ORDERED. 7
The RTC ruled that the subject birth certificates are legally infirm, because they were
registered unilaterally by Tinitigan without the knowledge and signature of Barcelote in
violation of Section 5, Act No. 3753. The RTC also held that the subject birth certificates
contain void and illegal entries, because the children use the surname of Tinitigan, contrary
to the mandate of Article 176 of the Family Code stating that illegitimate children shall use
the surname of their mother.
Moreover, the RTC found that it is not for the best interest of the children to use the surname
of their father, for there is always a possibility that the legitimate children or wife may ask the
illegitimate children to refrain from using the surname of their father. The RTC further held
that the subject birth certificates are not reflective of the correct personal circumstances of
the children because of the glaring differences in the names and other vital information
entered in it.
The Ruling of the CA
On 5 March 2015, the CA reversed and set aside the decision of the RTC. The CA ruled that
the registrations of the children's births, caused by Tinitigan and certified by a registered
midwife, Erlinda Padilla, were valid under Act No. 3753, and such registrations did not
require the consent of Barcelote. The CA further ruled that the children can legally and
validly use the surname of Tinitigan, since Republic Act No. (RA) 9255, amending Article
176 of the Family Code, allows illegitimate children to use the surname of their father if the
latter had expressly recognized them through the record of birth appearing in the civil
register,. such as in this case where Barcelote admitted that Tinitigan personally registered
the children's births and affixed his surname on the subject birth certificates.
Moreover, the CA found that Barcelote failed to discharge the burden of proving the falsity of
the entries in the subject birth certificates and to adduce evidence that the information she
provided in the late registration are the true personal circumstances of her children.
The dispositive portion of the decision states:
FOR THESE REASONS, the Decision dated 28 February 201[3] of the Regional Trial Court,
Branch 15, Davao City is REVERSED and SET ASIDE. The Amended Petition docketed as
Special Proceedings No. 12,007-12 for cancellation of certificates of live birth of her children,
registered as Yuhares Jan Barcelote Tinitigan and Avee Kynna Noelle Barcelote Tinitigan in
the records of the Local Civil Registrar of Davao City is DISMISSED for lack of merit.
SO ORDERED. 8
In a Resolution dated 3 December 2015, the CA denied the motion for reconsideration. 9
Hence, this present petition.
The Issues
Barcelote raises the following issues for resolution:
I the AUSF.
The CA erred in not cancelling the certificates of live birth for YUHARES JAN BARCELOTE
TINITIGAN and AVEE KYNNA BARCELOTE TINITIGAN.
A. Under the Family Code, illegitimate children shall use the
surname and shall be under the parental authority of their mother.
Being the mother with parental authority, [Barcelote]'s choice of
names for her children upon birth should prevail.
B. The CA gravely erred and abused its discretion when it ruled
that the RTC did not have basis for its ruling that the certificates of
birth registered by [Tinitigan] are not reflective of the true and
correct personal circumstances of the [children].
C. The CA misinterpreted the provisions of Act No. 3753, otherwise
known as the Law on Registry of Civil Status. It is clear under this
law that in case of an illegitimate child, the birth certificate must be
signed and sworn to by the mother. Since the certificates of live
birth registered by [Tinitigan] were not signed by [Barcelote], the
same are void.
D. The cancellation of the certificates of live birth, registered by a
father who is married to another and who abandoned his
illegitimate children, is for the interest and welfare of [the children].
II.
In the alternative, the CA was incorrect in dismissing the petition for cancellation on the
procedural ground that [Barcelote] could have filed a petition for correction of entries under
Rule 108 of the Rules of Court. In this case, the petition for cancellation was filed under Rule
108 of the Rules of Court, which governs both "Petition for Cancellation or Correction of
Entries in the Civil Registry". Under this rule, even ubstantial errors in a civil register may be
corrected and the true facts established, provided the party aggrieved by the error avail of
the appropriate adversary proceeding, which [Barcelote] did. Instead ofdismissing the
petition outright, considering that the jurisdictional requirements for correction [have] also
been complied with, at the very least, the CA should have treated the petition for
cancellation as one for correction and ordered the necessary corrections, especially as to
thenames of [the children]. 10
We grant the petition.
Prior to its amendment, Article 176 of the Family Code reads:
11
Illegitimate children shall use the surname and shall be under the parental authority
of their mother, and shall be entitled to support in conformity with this Code. The legitime of
each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for
this modification, all other provisions in the Civil Code governing successional rights shall
remain in force. (Emphasis supplied)
This has been implemented in the National Statistics Office Administrative Order No. 1-93 or
the Implementing Rules and Regulations of Act No. 3753 and Other Laws on Civil
Registration (IRR of Act No. 3753), to wit:
12
RULE 23. Birth Registration of Illegitimate children. - (1) Children conceived or born during
the marriage of the parents are legitimate. Children conceived and born outside a valid
marriage unless otherwise provided in the Family Code are illegitimate.
(2) An illegitimate child born before 3 August 1988 and acknowledged by both parents shall
principally use the surname of the father. If recognized by only one of the parents, the
illegitimate child shall carry the surname of the acknowledging parent. If no parent
acknowledged the child, he shall carry the surname of the mother.
(3) The name/s of the acknowledging parent/s, shall be indicated in the Certificate of Live
Birth.
(4) An illegitimate child born on or after 3 August 1988 shall bear the surname of the
mother.(Emphasis supplied)
Upon the effectivity of RA 9255, the provision that illegitimate children shall use the
13
surname and shall be under the parental authority of their mother was retained, with an
added provision that they may use the surname of their father if their filiation has been
expressly recognized by their father. Thus, Article 176 of the Family Code, as amended by
RA 9255, provides:
Illegitimate children shall use the surname and shall be under the parental authority
of their mother, and shall be entitled to support in conformity with this Code. However,
illegitimate children may use the surname of their father if their filiation has been expressly
recognized by their father through the record of birth appearing in the civil register, or when
an admission in a public document or private handwritten instrument is made by the father.
Provided, the father has the right to institute an action before the regular courts to prove
non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half
of the legitime of a legitimate child. (Emphasis supplied)
In Grande v. Antonio, we held that "the use of the word 'may' in [Article 176 of the Family
14
Code, as amended by RA 9255] readily shows that an acknowledged illegitimate child is
under no compulsion to use the surname of his illegitimate father. The word 'may' is
permissive and operates to confer discretion upon the illegitimate children." Thus, the
15
Revised Implementing Rules and Regulations (IRR) of RA 9255, which apply to all
illegitimate children born during the effectivity of RA 9255, state:
Rule 8. Effects of Recognition.
8.1 As a rule, an illegitimate child not acknowledged by the father shall use the surname of
the mother.
8.2 Illegitimate child acknowledged by the father shall use the surname of the mother if no
[Affidavit to Use the Surname of the Father] (AUSF) is executed. 1âw phi 1
8.3 An illegitimate child aged 0-6 years old acknowledged by the father shall use the
surname of the father, if the mother or the guardian, in the absence of the mother, executes
8.4 An illegitimate child aged 7 to 17 years old acknowledged by the father shall use the
surname of the father if the child executes an AUSF fully aware of its consequence as
attested by the mother or guardian.
8.5 Upon reaching the age of majority, an illegitimate child acknowledged by the father shall
use the surname of his father provided that he executes an AUSF without need of any
attestation.
The law is clear that illegitimate children shall use the surname and shall be under the
parental authority of their mother. The use of the word "shall" underscores its mandatory
character. The discretion on the part of the illegitimate child to use the surname of the
father is conditional upon proof of compliance with RA 9255 and its IRR.
Since the undisputed facts show that the children were born outside a valid marriage after 3
August 1988, specifically in June 2008 and August 2011, respectively, then they are the
illegitimate children of Tinitigan and Barcelote. The children shall use the surname of their
mother, Barcelote. The entry in the subject birth certificates as to the surname of the children
is therefore incorrect; their surname should have been "Barcelote" and not "Tinitigan."
We do not agree with the CA that the subject birth certificates are the express recognition of
the children's filiation by Tinitigan, because they were not duly registered in accordance with
the law.
Act No. 3753, otherwise known as the Civil Registry Law, states:
16
Section 5. Registration and Certification of Birth. -The declaration of the physician or midwife
in attendance at the birth or, in default thereof, the declaration of either parent of the
newborn child, shall be sufficient for the registration of a birth in the civil register. Such
declaration shall be exempt from the documentary stamp tax and shall be sent to the local
civil registrar not later than thirty days after the birth, by the physician, or midwife in
attendance at the birth or by either parent of the newly born child.
In such declaration, the persons above mentioned shall certify to the following facts: (a) date
and hour of birth; (b) sex and nationality of infant; (c) names, citizenship, and religion of
parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e)
place where the infant was born; (f) and such other data may be required in the regulation to
be issued.
In the case of an exposed child, the person who found the same shall report to the local civil
registrar the place, date and hour of finding and other attendant circumstances.
In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly
by the parents of the infant or only the mother if the father refuses.
In the latter case, it shall not be permissible to state or reveal in the document the name of
the father who refuses to acknowledge the child, or to give therein any information by which
such father could be identified.
Any fetus having human features which dies after twenty four hours of existence completely
disengaged from the maternal womb shall be entered in the proper registers as having been
born and having died. (Emphasis supplied)
In Calimag v. Heirs of Macapaz, we held that "under Section 5 of Act No. 3753, the
17
declaration of either parent of the [newborn] legitimate child shall be sufficient for the
registration of his birth in the civil register, and only in the registration of birth of an
illegitimate child does the law require that the birth certificate be signed and sworn to jointly
by the parents of the infant, or only by the mother if the father refuses to acknowledge the
child." 18
The first paragraph of Section 5 of Act No. 3753 assumes that the newborn child is
legitimate since our law accords a strong presumption in favor of legitimacy of children. On 19
the other hand, the fourth paragraph of Section 5 specifically provides that in case of an
illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the
infant or only the mother if the father refuses. The fourth paragraph of Section 5 specifically
applies to an illegitimate child and likewise underscores its mandatory character with the use
of the word "shall." Lex special is derogat generali. Where there is in the same statute a
particular enactment and also a general one which, in its most comprehensive sense, would
include what is embraced in the former, the particular enactment must be operative, and the
general enactment must be taken to affect only such cases within its general language
which are not within the provision of the particular enactment. 20
Thus, it is mandatory that the mother of an illegitimate child signs the birth certificate of her
child in all cases, irrespective of whether the father recognizes the child as his or not. The
only legally known parent of an illegitimate child, by the fact of illegitimacy, is the mother of
the child who conclusively carries the blood of the mother. Thus, this provision ensures that
21
individuals are not falsely named as parents. 22
The mother must sign and agree to the information entered in the birth certificate because
she has the parental authority and custody of the illegitimate child. In Briones v. Miguel, we
held that an illegitimate child is under the sole parental authority of the mother, and the
mother is entitled to have custody of the child. The right of custody springs from the exercise
of parental authority. Parental authority is a mass of rights and obligations which the law
24
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. 25
Since it appears on the face of the subject birth certificates that the mother did not sign the
documents, the local civil registrar had no authority to register the subject birth certificates.
Under the IRR of Act No. 3753, the civil registrar shall see to it that the Certificate of Live
Birth presented for registration is properly and completely filled up, and the entries are
correct. In case the entries are found incomplete or incorrect, the civil registrar shall require
26
the person concerned to fill up the document completely or to correct the entries, as the
case may be. 27
Clearly, the subject birth certificates were not executed consistent with the provisions of the
law respecting the registration of birth of illegitimate children. Aside from the fact that the
1âw phi 1
entry in the subject birth certificates as to the surname of the children is incorrect since it
should have been that of the mother, the subject birth certificates are also incomplete as
they lacked the signature of the mother.
Acts executed against the provisions of mandatory or prohibitory laws shall be
void. In Babiera v. Catotal, we declared as void and cancelled a birth certificate, which
28 29
showed that the mother was already 54 years old at the time of the child's birth and which
was not signed either by the civil registrar or by the supposed mother.
Accordingly, we declare the subject birth certificates void and order their cancellation for
being registered against the mandatory provisions of the Family Code requiring the use of
the mother's surname for her illegitimate children and Act No. 3753 requiring the signature of
the mother in her children's birth certificates.
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 the primary consideration. 30
WHEREFORE, we GRANT the petition. We REVERSE and SET ASIDE the 5 March 2015
Decision and the 3 December 2015 Resolution of the Court of Appeals in CA-G.R. CV No.
03223-MIN. We REINSTATE the 28 February 2013 Decision of the Regional Trial Court of
Davao City, Branch 15, in SPC. PROC. No. 12,007-12. The Civil Registrar of the Office of
the Local Civil Registry of Davao City is ordered to CANCEL: (1) the Certificate of Live Birth
of Avee Kynna Noelle Barcelote Tinitigan under Registry No. 2008-21709 and (2) the
Certificate of Live Birth of Yuhares Jan Barcelote Tinitigan under Registry No. 2011-28329.
SO ORDERED.
Gan vs republic September 14, 2016
(chan robles)
THIRD DIVISION
G.R. No. 207147, September 14, 2016
EMELITA BASILIO GAN, Petitioner, v. REPUBLIC OF THE
PHILIPPINES, Respondent.
RESOLUTION
REYES, J.:
This is a petition for review on certiorari1 under Rule 45 of the Rules of Court
seeking to annul and set aside the Decision2 dated April 26, 2013 issued by the
Court of Appeals (CA) in CA-G.R. CV No. 98112.
Facts
Emelita Basilio Gan (petitioner) was born on December 21, 1956 out of wedlock
to Pia Gan, her father who is a Chinese national, and Consolacion Basilio, her
mother who is a Filipino citizen.3 The petitioner's birth certificate,4 which was
registered in the Office of the Local Civil Registrar (LCR) of Libmanan, Camarines
Sur, indicates that her full name is Emelita Basilio.
On June 29, 2010, the petitioner filed a Petition5 for correction of name with the
Regional Trial Court (RTC) of Libmanan, Camarines Sur. The petitioner sought to
change the full name indicated in her birth certificate from "Emelita Basilio" to
"Emelita Basilio Gan." She claimed that she had been using the name "Emelita
Basilio Gan" in her school records from elementary until college, employment
records, marriage contract, and other government records.6chanrobleslaw
Ruling of the RTC
On July 15, 2010, the RTC issued an Order, which noted that the petition filed
sought not merely a correction of entry in the birth certificate, but a change of
name. Accordingly, the RTC ordered the petitioner to make the necessary
amendment to her petition to conform to the requirements of Rule 103 of the
Rules of Court.7chanrobleslaw
The petitioner filed with the RTC an Amended Petition8 dated August 3, 2010 for
change of name. The amended petition contained substantially the same
allegations as in the petition for correction of entry in the birth certificate. On
August 10, 2010, the RTC set the initial hearing of the petition in a newspaper of
general circulation. The Office of the Solicitor General (OSG), as counsel of the
Republic of the Philippines (respondent), filed its notice of appearance. The OSG
authorized the Office of the Provincial Prosecutor of Libmanan, Camarines Sur to
appear and assist the OSG in the proceedings before the RTC.9chanrobleslaw
23
On July 19, 2011, after due proceedings; the RTC of Libmanan, Camarines Sur,
Branch 29, issued an Order10 granting the petition for change of name. The RTC,
thus, directed the LCR of Libmanan, Camarines Sur to change the petitioner's
name in her birth certificate from "Emelita Basilio" to "Emelita Basilio Gan." The
RTC opined that, from the evidence presented, the said petition was filed solely
to put into order the records of the petitioner and that changing her name in her
birth certificate into Emelita Basilio Gan would avoid confusion in her personal
records.11chanrobleslaw
The respondent sought a reconsideration12 of the RTC Order dated July 19,
2011, alleging that the petitioner, who is an illegitimate child, failed to adduce
evidence that she was duly recognized by her father, which would have allowed
her to use the surname of her father. 13 On October 17, 2011, the RTC issued an
Order14 denying the respondent's motion for reconsideration.
Ruling of the CA
On appeal, the CA, in its Decision15 dated April 26, 2013, reversed and set aside
the RTC Orders dated July 19, 2011 and October 17, 2011. The CA opined that
pursuant to Article 176 of the Family Code, as amended by Republic Act No.
9255,16 the petitioner, as an illegitimate child, may only use the surname of her
mother; she may only use the surname of her father if their filiation has been
expressly recognized by her father.17 The CA pointed out that the petitioner has
not adduced any evidence showing that her father had recognized her as his
illegitimate child and, thus, she may not use the surname of her father.18chanrobleslaw
In this petition for review, the petitioner maintains that the RTC correctly
granted her petition since she only sought to have her name indicated in her
birth certificate changed to avoid confusion as regards to her personal
records.19 She insists that her failure to present evidence that her father
recognized her as his illegitimate child is immaterial; a change of name is
reasonable and warranted, if it is necessary to avoid confusion.20chanrobleslaw
Ruling of the Court
The petition is denied.
A change of name is a privilege and not a matter of right; a proper and
reasonable cause must exist before a person may be authorized to change his
name.21 "In granting or denying petitions for change of name, the question of
proper and reasonable cause is left to the sound discretion of the court. x x x
What is involved is not a mere matter of allowance or disallowance of the
request, but a judicious evaluation of the sufficiency and propriety of the
justifications advanced in support thereof, mindful of the consequent results in
the event of its grant and with the sole prerogative for making such
determination being lodged in the courts."22chanrobleslaw
After a judicious review of the records of this case, the Court agrees with the CA
that the reason cited by the petitioner in support of her petition for change of
name, i.e. that she has been using the name "Emelita Basilio Gan" in all of her
records, is not a sufficient or proper justification to allow her petition. When the
petitioner was born in 1956, prior to the enactment and effectivity of the Family
Code, the pertinent provisions of the Civil Code then regarding the petitioner's
use of surname provide:ChanRoblesVirtualawlibrary
Article 366. A natural child acknowledged by both parents shall principally use
the surname of the father. If recognized by only one of the parents, a natural
child shall employ the surname of the recognizing parent.
Article 368. Illegitimate children referred to in Article 287 shall bear the surname
of the mother.
In her amended petition for change of name, the petitioner merely stated that
she was born out of wedlock;23 she did not state whether her parents, at the
time of her birth, were not disqualified by any impediment to marry each other,
which would make her a natural child pursuant to Article 269 of the Civil Code.
If, at the time of the petitioner's�birth, either of her parents had an impediment
to marry the other, she may only bear the surname of her mother pursuant to
Article 368 of the Civil Code. Otherwise, she may use the surname of her father
provided that she was acknowledged by her father.
However, the petitioner failed to adduce any evidence that would show that she
indeed was duly acknowledged by his father. The petitioner's evidence consisted
only of her birth certificate signed by her mother, school records, employment
records, marriage contract, certificate of baptism, and other government
records. Thus, assuming that she is a natural child pursuant to Article 269 of the
Civil Code, she could still not insist on using her father's surname. It was, thus,
a blatant error on the part of the RTC to have allowed the petitioner to change
her name from "Emelita Basilio" to "Emelita Basilio Gan."
The petitioner's reliance on the cases of Alfon v. Republic of the
Philippines,24Republic of the Philippines v. Coseteng-
Magpayo,25cralawred and Republic of the Philippines v. Lim26 to support her position is
misplaced.
In Alfon, the name of the petitioner therein which appeared in her birth
certificate was Maria Estrella Veronica Primitiva Duterte; she was a legitimate
child of her father and mother. She filed a petition for change of name, seeking
that she be allowed to use the surname "Alfon," her mother's surname, instead
of "Duterte." The trial court denied the petition, ratiocinating that under Article
364 of the Civil Code, legitimate children shall principally use the surname of the
father. The Court allowed the petitioner therein to use the surname of her
mother since Article 364 of the Civil Code used the word "principally" and not
"exclusively" and, hence, there is no legal obstacle if a legitimate child should
choose to use the mother's surname to which he or she is legally
entitled.27chanrobleslaw

In contrast, Articles 366 and 368 of the Civil Code do not give to an illegitimate
child or a natural child not acknowledged by the father the option to use the
surname of the father. Thus, the petitioner cannot insist that she is allowed to
use the surname of her father.

In Coseteng-Magpayo, the issue was the proper procedure to be followed when

the change sought to be effected in the birth certificate affects the civil status of
the respondent therein from legitimate to illegitimate. The respondent therein
claimed that his parents were never legally married; he filed a petition to change
his name from "Julian Edward Emerson Coseteng Magpayo," the name appearing
in his birth certificate, to "Julian Edward Emerson Marquez-Lim Coseteng." The
notice setting the petition for hearing was published and, since there was no
opposition thereto, the trial court; issued an order of general default and
eventually granted the petition of the respondent therein by, inter alia, deleting
the entry on the date and place of marriage of his parents and correcting his
surname from "Magpayo" to "Coseteng."28 The Court reversed the trial court's
decision since the proper remedy would have been to file a petition under Rule
108 of the Rules of Court. The Court ruled that the change sought by the
respondent therein involves his civil status as a legitimate child; it may only be
given due course through an adversarial proceedings under Rule 108 of the
Rules of Court. The Court's pronouncement in Coseteng-Magpayo finds no
application in this case.

Finally, Lim likewise finds no application in this case. In Lim, the petition that
was filed was for correction of entries under Rule 108 of the Rules of Court; the
petition sought, among others, is the correction of the surname of the
respondent therein from "Yo" to "Yu." Further, the respondent therein, although
an illegitimate child, had long been using the surname of her father. It bears
stressing that the birth certificate of the respondent therein indicated that her
surname was the same as her father albeit misspelled. Thus, a correction of
entry in her birth certificate is appropriate.29chanrobleslaw

Here, the petitioner filed a petition for change of name under Rule 103 and not a
petition for correction of entries under Rule 108. Unlike in Lim, herein
petitioner's birth certificate indicated that she bears the surname of her mother
and not of her father.

WHEREFORE, in consideration of the foregoing disquisitions, the petition

is DENIED.

SO ORDERED.chanRoblesvirtualLawlibrary