[G.R. No. 154645.

July 13, 2004]

MILAGROS JOAQUINO a.k.a. MILAGROS J. REYES, petitioner, vs. LOURDES REYES, MERCEDES, MANUEL, MIRIAM and RODOLFO JR. -- all surnamed REYES, respondents. DECISION PANGANIBAN, J.:

Though registered in the paramours name, property acquired with the salaries and earnings of a husband belongs to his conjugal partnership with the legal spouse. The filiation of the paramours children must be settled in a probate or special proceeding instituted for the purpose, not in an action for recovery of property.

The Case

Before the Court is a Petition for Review[1] under Rule 45 of the Rules of Court, seeking to nullify the February 4, 2002 Decision[2] and the August 14, 2002 Resolution[3] of the Court of Appeals (CA) in CAGR CV No. 45883. The CA disposed as follows:

WHEREFORE, premises considered, the appeal is hereby partially DENIED and the Decision dated May 30, 1994, of the Regional Trial Court of Pasay City, Branch 111 in Civil Case No. 9722-P is MODIFIED to read, as follows:

WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against the defendant as follows:

a. Declaring the house and lot registered under Transfer Certificate of Title No. 90293 (26627-A) of the Registry of Deeds of Metro Manila, District IV as conjugal partnership property of the late Spouses Rodolfo and Lourdes Reyes;

b. Ordering the *petitioner+ to surrender possession of said subject property, pursuant to the applicable law on succession, to the respective estates of the late Rodolfo Reyes and Lourdes Reyes and to pay a

reasonable rental of P10,000.00 a month, to the same juridical entities, upon their failure to do so until possession of the property is delivered; and

c. To pay *respondents+ attorneys fees in the sum of P20,000.00 and to pay the costs.*4+

The questioned Resolution, on the other hand, denied petitioners Motion for Reconsideration.

The Facts

The CA narrated the facts as follows:

*Respondents+ filed a Complaint for reconveyance and damages, dated January 23, 1982, before the Court of First Instance of Rizal, containing the following allegations:

x x x The complaint alleges that [respondent] Lourdes P. Reyes is the widow of Rodolfo A. Reyes who died on September 12, 1981; that [respondents] Mercedes, Manuel, Miriam and Rodolfo, Jr. are the legitimate children of [respondent] Lourdes P. Reyes and the deceased Rodolfo A. Reyes; that for years before his death, Rodolfo A. Reyes had illicit relations with [petitioner] Milagros B. Joaquino; that before his death, x x x Rodolfo A. Reyes was Vice President and Comptroller of Warner Barnes and Company with an income of P15,000.00 a month and, after retirement on September 30, 1980, received from said company benefits and emoluments in the amount of P315,0[1]1.79; that [respondent] wife was not the recipient of any portion of the said amount.

The complaint further alleges that on July 12, 1979, a [D]eed of [S]ale of a property consisting of a house and lot at BF Homes, Paraaque, Metro Manila was executed by the spouses Ramiro Golez and Corazon Golez in favor of [petitioner] Milagros B. Joaquino for which Transfer Certificate of Title No. 90293 of the Register of Deeds of Metro Manila, District IV was issued in the name of [petitioner] Milagros B. Joaquino; that the funds used to purchase this property were conjugal funds and earnings of the deceased Rodolfo A. Reyes as executive of Warner Barnes and Company as [petitioner] Joaquino was without the means to pay for the same; that [petitioner] executed a Special Power of Attorney in favor of Rodolfo A. Reyes to mortgage the property to Commonwealth Insurance Corporation in order to pay the balance of the purchase price; that said Rodolfo A. Reyes executed a mortgage in favor of Commonwealth Insurance Corporation for P140,000.00 and to guaranty payment thereof, he secured a

life insurance [policy] with Philam Life Insurance Corporation for the said amount, assigning the proceeds thereof to Commonwealth Insurance Corporation; that the monthly amortizations of the mortgage were paid by said Rodolfo A. Reyes before his death and at the time of his death, the outstanding balance of P110,000.00 was to be paid out of his Philam Life Insurance [p]olicy.

The complaint finally alleges that the deceased had two cars in *petitioners+ possession and that the real and personal properties in *petitioners+ possession are conjugal partnership propert[ies] of the spouses Lourdes P. Reyes and Rodolfo A. Reyes and one-half belongs exclusively to [respondent] Lourdes P. Reyes and the other half to the estate of Rodolfo A. Reyes to be apportioned among the [other respondents] as his forced heirs. [Respondents] therefore, pray that the property covered by T.C.T. No. 90293 be declared conjugal property of the spouses Lourdes P. Reyes and Rodolfo A. Reyes and that *petitioner+ be ordered to reconvey the property in *respondents+ favor; that the two cars in *petitioners+ possession be delivered to *respondents+ and that *petitioner+ be made to pay actual, compensatory and moral damages to *respondents+ as well as attorneys fees.

xxx

xxx

xxx

*Petitioner+ eventually filed her Answer, dated August 1, 1982, the allegations of which have been summarized by the trial court in the following manner:

In her Answer, *petitioner+ Milagros B. Joaquino alleges that she purchased the real property in question with her own exclusive funds and it was only for convenience that the late Rodolfo Reyes facilitated the mortgage over the same; that although the late Rodolfo Reyes paid the monthly amortization of the mortgage as attorney-in-fact of [petitioner], the money came exclusively from [her].

*Petitioner+ further alleges in her answer, by way of special and affirmative defenses, that during all the nineteen (19) years that [she] lived with Rodolfo Reyes from 1962 continuously up to September 12, 1981 when the latter died, [petitioner] never had knowledge whatsoever that he was married to someone else, much less to [respondent] Lourdes P. Reyes; that [petitioner] was never the beneficiary of the emoluments or other pecuniary benefits of the late Rodolfo Reyes during his lifetime or after his death because [she] had the financial capacity to support herself and her children begotten with the late Rodolfo Reyes. *Petitioner+ prays for a judgment dismissing *respondents+ complaint and for the latter to pay unto [petitioner] moral and exemplary damages in such amounts as may be determined during the trial, including atto*r+neys fees and the costs of the suit. x x x.

xxx

xxx

xxx

On February 2, 1993, *respondent+ Lourdes Reyes died.

Subsequently, the trial court granted the complaint based on the following factual findings:

Lourdes Reyes was legally married to Rodolfo Reyes on January 3, 1947 in Manila. They have four children, namely: Mercedes, Manuel, Miriam and Rodolfo Jr., all surnamed Reyes and co-[respondents] in this case. Rodolfo Reyes died on September 12, 1981. At the time of his death, Rodolfo Reyes was living with his common-law wife, Milagros Joaquino, x x x with whom she begot three (3) children namely: Jose Romillo, Imelda May and Charina, all surnamed Reyes.

During his lifetime, Rodolfo Reyes worked with Marsman and Company and later transferred to Warner Barnes & Co., where he assumed the position of Vice-President [Comptroller] until he retired on September 30, 1980. His monthly salary at Warner Barnes & Co. was P15,000.00 x x x and upon his separation or retirement from said company, Rodolfo Reyes received a lump sum of P315,011.79 in full payment and settlement of his separation and retirement benefits.

During the common-law relationship of Rodolfo Reyes and [petitioner] Milagros Joaquino and while living together, they decided to buy the house and lot situated at No. 12 Baghdad Street, Phase 3, BF Homes, Paraaque, Metro Manila. A Deed of Absolute Sale dated July 12, 1979 was executed in favor of [petitioner] Milagros Joaquino and Transfer Certificate of Title No. S-90293 covering the said property was issued in the name of [petitioner only] on July 20, 1979.

To secure the finances with which to pay the purchase price of the property in the amount of P140,000.00, [petitioner] executed on July 20, 1979, a Special Power of Attorney in favor of Rodolfo A. Reyes for the latter, as attorney-in-fact, to secure a loan from the Commonwealth Insurance Company. An application for mortgage loan was filed by Rodolfo Reyes with the Commonwealth Insurance Company and a Real Estate Mortgage Contract was executed as collateral to the mortgage loan. The loan was payable in ten (10) years with a monthly amortization of P1,166.67. The monthly amortizations were paid by Rodolfo Reyes and after his death, the balance of P109,797.64 was paid in

full to the Commonwealth Insurance by the Philam Life Insurance Co. as insurer of the deceased Rodolfo A. Reyes.*5+

On appeal to the CA, petitioner questioned the following findings of the trial court: 1) that the house and lot had been paid in full from the proceeds of the loan that Rodolfo Reyes obtained from the Commonwealth Insurance Company; 2) that his salaries and earnings, which were his and Lourdes conjugal funds, paid for the loan and, hence, the disputed property was conjugal; and 3) that petitioners illegitimate children, not having been recognized or acknowledged by him in any of the ways provided by law, acquired no successional rights to his estate.

Ruling of the Court of Appeals

Affirming the RTC, the CA held that the property had been paid out of the conjugal funds of Rodolfo and Lourdes because the monthly amortizations for the loan, as well as the premiums for the life insurance policy that paid for the balance thereof, came from his salaries and earnings. Like the trial court, it found no sufficient proof that petitioner was financially capable of buying the disputed property, or that she had actually contributed her own exclusive funds to pay for it. Hence, it ordered her to surrender possession of the property to the respective estates of the spouses.

The appellate court, however, held that the trial court should not have resolved the issue of the filiation and the successional rights of petitioners children. Such issues, it said, were not properly cognizable in an ordinary civil action for reconveyance and damages and were better ventilated in a probate or special proceeding instituted for the purpose.

Hence, this Petition.[6]

Issues

Petitioner submits the following issues for the Courts consideration:

I.

Whether or not it has been indubitably established in a court of law and trier of facts, the Regional Trial Court, that petitioners three [3] illegitimate children are x x x indeed the children of the late Rodolfo Reyes.

II.

Whether or not it is legally permissible for [respondents] to make a mockery of the law by denying [the] filiations of their [two] 2 illegitimate sisters and one [1] illegitimate brother when in fact the very complaint filed by their mother, the lawful wife, Lourdes[,] shows that her husband Rodolfo had illicit relations with the petitioner Milagros and had lived with her in a house and lot at Baghdad Street.

III.

Whether or not the fact that the Court of Appeals made a finding that the house and lot at Baghdad Street are conjugal property of lawfully wedded Rodolfo and Lourdes including the insurance proceeds which was used to pay the final bill for the house and lot, this will prevail over Articles 19 and 21 of the Civil Code.

IV.

Whether or not the Supreme Court should enforce the rule that the parties to a lawsuit should only tell the truth at the trial and in [their] pleadings x x x.

V.

Whether or not the legitimate children of the late Rodolfo Reyes should respect their fathers desire that his illegitimate children should have a home or a roof over their heads in consonance with his duty to love, care and provide for his children even after his death.*7+

The issues boil down to the following: 1) the nature of the house and lot on Baghdad Street (BF Homes Paraaque, Metro Manila); and 2) the propriety of ruling on the filiation and the successional rights of petitioners children.

The Courts Ruling

The Petition is devoid of merit.

First Issue: The Conjugal Nature of the Disputed Property

Before tackling the merits, we must first point out some undisputed facts and guiding principles.

As to the facts, it is undisputed that the deceased Rodolfo Reyes was legally married to Respondent Lourdes Reyes on January 3, 1947.[8] It is also admitted that for 19 years or so, and while their marriage was subsisting, he was actually living with petitioner. It was during this time, in 1979, that the disputed house and lot was purchased and registered in petitioners name.

Plainly, therefore, the applicable law is the Civil Code of the Philippines. Under Article 145 thereof, a conjugal partnership of gains (CPG) is created upon marriage[9] and lasts until the legal union is dissolved by death, annulment, legal separation or judicial separation of property.[10] Conjugal properties are by law owned in common by the husband and wife.[11] As to what constitutes such properties are laid out in Article 153 of the Code, which we quote:

(1) That which is acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses;

(2) That which is obtained by the industry, or work, or as salary of the spouses, or of either of them;

(3) The fruits, rents or interests received or due during the marriage, coming from the common property or from the exclusive property of each spouse.

Moreover, under Article 160 of the Code, all properties of the marriage, unless proven to pertain to the husband or the wife exclusively, are presumed to belong to the CPG. For the rebuttable presumption to arise, however, the properties must first be proven to have been acquired during the existence of the marriage.[12]

The law places the burden of proof[13] on the plaintiffs (respondents herein) to establish their claim by a preponderance of evidence[14] -- evidence that has greater weight or is more convincing than that which is offered to oppose it.[15]

On the other hand, Article 144[16] of the Civil Code mandates a co-ownership between a man and a woman who are living together but are not legally married. Prevailing jurisprudence holds, though, that for Article 144 to apply, the couple must not be incapacitated to contract marriage.[17] It has been held that the Article is inapplicable to common-law relations amounting to adultery or concubinage, as in this case. The reason therefor is the absurdity of creating a co-ownership in cases in which there exists a prior conjugal partnership between the man and his lawful wife.[18]

In default of Article 144 of the Civil Code, Article 148 of the Family Code has been applied.[19] The latter Article provides:

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidence of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party which acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

Thus, when a common-law couple have a legal impediment to marriage, only the property acquired by them -- through their actual joint contribution of money, property or industry -- shall be owned by them in common and in proportion to their respective contributions.

With these facts and principles firmly settled, we now proceed to the merits of the first issue.

The present controversy hinges on the source of the funds paid for the house and lot in question. Upon the resolution of this issue depends the determination of whether the property is conjugal (owned by Rodolfo and Lourdes) or exclusive (owned by Milagros) or co-owned by Rodolfo and Milagros.

The above issue, which is clearly factual, has been passed upon by both the trial and the appellate courts, with similar results in favor of respondents. Such finding is generally conclusive; it is not the function of this Court to review questions of fact. [20]

Moreover, it is well-settled that only errors of law and not of facts are reviewable by this Court in cases brought to it from the Court of Appeals or under Rule 45 of the Rules of Court.[21] This principle applies with greater force herein, because the CA came up with the same factual findings as those of the RTC.

Even then, heeding petitioners plea, we have gone through the pleadings and the evidence presented by the parties to find out if there is any circumstance that might warrant a reversal of the factual findings. Unfortunately for petitioner, we have found none.

Indeed, a preponderance of evidence has duly established that the disputed house and lot was paid by Rodolfo Reyes, using his salaries and earnings. By substantial evidence, respondents showed the following facts: 1) that Rodolfo was gainfully employed as comptroller at Warner, Barnes and Co., Inc. until his retirement on September 30, 1980, upon which he received a sizeable retirement package;[22] 2) that at exactly the same time the property was allegedly purchased,[23] he applied for a mortgage loan[24] -- intended for housing*25+ -- from the Commonwealth Insurance Company; 3) that he secured the loan with a real estate mortgage[26] over the same property; 4) that he paid the monthly amortizations for the loan[27] as well as the semi-annual premiums[28] for a Philam Life insurance policy, which he was required to take as additional security; and 5) that with the proceeds of his life

insurance policy, the balance of the loan was paid to Commonwealth by Philam Life Insurance Company.[29]

All told, respondents have shown that the property was bought during the marriage of Rodolfo and Lourdes, a fact that gives rise to the presumption that it is conjugal. More important, they have established that the proceeds of the loan obtained by Rodolfo were used to pay for the property; and that the loan was, in turn, paid from his salaries and earnings, which were conjugal funds under the Civil Code.

In contrast, petitioner has failed to substantiate either of her claims -- that she was financially capable of buying the house and lot, or that she actually contributed to the payments therefor.

Indeed, it does not appear that she was gainfully employed at any time after 1961[30] when the property was purchased. Hearsay are the Affidavits[31] and the undated Certification[32] she had presented to prove that she borrowed money from her siblings and had earnings from a jewelry business. Respondents had not been given any opportunity to cross-examine the affiants, who had not testified on these matters. Based on the rules of evidence, the Affidavits and the Certification have to be rejected. In fact, they have no probative value.[33] The CA was also correct in disregarding petitioners allegation that part of the purchase money had come from the sale of a drugstore*34+ four years earlier.

Under the circumstances, therefore, the purchase and the subsequent registration of the realty in petitioners name was tantamount to a donation by Rodolfo to Milagros. By express provision of Article 739(1) of the Civil Code, such donation was void, because it was made between persons who were guilty of adultery or concubinage at the time of the donation.

The prohibition against donations between spouses[35] must likewise apply to donations between persons living together in illicit relations; otherwise, the latter would be better situated than the former.[36] Article 87 of the Family Code now expressly provides thus:

Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (Italics supplied)

Regarding the registration of the property in petitioners name, it is enough to stress that a certificate of title under the Torrens system aims to protect dominion; it cannot be used as an instrument for the deprivation of ownership.[37] It has been held that property is conjugal if acquired in a common-law relationship during the subsistence of a preexisting legal marriage, even if it is titled in the name of the common-law wife.[38] In this case, a constructive trust is deemed created under Article 1456 of the Civil Code, which we quote:

Art. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes.

The registration of the property in petitioners name was clearly designed to deprive Rodolfos legal spouse and compulsory heirs of ownership. By operation of law, petitioner is deemed to hold the property in trust for them. Therefore, she cannot rely on the registration in repudiation of the trust, for this case is a well-known exception to the principle of conclusiveness of a certificate of title.[39]

Second Issue: Ruling on Illegitimate Filiation Not Proper

It is petitioners alternative submission that her children are entitled to a share in the disputed property, because they were voluntarily acknowledged by Rodolfo as his children. Claiming that the issue of her childrens illegitimate filiation was duly established in the trial court, she faults the CA for ruling that the issue was improper in the instant case.

Her position is untenable.

Indeed, it has been ruled that matters relating to the rights of filiation and heirship must be ventilated in the proper probate court in a special proceeding instituted precisely for the purpose of determining such rights.[40] Sustaining the appellate court in Agapay v. Palang,[41] this Court held that the status of an illegitimate child who claimed to be an heir to a decedents estate could not be adjudicated in an ordinary civil action which, as in this case, was for the recovery of property.

Considerations of due process should have likewise deterred the RTC from ruling on the status of petitioners children. It is evident from the pleadings of the parties that this issue was not presented in either the original[42] or the Supplemental Complaint[43] for reconveyance of property and damages; that it was not pleaded and specifically prayed for by petitioner in her Answers[44] thereto; and that it was not traversed by respondents Reply to the Supplemental Complaint.*45+ Neither did petitioners Memorandum,[46] which was submitted to the trial court, raise and discuss this issue. In view thereof, the illegitimate filiation of her children could not have been duly established by the proceedings as required by Article 887 of the Civil Code.[47]

In view of the foregoing reasons, the CA cannot be faulted for tackling the propriety of the RTCs ruling on the status of the children of petitioner, though she did not assign this matter as an error. The general rule -- that only errors assigned may be passed upon by an appellate court admits of exceptions. Even unassigned errors may be taken up by such court if the consideration of those errors would be necessary for arriving at a just decision or for serving the interest of justice.[48]

The invocation by petitioner of Articles 19[49] and 21[50] of the Civil Code is also unmeritorious. Clearly, the illegitimate filiation of her children was not the subject of inquiry and was in fact not duly established in this case. Thus, she could not have shown that respondents had acted in bad faith or with intent to prejudice her children. These are conditions necessary to show that an act constitutes an abuse of rights under Article 19.[51] She also failed to show that respondents -- in violation of the provisions of Article 21 of the Civil Code -- had acted in a manner contrary to morals, good customs or public policy.

Moreover, we note that the issue concerning the applicability of Articles 19 and 21 was not raised by petitioner in the trial court or even in the CA. Hence, she should not be permitted to raise it now. Basic is the rule that parties may not bring up on appeal issues that have not been raised on trial.[52]

WHEREFORE, the Petition is hereby DENIED, and the assailed Decision and Resolution of the Court of Appeals AFFIRMED. Costs against petitioner.

SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 177703 January 28, 2008

VILMA G. ARRIOLA and ANTHONY RONALD G. ARRIOLA, petitioners, vs. JOHN NABOR C. ARRIOLA, respondent. DECISION AUSTRIA-MARTINEZ, J.: Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the November 30, 2006 Decision1 and April 30, 2007 Resolution2 of the Court of Appeals in CA-G.R. SP No. 93570. The relevant facts are culled from the records. John Nabor C. Arriola (respondent) filed Special Civil Action No. 03-0010 with the Regional Trial Court, Branch 254, Las Pias City (RTC) against Vilma G. Arriola and Anthony Ronald G. Arriola (petitioners) for judicial partition of the properties of decedent Fidel Arriola (the decedent Fidel). Respondent is the son of decedent Fidel with his first wife Victoria C. Calabia, while petitioner Anthony is the son of decedent Fidel with his second wife, petitioner Vilma. On February 16, 2004, the RTC rendered a Decision, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered: 1. Ordering the partition of the parcel of land covered by Transfer Certificate of Title No. 383714 (84191) left by the decedent Fidel S. Arriola by and among his heirs John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola in equal shares of one-third (1/3) each without prejudice to the rights of creditors or mortgagees thereon, if any; 2. Attorney's fees in the amount of TEN THOUSAND (P10,000.00) PESOS is hereby awarded to be reimbursed by the defendants to the plaintiff; 3. Costs against the defendants. SO ORDERED.3 The decision became final on March 15, 2004. 4 As the parties failed to agree on how to partition among them the land covered by TCT No. 383714 (subject land), respondent sought its sale through public auction, and petitioners acceded to it.5 Accordingly, the RTC ordered the public auction of the subject land.6 The public auction sale was scheduled on May 31, 2003 but it had to be reset when petitioners refused to include in the auction the house (subject house) standing on the subject land. 7This prompted respondent to file with the RTC an Urgent Manifestation and Motion for Contempt of Court,8praying that petitioners be declared in contempt. The RTC denied the motion in an Order9 dated August 30, 2005, for the reason that petitioners were justified in refusing to have the subject house included in the auction, thus: The defendants [petitioners] are correct in holding that the house or improvement erected on the property should not be included in the auction sale.

A cursory reading of the aforementioned Decision and of the evidence adduced during the ex-parte hearing clearly show that nothing was mentioned about the house existing on the land subject matter of the case. In fact, even plaintiff's [respondent's] initiatory Complaint likewise did not mention anything about the house. Undoubtedly therefore, the Court did not include the house in its adjudication of the subject land because it was plaintiff himself who failed to allege the same. It is a well-settled rule that the court can not give a relief to that which is not alleged and prayed for in the complaint. To hold, as plaintiff argued, that the house is considered accessory to the land on which it is built is in effect to add to plaintiff's [a] right which has never been considered or passed upon during the trial on the merits. In the absence of any other declaration, obvious or otherwise, only the land should be partitioned in accordance to[sic] the aforementioned Decision as the house can not be said to have been necessarily adjudicated therein. Thus, plaintiff can not be declared as a co-owner of the same house without evidence thereof and due hearing thereon. The Decision of the Court having attained its finality, as correctly pointed out, judgment must stand even at the risk that it might be erroneous. WHEREFORE, the Urgent Manifestation and Motion for Contempt of Court filed by plaintiff is hereby DENIED for lack of merit. SO ORDERED.10 The RTC, in its Order dated January 3, 2006, denied respondent's Motion for Reconsideration. 11 Respondent filed with the CA a Petition for Certiorari12 where he sought to have the RTC Orders set aside, and prayed that he be allowed to proceed with the auction of the subject land including the subject house. In its November 30, 2006 Decision, the CA granted the Petition for Certiorari, to wit: WHEREFORE, the petition is GRANTED. The assailed orders dated August 30, 2005 and January 3, 2006 issued by the RTC, in Civil Case No. SCA 03-0010, are REVERSED and SET ASIDE, and the sheriff is ordered to proceed with the public auction sale of the subject lot covered by TCT No. 383714, including the house constructed thereon. SO ORDERED.13 (Emphasis supplied.) Petitioners filed a motion for reconsideration but the CA denied the same in its Resolution 14 of April 30, 2007. Hence, the present petition on the sole ground that the CA erred in holding that the RTC committed grave abuse of discretion in denying the motion for contempt of court. The assailed CA Decision and Resolution must be modified for reasons other than those advanced by petitioners. The contempt proceeding initiated by respondent was one for indirect contempt. Section 4, Rule 71 of the Rules of Court prescribes the procedure for the institution of proceedings for indirect contempt, viz: Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned . If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. (Emphases supplied.)

Under the aforecited second paragraph of the Rules, the requirements for initiating an indirect contempt proceeding are a) that it be initiated by way of a verified petition and b) that it should fully comply with the requirements for filing initiatory pleadings for civil actions. In Regalado v. Go,15 we held: As explained by Justice Florenz Regalado, the filing of a verified petition that has complied with the requirements for the filing of initiatory pleading, is mandatory x x x: This new provision clarifies with a regularity norm the proper procedure for commencing contempt proceedings. While such proceeding has been classified as special civil action under the former Rules, the heterogenous practice tolerated by the courts, has been for any party to file a motion without paying any docket or lawful fees therefore and without complying with the requirements for initiatory pleadings, which is now required in the second paragraph of this amended section. xxxx Henceforth, except for indirect contempt proceedings initiated motu propio by order of or a formal charge by the offended court, all charges shall be commenced by a verified petition with full compliance with the requirements therefore and shall be disposed in accordance with the second paragraph of this section. xxxx Even if the contempt proceedings stemmed from the main case over which the court already acquired jurisdiction, the rules direct that the petition for contempt be treated independently of the principal action. Consequently, the necessary prerequisites for the filing of initiatory pleadings, such as the filing of a verified petition, attachment of a certification on non-forum shopping, and the payment of the necessary docket fees, must be faithfully observed. xxxx The provisions of the Rules are worded in very clear and categorical language. In case where the indirect contempt charge is not initiated by the courts, the filing of a verified petition which fulfills the requirements on initiatory pleadings is a prerequisite. Beyond question now is the mandatory requirement of a verified petition in initiating an indirect contempt proceeding. Truly, prior to the amendment of the 1997 Rules of Civil Procedure, mere motion without complying with the requirements for initiatory pleadings was tolerated by the courts. At the onset of the 1997 Revised Rules of Civil Procedure, however, such practice can no longer be countenanced.16 (Emphasis ours.) The RTC erred in taking jurisdiction over the indirect contempt proceeding initiated by respondent. The latter did not comply with any of the mandatory requirements of Section 4, Rule 71. He filed a mere Urgent Manifestation and Motion for Contempt of Court, and not a verified petition. He likewise did not conform with the requirements for the filing of initiatory pleadings such as the submission of a certification against forum shopping and the payment of docket fees. Thus, his unverified motion should have been dismissed outright by the RTC. It is noted though that, while at first the RTC overlooked the infirmities in respondent's unverified motion for contempt, in the end, it dismissed the motion, albeit on substantive grounds. The trouble is that, in the CA decision assailed herein, the appellate court committed the same oversight by delving into the merits of respondent's unverified motion and granting the relief sought therein. Thus, strictly speaking, the proper disposition of the present petition ought to be the reversal of the CA decision and the dismissal of respondent's unverified motion for contempt filed in the RTC for being in contravention of Section 4, Rule 71. However, such simplistic disposition will not put an end to the dispute between the parties. A seed of litigation has already been sown that will likely sprout into another case between them at a later time. We refer to the question of whether the subject house should be included in the public auction of the subject land. Until this question is finally resolved, there will be no end to litigation between the parties. We must therefore deal with it squarely, here and now. The RTC and the CA differed in their views on whether the public auction should include the subject house. The RTC excluded the subject house because respondent never alleged its existence in his complaint for partition or established his co-ownership thereof.17 On the other hand, citing Articles 440,18 44519 and 44620 of the Civil Code, the CA held that as the deceased owned the subject land, he also owned the subject house which is a mere accessory to the land. Both properties form part of the estate of the deceased and are held in co-ownership by his heirs, the parties herein. Hence, the CA concludes that any decision in the action for partition of said estate should cover not just the subject land but also the

subject house.21 The CA further pointed out that petitioners themselves implicitly recognized the inclusion of the subject house in the partition of the subject land when they proposed in their letter of August 5, 2004, the following swappingarrangement: Sir: Thank you very much for accommodating us even if we are only poor and simple people. We are very much pleased with the decision of Presiding Judge Manuel B. Fernandez, Jr., RTC Br. 254, Las Pias, on the sharing of one-third (1/3) each of a land covered by Transfer Certificate of Title No. 383714 (84191) in Las Pias City. However, to preserve the sanctity of our house which is our residence for more than twenty (20) years, we wish to request that the 1/3 share of John Nabor C. Arriola be paid by the defendants depending on the choice of the plaintiff between item (1) or item (2), detailed as follows: (1) Swap with a 500-square meters [sic] lot located at Baras Rizal x x x. (2) Cash of P205,700.00 x x x. x x x x.22 We agree that the subject house is covered by the judgment of partition for reasons postulated by the CA. We qualify, however, that this ruling does not necessarily countenance the immediate and actual partition of the subject house by way of public auction in view of the suspensive proscription imposed under Article 159 of The Family Code which will be discussed forthwith. It is true that the existence of the subject house was not specifically alleged in the complaint for partition. Such omission notwithstanding, the subject house is deemed part of the judgment of partition for two compelling reasons. First, as correctly held by the CA, under the provisions of the Civil Code, the subject house is deemed part of the subject land. The Court quotes with approval the ruling of the CA, to wit: The RTC, in the assailed Order dated August 30, 2005 ratiocinated that since the house constructed on the subject lot was not alleged in the complaint and its ownership was not passed upon during the trial on the merits, the court cannot include the house in its adjudication of the subject lot. The court further stated that it cannot give a relief to[sic] which is not alleged and prayed for in the complaint. We are not persuaded. To follow the foregoing reasoning of the RTC will in effect render meaningless the pertinent rule on accession. In general, the right to accession is automatic (ipso jure), requiring no prior act on the part of the owner or the principal. So that even if the improvements including the house were not alleged in the complaint for partition, they are deemed included in the lot on which they stand, following the principle of accession. Consequently, the lot subject of judicial partition in this case includes the house which is permanently attached thereto, otherwise, it would be absurd to divide the principal, i.e., the lot, without dividing the house which is permanently attached thereto.23 (Emphasis supplied) Second, respondent has repeatedly claimed that the subject house was built by the deceased.24 Petitioners never controverted such claim. There is then no dispute that the subject house is part of the estate of the deceased; as such, it is owned in common by the latter's heirs, the parties herein, 25 any one of whom, under Article 49426 of the Civil Code, may, at any time, demand the partition of the subject house. 27 Therefore, respondent's recourse to the partition of the subject house cannot be hindered, least of all by the mere technical omission of said common property from the complaint for partition. That said notwithstanding, we must emphasize that, while we treat the subject house as part of the co-ownership of the parties, we stop short of authorizing its actual partition by public auction at this time . It bears emphasis that an action for partition involves two phases: first, the declaration of the existence of a state of co-ownership; and second, the actual termination of that state of co-ownership through the segregation of the common property. 28 What is settled thus far is only the fact that the subject house is under the co-ownership of the parties, and therefore susceptible of partition among them.

Whether the subject house should be sold at public auction as ordered by the RTC is an entirely different matter, depending on the exact nature of the subject house. Respondent claims that the subject house was built by decedent Fidel on his exclusive property. 29 Petitioners add that said house has been their residence for 20 years. 30 Taken together, these averments on record establish that the subject house is a family home within the contemplation of the provisions of The Family Code, particularly: Article 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. Article 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (Emphasis supplied.) One significant innovation introduced by The Family Code is the automatic constitution of the family home from the time of its occupation as a family residence, without need anymore for the judicial or extrajudicial processes provided under the defunct Articles 224 to 251 of the Civil Code and Rule 106 of the Rules of Court. Furthermore, Articles 152 and 153 specifically extend the scope of the family home not just to the dwelling structure in which the family resides but also to the lot on which it stands. Thus, applying these concepts, the subject house as well as the specific portion of the subject land on which it stands are deemed constituted as a family home by the deceased and petitioner Vilma from the moment they began occupying the same as a family residence 20 years back.31 It being settled that the subject house (and the subject lot on which it stands) is the family home of the deceased and his heirs, the same is shielded from immediate partition under Article 159 of The Family Code, viz: Article 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor . This rule shall apply regardless of whoever owns the property or constituted the family home. (Emphasis supplied.) The purpose of Article 159 is to avert the disintegration of the family unit following the death of its head. To this end, it preserves the family home as the physical symbol of family love, security and unity by imposing the following restrictions on its partition: first, that the heirs cannot extra-judicially partition it for a period of 10 years from the death of one or both spouses or of the unmarried head of the family, or for a longer period, if there is still a minor beneficiary residing therein; and second, that the heirs cannot judicially partition it during the aforesaid periods unless the court finds compelling reasons therefor. No compelling reason has been alleged by the parties; nor has the RTC found any compelling reason to order the partition of the family home, either by physical segregation or assignment to any of the heirs or through auction sale as suggested by the parties. More importantly, Article 159 imposes the proscription against the immediate partition of the family home regardless of its ownership. This signifies that even if the family home has passed by succession to the co-ownership of the heirs, or has been willed to any one of them, this fact alone cannot transform the family home into an ordinary property, much less dispel the protection cast upon it by the law. The rights of the individual co-owner or owner of the family home cannot subjugate the rights granted under Article 159 to the beneficiaries of the family home. Set against the foregoing rules, the family home -- consisting of the subject house and lot on which it stands -- cannot be partitioned at this time, even if it has passed to the co-ownership of his heirs, the parties herein. Decedent Fidel died on March 10, 2003.32 Thus, for 10 years from said date or until March 10, 2013, or for a longer period, if there is still a minor beneficiary residing therein, the family home he constituted cannot be partitioned, much less when no compelling reason exists for the court to otherwise set aside the restriction and order the partition of the property. The Court ruled in Honrado v. Court of Appeals33 that a claim for exception from execution or forced sale under Article 153 should be set up and proved to the Sheriff before the sale of the property at public auction. Herein petitioners timely objected to the inclusion of the subject house although for a different reason. To recapitulate, the evidence of record sustain the CA ruling that the subject house is part of the judgment of co-ownership and partition. The same evidence also establishes that the subject house and the portion of the subject land on which it is standing have been constituted as the family home of decedent Fidel and his heirs. Consequently, its actual and immediate partition cannot be sanctioned until the lapse of a period of 10 years from the death of Fidel Arriola, or until March 10, 2013.

It bears emphasis, however, that in the meantime, there is no obstacle to the immediate public auction of the portion of the subject land covered by TCT No. 383714, which falls outside the specific area of the family home. WHEREFORE, the petition is PARTLY GRANTED and the November 30, 2006 Decision and April 30, 2007 Resolution of the Court of Appeals are MODIFIED in that the house standing on the land covered by Transfer Certificate of Title No. 383714 is DECLARED part of the co-ownership of the parties John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola but EXEMPTED from partition by public auction within the period provided for in Article 159 of the Family Code. No costs. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

[G.R. No. 138961. March 7, 2002]

WILLIAM LIYAO, JR., represented by his mother Corazon Garcia, petitioner, vs. JUANITA TANHOTI-LIYAO, PEARL MARGARET L. TAN, TITA ROSE L. TAN AND LINDA CHRISTINA LIYAO, respondents. DECISION DE LEON, JR., J.:

Before us is a petition for review on certiorari assailing the decision dated June 4, 1999 of the Court of Appeals in CA-G.R. C.V. No. 45394[1] which reversed the decision of the Regional Trial Court (RTC) of Pasig, Metro Manila, Branch 167 in declaring William Liyao, Jr. as the illegitimate (spurious) son of the deceased William Liyao and ordering Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao to recognize and acknowledge William Liyao, Jr. as a compulsory heir of the deceased William Liyao and entitled to all successional rights as such and to pay the costs of the suit.

On November 29,1976, William Liyao, Jr., represented by his mother Corazon G. Garcia, filed Civil Case No. 24943 before the RTC of Pasig, Branch 167 which is an action for compulsory recognition as the illegitimate (spurious) child of the late William Liyao against herein respondents, Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao.[2] The complaint was later amended to include the allegation that petitioner was in continuous possession and enjoyment of the status of the child of said William Liyao, petitioner having been recognized and acknowledged as such child by the decedent during his lifetime."[3]

The facts as alleged by petitioner are as follows:

Corazon G. Garcia is legally married to but living separately from Ramon M. Yulo for more than ten (10) years at the time of the institution of the said civil case. Corazon cohabited with the late William Liyao from 1965 up to the time of Williams untimely demise on December 2, 1975. They lived together in the company of Corazons two (2) children from her subsisting marriage, namely:

Enrique and Bernadette, both surnamed Yulo, in a succession of rented houses in Quezon City and Manila. This was with the knowledge of William Liyaos legitimate children, Tita Rose L. Tan and Linda Christina Liyao-Ortiga, from his subsisting marriage with Juanita Tanhoti Liyao. Tita Rose and Christina were both employed at the Far East Realty Investment, Inc. of which Corazon and William were then vice president and president, respectively.

Sometime in 1974, Corazon bought a lot from Ortigas and Co. which required the signature of her husband, Ramon Yulo, to show his consent to the aforesaid sale. She failed to secure his signature and, had never been in touch with him despite the necessity to meet him. Upon the advice of William Liyao, the sale of the parcel of land located at the Valle Verde Subdivision was registered under the name of Far East Realty Investment, Inc.

On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the Cardinal Santos Memorial Hospital. During her three (3) day stay at the hospital, William Liyao visited and stayed with her and the new born baby, William, Jr. (Billy). All the medical and hospital expenses, food and clothing were paid under the account of William Liyao. William Liyao even asked his confidential secretary, Mrs. Virginia Rodriguez, to secure a copy of Billys birth certificate. He likewise instructed Corazon to open a bank account for Billy with the Consolidated Bank and Trust Company[4] and gave weekly amounts to be deposited therein.[5] William Liyao would bring Billy to the office, introduce him as his good looking son and had their pictures taken together.[6]

During the lifetime of William Liyao, several pictures were taken showing, among others, William Liyao and Corazon together with Billys godfather, Fr. Julian Ruiz, William Liyaos legal staff and their wives while on vacation in Baguio.[7] Corazon also presented pictures in court to prove that that she usually accompanied William Liyao while attending various social gatherings and other important meetings.[8] During the occasion of William Liyaos last birthday on November 22, 1975 held at the Republic Supermarket, William Liyao expressly acknowledged Billy as his son in the presence of Fr. Ruiz, Maurita Pasion and other friends and said, Hey, look I am still young, I can still make a good looking son."*9+ Since birth, Billy had been in continuous possession and enjoyment of the status of a recognized and/or acknowledged child of William Liyao by the latters direct and overt acts. William Liyao supported Billy

and paid for his food, clothing and other material needs. However, after William Liyaos death, it was Corazon who provided sole support to Billy and took care of his tuition fees at La Salle, Greenhills. William Liyao left his personal belongings, collections, clothing, old newspaper clippings and laminations at the house in White Plains where he shared his last moments with Corazon.

Testifying for the petitioner, Maurita Pasion declared that she knew both Corazon G. Garcia and William Liyao who were godparents to her children. She used to visit Corazon and William Liyao from 1965-1975. The two children of Corazon from her marriage to Ramon Yulo, namely, Bernadette and Enrique (Ike), together with some housemaids lived with Corazon and William Liyao as one family. On some occasions like birthdays or some other celebrations, Maurita would sleep in the couples residence and cook for the family. During these occasions, she would usually see William Liyao in sleeping clothes. When Corazon, during the latter part of 1974, was pregnant with her child Billy, Maurita often visited her three (3) to four (4) times a week in Greenhills and later on in White Plains where she would often see William Liyao. Being a close friend of Corazon, she was at the Cardinal Santos Memorial Hospital during the birth of Billy. She continuously visited them at White Plains and knew that William Liyao, while living with her friend Corazon, gave support by way of grocery supplies, money for household expenses and matriculation fees for the two (2) older children, Bernadette and Enrique. During William Liyaos birthday on November 22, 1975 held at the Republic Supermarket Office, he was carrying Billy and told everybody present, including his two (2) daughters from his legal marriage, Look, this is my son, very guapo and healthy.*10+ He then talked about his plan for the baptism of Billy before Christmas. He intended to make it engrande and make the bells of San Sebastian Church ring.*11+ Unfortunately, this did not happen since William Liyao passed away on December 2, 1975. Maurita attended Mr. Liyaos funeral and helped Corazon pack his clothes. She even recognized a short sleeved shirt of blue and gray[12] which Mr. Liyao wore in a photograph[13] as well as another shirt of lime green[14] as belonging to the deceased. A note was also presented with the following inscriptions: To Cora, Love From William.*15+ Maurita remembered having invited the couple during her mothers birthday where the couple had their pictures taken while exhibiting affectionate poses with one another. Maurita knew that Corazon is still married to Ramon Yulo since her marriage has not been annulled nor is Corazon legally separated from her said husband. However, during the entire cohabitation of William Liyao with Corazon Garcia, Maurita had not seen Ramon Yulo or any other man in the house when she usually visited Corazon.

Gloria Panopio testified that she is the owner of a beauty parlor and that she knew that Billy is the son of her neighbors, William Liyao and Corazon Garcia, the latter being one of her customers. Gloria met Mr. Liyao at Corazons house in Scout Delgado, Quezon City in the Christmas of 1965. Gloria had numerous occasions to see Mr. Liyao from 1966 to 1974 and even more so when the couple transferred to White Plains, Quezon City from 1974-1975. At the time Corazon was conceiving, Mr. Liyao was worried that Corazon might have another miscarriage so he insisted that she just stay in the house, play mahjong and not be bored. Gloria taught Corazon how to play mahjong and together with Atty.

Brillantes wife and sister-in-law, had mahjong sessions among themselves. Gloria knew that Mr. Liyao provided Corazon with a rented house, paid the salary of the maids and food for Billy. He also gave Corazon financial support. Gloria knew that Corazon is married but is separated from Ramon Yulo although Gloria never had any occasion to see Mr. Yulo with Corazon in the house where Mr. Liyao and Corazon lived.

Enrique Garcia Yulo testified that he had not heard from his father, Ramon Yulo, from the time that the latter abandoned and separated from his family. Enrique was about six (6) years old when William Liyao started to live with them up to the time of the latters death on December 2, 1975. Mr. Liyao was very supportive and fond of Enriques half brother, Billy. He identified several pictures showing Mr. Liyao carrying Billy at the house as well as in the office. Enriques testimony was corroborated by his sister, Bernadette Yulo, who testified that the various pictures showing Mr. Liyao carrying Billy could not have been superimposed and that the negatives were in the possession of her mother, Corazon Garcia.

Respondents, on the other hand, painted a different picture of the story.

Linda Christina Liyao-Ortiga stated that her parents, William Liyao and Juanita Tanhoti-Liyao, were legally married.[16] Linda grew up and lived with her parents at San Lorenzo Village, Makati, Metro Manila until she got married; that her parents were not separated legally or in fact and that there was no reason why any of her parents would institute legal separation proceedings in court. Her father lived at their house in San Lorenzo Village and came home regularly. Even during out of town business trips or for conferences with the lawyers at the office, her father would change his clothes at home because of his personal hygiene and habits. Her father reportedly had trouble sleeping in other peoples homes. Linda described him as very conservative and a strict disciplinarian. He believed that no amount of success would compensate for failure of a home. As a businessman, he was very tough, strong, fought for what he believed in and did not give up easily. He suffered two strokes before the fatal attack which led to his death on December 2, 1975. He suffered a stroke at the office sometime in April-May 1974 and was attended by Dr. Santiago Co. He then stayed in the house for two (2) to three (3) months for his therapy and acupuncture treatment. He could not talk, move, walk, write or sign his name. In the meantime, Linda and her sister, Tita Rose Liyao-Tan, ran the office. She handled the collection of rents while her sister referred legal matters to their lawyers. William Liyao was bedridden and had personally changed. He was not active in business and had dietary restrictions. Mr. Liyao also suffered a milder stroke during the latter part of September to October 1974. He stayed home for two (2) to three (3) days and went back to work. He felt depressed, however, and was easily bored. He did not put in long hours in the office unlike before and tried to spend more time with his family.

Linda testified that she knew Corazon Garcia is still married to Ramon Yulo. Corazon was not legally separated from her husband and the records from the Local Civil Registrar do not indicate that the couple obtained any annulment[17] of their marriage. Once in 1973, Linda chanced upon Ramon Yulo picking up Corazon Garcia at the company garage. Immediately after the death of Lindas father, Corazon went to Lindas office for the return of the formers alleged investments with the Far East Realty Investment, Inc. including a parcel of land sold by Ortigas and Company. Linda added that Corazon, while still a Vice-President of the company, was able to take out documents, clothes and several laminated pictures of William Liyao from the office. There was one instance when she was told by the guards, Mrs. Yulo is leaving and taking out things again.*18+ Linda then instructed the guards to bring Mrs. Yulo to the office upstairs but her sister, Tita Rose, decided to let Corazon Garcia go. Linda did not recognize any article of clothing which belonged to her father after having been shown three (3) large suit cases full of mens clothes, underwear, sweaters, shorts and pajamas.

Tita Rose Liyao-Tan testified that her parents were legally married and had never been separated. They resided at No. 21 Hernandez Street, San Lorenzo Village, Makati up to the time of her fathers death on December 2, 1975.[19] Her father suffered two (2) minor cardio-vascular arrests (CVA) prior to his death. During the first heart attack sometime between April and May 1974, his speech and hands were affected and he had to stay home for two (2) to three (3) months under strict medication, taking aldomet, serpadil and cifromet which were prescribed by Dr. Bonifacio Yap, for high blood pressure and cholesterol level control.[20] Tita Rose testified that after the death of Mr. Liyao, Corazon Garcia was paid the amount of One Hundred Thousand Pesos (P100,000.00) representing her investment in the Far East Realty Investment Inc. Tita Rose also stated that her family never received any formal demand that they recognize a certain William Liyao, Jr. as an illegitimate son of her father, William Liyao. After assuming the position of President of the company, Tita Rose did not come across any check signed by her late father representing payment to lessors as rentals for the house occupied by Corazon Garcia. Tita Rose added that the laminated photographs presented by Corazon Garcia are the personal collection of the deceased which were displayed at the latters office.

The last witness who testified for the respondents was Ramon Pineda, driver and bodyguard of William Liyao from 1962 to 1974, who said that he usually reported for work at San Lorenzo Village, Makati to pick up his boss at 8:00 oclock in the morning. At past 7:00 oclock in the evening, either Carlos Palamigan or Serafin Villacillo took over as night shift driver. Sometime between April and May 1974, Mr. Liyao got sick. It was only after a month that he was able to report to the office. Thereafter, Mr. Liyao was not able to report to the office regularly. Sometime in September 1974, Mr. Liyao suffered from another heart attack. Mr. Pineda added that as a driver and bodyguard of Mr. Liyao, he ran errands for the latter among which was buying medicine for him like capasid and aldomet. On December 2, 1975, Mr. Pineda was called inside the office of Mr. Liyao. Mr. Pineda saw his employer leaning on the table. He tried to massage Mr. Liyaos breast and decided later to carry and bring him to the hospital but

Mr. Liyao died upon arrival thereat. Mrs. Liyao and her daughter, Linda Liyao-Ortiga were the first to arrive at the hospital.

Mr. Pineda also declared that he knew Corazon Garcia to be one of the employees of the Republic Supermarket. People in the office knew that she was married. Her husband, Ramon Yulo, would sometimes go to the office. One time, in 1974, Mr. Pineda saw Ramon Yulo at the office garage as if to fetch Corazon Garcia. Mr. Yulo who was also asking about cars for sale, represented himself as car dealer.

Witness Pineda declared that he did not know anything about the claim of Corazon. He freely relayed the information that he saw Mr. Yulo in the garage of Republic Supermarket once in 1973 and then in 1974 to Atty. Quisumbing when he went to the latters law office. Being the driver of Mr. Liyao for a number of years, Pineda said that he remembered having driven the group of Mr. Liyao, Atty. Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio for a vacation together with the lawyers wives. During his employment, as driver of Mr. Liyao, he does not remember driving for Corazon Garcia on a trip to Baguio or for activities like shopping.

On August 31, 1993, the trial court rendered a decision, the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants as follows:

(a) Confirming the appointment of Corazon G. Garcia as the guardian ad litem of the minor William Liyao, Jr.;

(b) Declaring the minor William Liyao, Jr. as the illegitimate (spurious) son of the deceased William Liyao;

(c) Ordering the defendants Juanita Tanhoti Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Christian Liyao, to recognize, and acknowledge the minor William Liyao, Jr. as a compulsory heir of the deceased William Liyao, entitled to all succesional rights as such; and

(d) Costs of suit.[21]

In ruling for herein petitioner, the trial court said it was convinced by preponderance of evidence that the deceased William Liyao sired William Liyao, Jr. since the latter was conceived at the time when Corazon Garcia cohabited with the deceased. The trial court observed that herein petitioner had been in continuous possession and enjoyment of the status of a child of the deceased by direct and overt acts of the latter such as securing the birth certificate of petitioner through his confidential secretary, Mrs. Virginia Rodriguez; openly and publicly acknowledging petitioner as his son; providing sustenance and even introducing herein petitioner to his legitimate children.

The Court of Appeals, however, reversed the ruling of the trial court saying that the law favors the legitimacy rather than the illegitimacy of the child and the presumption of legitimacy is thwarted only on ethnic ground and by proof that marital intimacy between husband and wife was physically impossible at the period cited in Article 257 in relation to Article 255 of the Civil Code. The appellate court gave weight to the testimonies of some witnesses for the respondents that Corazon Garcia and Ramon Yulo who were still legally married and have not secured legal separation, were seen in each others company during the supposed time that Corazon cohabited with the deceased William Liyao. The appellate court further noted that the birth certificate and the baptismal certificate of William Liyao, Jr. which were presented by petitioner are not sufficient to establish proof of paternity in the absence of any evidence that the deceased, William Liyao, had a hand in the preparation of said certificates and considering that his signature does not appear thereon. The Court of Appeals stated that neither do family pictures constitute competent proof of filiation. With regard to the passbook which was presented as evidence for petitioner, the appellate court observed that there was nothing in it to prove that the same was opened by William Liyao for either petitioner or Corazon Garcia since William Liyaos signature and name do not appear thereon.

His motion for reconsideration having been denied, petitioner filed the present petition.

It must be stated at the outset that both petitioner and respondents have raised a number of issues which relate solely to the sufficiency of evidence presented by petitioner to establish his claim of filiation with the late William Liyao. Unfortunately, both parties have consistently overlooked the real crux of this litigation: May petitioner impugn his own legitimacy to be able to claim from the estate of his supposed father, William Liyao?

We deny the present petition.

Under the New Civil Code, a child born and conceived during a valid marriage is presumed to be legitimate.[22] The presumption of legitimacy of children does not only flow out from a declaration contained in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded in a policy to protect innocent offspring from the odium of illegitimacy.[23]

The presumption of legitimacy of the child, however, is not conclusive and consequently, may be overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code[24] provides:

Article 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.

Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child.

This physical impossibility may be caused:

1) By the impotence of the husband;

2) By the fact that husband and wife were living separately in such a way that access was not possible;

3) By the serious illness of the husband.

Petitioner insists that his mother, Corazon Garcia, had been living separately for ten (10) years from her husband, Ramon Yulo, at the time that she cohabited with the late William Liyao and it was physically impossible for her to have sexual relations with Ramon Yulo when petitioner was conceived and born. To bolster his claim, petitioner presented a document entitled, Contract of Separation,*25+ executed

and signed by Ramon Yulo indicating a waiver of rights to any and all claims on any property that Corazon Garcia might acquire in the future.[26]

The fact that Corazon Garcia had been living separately from her husband, Ramon Yulo, at the time petitioner was conceived and born is of no moment. While physical impossibility for the husband to have sexual intercourse with his wife is one of the grounds for impugning the legitimacy of the child, it bears emphasis that the grounds for impugning the legitimacy of the child mentioned in Article 255 of the Civil Code may only be invoked by the husband, or in proper cases, his heirs under the conditions set forth under Article 262 of the Civil Code.[27] Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that he is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces and he should be the one to decide whether to conceal that infidelity or expose it in view of the moral and economic interest involved.[28] It is only in exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these cases, none - even his heirs - can impugn legitimacy; that would amount o an insult to his memory.[29]

It is therefor clear that the present petition initiated by Corazon G. Garcia as guardian ad litem of the then minor, herein petitioner, to compel recognition by respondents of petitioner William Liyao, Jr, as the illegitimate son of the late William Liyao cannot prosper. It is settled that a child born within a valid marriage is presumed legitimate even though the mother may have declared against its legitimacy or may have been sentenced as an adulteress.[30] We cannot allow petitioner to maintain his present petition and subvert the clear mandate of the law that only the husband, or in exceptional circumstances, his heirs, could impugn the legitimacy of a child born in a valid and subsisting marriage. The child himself cannot choose his own filiation. If the husband, presumed to be the father does not impugn the legitimacy of the child, then the status of the child is fixed, and the latter cannot choose to be the child of his mothers alleged paramour. On the other hand, if the presumption of legitimacy is overthrown, the child cannot elect the paternity of the husband who successfully defeated the presumption.[31]

Do the acts of Enrique and Bernadette Yulo, the undisputed children of Corazon Garcia with Ramon Yulo, in testifying for herein petitioner amount to impugnation of the legitimacy of the latter?

We think not. As earlier stated, it is only in exceptional cases that the heirs of the husband are allowed to contest the legitimacy of the child. There is nothing on the records to indicate that Ramon Yulo has already passed away at the time of the birth of the petitioner nor at the time of the initiation of this proceedings. Notably, the case at bar was initiated by petitioner himself through his mother, Corazon

Garcia, and not through Enrique and Bernadette Yulo. It is settled that the legitimacy of the child can be impugned only in a direct action brought for that purpose, by the proper parties and within the period limited by law.

Considering the foregoing, we find no reason to discuss the sufficiency of the evidence presented by both parties on the petitioners claim of alleged filiation with the late William Liyao. In any event, there is no clear, competent and positive evidence presented by the petitioner that his alleged father had admitted or recognized his paternity.

WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of Appeals in CA-G.R. CV No. 45394 is hereby AFFIRMED. No costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

SECOND DIVISION

REINEL ANTHONY B. DE CASTRO, Petitioner,

G.R. No. 160172

Present:

QUISUMBING, J., Chairperson, - versus CARPIO, CARPIO MORALES, TINGA, and VELASCO, JR., JJ.

ANNABELLE ASSIDAO-DE CASTRO, Respondent. Promulgated:

February 13, 2008

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DECISION

TINGA, J.:

This is a petition for review of the Decision[1] of the Court of Appeals in CA-GR CV. No. 69166,[2] declaring that (1) Reianna Tricia A. De Castro is the legitimate child of the petitioner; and (2) that the marriage between petitioner and respondent is valid until properly nullified by a competent court in a proceeding instituted for that purpose.

The facts of the case, as culled from the records, follow.

Petitioner and respondent met and became sweethearts in 1991. They planned to get married, thus they applied for a marriage license with the Office of the Civil Registrar of Pasig City in September 1994. They had their first sexual relation sometime in October 1994, and had regularly engaged in sex thereafter. When the couple went back to the Office of the Civil Registrar, the marriage license had already expired. Thus, in order to push through with the plan, in lieu of a marriage license, they executed an affidavit dated 13 March 1995 stating that they had been living together as husband and wife for at least five years. The couple got married on the same date, with Judge Jose C. Bernabe, presiding judge of the Metropolitan Trial Court of Pasig City, administering the civil rites. Nevertheless, after the ceremony, petitioner and respondent went back to their respective homes and did not live together as husband and wife.

On 13 November 1995, respondent gave birth to a child named Reinna Tricia A. De Castro. Since the childs birth, respondent has been the one supporting her out of her income as a government dentist and from her private practice.

On 4 June 1998, respondent filed a complaint for support against petitioner before the Regional Trial Court of Pasig City (trial court.[3] In her complaint, respondent alleged that she is married to petitioner and that the latter has reneged on his responsibility/obligation to financially support her as his wife and Reinna Tricia as his child.*4+

Petitioner denied that he is married to respondent, claiming that their marriage is void ab initio since the marriage was facilitated by a fake affidavit; and that he was merely prevailed upon by respondent to sign the marriage contract to save her from embarrassment and possible administrative prosecution due to her pregnant state; and that he was not able to get parental advice from his parents before he got married. He also averred that they never lived together as husband and wife and that he has never seen nor acknowledged the child.

In its Decision dated 16 October 2000,[5] the trial court ruled that the marriage between petitioner and respondent is not valid because it was solemnized without a marriage license. However, it declared petitioner as the natural father of the child, and thus obliged to give her support. Petitioner elevated the case to the Court of Appeals, arguing that the lower court committed grave abuse of discretion when, on the basis of mere belief and conjecture, it ordered him to provide support to the child when the latter is not, and could not have been, his own child.

The Court of Appeals denied the appeal. Prompted by the rule that a marriage is presumed to be subsisting until a judicial declaration of nullity has been made, the appellate court declared that the child was born during the subsistence and validity of the parties marriage. In addition, the Court of Appeals frowned upon petitioners refusal to undergo DNA testing to prove the paternity and filiation, as well as his refusal to state with certainty the last time he had carnal knowledge with respondent, saying that petitioners forgetfulness should not be used as a vehicle to relieve him of his obligation and reward him of his being irresponsible.*6+ Moreover, the Court of Appeals noted the affidavit dated 7 April 1998 executed by petitioner, wherein he voluntarily admitted that he is the legitimate father of the child.

The appellate court also ruled that since this case is an action for support, it was improper for the trial court to declare the marriage of petitioner and respondent as null and void in the very same case. There was no participation of the State, through the prosecuting attorney or fiscal, to see to it that there is no collusion between the parties, as required by the Family Code in actions for declaration of nullity of a marriage. The burden of proof to show that the marriage is void rests upon petitioner, but it is a matter that can be raised in an action for declaration of nullity, and not in the instant proceedings. The proceedings before the trial court should have been limited to the obligation of petitioner to support the child and his wife on the basis of the marriage apparently and voluntarily entered into by petitioner and respondent.[7] The dispositive portion of the decision reads:

WHEREFORE, premises considered, the Decision dated 16 October 2000, of the Regional Trial Court of Pasig City, National Capital Judicial Region, Brach 70, in JDRC No. 4626, is AFFIRMED with the MODIFICATIONS (1) declaring Reianna Tricia A. De Castro, as the legitimate child of the appellant and the appellee and (2) declaring the marriage on 13 March 1995 between the appellant and the appellee valid until properly annulled by a competent court in a proceeding instituted for that purpose. Costs against the appellant.[8]

Petitioner filed a motion for reconsideration, but the motion was denied by the Court of Appeals.[9] Hence this petition.

Before us, petitioner contends that the trial court properly annulled his marriage with respondent because as shown by the evidence and admissions of the parties, the marriage was celebrated without a marriage license. He stresses that the affidavit they executed, in lieu of a marriage license, contained a false narration of facts, the truth being that he and respondent never lived together as husband and wife. The false affidavit should never be allowed or admitted as a substitute to fill the absence of a marriage license.[10] Petitioner additionally argues that there was no need for the appearance of a prosecuting attorney in this case because it is only an ordinary action for support and not an action for annulment or declaration of absolute nullity of marriage. In any case, petitioner argues that the trial court had jurisdiction to determine the invalidity of their marriage since it was validly invoked as an affirmative defense in the instant action for support. Citing several authorities,[11] petitioner claims that a void marriage can be the subject of a collateral attack. Thus, there is no necessity to institute another independent proceeding for the declaration of nullity of the marriage between the parties. The refiling of another case for declaration of nullity where the same evidence and parties would be presented would entail enormous expenses and anxieties, would be time-consuming for the parties, and would increase the burden of the courts.[12] Finally, petitioner claims that in view of the nullity of

his marriage with respondent and his vigorous denial of the childs paternity and filiation, the Court of Appeals gravely erred in declaring the child as his legitimate child.

In a resolution dated 16 February 2004, the Court required respondent and the Office of the Solicitor General (OSG) to file their respective comments on the petition.[13]

In her Comment,[14] respondent claims that the instant petition is a mere dilatory tactic to thwart the finality of the decision of the Court of Appeals. Echoing the findings and rulings of the appellate court, she argues that the legitimacy of their marriage cannot be attacked collaterally, but can only be repudiated or contested in a direct suit specifically brought for that purpose. With regard to the filiation of her child, she pointed out that compared to her candid and straightforward testimony, petitioner was uncertain, if not evasive in answering questions about their sexual encounters. Moreover, she adds that despite the challenge from her and from the trial court, petitioner strongly objected to being subjected to DNA testing to prove paternity and filiation.[15]

For its part, the OSG avers that the Court of Appeals erred in holding that it was improper for the trial court to declare null and void the marriage of petitioner and respondent in the action for support. Citing the case of Nial v. Bayadog,[16] it states that courts may pass upon the validity of a marriage in an action for support, since the right to support from petitioner hinges on the existence of a valid marriage. Moreover, the evidence presented during the proceedings in the trial court showed that the marriage between petitioner and respondent was solemnized without a marriage license, and that their affidavit (of a man and woman who have lived together and exclusively with each other as husband and wife for at least five years) was false. Thus, it concludes the trial court correctly held that the marriage between petitioner and respondent is not valid.[17] In addition, the OSG agrees with the findings of the trial court that the child is an illegitimate child of petitioner and thus entitled to support.[18]

Two key issues are presented before us. First, whether the trial court had the jurisdiction to determine the validity of the marriage between petitioner and respondent in an action for support and second, whether the child is the daughter of petitioner.

Anent the first issue, the Court holds that the trial court had jurisdiction to determine the validity of the marriage between petitioner and respondent. The validity of a void marriage may be collaterally attacked.[19] Thus, in Nial v. Bayadog, we held:

However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause on the basis of a final judgment declaring such previous marriage void in Article 40 of the Family Code connotes that such final judgment need not be obtained only for purpose of remarriage.[20]

Likewise, in Nicdao Cario v. Yee Cario,[21] the Court ruled that it is clothed with sufficient authority to pass upon the validity of two marriages despite the main case being a claim for death benefits. Reiterating Nial, we held that the Court may pass upon the validity of a marriage even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. However, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a marriage an absolute nullity.[22]

Under the Family Code, the absence of any of the essential or formal requisites shall render the marriage void ab initio, whereas a defect in any of the essential requisites shall render the marriage voidable.[23] In the instant case, it is clear from the evidence presented that petitioner and respondent did not have a marriage license when they contracted their marriage. Instead, they presented an affidavit stating that they had been living together for more than five years.[24] However, respondent herself in effect admitted the falsity of the affidavit when she was asked during cross-examination, thus

ATTY. CARPIO:

Q But despite of (sic) the fact that you have not been living together as husband and wife for the last five years on or before March 13, 1995, you signed the Affidavit, is that correct? A Yes, sir.[25]

The falsity of the affidavit cannot be considered as a mere irregularity in the formal requisites of marriage. The law dispenses with the marriage license requirement for a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The aim of this provision is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicants name for a marriage license.*26+ In the instant case, there was no scandalous cohabitation to protect; in fact, there was no cohabitation at all. The false affidavit which petitioner and respondent executed so they could push through with the marriage has no value whatsoever; it is a mere scrap of paper. They were not exempt from the marriage license requirement. Their failure to obtain and present a marriage license renders their marriage void ab initio.

Anent the second issue, we find that the child is petitioners illegitimate daughter, and therefore entitled to support.

Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.[27] Thus, one can prove illegitimate filiation through the record of birth appearing in the civil register or a final judgment, an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned, or the open and continuous possession of the status of a legitimate child, or any other means allowed by the Rules of Court and special laws.[28]

The Certificate of Live Birth[29] of the child lists petitioner as the father. In addition, petitioner, in an affidavit waiving additional tax exemption in favor of respondent, admitted that he is the father of the child, thus stating:

1. I am the legitimate father of REIANNA TRICIA A. DE CASTRO who was born on November 3, 1995 at Better Living, Paraaque, Metro Manila;[30]

We are likewise inclined to agree with the following findings of the trial court:

That Reinna Tricia is the child of the respondent with the petitioner is supported not only by the testimony of the latter, but also by respondents own admission in the course of his testimony wherein he conceded that petitioner was his former girlfriend. While they were sweethearts, he used to visit petitioner at the latters house or clinic. At times, they would go to a motel to have sex. As a result of their sexual dalliances, petitioner became pregnant which ultimately led to their marriage, though invalid, as earlier ruled. While respondent claims that he was merely forced to undergo the marriage ceremony, the pictures taken of the occasion reveal otherwise (Exhs. B, B-1, to B-3, C, C-1 and C-2, D, D-1 and D-2, E, E-1 and E-2, F, F-1 and F-2, G, G-1 and G-2 and H, H1 to H-3). In one of the pictures (Exhs. D, D-1 and D-2), defendant is seen putting the wedding ring on petitioners finger and in another picture (Exhs. E, E-1 and E-2) respondent is seen in the act of kissing the petitioner.[31]

WHEREFORE, the petition is granted in part. The assailed Decision and Resolution of the Court of Appeals in CA-GR CV No. 69166 are SET ASIDE and the decision of the Regional Trial Court Branch 70 of Pasig City in JDRC No. 4626 dated 16 October 2000 is hereby REINSTATED.

SO ORDERED.

DANTE O. TINGA Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING

Associate Justice Chairperson

ANTONIO T. CARPIO Associate Justice

CONCHITA CARPIO MORALES Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ATTESTATION

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

LEONARDO A. QUISUMBING Associate Justice Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice