Republic of the Philippines SUPREME COURT

FIRST DIVISION

G.R. No. 154380 October 5, 2005

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. CIPRIANO ORBECIDO III, Respondent.

DECISION

QUISUMBING, J.:

Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law?

Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel question, presented as a pure question of law.

In this petition for review, the Solicitor General assails the Decision1 dated May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads:

WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the Philippine Law.

IT IS SO ORDERED.3

The factual antecedents, as narrated by the trial court, are as follows.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.

In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen.

Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California.

Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied.

In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE4

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for legal separation.5 Furthermore, the OSG argues there is no law that governs respondents situation. The OSG posits that this is a matter of legislation and not of judicial determination.6

For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution.7

At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides:

RULE 63

DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petitionAny person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.

...

The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.8

This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of his second marriage.

Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the legislators in its enactment?

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states:

All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)

On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A.

Noteworthy, in the Report of the Public Hearings9 on the Family Code, the Catholic Bishops Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:

1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce them abroad can.

2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can re-marry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.)

Legislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.10 The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law.

Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization?

The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.11 In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.12

If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26.

In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.

In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the "divorced" Filipino spouse, should be allowed to remarry.

We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse.

However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence.13

Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.14 Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved.15 Furthermore, respondent must also show that the divorce decree allows his

former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage.

Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondents bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made properly upon respondents submission of the aforecited evidence in his favor.

ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.

No pronouncement as to costs.

SO ORDERED.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-27939

October 30, 1928

FORTUNATA SOLIS, plaintiff-appellee, vs. MAXIMA BARROSO, ET AL., defendants-appellants.

Mabanag and Primicias, Emiliano A. Ramos and Eugenio S. Estayo for appellants. Turner, Rheberg and Sanchez for appellee.

AVANCEA, C. J.:

The spouses Juan Lambino and Maria A. Barroso begot three children named Alejo, Eugenia and Marciana Lambino. On June 2, 1919 said spouses made a donation of propter nuptias of the lands described in the complaint in favor of their son Alejo Lambino and Fortunata Solis in a private document (Exhibit A) in consideration of the marriage which the latter were about to enter into. One of the conditions of this donation is that in case of the death of one of the donees, one-half of these lands thus donated would revert to the donors while the surviving donee would retain the other half. On the 8th of the said month of June 1919, Alejo Lambino and Fortunata Solis were married and immediately thereafter the donors delivered the possession of the donated lands to them. On August 3, 1919 donee Alejo Lambino died. In the same year donor Juan Lambino also died. After the latter's death, his wife, Maxima Barroso, recovered possession of the donated lands.

The surviving donee Fortunata Solis filed the action, which is the subject matter of this appeal, against the surviving donor Maxima Barroso and Eugenia and Marcelina Lambino, heirs of the deceased donor Juan Lambino,

with their respective husbands, demanding of the defendants the execution of the proper deed of donation according to law, transferring one-half of the donated property, and moreover, to proceed to the partition of the donated property and its fruits.

The court rendered judgment based upon article 1279 of the Civil Code granting plaintiff's prayer and ordering the defendants to execute a deed of donation in favor of the plaintiff, adequate in form and substance to transfer to the latter the legal title to the part of the donated lands assigned to her in the original donation.

We are of the opinion that article 1279 of the Civil Code, relating to contracts, is not applicable to the present case.

We are concerned with a donation propter nuptias, which, according to article 1328 of the Civil Code, must be governed by the rules established in Title II, Book III of this Code, on donations (articles 618 to 656), Article 633 provides that in order that a donation of real property may be valid, it must be made in a public instrument. This is the article applicable to donation propter nuptias in so far as its formal validity is concerned. The only exceptions to this rule are onerous and remuneratory donations, in so far as they do not exceed the value of the charge imposed, which are then governed by the rules on contracts (art. 622), and those which are to take effect upon the donor's death, which are governed by the rules established for testamentary successions (art. 620).

We have, therefore, a donation propter nuptias which is not valid and did not create any right, since it was not made in a public instrument, and hence, article 1279 of the Civil Code which the lower court applied is not applicable thereto. The last named article provides that, should the law require the execution of an instrument or any other special form in order to make the obligations of a contract effective, the contracting parties may compel each other to comply with such formality from the moment that consent has been given, and the other requirements for the validity of the contract exist. Suffice it to state that this article refers to contracts and is inapplicable to the donation in question which must be governed by the rules on donations. It may further be noted, at first sight, that this article presupposes the existence of a valid contract and cannot possibly refer to the form required in order to make it valid, which it already has, but rather to that required simply to make it effective, and for this reason, it would, at all events, be inapplicable to the donation in question, wherein the form is required precisely to make it valid. 1awph!l.net

But the lower court states in its judgment that the present donation is onerous, and pursuant to article 622 of the Civil Code must be governed by the rules on contracts. This opinion is not well founded. Donations for valuable consideration, as may be inferred from article 619 of the Civil Code, are such as compensate services which constitute debts recoverable from the donor, or which impose a charge equal to the amount of the donation upon the donee, neither of which is true of the present donation, which was made only in consideration of marriage. The lower court insists that, by the fact that this is a donation propter nuptias, it is based upon the marriage as a consideration, and must be considered onerous. Neither is this opinion well founded. In donations propter nuptias, the marriage is really a consideration, but not in the sense of being necessary to give birth to the

obligation. This may be clearly inferred from article 1333, which makes the fact that the marriage did not take place a cause for the revocation of such donations, thus taking it for granted that there may be a valid donation propter nuptias, even without marriage, since that which has not existed cannot be revoked. And such a valid donation would be forever valid, even if the marriage never took place, if the proper action for revocation were not instituted, or if it were instituted after the lapse of the statutory period of prescription. This is, so because the marriage in a donation propter nuptias is rather a resolutory condition which, as such, presupposes the existence of the obligation which may be resolved or revoked, and it is not a condition necessary for the birth of the obligation.

The judgment appealed from is reversed and the defendants are hereby absolved from the complaint, without special pronouncement of costs. So ordered.

Johnson, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

G.R. No. 105944

February 9, 1996

SPOUSES ROMULO AND SALLY EDUARTE, petitioners, vs. THE HONORABLE COURT OF APPEALS and PEDRO CALAPINE (substituted by ALEXANDER CALAPINE and ARTEMIS CALAPINE), respondents.

DECISION

FRANCISCO, J.:

A donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it.1 On the part of the donor, it is an exercise of one's generosity. However, on several occasions, instead of being accorded recognition and appreciation for this act of beneficence, the donor ends up as a victim of greed and ingratitude. This was the fate that befell Pedro Calapine (herein original plaintiff) constraining him to cause the revocation of the donation that he made to his niece in 1984. The instant petition for certiorari is interposed by the spouses Romulo and Sally Eduarte, assailing the decision of the Court of Appeals in CA-G.R. CV No. 29175 which affirmed the revocation of the donation made by Pedro Calapine to his niece, Helen Doria, and at the same time declared petitioners as purchasers in bad faith of the property donated.

As set out in the appealed decision, the undisputed facts are as follows:

Pedro Calapine was the registered owner of a parcel of land located in San Cristobal, San Pablo City, with an area of 12,199 square meters, as evidenced by Original Certificate of Title No. P-2129 (Exhibits A and 1). On April 26, 1984, he executed a deed entitled "Pagbibigay-Pala (Donacion InterVivos)" ceding one-half portion thereof to his niece Helen S. Doria (Exhibit B).

On July 26, 1984, another deed identically entitled was purportedly executed by Pedro Calapine ceding unto Helen S. Doria the whole of the parcel of land covered by OCT No. P-2129 (Exhibits C and D), on the basis of which said original certificate was cancelled and in lieu thereof Transfer Certificate of Title No. T-23205 was issued in her name, (Exhibits G and 2).

On February 26, 1986, Helen S. Doria donated a portion of 157 square meters of the parcel of land covered by TCT No. T-23205 to the Calauan Christian Reformed Church, Inc. (Exhibit H), on the basis of which said transfer certificate of title was cancelled and TCT No. T-24444 was issued in its name covering 157 square meters (Exhibit 2A) and TCT No. T-24445, in the name of Helen S. Doria covering the remaining portion of 12,042 square meters (Exhibit 3).

On March 25, 1988, Helen S. Doria sold, transferred and conveyed unto the spouses Romulo and Sally Eduarte the parcel of land covered by TCT No. T-24445, save the portion of 700 square meters on which the vendor's house had been erected (Exhibits 1 and 3-F), on the basis of which TCT No. 24445 was cancelled and in lieu thereof TCT No. T-27434, issued in the name of the vendees (Exhibit 4).

Claiming that his signature to the deed of donation (Exhibits C and D) was a forgery and that she was unworthy of his liberality, Pedro Calapine brought suit against Helen S. Doria, the Calauan Christian Reformed Church, Inc. and the Spouses Romulo and Sally Eduarte to revoke the donation made in favor of Helen S. Doria (Exhibit B), to declare null and void the deeds of donation and sale that she had executed in favor of the Calauan Christian Reformed Church, Inc. and the spouses Romulo and Sally Eduarte (Exhibits H, I and 3-F) and to cancel TCT Nos. T24444, 24445 and T-27434.

Answering the complaint, the defendants spouses denied knowledge of the first deed of donation and alleged that after a part of the property was donated to the defendant Calauan Christian Reformed Church, Inc., the remaining portion thereof was sold to them by the defendant Helen S. Doria; and that the plaintiff's purported signature in the second deed of donation was his own, hence genuine. They prayed that the complaint against them be dismissed; that upon their counterclaim, the plaintiff be ordered to pay them moral and exemplary damages and attorney's fees; and that upon their cross-claim the defendant Helen S. Doria be ordered to reimburse them the purchase price of P110,000 and to pay them moral and exemplary damages and attorney's fees (pp. 23-31, rec.).

The defendant Calauan Christian Reformed Church, Inc. manifested in its answer the willingness to reconvey to the plaintiff that part of the property donated to it by Helen S. Doria (pp. 36-38, rec.). And having executed the corresponding deed of reconveyance, the case as against it was dismissed (pp. 81-83; 84, rec.).

The defendants Helen S. Doria and the City Assessor and the Registrar of Deeds of San Pablo City did not file answers to the plaintiffs complaint.

After the plaintiffs death on August 27, 1989, on motion he was substituted by his nephews Alexander and Artemis Calapine upon order of the Court (pp. 147-152; 250, rec.)

After trial, the Regional Trial Court, Fourth Judicial Region, Branch 30, San Pablo City rendered judgment, the dispositive part of which provides:

WHEREFORE, premises considered, judgment is hereby rendered by the Court in the instant case in favor of plaintiff and against defendant Eduartes to wit:

1.

DECLARING as it is hereby declared, the revocation of the Deed of Donation dated April 26, 1984;

2. ANNULLING, voiding, setting aside and declaring of no force and effect the Deed of Donation dated July 26, 1984, the deed of absolute sale executed on March 25, 1988 by and between spouses Eduartes and Helen Doria, and the Transfer Certificate of Title No. T-27434 issued under the name of spouses Romulo and Sally Eduarte;

3. ORDERING the office of the Register of Deeds, San Pablo City, to cancel TCT No. T-27434 or any other adverse title emanating from OCT No. P-2129 and in lieu thereof, to issue a new transfer certificate of title covering the subject property under the names of the substitute-plaintiffs Alexander and Artemis both surnamed Calapine, after payment of the corresponding fees and taxes therefor; and

4. fees.

ORDERING defendant Helen Doria to pay substitute-plaintiffs the sum of P20,000.00 as and for attorney's

Judgment on the cross-claim of defendant Eduartes against Helen Doria is further rendered by ordering the latter to pay the former the sum of P110,000.00 with legal interest thereon starting from March 25, 1988 until full payment, and the further sum of P20,000.00 as and for attorney's fees.

The counterclaim of defendant Eduartes against plaintiff is hereby dismissed for lack of merit.

Costs against defendant Helen Doria in both the complaint and the cross-claim (pp. 11-12, decision, pp. 264-265, rec.).

Only the defendants Eduarte spouses took an appeal (p. 266, rec.), claiming that the trial court erred -

1.

In annulling, voiding, setting aside, and declaring of no force and effect -

(a)

the deed of donation (Exhibit C and 1-A), dated July 26, 1984;

(b) the deed of absolute sale (Exhibit 1 and 3-E) executed on March 25, 1988 by and between Spouses Eduartes and Helen Doria;

(c)

TCT No. T-27434 (Exhibit 4) issued in the name of spouses Romulo Eduarte and Sally Eduarte; and

in revoking the deed of donation (Exhibit B) dated April 26, 1984;

2.

In declaring the appellants Eduartes buyers in bad faith;

3. In not finding the plaintiffs guilty of estoppel by silence and/or guilty of suppression of evidence instead of finding the appellants Eduartes guilty of suppression of evidence; and

4. In finding that the signature of Pedro Calapine in the deed of donation (Exhibits C and 1-A) dated July 26, 1984 a forgery based on the opposite findings of the handwriting experts presented by each party and in the absence of the testimony of Pedro Calapine who was then still alive. (pp. 1-2, appellants' brief.)2

In its decision dated April 22, 1992,3 respondent Court of Appeals dismissed petitioners' appeal and affirmed the decision of the trial court. Respondent court was in complete accord with the trial court in giving more credence to the testimony of private respondents' expert witness, NBI document examiner Bienvenido Albacea, who found Pedro Calapine's signature in the second deed of donation to be a forgery. It also ruled that by falsifying Pedro Calapine's signature, Helen Doria committed an act of ingratitude which is a valid ground for revocation of the donation made in her favor in accordance with Article 765 of the Civil Code. Furthermore, respondent court upheld the trial court's finding that petitioners are not buyers in good faith of the donated property as they failed to exercise due diligence in verifying the true ownership of the property despite the existence of circumstances that should have aroused their suspicions.

Petitioners are now before us taking exception to the foregoing findings of respondent Court of Appeals and contending that the same are not in accord with the law and evidence on record.

Anent the revocation of the first deed of donation, petitioners submit that paragraph (1) of Article 765 of the Civil Code does not apply in this case because the acts of ingratitude referred to therein pertain to offenses committed by the donee against the person or property of the donor. Petitioners argue that as the offense imputed to herein donee Helen Doria - falsification of a public document - is neither a crime against the person nor property of the donor but is a crime against public interest under the Revised Penal Code, the same is not a ground for revocation.

In support of this contention, petitioners cite the following portions found in Tolentino's Commentaries and Jurisprudence on the Civil Code:

Offense against Donor - . . . The crimes against the person of the donor would include not only homicide and physical injuries, but also illegal detention, threats and coercion; and those against honor include offenses against chastity and those against the property, include robbery, theft, usurpation, swindling, arson, damages, etc. (5 Manresa 175-176).4

This assertion, however, deserves scant consideration. The full text of the very same commentary cited by petitioners belies their claim that falsification of the deed of donation is not an act of ingratitude, to wit:

Offense Against Donor. - All crimes which offend the donor show ingratitude and are causes for revocation. There is no doubt, therefore, that the donee who commits adultery with the wife of the donor, gives cause for revocation by reason of ingratitude. The crimes against the person of the donor would include not only homicide and physical injuries, but also illegal detention, threats, and coercion; those against honor include offenses against chastity; and those against the property, include robbery, theft, usurpation, swindling, arson, damages, etc. [Manresa 175176].5 (Emphasis supplied).

Obviously, the first sentence was deleted by petitioners because it totally controverts their contention. As noted in the aforecited opinion "all crimes which offend the donor show ingratitude and are causes for revocation." Petitioners' attempt to categorize the offenses according to their classification under the Revised Penal Code is therefore unwarranted considering that illegal detention, threats and coercion are considered as crimes against the person of the donor despite the fact that they are classified as crimes against personal liberty and security under the Revised Penal Code.6

Petitioners also impute grave error to respondent Court of Appeals in finding that "the second deed of donation dated July 26, 1984 was falsified. Petitioners deplore the fact that more credence was given to the testimony of the NBI handwriting expert who found Pedro Calapine's signature in the second deed of donation to be a forgery despite the existence of controverting testimony by PC-INP Crime Laboratory (PCCL) Chief Document Examiner which petitioners adduced as evidence on their part.

We are not persuaded. Respondent Court of Appeals and the trial court cannot be faulted for giving more weight and credence to the testimony of the NBI handwriting expert considering that the examination of the said witness proved to be complete, thorough and scientific.

In gauging the relative weight to be given to the opinion of handwriting experts, we adhere to the following standards:

We have held that the value of the opinion of a handwriting expert depends not upon his mere statements of whether a writing is genuine or false, but upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing which would ordinarily escape notice or detection from an unpracticed observer. The test of genuineness ought to be the resemblance, not the formation of letters in some other specimens but to the general character of writing, which is impressed on it as the involuntary and unconscious result of constitution, habit or other permanent course, and is, therefore itself permanent. 7

Confronted with contradicting testimonies from two handwriting experts, the trial court and respondent Court of Appeals were convinced by the opinion of the NBI handwriting expert as it was more exhaustive, in contrast with the testimony of petitioners' witness from the PCCL which was discarded on account of the following flaws:

The Court is not convinced with Cruz's explanations. Apart from the visual inconsistencies, i.e., the strokes with which some letters were made, the variety in the sizes of the letters, the depth, the difference in the slant which the Court itself observed in its own examination of both the questioned signatures and those standard specimen signatures, there is evidence showing that Cruz did not make a thorough examination of all the signatures involved in this particular issue. Thus even in the report submitted by the PCCL it was admitted that they omitted or overlooked the examination of at least three (3) standard specimen signatures of Pedro Calapine which were previously subject of the NBI examination marked as Exhibits "S-9", "S-10" and "S-11". When questioned regarding this oversight, Cruz testified that in his opinion, the inclusion or non-inclusion of said exhibits in their examination will not affect the same and they would have arrived at the same conclusion anyway. Again, when asked why they did not bother to have the original copies of the documents being questioned (Exhs. "Q-1" through "Q-3") for their examination, Cruz replied that they are using a special film so it will not matter whether the documents being examined are the original or a mere photocopy (TSN 8, 10, 12 and 26, Hearing of Nov. 23, 1989).

The Court will not attempt to make its own conclusion or resolution on such a technical issue as the matter at hand in the light of the cavalier attitude of Cruz. In fine, between the examinations made by the two witnesses, that of Albacea's proved to be complete, thorough and scientific and is worthy of credence and belief.8

The afore-quoted findings confirm beyond doubt the failure of petitioners' expert witness to satisfy the abovementioned criteria for evaluating the opinion of handwriting experts. At the same time, petitioners' witness failed to rebut the convincing testimony of the NBI handwriting expert presented by private respondents. We therefore find no reason to deviate from the assailed conclusions as the same are amply supported by the evidence on record.

Finally, proceeding to the crucial issue that directly affects herein petitioners, it is reiterated that petitioners are buyers in good faith of the donated property, and therefore, it was grave error to annul and set aside the deed of sale executed between petitioners and donee Helen Doria.

In adjudging petitioners as buyers in bad faith, respondent Court of Appeals affirmed the trial court's finding that the attendant circumstances, that is, the presence of other occupants as well as houses built of strong materials and fruit bearing trees in the subject land, should have aroused the suspicion of petitioners and impelled them to exercise due diligence in verifying the true ownership of the property being sold. Petitioners dispute the lower court's conclusion and argue that although there were other occupants in the subject property, no adverse claim was made by the latter as they were mere tenants therein, thus, petitioners were not obliged to make any further inquiry because the property being sold was covered by a certificate of title under Helen Doria's name.

We agree with petitioners. The rule is well-settled that mere possession cannot defeat the title of a holder of a registered torrens title to real property.9 Moreover, reliance on the doctrine that a forged deed can legally be the root of a valid title is squarely in point in this case:

Although generally a forged or fraudulent deed is a nullity and conveys no title, however there are instances when such a fraudulent document may become the root of a valid title. One such instance is where the certificate of title was already transferred from the name of the true owner to the forger, and while it remained that way, the land was subsequently sold to an innocent purchaser. For then, the vendee had the right to rely upon what appeared in the certificate.

Where there was nothing in the certificate of title to indicate any cloud or vice in the ownership of the property, or any encumbrance thereon, the purchaser is not required to explore further than what the Torrens Title upon its face indicates in quest for any hidden defect or inchoate right that may subsequently defeat his right thereto. If the rule were otherwise, the efficacy and conclusiveness of the certificate of title which the Torrens System seeks to insure would entirely be futile and nugatory.10

When herein petitioners purchased the subject property from Helen Doria, the same was already covered by TCT No. T-23205 under the latter's name. And although Helen Doria's title was fraudulently secured, such fact cannot

prejudice the rights of herein petitioners absent any showing that they had any knowledge or participation in such irregularity. Thus, they cannot be obliged to look beyond the certificate of title which appeared to be valid on its fade and sans any annotation or notice of private respondents' adverse claim. Contrary therefore to the conclusion of respondent Court, petitioners are purchasers in good faith and for value as they bought the disputed property without notice that some other person has a right or interest in such property, and paid a full price for the same at the time of the purchase or before they had notice of the claim or interest of some other person in the property.11

Respondent Court therefore committed a reversible error when it affirmed the ruling of the trial court annulling and setting aside the deed of absolute sale dated March 25, 1988 between petitioners and Helen Doria, as well as the Transfer Certificate of Title No. T-27434 issued under petitioners' name, the established rule being that the rights of an innocent purchaser for value must be respected and protected notwithstanding the fraud employed by the seller in securing his title.12

In this regard, it has been held that the proper recourse of the true owner of the property who was prejudiced and fraudulently dispossessed of the same is to bring an action for damages against those who caused or employed the fraud, and if the latter are insolvent, an action against the Treasurer of the Philippines may be filed for recovery of damages against the Assurance Fund.13

Conformably with the foregoing, having established beyond doubt that Helen Doria fraudulently secured her title over the disputed property which she subsequently sold to petitioners, Helen Doria should instead be adjudged liable to private respondents, and not to petitioners as declared by the trial court and respondent Court of Appeals, for the resulting damages to the true owner and original plaintiff, Pedro Calapine.

ACCORDINGLY, the petition is GRANTED and the appealed decision is hereby MODIFIED. The portions of the decision of the Regional Trial Court of San Pablo City, Branch 30, as affirmed by the Court of Appeals in CA-G.R. CV No. 29175 which ordered the following:

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2. ANNULLING, voiding, setting aside and declaring of no force and effect . . . , the deed of absolute sale executed on March 25, 1988 by and between spouses Eduartes and Helen Doria, and the Transfer Certificate of Title No T-27434 issued under the name of spouses Romulo and Sally Eduarte;

3. ORDERING the office of the Register of Deeds, San Pablo City, to cancel TCT No. T-27434 or any other adverse title emanating from OCT No. P-2129 and in lieu thereof, to issue a new transfer certificate of title

covering the subject property under the names of the substitute-plaintiff Alexander and Artemis both surnamed Calapine, after payment of the corresponding fees and taxes therefor; and

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Judgment on the cross-claim of defendant Eduartes against Helen Doria is further rendered by ordering the latter to pay the former the sum of P110,000.00 with legal interest thereon starting from March 25, 1988 until full payment, . . . .

are hereby REVERSED and SET ASIDE.

Instead, Helen Doria is hereby ordered to pay herein private respondents the sum of P110,000.00 with legal interest counted from March 25, 1988 until full payment, as damages for the resulting loss to original plaintiff Pedro Calapine.

In all other respects, the appealed decision is hereby affirmed.

SO ORDERED.

G.R. No. L-40411

August 7, 1935

DAVAO SAW MILL CO., INC., plaintiff-appellant, vs. APRONIANO G. CASTILLO and DAVAO LIGHT & POWER CO., INC., defendants-appellees.

Arsenio Suazo and Jose L. Palma Gil and Pablo Lorenzo and Delfin Joven for appellant. J.W. Ferrier for appellees.

MALCOLM, J.:

The issue in this case, as announced in the opening sentence of the decision in the trial court and as set forth by counsel for the parties on appeal, involves the determination of the nature of the properties described in the complaint. The trial judge found that those properties were personal in nature, and as a consequence absolved the defendants from the complaint, with costs against the plaintiff.

The Davao Saw Mill Co., Inc., is the holder of a lumber concession from the Government of the Philippine Islands. It has operated a sawmill in the sitio of Maa, barrio of Tigatu, municipality of Davao, Province of Davao. However, the land upon which the business was conducted belonged to another person. On the land the sawmill company erected a building which housed the machinery used by it. Some of the implements thus used were clearly personal property, the conflict concerning machines which were placed and mounted on foundations of cement. In the contract of lease between the sawmill company and the owner of the land there appeared the following provision:

That on the expiration of the period agreed upon, all the improvements and buildings introduced and erected by the party of the second part shall pass to the exclusive ownership of the party of the first part without any obligation on its part to pay any amount for said improvements and buildings; also, in the event the party of the second part should leave or abandon the land leased before the time herein stipulated, the improvements and buildings shall likewise pass to the ownership of the party of the first part as though the time agreed upon had expired: Provided, however, That the machineries and accessories are not included in the improvements which will pass to the party of the first part on the expiration or abandonment of the land leased.

In another action, wherein the Davao Light & Power Co., Inc., was the plaintiff and the Davao, Saw, Mill Co., Inc., was the defendant, a judgment was rendered in favor of the plaintiff in that action against the defendant in that

action; a writ of execution issued thereon, and the properties now in question were levied upon as personalty by the sheriff. No third party claim was filed for such properties at the time of the sales thereof as is borne out by the record made by the plaintiff herein. Indeed the bidder, which was the plaintiff in that action, and the defendant herein having consummated the sale, proceeded to take possession of the machinery and other properties described in the corresponding certificates of sale executed in its favor by the sheriff of Davao.

As connecting up with the facts, it should further be explained that the Davao Saw Mill Co., Inc., has on a number of occasions treated the machinery as personal property by executing chattel mortgages in favor of third persons. One of such persons is the appellee by assignment from the original mortgages.

Article 334, paragraphs 1 and 5, of the Civil Code, is in point. According to the Code, real property consists of

1. Land, buildings, roads and constructions of all kinds adhering to the soil;

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5. Machinery, liquid containers, instruments or implements intended by the owner of any building or land for use in connection with any industry or trade being carried on therein and which are expressly adapted to meet the requirements of such trade of industry.

Appellant emphasizes the first paragraph, and appellees the last mentioned paragraph. We entertain no doubt that the trial judge and appellees are right in their appreciation of the legal doctrines flowing from the facts.

In the first place, it must again be pointed out that the appellant should have registered its protest before or at the time of the sale of this property. It must further be pointed out that while not conclusive, the characterization of the property as chattels by the appellant is indicative of intention and impresses upon the property the character determined by the parties. In this connection the decision of this court in the case of Standard Oil Co. of New York vs. Jaramillo ( [1923], 44 Phil., 630), whether obiter dicta or not, furnishes the key to such a situation.

It is, however not necessary to spend overly must time in the resolution of this appeal on side issues. It is machinery which is involved; moreover, machinery not intended by the owner of any building or land for use in connection therewith, but intended by a lessee for use in a building erected on the land by the latter to be returned to the lessee on the expiration or abandonment of the lease.

A similar question arose in Puerto Rico, and on appeal being taken to the United States Supreme Court, it was held that machinery which is movable in its nature only becomes immobilized when placed in a plant by the owner of the property or plant, but not when so placed by a tenant, a usufructuary, or any person having only a temporary right, unless such person acted as the agent of the owner. In the opinion written by Chief Justice White, whose knowledge of the Civil Law is well known, it was in part said:

To determine this question involves fixing the nature and character of the property from the point of view of the rights of Valdes and its nature and character from the point of view of Nevers & Callaghan as a judgment creditor of the Altagracia Company and the rights derived by them from the execution levied on the machinery placed by the corporation in the plant. Following the Code Napoleon, the Porto Rican Code treats as immovable (real) property, not only land and buildings, but also attributes immovability in some cases to property of a movable nature, that is, personal property, because of the destination to which it is applied. "Things," says section 334 of the Porto Rican Code, "may be immovable either by their own nature or by their destination or the object to which they are applicable." Numerous illustrations are given in the fifth subdivision of section 335, which is as follows: "Machinery, vessels, instruments or implements intended by the owner of the tenements for the industrial or works that they may carry on in any building or upon any land and which tend directly to meet the needs of the said industry or works." (See also Code Nap., articles 516, 518 et seq. to and inclusive of article 534, recapitulating the things which, though in themselves movable, may be immobilized.) So far as the subject-matter with which we are dealing machinery placed in the plant it is plain, both under the provisions of the Porto Rican Law and of the Code Napoleon, that machinery which is movable in its nature only becomes immobilized when placed in a plant by the owner of the property or plant. Such result would not be accomplished, therefore, by the placing of machinery in a plant by a tenant or a usufructuary or any person having only a temporary right. (Demolombe, Tit. 9, No. 203; Aubry et Rau, Tit. 2, p. 12, Section 164; Laurent, Tit. 5, No. 447; and decisions quoted in Fuzier-Herman ed. Code Napoleon under articles 522 et seq.) The distinction rests, as pointed out by Demolombe, upon the fact that one only having a temporary right to the possession or enjoyment of property is not presumed by the law to have applied movable property belonging to him so as to deprive him of it by causing it by an act of immobilization to become the property of another. It follows that abstractly speaking the machinery put by the Altagracia Company in the plant belonging to Sanchez did not lose its character of movable property and become immovable by destination. But in the concrete immobilization took place because of the express provisions of the lease under which the Altagracia held, since the lease in substance required the putting in of improved machinery, deprived the tenant of any right to charge against the lessor the cost such machinery, and it was expressly stipulated that the machinery so put in should become a part of the plant belonging to the owner without compensation to the lessee. Under such conditions the tenant in putting in the machinery was acting but as the agent of the owner in compliance with the obligations resting upon him, and the immobilization of the machinery which resulted arose in legal effect from the act of the owner in giving by contract a permanent destination to the machinery.

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The machinery levied upon by Nevers & Callaghan, that is, that which was placed in the plant by the Altagracia Company, being, as regards Nevers & Callaghan, movable property, it follows that they had the right to levy on it under the execution upon the judgment in their favor, and the exercise of that right did not in a legal sense conflict with the claim of Valdes, since as to him the property was a part of the realty which, as the result of his obligations

under the lease, he could not, for the purpose of collecting his debt, proceed separately against. (Valdes vs. Central Altagracia [192], 225 U.S., 58.)

Finding no reversible error in the record, the judgment appealed from will be affirmed, the costs of this instance to be paid by the appellant.

CAMELO CABATANIA, petitioner, vs. COURT OF APPEALS and CAMELO REGODOS, respondents.

DECISION

CORONA, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the March 15, 1996 decision[1] of the Court of Appeals in CA-G.R. 36708 which in turn affirmed the decision of the Regional Trial Court of Cadiz City, Branch 60 in Spec. Proc. No. 88-C which compelled petitioner Camelo Cabatania to acknowledge private respondent Camelo Regodos as his illegitimate son and to give support to the latter in the amount of P 500 per month.

This controversy stemmed from a petition for recognition and support filed by Florencia Regodos in behalf of her minor son, private respondent Camelo Regodos.

During the trial, Florencia testified that she was the mother of private respondent who was born on September 9, 1982 and that she was the one supporting the child. She recounted that after her husband left her in the early part of 1981, she went to Escalante, Negros Occidental to look for work and was eventually hired as petit ioners household help. It was while working there as a maid that, on January 2, 1982, petitioner brought her to Bacolod City where they checked in at the Visayan Motel and had sexual intercourse. Petitioner promised to support her if she got pregnant.

Florencia claimed she discovered she was carrying petitioners child 27 days after their sexual encounter. The sexual intercourse was repeated in March 1982 in San Carlos City. Later, on suspicion that Florencia was pregnant, petitioners wife sent her home. But petitioner instead brought her to Singcang, Bacolod City where he rented a house for her. On September 9, 1982, assisted by a hilot in her aunts house in Tiglawigan, Cadiz City, she gave birth to her child, private respondent Camelo Regodos.

Petitioner Camelo Cabatanias version was different. He testified that he was a sugar planter and a businessman. Sometime in December, 1981, he hired Florencia as a servant at home. During the course of her employment, she would often go home to her husband in the afternoon and return to work the following morning. This displeased petitioners wife, hence she was told to look for another job.

In the meantime, Florencia asked permission from petitioner to go home and spend New Years Eve in Cadiz City. Petitioner met her on board the Ceres bus bound for San Carlos City and invited her to dinner. While they were eating, she confided that she was hard up and petitioner offered to lend her save money. Later, they spent the night in San Carlos City and had sexual intercourse. While doing it, he felt something jerking and when he asked her about it, she told him she was pregnant with the child of her husband. They went home the following day.

In March 1982, Florencia, then already working in another household, went to petitioners house hoping to be reemployed as a servant there. Since petitioners wife was in need of one, she was re-hired. However petitioners wife noticed that her stomach was bulging and inquired about the father of the unborn child. She told petitio ners wife that the baby was by her husband. Because of her condition, she was again told to go home and they did not see each other anymore.

Petitioner was therefore surprised when summons was served on him by Florencias counsel. She was demanding support for private respondent Camelo Regodos. Petitioner refused, denying the alleged paternity. He insisted she was already pregnant when they had sex. He denied going to Bacolod City with her and checking in at the Visayan Motel. He vehemently denied having sex with her on January 2, 1982 and renting a house for her in Singcang, Bacolod City.

After trial, the court a quo gave more probative weight to the testimony of Florencia despite its discovery that she misrepresented herself as a widow when, in reality, her husband was alive. Deciding in favor of private respondent, the trial court declared:

The child was presented before the Court, and if the Court is to decide this case, based on the personal appearance of the child then there can never be a doubt that the plaintiff-minor is the child of the defendant with plaintiffminors mother, Florencia Regodos.

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In view of the evidence presented by the plaintiff, the Court finds the evidence of the plaintiff in support of the claim to be meritorious; defendant admitted having a sexual intercourse with the plaintiffs mother, Florencia Regodos, but denied paternity to the child. The child was presented before the Court, and if the Court is to decide this case, based on the personal appearance of the child, then there can never be a doubt that the plaintiff-minor is the child of the defendant with plaintiff-minors mother, Florencia Regodos.*2+

On appeal, the Court of Appeals affirmed the RTC:

The misrepresentation made by Florencia in the petition that she was a widow should not prejudice the right of petitioner-appellee. As held by the Supreme Court, even where a witness has been found to have deliberately falsified the truth in some particulars, it is not required that the whole of her testimony be rejected (People vs. Bohol, 170 SCRA 585). It is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts (People vs. Delas, 199 SCRA 574, 575). There is therefore no reason to disbelieve Florencia that her first intercourse with appellant occurred on January 2, 1982 and nine (9) months later or on September 9, 1982, she gave birth to appellee (TSN, Hearing of June 10, 1991 and Exhibit A).

In the absence of arbitrariness in the evaluation of the evidence adduced before the trial court and there being no evidence that the latter had overlooked or misappreciated, we find no cogent reason to disturb the trial courts findings.

WHEREFORE, the appealed decision is AFFIRMED.[3]

Hence this petition which assigns the following errors:

A. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF ARTICLE 283 OF THE CIVIL CODE ON THE COMPULSORY RECOGNITION AND AWARD OF SUPPORT IN FAVOR OF RESPONDENT-APPELLEE CAMELO REGODOS;

B. THE COURT OF APPEALS ERRED IN ITS DECISION BASED ON THE EVIDENCE ADDUCED BY RESPONDENT CAMELO REGODOS BEFORE THE TRIAL COURT.[4]

Clearly, this petition calls for a review of the factual findings of the two lower courts. As a general rule, factual issues are not within the province of this Court. Factual findings of the trial court, when adopted and confirmed by the Court of Appeals, become final and conclusive and may not be reviewed on appeal except (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely on speculation, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, goes beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly overlooks certain relevant facts not disputed by the parties and which, if properly considered, justifies a different conclusion, and (10) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record. The Court is convinced that this case falls within one of the exceptions.[5]

The trial courts finding of a paternal relationship between petitioner and private respondent was based on the testimony of the childs mother and the personal appearance of the child.

Time and again, this Court has ruled that a high standard of proof is required to establish paternity and filiation.[6] An order for recognition and support may create an unwholesome situation or may be an irritant to the family or the lives of the parties so that it must be issued only if paternity or filiation is established by clear and convincing evidence.[7]

The applicable provisions of the law are Articles 172 and 175 of the Civil Code:

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. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

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Private respondent presented a copy of his birth and baptismal certificates, the preparation of which was without the knowledge or consent of petitioner. A certificate of live birth purportedly identifying the putative father is not competent evidence of paternity when there is no showing that the putative father had a hand in the preparation of said certificate. The local civil registrar has no authority to record the paternity of an illegitimate child on the information of a third person.[8]

In the same vein, we have ruled that, while a baptismal certificate may be considered a public 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 childs paternity.*9+ Thus, certificates issued by the local civil registrar and baptismal certificates are per se inadmissible in evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence to prove the same.[10]

Aside from Florencias self-serving testimony that petitioner rented a house for her in Singcang, Bacolod City, private respondent failed to present sufficient proof of voluntary recognition.

We now proceed to the credibility of Florencias testimony. Both the trial court and the appellate court brushed aside the misrepresentation of Florencia in the petition for recognition that she was a widow. Both courts dismissed the lie as minor which did not affect the rest of her testimony. We disagree. The fact that Florencias husband is living and there is a valid subsisting marriage between them gives rise to the presumption that a child born within that marriage is legitimate even though the mother may have declared against its legitimacy or may have been sentenced as an adulteress.[11] The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded on the policy to protect innocent offspring from the odium of illegitimacy.[12]

In this age of genetic profiling and deoxyribonucleic acid (DNA) analysis, the extremely subjective test of physical resemblance or similarity of features will not suffice as evidence to prove paternity and filiation before the courts of law.

WHEREFORE, the petition is hereby GRANTED. The assailed decision of the Court of Appeals in CA-G.R. 36708 dated March 15, 1996, affirming the decision of the Regional Trial Court of Cadiz City, Branch 60, in Spec. Proc. No. 88-C is REVERSED and SET ASIDE. Private respondents petition for recognition and support is dismissed.

SO ORDERED.

G.R. No. 115640 March 15, 1995

REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners, vs. COURT OF APPEALS and TERESITA MASAUDING, respondents.

MELO, J.:

This case concerns a seemingly void marriage and a relationship which went sour. The innocent victims are two children horn out of the same union. Upon this Court now falls the not too welcome task of deciding the issue of who, between the father and mother, is more suitable and better qualified in helping the children to grow into responsible, well-adjusted, and happy young adulthood.

Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in 1976 in Iligan City where Reynaldo was employed by the National Steel Corporation and Teresita was employed as a nurse in a local hospital. In 1977, Teresita left for Los Angeles, California to work as a nurse. She was able to acquire immigrant status sometime later. In 1984, Reynaldo was sent by his employer, the National Steel Corporation, to Pittsburgh, Pennsylvania as its liaison officer and Reynaldo and Teresita then began to maintain a common law relationship of husband and wife. On August 16, 1986, their daughter, Rosalind Therese, was born. On October 7, 1987, while they were on a brief vacation in the Philippines, Reynaldo and Teresita got married, and upon their return to the United States, their second child, a son, this time, and given the name Reginald Vince, was born on January 12, 1988.

The relationship of the couple deteriorated until they decided to separate sometime in 1990. Teresita blamed Reynaldo for the break-up, stating he was always nagging her about money matters. Reynaldo, on the other hand, contended that Teresita was a spendthrift, buying expensive jewelry and antique furniture instead of attending to household expenses.

Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo, Teresita left Reynaldo and the children and went back to California. She claims, however, that she spent a lot of money on long distance telephone calls to keep in constant touch with her children.

Reynaldo brought his children home to the Philippines, but because his assignment in Pittsburgh was not yet completed, he was sent back by his company to Pittsburgh. He had to leave his children with his sister, copetitioner Guillerma Layug and her family.

Teresita claims that she did not immediately follow her children because Reynaldo filed a criminal case for bigamy against her and she was afraid of being arrested. The judgment of conviction in the bigamy case was actually rendered only on September 29, 1994. (Per Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210-222, Rollo). Teresita, meanwhile, decided to return to the Philippines and on December 8, 1992 and filed the petition for a writ of habeas corpus against herein two petitioners to gain custody over the children, thus starting the whole proceedings now reaching this Court.

On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended Teresita's parental authority over Rosalind and Reginald and declared Reynaldo to have sole parental authority over them but with rights of visitation to be agreed upon by the parties and to be approved by the Court.

On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and Ibay-Somera concurring, reversed the trial court's decision. It gave custody to Teresita and visitation rights on weekends to Reynaldo.

Petitioners now come to this Court on a petition for review, in the main contending that the Court of Appeals disregarded the factual findings of the trial court; that the Court of Appeals further engaged in speculations and conjectures, resulting in its erroneous conclusion that custody of the children should be given to respondent Teresita.

We believe that respondent court resolved the question of custody over the children through an automatic and blind application of the age proviso of Article 363 of the Civil Code which reads:

Art. 363. In all questions on the care, custody, education and property of the children, the latter's welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.

and of Article 213 of the Family Code which in turn provides:

Art. 213. In case of separation of the parents parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age unless the parent chosen is unfit.

The decision under review is based on the report of the Code Commission which drafted Article 213 that a child below seven years still needs the loving, tender care that only a mother can give and which, presumably, a father cannot give in equal measure. The commentaries of a member of the Code Commission, former Court of Appeals Justice Alicia Sempio-Diy, in a textbook on the Family Code, were also taken into account. Justice Diy believes that a child below seven years should still be awarded to her mother even if the latter is a prostitute or is unfaithful to her husband. This is on the theory that moral dereliction has no effect on a baby unable to understand such action. (Handbook on the Family Code of the Philippines, 1988 Ed., p. 297.)

The Court of Appeals was unduly swayed by an abstract presumption of law rather than an appreciation of relevant facts and the law which should apply to those facts. The task of choosing the parent to whom custody shall be awarded is not a ministerial function to be determined by a simple determination of the age of a minor child. Whether a child is under or over seven years of age, the paramount criterion must always be the child's interests. Discretion is given to the court to decide who can best assure the welfare of the child, and award the custody on the basis of that consideration. In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the rule that "in all controversies regarding the custody of minors, the sole and foremost consideration is the physical, education, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents", and in Medina vs. Makabali (27 SCRA 502 [1969]), where custody of the minor was given to a non-relative as against the mother, then the country's leading civilist, Justice J.B.L. Reyes, explained its basis in this manner:

. . . While our law recognizes the right of a parent to the custody of her child, Courts must not lose sight of the basic principle that "in all questions on the care, custody, education and property of children, the latter's welfare shall be paramount" (Civil Code of the Philippines. Art. 363), and that for compelling reasons, even a child under seven may be ordered separated from the mother (do). This is as it should be, for in the continual evolution of legal institutions, the patria potestas has been transformed from the jus vitae ac necis (right of life and death) of the Roman law, under which the offspring was virtually a chattel of his parents into a radically different institution, due to the influence of Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig Pena, now "there is no power, but a task; no complex of rights (of parents) but a sum of duties; no sovereignty, but a sacred trust for the welfare of the minor."

As a result, the right of parents to the company and custody of their children is but ancillary to the proper discharge of parental duties to provide the children with adequate support, education, moral, intellectual and civic training and development (Civil Code, Art. 356).

(pp. 504-505.)

In ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into account all relevant considerations. If a child is under seven years of age, the law presumes that the mother is the best custodian. The presumption is strong but it is not conclusive. It can be overcome by "compelling reasons". If a child is over seven, his choice is paramount but, again, the court is not bound by that choice. In its discretion, the court may find the chosen parent unfit and award custody to the other parent, or even to a third party as it deems fit under the circumstances.

In the present case, both Rosalind and Reginald are now over seven years of age. Rosalind celebrated her seventh birthday on August 16, 1993 while Reginald reached the same age on January 12, 1995. Both are studying in reputable schools and appear to be fairly intelligent children, quite capable of thoughtfully determining the parent with whom they would want to live. Once the choice has been made, the burden returns to the court to investigate if the parent thus chosen is unfit to assume parental authority and custodial responsibility.

Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to discover the choice of the children and rather than verifying whether that parent is fit or unfit, respondent court simply followed statutory presumptions and general propositions applicable to ordinary or common situations. The seven-year age limit was mechanically treated as an arbitrary cut off period and not a guide based on a strong presumption.

A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing the "torture and agony" of a mother separated from her children and the humiliation she suffered as a result of her character being made a key issue in court rather than the feelings and future, the best interests and welfare of her children. While the bonds between a mother and her small child are special in nature, either parent, whether father or mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or her suffering is greater than that of the other parent. It is not so much the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount consideration.

We are inclined to sustain the findings and conclusions of the regional trial court because it gave greater attention to the choice of Rosalind and considered in detail all the relevant factors bearing on the issue of custody.

When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita Flores Macabulos, to determine the effects of uprooting her from the Assumption College where she was studying. Four different tests were administered. The results of the tests are quite revealing. The responses of Rosalind about her mother were very negative causing the psychologist to delve deeper into the child's anxiety. Among the things revealed by Rosalind was an incident where she saw her mother hugging and kissing a "bad" man who lived in their house and worked for her father. Rosalind refused to talk to her mother even on the telephone. She tended to be emotionally emblazed because of constant fears that she may have to leave school and her aunt's family to go back to the United States to live with her mother. The 5-1/2 page report deals at length with feelings of insecurity and anxiety

arising from strong conflict with the mother. The child tried to compensate by having fantasy activities. All of the 8 recommendations of the child psychologist show that Rosalind chooses petitioners over the private respondent and that her welfare will be best served by staying with them (pp. 199-205, Rollo).

At about the same time, a social welfare case study was conducted for the purpose of securing the travel clearance required before minors may go abroad. Social Welfare Officer Emma D. Estrada Lopez, stated that the child Rosalind refused to go back to the United States and be reunited with her mother. She felt unloved and uncared for. Rosalind was more attached to her Yaya who did everything for her and Reginald. The child was found suffering from emotional shock caused by her mother's infidelity. The application for travel clearance was recommended for denial (pp. 206-209, Rollo).

Respondent Teresita, for her part, argues that the 7-year age reference in the law applies to the date when the petition for a writ of habeas corpus is filed, not to the date when a decision is rendered. This argument is flawed. Considerations involving the choice made by a child must be ascertained at the time that either parent is given custody over the child. The matter of custody is not permanent and unalterable. If the parent who was given custody suffers a future character change and becomes unfit, the matter of custody can always be re-examined and adjusted (Unson III v. Navarro, supra, at p. 189). To be sure, the welfare, the best interests, the benefit, and the good of the child must be determined as of the time that either parent is chosen to be the custodian. At the present time, both children are over 7 years of age and are thus perfectly capable of making a fairly intelligent choice.

According to respondent Teresita, she and her children had tearful reunion in the trial court, with the children crying, grabbing, and embracing her to prevent the father from taking them away from her. We are more inclined to believe the father's contention that the children ignored Teresita in court because such an emotional display as described by Teresita in her pleadings could not have been missed by the trial court. Unlike the Justices of the Court of Appeals Fourth Division, Judge Lucas P. Bersamin personally observed the children and their mother in the courtroom. What the Judge found is diametrically opposed to the contentions of respondent Teresita. The Judge had this to say on the matter.

And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more understanding, especially as her conduct and demeanor in the courtroom (during most of the proceedings) or elsewhere (but in the presence of the undersigned presiding judge) demonstrated her ebulent temper that tended to corroborate the alleged violence of her physical punishment of the children (even if only for ordinary disciplinary purposes) and emotional instability, typified by her failure (or refusal?) to show deference and respect to the Court and the other parties (pp. 12-13, RTC Decision)

Respondent Teresita also questions the competence and impartiality of the expert witnesses. Respondent court, in turn, states that the trial court should have considered the fact that Reynaldo and his sister, herein petitioner Guillerma Layug, hired the two expert witnesses. Actually, this was taken into account by the trial court which

stated that the allegations of bias and unfairness made by Teresita against the psychologist and social worker were not substantiated.

The trial court stated that the professional integrity and competence of the expert witnesses and the objectivity of the interviews were unshaken and unimpeached. We might add that their testimony remain uncontroverted. We also note that the examinations made by the experts were conducted in late 1991, well over a year before the filing by Teresita of the habeas corpus petition in December, 1992. Thus, the examinations were at that time not intended to support petitioners' position in litigation, because there was then not even an impending possibility of one. That they were subsequently utilized in the case a quo when it did materialize does not change the tenor in which they were first obtained.

Furthermore, such examinations, when presented to the court must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it. The persons who effected such examinations were presented in the capacity of expert witnesses testifying on matters within their respective knowledge and expertise. On this matter, this Court had occasion to rule in the case of Sali vs. Abukakar, et al. (17 SCRA 988 [1966]).

The fact that, in a particular litigation, an NBI expert examines certain contested documents, at the request, not of a public officer or agency of the Government, but of a private litigant, does not necessarily nullify the examination thus made. Its purpose, presumably, to assist the court having jurisdiction over said litigation, in the performance of its duty to settle correctly the issues relative to said documents. Even a non-expert private individual may examine the same, if there are facts within his knowledge which may help, the court in the determination of said issue. Such examination, which may properly be undertaken by a non-expert private individual, does not, certainly become null and void when the examiner is an expert and/or an officer of the NBI.

(pp. 991-992.)

In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate Appellate Court, et al. (185 SCRA 352 [1990]):

. . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which reserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be

considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion.

(p. 359)

It was in the exercise of this discretion, coupled with the opportunity to assess the witnesses' character and to observe their respective demeanor that the trial court opted to rely on their testimony, and we believe that the trial court was correct in its action.

Under direct examination an February 4, 1993, Social Worker Lopez stated that Rosalind and her aunt were about to board a plane when they were off-loaded because there was no required clearance. They were referred to her office, at which time Reginald was also brought along and interviewed. One of the regular duties of Social Worker Lopez in her job appears to be the interview of minors who leave for abroad with their parents or other persons. The interview was for purposes of foreign travel by a 5-year old child and had nothing to do with any pending litigation. On cross-examination, Social Worker Lopez stated that her assessment of the minor's hatred for her mother was based on the disclosures of the minor. It is inconceivable, much less presumable that Ms. Lopez would compromise her position, ethics, and the public trust reposed on a person of her position in the course of doing her job by falsely testifying just to support the position of any litigant.

The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and an M.A. degree holder also in Psychology with her thesis graded "Excellent". She was a candidate for a doctoral degree at the time of the interview. Petitioner Reynaldo may have shouldered the cost of the interview but Ms. Macabulos services were secured because Assumption College wanted an examination of the child for school purposes and not because of any litigation. She may have been paid to examine the child and to render a finding based on her examination, but she was not paid to fabricate such findings in favor of the party who retained her services. In this instance it was not even petitioner Reynaldo but the school authorities who initiated the same. It cannot be presumed that a professional of her potential and stature would compromise her professional standing.

Teresita questions the findings of the trial court that:

1. Her morality is questionable as shown by her marrying Reynaldo at the time she had a subsisting marriage with another man.

2. She is guilty of grave indiscretion in carrying on a love affair with one of the Reynaldo's fellow NSC employees.

3. She is incapable of providing the children with necessities and conveniences commensurate to their social standing because she does not even own any home in the Philippines.

4.

She is emotionally unstable with ebullient temper.

It is contended that the above findings do not constitute the compelling reasons under the law which would justify depriving her of custody over the children; worse, she claims, these findings are non-existent and have not been proved by clear and convincing evidence.

Public and private respondents give undue weight to the matter of a child under 7 years of age not to be separated from the mother, without considering what the law itself denominates as compelling reasons or relevant considerations to otherwise decree. In the Unson III case, earlier mentioned, this Court stated that it found no difficulty in not awarding custody to the mother, it being in the best interest of the child "to be freed from the obviously unwholesome, not to say immoral influence, that the situation where [the mother] had placed herself . . . might create in the moral and social outlook of [the child] who was in her formative and most impressionable stage . . ."

Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age. They understand the difference between right and wrong, ethical behavior and deviant immorality. Their best interests would be better served in an environment characterized by emotional stability and a certain degree of material sufficiency. There is nothing in the records to show that Reynaldo is an "unfit" person under Article 213 of the Family Code. In fact, he has been trying his best to give the children the kind of attention and care which the mother is not in a position to extend.

The argument that the charges against the mother are false is not supported by the records. The findings of the trial court are based on evidence.

Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 in California (p. 13, Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year later, she had already driven across the continental United States to commence living with another man, petitioner Reynaldo, in Pittsburgh. The two were married on October 7, 1987. Of course, to dilute this disadvantage on her part, this matter of her having contracted a bigamous marriage later with Reynaldo, Teresita tried to picture Reynaldo as a rapist, alleging further

that she told Reynaldo about her marriage to Lustado on the occasion when she was raped by Reynaldo. Expectedly, Judge Harriet Demetriou of the Pasig RTC lent no weight to such tale. And even if this story were given credence, it adds to and not subtracts from the conviction of this Court about Teresita's values. Rape is an insidious crime against privacy. Confiding to one's potential rapist about a prior marriage is not a very convincing indication that the potential victim is averse to the act. The implication created is that the act would be acceptable if not for the prior marriage.

More likely is Reynaldo's story that he learned of the prior marriage only much later. In fact, the rape incident itself is unlikely against a woman who had driven three days and three nights from California, who went straight to the house of Reynaldo in Pittsburgh and upon arriving went to bed and, who immediately thereafter started to live with him in a relationship which is marital in nature if not in fact.

Judge Bersamin of the court a quo believed the testimony of the various witnesses that while married to Reynaldo, Teresita entered into an illicit relationship with Perdencio Gonzales right there in the house of petitioner Reynaldo and respondent Teresita. Perdencio had been assigned by the National Steel Corporation to assist in the project in Pittsburgh and was staying with Reynaldo, his co-employee, in the latter's house. The record shows that the daughter Rosalind suffered emotional disturbance caused by the traumatic effect of seeing her mother hugging and kissing a boarder in their house. The record also shows that it was Teresita who left the conjugal home and the children, bound for California. When Perdencio Gonzales was reassigned to the Philippines, Teresita followed him and was seen in his company in a Cebu hotel, staying in one room and taking breakfast together. More significant is that letters and written messages from Teresita to Perdencio were submitted in evidence (p.12, RTC Decision).

The argument that moral laxity or the habit of flirting from one man to another does not fall under "compelling reasons" is neither meritorious nor applicable in this case. Not only are the children over seven years old and their clear choice is the father, but the illicit or immoral activities of the mother had already caused emotional disturbances, personality conflicts, and exposure to conflicting moral values, at least in Rosalind. This is not to mention her conviction for the crime of bigamy, which from the records appears to have become final (pp. 210222, Rollo).

Respondent court's finding that the father could not very well perform the role of a sole parent and substitute mother because his job is in the United States while the children will be left behind with their aunt in the Philippines is misplaced. The assignment of Reynaldo in Pittsburgh is or was a temporary one. He was sent there to oversee the purchase of a steel mill component and various equipment needed by the National Steel Corporation in the Philippines. Once the purchases are completed, there is nothing to keep him there anymore. In fact, in a letter dated January 30, 1995, Reynaldo informs this Court of the completion of his assignment abroad and of his permanent return to the Philippines (ff. p. 263, Rollo).

The law is more than satisfied by the judgment of the trial court. The children are now both over seven years old. Their choice of the parent with whom they prefer to stay is clear from the record. From all indications, Reynaldo is a fit person, thus meeting the two requirements found in the first paragraph of Article 213 of the Family Code. The presumption under the second paragraph of said article no longer applies as the children are over seven years. Assuming that the presumption should have persuasive value for children only one or two years beyond the age of seven years mentioned in the statute, there are compelling reasons and relevant considerations not to grant custody to the mother. The children understand the unfortunate shortcomings of their mother and have been affected in their emotional growth by her behavior.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is reversed and set aside, and the decision of Branch 96 of the Regional Trial Court of the National Capital Judicial Region stationed in Quezon City and presided over by the Honorable Lucas P. Bersamin in its Civil Case No. Q-92-14206 awarding custody of the minors Rosalind and Reginald Espiritu to their father, Reynaldo Espiritu, is reinstated. No special pronouncement is made as to costs.

SO ORDERED.