Special Proceeding

Christine Joymarie Perias

Sat. 3:00 5:00

Comparative Analysis and case digest

RA 7610
AN ACT PROVIDING FOR STRONGER
DETERRENCE AND SPECIAL PROTECTION
AGAINST CHILD ABUSE, EXPLOITATION AND
DISCRIMINATION, AND FOR OTHER
PURPOSES
ARTICLE VIII
Working Children
Section 12. Employment of Children. Children
below fifteen (15) years of age may be employed
except:
(1) When a child works directly under the sole
responsibility of his parents or legal guardian and
where only members of the employer's family are
employed: Provided, however, That his
employment neither endangers his life, safety and
health and morals, nor impairs his normal
development: Provided, further, That the parent or
legal guardian shall provide the said minor child
with the prescribed primary and/or secondary
education; or
(2) When a child's employment or participation in
public & entertainment or information through
cinema, theater, radio or television is essential:
Provided, The employment contract concluded by
the child's parent or guardian, with the express
agreement of the child concerned, if possible, and
the approval of the Department of Labor and
Employment: Provided, That the following
requirements in all instances are strictly complied
with:
(a) The employer shall ensure the protection,
health, safety and morals of the child;
(b) the employer shall institute measures to prevent
the child's exploitation or discrimination taking into
account the system and level of remuneration, and
the duration and arrangement of working time; and;
(c) The employer shall formulate and implement,
subject to the approval and supervision of
competent authorities, a continuing program for
training and skill acquisition of the child.
In the above exceptional cases where any such
child may be employed, the employer shall first
secure, before engaging such child, a work permit
from the Department of Labor and Employment
which shall ensure observance of the above
requirement.
The Department of Labor Employment shall
promulgate rules and regulations necessary for the
effective implementation of this Section.

RA7658
AN ACT PROHIBITING THE EMPLOYMENT OF
CHILDREN BELOW 15 YEARS OF AGE IN
PUBLIC AND PRIVATE UNDERTAKINGS,
AMENDING FOR ITS PURPOSE SECTION 12,
ARTICLE VIII OF R.A. 7610.
Section 1. Section 12, Article VIII of R. A. No. 7610
otherwise known as the "Special Protection of
Children Against Child Abuse, Exploitation and
Discrimination Act" is hereby amended to read as
follows:
"Sec. 12. Employment of Children. Children
below fifteen (15) years of age shall not be
employed except:
(1) When a child works directly under the sole
responsibility of his parents or legal guardian and
where only members of the employer's family are
employed: Provided, however, That his
employment neither endangers his life, safety,
health and morals, nor impairs his normal
development; Provided, further, That the parent or
legal guardian shall provide the said minor child
with the prescribed primary and/or secondary
education; or
(2) Where a child's employment or
participation in public entertainment or information
through cinema, theater, radio or television is
essential: Provided, The employment contract is
concluded by the child's parents or legal guardian,
with the express agreement of the child concerned,
if possible, and the approval of the Department of
Labor and Employment: and Provided, That the
following requirements in all instances are strictly
complied with:
(a) The employer shall ensure the
protection, health, safety, morals and normal
development of the child;
(b) The employer shall institute measures to
prevent the child's exploitation or discrimination
taking into account the system and level of
remuneration, and the duration and arrangement of
working time; and
(c) The employer shall formulate and
implement, subject to the approval and supervision
of competent authorities, a continuing program for
training and skills acquisition of the child.
In the above exceptional cases where any such
child may be employed, the employer shall first
secure, before engaging such child, a work permit
from the Department of Labor and Employment
which shall ensure observance of the above
requirements.
The Department of Labor and Employment shall

promulgate rules and regulations necessary for the

effective implementation of this Section."

ASSIGNMENT OF CHANGE OF NAME

ROMMEL JACINTO DANTES SILVERIO vs.
REPUBLIC OF THE PHILIPPINES
G.R. No. 174689
Facts:
Petitioner Rommel Jacinto Dantes Silverio filed a
petition for the change of his first name and sex in
his birth certificate in the Regional Trial Court of
Manila. He alleged in his petiton that he was born
as male and his name was registered as "Rommel
Jacinto Dantes Silverio" in his certificate of live birth
(birth certificate). He further alleged that he is a
male transsexual, that is, "anatomically male but
feels, thinks and acts as a female" and that he had
always identified himself with girls since childhood. 1
Feeling trapped in a mans body, he consulted
several doctors in the United States. He underwent
psychological examination, hormone treatment and
breast augmentation. His attempts to transform
himself to a "woman" and underwent sex
reassignment surgery. From then on, petitioner
lived as a female and was in fact engaged to be
married. He then sought to have his name in his
birth certificate changed from "Rommel Jacinto" to
"Mely," and his sex from "male" to "female."
He was examined by Dr. Marcelino Reysio-Cruz,
Jr., a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate
attesting that he (petitioner) had in fact undergone
the procedure.
RTC: rules in affirmative, granting the petition in
justice in equity. Likewise, the court believes that
no harm, injury [or] prejudice will be caused to
anybody or the community. Ordered the Civil
Registrar of Manila to change the entries appearing
in the Certificate of Birth of petitioner, specifically
for petitioners first name from "Rommel Jacinto" to
MELY and petitioners gender from "Male" to
FEMALE.

REPUBLIC OF THE PHILIPPINES vs. JENNIFER

B. CAGANDAHAN
G.R. No. 166676
Facts:
Respondent Jennifer Cagandahan filed a Petition
for Correction of Entries in Birth Certificate. She
alleged she was born and was registered as a
female in the Certificate of Live Birth but while
growing up, she developed secondary male
characteristics and was diagnosed to have
Congenital Adrenal Hyperplasia (CAH) which is a
condition where persons thus afflicted possess
both male and female characteristics. She further
alleged that she was diagnosed to have clitoral
hyperthropy in her early years and at age six,
underwent an ultrasound where it was discovered
that she has small ovaries. At age thirteen, tests
revealed that her ovarian structures had minimized,
she has stopped growing and she has no breast or
menstrual development. She then alleged that for
all interests and appearances as well as in mind
and emotion, she has become a male person.
Thus, she prayed that her birth certificate be
corrected such that her gender be changed from
female to male and her first name be changed from
Jennifer to Jeff.
To prove her claim, respondent testified and
presented the testimony of Dr. Michael Sionzon of
the Department of Psychiatry, University of the
PhilippinesPhilippine General Hospital. Dr.
Sionzon issued a medical certificate stating that
respondents condition is known as CAH.
RTC: granted respondents petition, for the reason
that It was medically proven that petitioners body
produces male hormones, and first his body as well
as his action and feelings are that of a male. He
has chosen to be male. He is a normal person and
wants to be acknowledged and identified as a
male.

OSG filed a petition for certiorari in the Court of

Appeals.It alleged that there is no law allowing the
change of entries in the birth certificate by reason
of sex alteration.

OSG seeking a reversal of the abovementioned

ruling.

CA: rendered a decision in favor of the Republic. It

ruled that the trial courts decision lacked legal
basis. There is no law allowing the change of either
name or sex in the certificate of birth on the ground
of sex reassignment through surgery.

Respondent counters he is actually a male person

and hence his birth certificate has to be corrected
to reflect his true sex/gender, change of sex or
gender is allowed under Rule 108,[10] and
respondent substantially complied with the
requirements of Rules 103 and 108 of the Rules of
Court.

MR by petitioner was denied

Hence this petiton.

Issue:
Whether or not the petitioner is correct in his claim
that the change of his name and sex in his birth
certificate is allowed under Articles 407 to 413 of
the Civil Code, Rules 103 and 108 of the Rules of
Court and RA 9048
Ruling:
The petition lacks merit.
A Persons First Name Cannot Be Changed On
the Ground of Sex Reassignment
The State has an interest in the names borne by
individuals and entities for purposes of
identification. A change of name is a privilege, not a
right. Petitions for change of name are controlled by
statutes. In this connection, Article 376 of the Civil
Code provides:
ART. 376. No person can change his name or
surname without judicial authority.
This Civil Code provision was amended by RA
9048 (Clerical Error Law). In particular, Section 1 of
RA 9048 provides:
SECTION 1. Authority to Correct Clerical or
Typographical Error and Change of First Name or
Nickname. No entry in a civil register shall be
changed or corrected without a judicial order,
except for clerical or typographical errors and
change of first name or nickname which can be
corrected or changed by the concerned city or
municipal civil registrar or consul general in
accordance with the provisions of this Act and its
implementing rules and regulations.
RA 9048 provides:
Grounds for Change of First Name or Nickname.
may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname
to be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;
(2) The new first name or nickname has been
habitually and continuously used by the petitioner
and he has been publicly known by that first name
or nickname in the community; or
(3) The change will avoid confusion.
RA 9048 does not sanction a change of first name
on the ground of sex reassignment. Rather than
avoiding confusion, changing petitioners first name
for his declared purpose may only create grave
complications in the civil registry and the public
interest.
ART. 412. No entry in the civil register shall be
changed or corrected without a judicial order.

Issue:
Whether the trial court erred in ordering the
correction of entries in the birth certificate of
respondent to change her sex or gender, from
female to male, on the ground of her medical
condition known as CAH, and her name from
Jennifer to Jeff, under Rules 103 and 108 of the
Rules of Court.

Ruling:
The determination of a persons sex appearing in
his birth certificate is a legal issue and the court
must look to the statutes. In this connection, Article
412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be
changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this
provision was amended by Republic Act No. 9048
in so far as clerical or typographical errors are
involved. The correction or change of such matters
can now be made through administrative
proceedings and without the need for a judicial
order. In effect, Rep. Act No. 9048 removed from
the ambit of Rule 108 of the Rules of Court the
correction of such errors. Rule 108 now applies
only to substantial changes and corrections in
entries in the civil register.
Under Rep. Act No. 9048, a correction in the civil
registry involving the change of sex is not a mere
clerical or typographical error. It is a substantial
change for which the applicable procedure is Rule
108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil
Code and correctable under Rule 108 of the Rules
of Court are those provided in Articles 407 and 408
of the Civil Code.
The acts, events or factual errors contemplated
under Article 407 of the Civil Code include even
those that occur after birth.
Respondent undisputedly has CAH. This condition
causes the early or inappropriate appearance of
male characteristics. A person, like respondent,
with this condition produces too much androgen, a
male hormone
Intersex individuals are treated in different ways by
different cultures. In most societies, intersex
individuals have been expected to conform to either
a male or female gender role Since the rise of
modern medical science in Western societies,
some intersex people with ambiguous external
genitalia have had their genitalia surgically modified
to resemble either male or female genitals.
In deciding this case, we consider the
compassionate calls for recognition of the various
degrees of intersex as variations which should not

Under RA 9048, a correction in the civil registry

involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the
Rules of Court. The entries envisaged in Article 412
of the Civil Code and correctable under Rule 108 of
the Rules of Court are those provided in Articles
407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the civil
register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated
under Article 407 of the Civil Code include even
those that occur after birth. However, no
reasonable interpretation of the provision can
justify the conclusion that it covers the correction
on the ground of sex reassignment.
"Status" refers to the circumstances affecting the
legal situation of a person in view of his age,
nationality and his family membership. A persons
sex is an essential factor in marriage and family
relations. It is a part of a persons legal capacity
and civil status. In this connection Article 413 of the
Civil Code provides:
ART. 413. All other matters pertaining to the
registration of civil status shall be governed by
special laws. But there is no such special law in the
Philippines governing sex reassignment and its
effects.
Neither May Entries in the Birth Certificate As to
First Name or Sex Be Changed on the Ground
of Equity
The opinion of the trial court which granted of the
petition was in consonance with the principles of
justice and equity is wrong.
The changes sought by petitioner will have serious
and wide-ranging legal and public policy
consequences. First, even the trial court itself
found that the petition was but petitioners first step
towards his eventual marriage to his male fianc.
However, marriage, one of the most sacred social
institutions, is a special contract of permanent
union between a man and a woman. One of its
essential requisites is the legal capacity of the
contracting parties who must be a male and a
female. To grant the changes sought by petitioner

be subject to outright denial.

In the instant case, if we determine respondent to
be a female, then there is no basis for a change in
the birth certificate entry for gender. But if we
determine, based on medical testimony and
scientific development showing the respondent to
be other than female, then a change in the
subjects birth certificate entry is in order.
Biologically, nature endowed respondent with a
mixed composition. Respondent has female
chromosomes. However, respondents body
system naturally produces high levels of male
hormones (androgen). As a result, respondent has
ambiguous genitalia and the phenotypic features of
a male.
In so ruling we do no more than give respect to (1)
the diversity of nature; and (2) how an individual
deals with what nature has handed out. In other
words, we respect respondents congenital
condition and his mature decision to be a male.
As for respondents change of name under Rule
103, this Court has held that a change of name is
not a matter of right but of judicial discretion, to be
exercised in the light of the reasons adduced and
the consequences that will follow. The trial courts
grant of respondents change of name from
Jennifer to Jeff implies a change of a feminine
name to a masculine name.
Petition of Republic is denied.
Comparative analysis;
The court granted the change of name of the
respondent because of an unusual circumstance of
having an ambiguous genitalia; he has female
chromosomes but respondents body system
naturally produces high levels of male hormones
(androgen). Since he himself choose to be male, as
nature has taken its due course in respondents
development to reveal more fully his male
characteristics. The court considered the
consequence that respondents change of name
merely recognizes his preferred gender.

will substantially reconfigure and greatly alter the

laws on marriage and family relations. It will allow
the union of a man with another man who has
undergone sex reassignment (a male-to-female
post-operative transsexual). Second, there are
various laws, which apply particularly to women
such as the provisions of the Labor Code on
employment of women, certain felonies under the
Revised Penal Code and the presumption of
survivorship in case of calamities under Rule 131
of the Rules of Court, among others. These laws
underscore the public policy in relation to women,
which could be substantially affected if petitioners
petition were to be granted.
Petition is denied
Comparative analysis:
The lower courts decision was held invalid
because there was no law granting a persons first
name be change on the ground of sex
reassignment and neither can it be change on the
ground of equity. Article 9 of the Civil Code
mandates that "no judge or court shall decline to
render judgment by reason of the silence, obscurity
or insufficiency of the law." However, it is not a
license for courts to engage in judicial legislation.
The duty of the courts is to apply or interpret the
law, not to make or amend it.

REPUBLIC OF THE PHILIPPINES vs CARLITO I.

KHO
G.R. No. 170340
Facts:
Carlito and his siblings filed before the RTC of
Butuan City a verified petition for correction of entries
in the civil registry to effect changes in their
respective birth certificates. Carlito also asked the
court in behalf of his minor children, to order the
correction of some entries in their birth certificates.
In the case of Carlito, he requested the correction in
his birth certificate of the citizenship of his mother to
Filipino instead of Chinese, as well as the deletion
of the word married opposite the phrase Date of
marriage of parents because his parents, Juan Kho
and Epifania Inchoco were allegedly not legally
married.
With respect to the birth certificates of Carlitos
children, he prayed that the date of his and his wifes
marriage be corrected from April 27, 1989 to January
21, 2000, the date appearing in their marriage
certificate.
The Local Civil Registrar of Butuan City was
impleaded as respondent.
Carlito et al. filed an Amended Petition in which it
was additionally prayed that Carlitos second name
of John be deleted from his record of birth; and

REPUBLIC OF THE PHILIPPINES vs.TRINIDAD

R.A. CAPOTE
G.R. No. 157043
Facts:
Respondent Trinidad R. A. Capote filed a petition
for change of name of her ward from Giovanni N.
Gallamaso to Giovanni Nadores.
Capote as Giovannis guardian ad litem averred:
1. [Respondent] is a Filipino citizen, of legal age,
married, while minor GIOVANNI N. GALLAMASO,
is also a Filipino citizen, sixteen (16) years old
and both are residents of San Juan, Southern
Leyte where they can be served with summons
and other court processes;
2. [Respondent] was appointed guardian [ad
litem] of minor Giovanni N. Gallamaso by virtue of
a court order authorizing her to file in court a
petition for change of name of said minor in
accordance with the desire of his mother [who is
residing and working abroad];
3. Both [respondent] and minor have permanently
resided in San Juan, Southern Leyte, Philippines
for more than fifteen (15) years prior to the filing
of this instant petition, the former since 1970
while the latter since his birth [in 1982];
4. The minor was left under the care of
[respondent] since he was yet nine (9) years old
up to the present;

that the name and citizenship of Carlitos father in his

marriage certificate be corrected from John Kho to
Juan Kho and Filipino to Chinese, respectively.
RTC: directed the local civil registrar of Butuan City
to correct the entries in the record of birth of Carlito,
as follows:
1) change the citizenship of his mother from
Chinese to Filipino;
2) delete John from his name; and
3) delete the word married opposite the date of
marriage of his parents. The last correction was
ordered to be effected likewise in the birth
certificates of his siblings.
Additonally, ordered the correction of the birth
certificates of the minor children of Carlito to reflect
the date of marriage of Carlito and Marivel Dogmoc
as January 21, 2000, instead of April 27, 1989, and
the name Maribel as Marivel.
With respect to the marriage certificate of Carlito and
Marivel, the corrections ordered pertained to the
alteration of the name of Carlitos father from John
Kho to Juan Kho and the latters citizenship from
Filipino to Chinese.
OSG appealed to CA, faulting the trial court in
granting the petition for correction of entries in the
subject documents despite the failure of respondents
to implead the minors mother, Marivel, as an
indispensable party and to offer sufficient evidence to
warrant the corrections with regard to the questioned
married status of Carlito and his siblings parents,
and the latters citizenship.
CA: denied petitioners appeal and affirmed the
decision of the trial court.
Issue:
Whether or not CA erred in affirming the decision of
the lower court
Ruling:
The Decision of the Court of Appeals is AFFIRMED.
The enactment in March 2001 of Republic Act No.
9048 obvious effect is to make possible the
administrative correction of clerical or typographical
errors or change of first name or nickname in entries
in the civil register, leaving to Rule 108 the correction
of substantial changes in the civil registry in
appropriate adversarial proceedings. When all the
procedural requirements under Rule 108 are thus
followed, the appropriate adversary proceeding
necessary to effect substantial corrections to the
entries of the civil register is satisfied.

Marivel or respondents parents should have

been impleaded as parties to the proceeding. It
may not be amiss to mention, however, that
during the hearing on January 31, 2002, the city
prosecutor who was acting as representative of
the OSG did not raise any objection to the non-

5. Minor GIOVANNI N. GALLAMASO is the

illegitimate natural child of Corazon P. Nadores
and Diosdado Gallamaso, was born prior to the
effectivity of the New Family Code and as such,
his mother used the surname of the natural father
despite the absence of marriage between them;
and [Giovanni] has been known by that name
since birth
6. The father, Diosdado Gallamaso, from the time
[Giovanni] was born and up to the present, failed
to take up his responsibilities on matters of
financial, physical, emotional and spiritual
concerns.
7. [Giovanni] is now fully aware of how he stands
with his father and he desires to have his
surname changed to that of his mothers
surname;
8. [Giovannis] mother might eventually petition
[him] to join her in the United States and [his]
continued use of the surname Gallamaso, the
surname of his natural father, may complicate
[his] status as natural child; and
9. The change of name [from] GIOVANNI N.
GALLAMASO to GIOVANNI NADORES will be for
the benefit of the minor.
RTC: Having found respondents petition
sufficient in form and substance, gave due course
to the petition.
After the reception of evidence, the RTC rendered
a decision ordering the change of name from
Giovanni N. Gallamaso to Giovanni Nadores.
OSG filed an appeal with a lone assignment of
error: the court a quo erred in granting the petition
in a summary proceeding
CA: affirmed the RTC decision ordering the
change of name.

Issue:
Court of appeals erred in affirming the trial courts
decision which granted the petition for change of
name despite the non-joinder of indispensable
parties.
Ruling:
Petition denied.
Understandably, no person can change his name
or surname without judicial authority. This is a
reasonable requirement for those seeking such
change because a persons name necessarily
affects his identity, interests and interactions. The
State must be involved in the process and
decision to change the name of any of its citizens.
The Rules of Court provides the requiredments
and procedure for change of name.
Here, the appropriate remedy is covered by Rule
103, a separate and distinct proceeding from Rule

inclusion of Marivel and Carlitos parents as

parties to the proceeding. it becomes
unnecessary .

With respect to the date of marriage of Carlito

and Marivel, their certificate of marriage shows
that indeed they were married on January 21,
2000, not on April 27, 1989. Explaining the error,
Carlito declared that the date April 27, 1989
was supplied by his helper, adding that he was
not married to Marivel at the time his sons were
born because his previous marriage was
annulled only in 1999. Given the evidence
presented by respondents, the CA observed that
the minors were illegitimate at birth, hence, the
correction would bring about no change at all in
the nature of their filiation.
With respect to Carlitos mother, it bears noting
that she declared at the witness stand that she
was not married to Juan Kho who died in 1959.
(not challenged by the city prosecutor) A
certification from the office of the city registrar, ,
likewise stated that it has no record of marriage
between Juan Kho and Epifania.

With respect to the correction in Carlitos birth

certificate of his name from Carlito John to
Carlito, the same was properly granted under
Rule 108 of the Rules of Court. The cancellation
or correction of entries involving changes of
name falls under letter o of the following
provision of Section 2 of Rule 108.

The correction of the mothers citizenship from

Chinese to Filipino as appearing in Carlitos birth
record was also proper. Also significant to note is
that the birth certificates of Carlitos siblings
uniformly stated the citizenship of Epifania as

Filipino. To disallow the correction in Carlitos

birth record of his mothers citizenship would
perpetuate an inconsistency in the natal
circumstances of the siblings who are
unquestionably born of the same mother and
father.

Outside the ambit of substantial corrections, of

course, is the correction of the name of Carlitos
wife from Maribel to Marivel. The mistake is
clearly clerical or typographical, which is not only
visible to the eyes, but is also obvious to the
understanding.

108 on mere cancellation and correction of

entries in the civil registry.
The issue of non-joinder of alleged indispensable
parties in the action before the court a quo is
intertwined with the nature of the proceedings
there. The point is whether the proceedings were
sufficiently adversarial.
Summary proceedings do not extensively address
the issues of a case since the reason for their
conduct is expediency. This, according to
petitioner, is not sufficient to deal with substantial
or contentious issues allegedly resulting from a
change of name, meaning, legitimacy as well as
successional rights. Such issues are ventilated
only in adversarial proceedings wherein all
interested parties are impleaded and due process
is observed.
When Giovanni was born in 1982 (prior to the
enactment and effectivity of the Family Code of
the Philippines), the pertinent provision of the
Civil Code then as regards his use of a surname,
read:
Art. 366. A natural child acknowledged by both
parents shall principally use the surname of the
father. If recognized by only one of the parents, a
natural child shall employ the surname of the
recognizing parent. Based on this provision,
Giovanni should have carried his mothers
surname from birth. The records do not reveal
any act or intention on the part of Giovannis
putative father to actually recognize him
Art. 176. Illegitimate children shall use the
surname and shall be under the parental
authority of their mother, and shall be entitled to
support in conformity with this Code.
Our laws on the use of surnames state that
legitimate and legitimated children shall
principally use the surname of the father. The
Family Code gives legitimate children the right to
bear the surnames of the father and the mother,
while illegitimate children shall use the surname
of their mother, unless their father recognizes
their filiation, in which case they may bear the
fathers surname.
The OSG is correct in stating that a petition for
change of name must be heard in an adversarial
proceeding. Unlike petitions for the cancellation or
correction of clerical errors in entries in the civil
registry under Rule 108 of the Rules of Court, a
petition for change of name under Rule 103
cannot be decided through a summary
proceeding. There is no doubt that this petition
does not fall under Rule 108 for it is not alleged
that the entry in the civil registry suffers from
clerical or typographical errors. The relief sought
clearly goes beyond correcting erroneous entries
in the civil registry, although by granting the

petition, the result is the same in that a

corresponding change in the entry is also
required to reflect the change in name. In this
regard, Capote complied with the requirement
for an adversarial proceeding by posting in a
newspaper of general circulation notice of the
filing of the petition
A proceeding is adversarial where the party
seeking relief has given legal warning to the other
party and afforded the latter an opportunity to
contest it. Respondent gave notice of the petition
through publication as required by the rules. With
this, all interested parties were deemed notified
and the whole world considered bound by the
judgment therein. In addition, the trial court gave
due notice to the OSG by serving a copy of the
petition on it.
CHANGE OF NAME AND CORRECTION OF ENTRY
REPUBLIC OF THE PHILIPPINES vs CARLITO I.
KHO
G.R. No. 170340
Refer to the above case

MARCELO LEE vs. COURT OF APPEALS

G.R. No. 118387
Facts:
Rita K. Lee and siblings, private respondent, filed
two separate petitions for the cancellation and/or
correction of entries in the records of birth of
Marcelo Lee and siblings referred to as petitioners.
The petition against all petitioners, with the
exception of Emma Lee, was filed before the
Regional Trial Court of Manila, a similar petition
against Emma Lee was filed before the RTC of
Kalookan.
Both petitions sought to cancel and/or correct the
false and erroneous entries in all pertinent records
of birth of petitioners by deleting and/or canceling
therein the name of "Keh Shiok Cheng" as their
mother, and by substituting the same with the name
"Tiu Chuan", who is allegedly the petitioners' true
birth mother.
The private respondents alleged in their petitions
before the trial courts that they are the legitimate
children of spouses Lee Tek Sheng and Keh Shiok
Cheng who were legally married in China. Except
for Rita K. Lee who was born and raised in China,
private respondents herein were all born and raised
in the Philippines
Lee Tek Sheng, facilitated the arrival in the
Philippines from China of a young girl named Tiu
Chuan. She was introduced by Lee Tek Sheng to
his family as their new housemaid but Tiu Chuan
immediately became Lee Tek Sheng's mistress. As
a result of their illicit relations, Tiu Chuan gave birth
to the petitioners.
Unknown to Keh Shiok Cheng and private
respondents, every time Tiu Chuan gave birth to
each of the petitioners, their common father, Lee

Tek Sheng, falsified the entries in the records of

birth of petitioners by making it appear that
petitioners' mother was Keh Shiok Cheng.
Since the birth of petitioners, it was Tiu Chuan who
gave maternal care and guidance to the petitioners.
They all lived in the same compound Keh Shiok
Cheng and private respondents were residing in. All
was well, therefore, before private respondents'
discovery of the dishonesty and fraud perpetrated
by their father, Lee Tek Sheng.
Acting on their suspicion, the private respondents
requested the National Bureau of Investigation to
conduct an investigation into the matter. After
investigation and verification of all pertinent
records, the NBI prepared a report that pointed out,
among others, the false entries in the records of
birth of petitioners.
It was this report that prompted private respondents
to file the petitions for cancellation and/or correction
of entries in petitioners' records of birth with the
lower courts. The petitioners filed a motion to
dismiss both petitions on the grounds that: (1)
resort to Rule 108 is improper where the ultimate
objective is to assail the legitimacy and filiation of
petitioners; (2) the petition, which is essentially an
action to impugn legitimacy was filed prematurely;
and (3) the action to impugn has already
prescribed.
Respondent Judge Veneracion denied the motion
to dismiss for failure of the herein petitioners to
appear at the hearing of the said motion. Then,
Judge Veneracion issued an order, finding the
petition to be sufficient in form and substance, the
same is hereby given due course.
Petitioners' attempts at seeking a reconsideration
of the above-mentioned orders, hence their
recourse to the Court of Appeals via a Petition for
Certiorari and Prohibition with Application for the
Issuance of a Temporary Restraining Order and/or
Writ of Preliminary Injunction.
Before the Court of Appeals, the petitioners raised
the following arguments: (1) Rule 108 is
inappropriate for impugning the legitimacy and
filiation of children; (2) Respondents judges are
sanctioning a collateral attack against the filiation
and legitimacy of children; (3) Respondents judges
are allowing private respondents to impugn the
legitimacy and filiation of their siblings despite the
fact that their undisputed common father is still
alive; (4) Respondents judges are entertaining
petitions which are already time-barred; and (5)
The petitions below are part of a forum-shopping
spree.
CA: dismissed their petition
Motion for Reconsideration- denied
Hence, this petition.

Issue:
Whether or not resort to Rule 108 of the Revised
Rules of Court is improper since private
respondents seek to have the entry for the name of
petitioners' mother changed from "Keh Shiok the
legal wife Cheng" to "Tiu Chuan" the mistress, in
effect a "bastardization of petitioners.
Ruling:
It is precisely the province of a special proceeding
such as the one outlined under Rule 108 of the
Revised Rules of Court to establish the status or
right of a party, or a particular fact. The petitions
filed by private respondents for the correction of
entries in the petitioners' records of birth were
intended to establish that for physical and/or
biological reasons it was impossible for Keh Shiok
Cheng to have conceived and given birth to the
petitioners as shown in their birth records. Contrary
to petitioners' contention that the petitions before
the lower courts were actually actions to impugn
legitimacy, the prayer therein is not to declare that
petitioners are illegitimate children of Keh Shiok
Cheng, but to establish that the former are not the
latter's children. There is nothing to impugn, as
there is no blood relation at all between Keh Shiok
Cheng and petitioners.
In special proceedings formal pleadings and a
hearing may be dispensed with, and the remedy
granted upon mere application or motion. But this is
not always the case, as when the statute expressly
provides. Hence, a special proceeding is not
always summary. One only has to take a look at the
procedure outlined in Rule 108 to see that what is
contemplated therein is not a summary proceeding
per se. Rule 108 requires publication of the petition
three (3) times, i.e., once a week for three (3)
consecutive weeks (Sec.4). The Rule also requires
inclusion as parties of all persons who claim any
interest which would be affected by the cancellation
or correction (Sec. 3). The civil registrar and any
person in interest are also required to file their
opposition, if any, within fifteen (15) days from
notice of the petition, or from the last date of
publication of such notice (Sec. 5). Last, but not the
least, although the court may make orders
expediting the proceedings, it is after hearing that
the court shall either dismiss the petition or issue
an order granting the same.
Article 412 is a substantive law that provides as
follows:
"No entry in a civil register shall be changed or
corrected, without a judicial order."
It does not provide for a specific procedure of law
to be followed except to say that the corrections or
changes must be effected by judicial order. As
such, it cannot be gleaned therefrom that the
procedure contemplated for obtaining such judicial
order is summary in nature.

Secondly, it is important to note that Article 412

uses both the terms "corrected" and "changed". In
its ordinary sense, to correct means to make or set
right"; "to remove the faults or errors from"44 while
to change means "to replace something with
something else of the same kind or with something
that serves as a substitute. The provision neither
qualifies as to the kind of entry to be changed or
corrected nor does it distinguish on the basis of the
effect that the correction or change may have.
Hence, it is proper to conclude that all entries in the
civil register may be changed or corrected under
Article 412. What are the entries in the civil
register? We need not go further than Articles 407
and 408 of the same title to find the answer.
"Art. 407. Acts, events and judicial decrees
concerning the civil status of persons shall be
recorded in the civil register."
"Art. 408. The following shall be entered in the civil
register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of
name."
It is beyond doubt that the specific matters covered
by the preceding provisions include not only status
but also nationality. Therefore, the Ty Kong Tin
pronouncement that Article 412 does not
contemplate matters that may affect civil status,
nationality or citizenship is erroneous. This
interpretation has the effect of isolating Article 412
from the rest of the articles in Title XVI, Book I of
the New Civil Code, in clear contravention of the
rule of statutory construction that a statute must
always be construed as a whole such that the
particular meaning to be attached to any word or
phrase is ascertained from the context and the
nature of the subject treated
Petition is DENIED and the assailed decision of the
Court of Appeals is AFFIRMED, concurred that
there is no forum shopping.

APPEAL
QUASHA ANCHETA PEA AND NOLASCO LAW
OFFICE FOR ITS OWN BEHALF vs. LCN
CONSTRUCTION CORP
G.R. No. 174873
Facts:
Raymond Triviere passed away, proceedings for the
settlement of his intestate estate were instituted by
his widow, Amy ConAtty. Enrique P. Syquia and Atty.

VICENTE B. TEOTICO vs.

ANA DEL VAL, ETC
G.R. No. L-18753
Facts:
Maria Mortera y Balsalobre Vda. de Aguirre died
leaving properties worth P600,000.00. She left a
will written in Spanish which she executed at her

William H. Quasha of the Quasha Law Office,

representing the widow and children of the late
Raymond Triviere, respectively, were appointed
administrators of the estate of the deceased. As
administrators, Atty. Syquia and Atty. Quasha
incurred expenses for the payment of real estate
taxes, security services, and the preservation and
administration of the estate, as well as litigation
expenses.
Atty. Syquia and Atty. Quasha filed before the RTC a
Motion for Payment of their litigation expenses.
Citing their failure to submit an accounting of the
assets and liabilities of the estate under
administration, the RTC denied the Motion for
Payment of Atty. Syquia and Atty. Quasha.
In 1996, Atty. Quasha also passed away. Atty.
Redentor Zapata (Zapata), also of the Quasha Law
Office, took over as the counsel of the Triviere
children, and continued to help Atty. Syquia in the
settlement of the estate. Atty. Syquia and Atty.
Zapata filed another Motion for Payment for their
own behalf and for their respective clients
LCN, as the only remaining claimant against the
Intestate Estate of the Late Raymond Triviere in
Special Proceedings Case filed its Comment
on/Opposition to the afore-quoted Motion it
countered that the RTC had already resolved the
issue of payment of litigation expenses when it
denied the first Motion for Payment filed by Atty.
Syquia and Atty. Quasha for failure of the
administrators to submit an accounting of the assets
and expenses of the estate as required by the court.
RTC: declared that there was no more need for
accounting of the assets and liabilities of the estate
considering that:
There appears to be no need for an accounting as
the estate has no more assets except the money
deposited with the Union Bank of the Philippines,
records shows that the BIR had issued a certificate
dated indicating that the estate taxes has been fully
paid. Both the Co-Administrator and counsel for the
deceased are entitled to the payment for the services
they have rendered and accomplished for the estate
and the heirs of the deceased.
Granted the second Motion for Payment; however, it
reduced the sums to be paid.

residence. She affixed her signature at the bottom

of the will and on the left margin of each and
every page thereof in the presence of Pilar Borja,
Pilar C. Sanchez, and Modesto Formilleza, who in
turn affixed their signatures below the attestation
clause and on the left margin of each and every
page of the will in the presence of the testatrix
and of each other.
Said will was acknowledged before Notary Public
Niceforo S. Agaton by the testatrix and her
witnesses.
Among the many legacies and devises made in
the will, one of P20,000.00 for Rene A.Teotico,
married to the testatrix's niece named Josefina
Mortera. To said spouses the testatrix left the
usufruct of her interest in the Calvo building, while
the naked ownership thereof she left in equal
parts to her grandchildren who are the legitimate
children of said spouses.
The testatrix also instituted Josefina Mortera as
her sole and universal heir to all the remainder of
her properties not otherwise disposed of in the
will. Vicente B. Teotico filed a petition for the
probate of the will before the Court of First
Instance of Manila. Ana del Val Chan, claiming to
be an adopted child of Francisca Mortera, a
deceased sister of the testatrix, as well as an
acknowledged natural child of Jose Mortera, a
deceased brother of the same testatrix, filed on
an opposition to the probate of the will alleging
the following grounds: (1) said will was not
executed as required by law; (2) the testatrix was
physically and mentally incapable to execute the
will at the time of its execution; and (3) the will
was executed under duress, threat or influence of
fear
PROBATE COURT: rendered its decision on
admitting the will to probate but declaring the
disposition made in favor of Dr. Rene Teotico void
with the statement that the portion to be vacated
by the annulment should pass to the testatrix's
heirs by way of intestate succession.
Motions for Reconsideration denied
Issue:
Whether or not the probate court erred in
declaring the legacy invalid

LCN filed a Motion for Reconsideration denied

Discussed separately:
CA: promulgated a decision essentially ruling in
favor of LCN. It however did not agree in the position
of LCN that the administrators' claims against the
estate should have been presented and resolved in
accordance with Section 8 of Rule 86 of the Revised
Rules of Court. Claims against the estate that require
presentation under Rule 86 refer to "debts or
demands of a pecuniary nature which could have
been enforced against the decedent during his

1. It is a well-settled rule that in order that a

person may be allowed to intervene in a probate
proceeding he must have an interest in the
estate, or in the will, or in the property to be
affected by it either as executor or as a claimant
of the estate
2. The next question to be determined is whether

lifetime and which could have been reduced to

simple judgment and among which are those
founded on contracts." The failure of the
administrators to render an accounting is excusable.
Motion for Reconsideration denied

the will was duly admitted to probate. Oppositor

claims that the same should not have been
admitted not only because it was not properly
attested to but also because it was procured thru
pressure and influence and the testatrix affixed
her signature by mistake believing that it
contained her true intent.

Petition for Review on Certiorari

Issue:
The Court of Appeals erred in nullifying the award of
attorney's fees in favor of the co-administrators
Ruling:
In its Memorandum before this Court, petitioner
Quasha Law Office argues that "what is being
charged are not professional fees for legal services
rendered but payment for administration of the
Estate which has been under the care and
management of the co-administrators for the past 14
years.
On the other hand, in the Motion for Payment filed
with the RTC , petitioner Quasha Law Office prayed
for P200,000.00 as "attorney's fees and litigation
expenses." Being lumped together, and absent
evidence to the contrary, the attorney's fees and
litigation expenses prayed for by the petitioner
Quasha Law Office can be logically and reasonably
presumed to be in connection with cases handled by
said law office on behalf of the estate.
The Court notes with disfavor the sudden change in
the theory by petitioner Quasha Law Office.
Consistent with discussions in the preceding
paragraphs, Quasha Law Office initially asserted
itself as co-administrator of the estate before the
courts. The records do not belie this fact. Petitioner
Quasha Law Office later on denied it was substituted
in the place of Atty. Quasha as administrator of the
estate only upon filing a Motion for Reconsideration
with the Court of Appeals, and then again before this
Court.
As a general rule, a party cannot change his theory
of the case or his cause of action on appeal. When a
party adopts a certain theory in the court below, he
will not be permitted to change his theory on appeal,
for to permit him to do so would not only be unfair to
the other party but it would also be offensive to the
basic rules of fair play, justice and due process.
Points of law, theories, issues and arguments not
brought to the attention of the lower court need not
be, and ordinarily will not be, considered by a
reviewing court, as these cannot be raised for the
first time at such late stage.
This rule, however, admits of certain exceptions. In
the interest of justice and within the sound discretion
of the appellate court, a party may change his legal
theory on appeal, only when the factual bases
thereof would not require presentation of any further
evidence by the adverse party in order to enable it to

Ruling:
The claim that the will was not properly attested
to is contradicted by the evidence of record. In
this respect it is fit that we state briefly the
declarations of the instrumental witnesses.
The question of whether the probate court could
determine the intrinsic validity of the provisions of
a will has been decided by this Court in a long
line of decisions among which the following may
be cited:
Opposition to the intrinsic validity or legality of the
provisions of the will cannot be entertained in
Probate proceeding because its only purpose is
merely to determine if the will has been executed
in accordance with the requirements of the law."
Pursuant to the foregoing precedents the
pronouncement made by the court a quo
declaring invalid the legacy made to Dr. Rene
Teotico in the will must be set aside as having
been made in excess of its jurisdiction. Another
reason why said pronouncement should be set
aside is that the legatee was not given an
opportunity to defend the validity of the legacy for
he was not allowed to intervene in this
proceeding. As a corollary, the other
pronouncements touching on the disposition of
the estate in favor of some relatives of the
deceased should also be set aside for the same
reason.
WHEREFORE, with the exception of that portion
of the decision which declares that the will in
question has been duly executed and admitted
the same to probate, the rest of the decision is
hereby set aside. This case is ordered remanded
to the court a quo for further proceedings.

properly meet the issue raised in the new theory.

The Court finds it necessary to exercise leniency on
the rule against changing of theory on appeal,
consistent with the rules of fair play and in the
interest of justice. Petitioner Quasha Law Office
presented conflicting arguments with respect to
whether or not it was co-administrator of the estate.
Nothing in the records, however, reveals that any
one of the lawyers of Quasha Law Office was indeed
a substitute administrator for Atty. Quasha. The court
has jurisdiction to appoint an administrator of an
estate by granting letters of administration to a
person not otherwise disqualified or incompetent to
serve as such.
The records of the case are wanting in evidence that
Quasha Law Office or any of its lawyers substituted
Atty. Quasha as co-administrator of the estate. This
Court is thus inclined to give credence to petitioner's
contention that while it rendered legal services for
the settlement of the estate of Raymond Triviere
since the time of Atty. Quasha's death in 1996, it did
not serve as co-administrator thereof, granting that it
was never even issued letters of administration.
However, while petitioner Quasha Law Office,
serving as counsel of the Triviere children from the
time of death of Atty. Quasha is entitled to attorney's
fees and litigation expenses as prayed for in the
Motion for Payment and as awarded by the RTC in
its Order, the same may be collected from the shares
of the Triviere children, upon final distribution of the
estate, in consideration of the fact that the Quasha
Law Office, indeed, served as counsel (not anymore
as co-administrator),
Petition for Review on Certiorari is PARTLY
GRANTED. Decision Court of Appeals is
AFFIRMED, with MODIFICATIONS.