E.

Surnames;
1) Alfon v Republic, GR No. 51201, 29 May 1980

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-51201 May 29, 1980

IN THE MATTER OF THE PETITION FOR CHANGE OF NAME OF MARIA ESTRELLA VERONICA PRIMITIVA
DUTERTE, ESTRELLA S. ALFON, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.

ABAD SANTOS, J.: ñé+.£ª wph!1

This is a petition filed pursuant to Republic Act No. 5440 to review an Order of the Court of First Instance of Rizal,
Branch XXIII, dated December 29, 1978, which partially denied petitioner's prayer for a change of name. Only a
question of law is involved and there is no controversy over the facts which are well-stated in the questioned Order
as follows:têñ.£îhqw â£

This is verified petition filed on April 28, 1978 by petitioner Maria Estrella Veronica Primitiva Duterte
through her counsel, Atty. Rosauro Alvarez, praying that her name be changed from Maria Estrella
Veronica Primitiva Duterte to Estrella S. Alfon.

The notice setting the petition for hearing on December 14, 1978 at 8:30 o'clock in the morning was
published in the Times Journal in its issues of July 28, August 5 and 11, 1978 and a copy thereof
together with a copy of the petition was furnished the Office of the Solicitor General (Exhibits C, C-1,
C-2 and C-3).

At the hearing of the petition on December 14, 1978, Atty. Rosauro Alvarez appeared for the
petitioner and Fiscal Donato Sor. Suyat, Jr. represented the office of the Solicitor General, Upon
motion of counsel for the petitioner, without objection on the part of Fiscal Suyat, the Deputy Clerk of
Court was appointed commissioner to receive the evidence and to submit the same for resolution of
the Court.

From the testimonial and document evidence presented, it appears that petitioner Maria Estrella
Veronica Primitiva Duterte was born on May 15, 1952 at the U.S.T. Hospital (Exhibit A). She was
registered at the local Civil Registrar's Office as Maria Estrella Veronica Primitiva Duterte On June
15, 1952, she was baptized as Maria Estrella Veronica Primitiva Duterte at the St. Anthony de
Padua Church Singalong, Manila (Exhibit B). Her parents are Filomeno Duterte and Estrella
Veronica Primitiva Duterte has been taken cared of by Mr. and Mrs. Hector Alfon. Petitioner and her
uncle, Hector Alfon, have been residing at 728 J.R. Yulo Street corner Ideal Street, Mandaluyong,
Metro Manila for twenty-three (23) years. When petitioner started schooling, she used the name
Estrella S. Alfon. She attended her first grade up to fourth year high school at Stella Maris College
using the name Estrella S. Alfon (Exhibits E, E-1, E-2 and E-3). After graduating from high school
she enrolled at the Arellano University and finished Bachelor of Science in Nursing (Exhibit E-4). Her
scholastic records from elementary to college show that she was registered by the name of Estrella
S. Alfon. Petitioner has exercised her right of suffrage under the same name (Exhibit D). She has not
committed any felony or misdemeanor (Exhibits G, G-1, G-2, G-3 and G-4).

Petitioner has advanced the following reasons for filing the petition:

1. She has been using the name Estrella Alfon since her childhood;

2. She has been enrolled in the grade school and in college using the same name;

3. She has continuously used the name Estrella S. Alfon since her infancy and all her friends and
acquaintances know her by this name;

4. She has exercised her right of suffrage under the same name.

Section 5, Rule 103 of the Rules of Court provides:

 Upon satisfactory proof in open court on the date fixed in the order that such order has been
published as directed and that the allegations of the petition are true, the court shall if proper and
reasonable cause appears for changing the name of the petitioner adjudge that such name be
changed in accordance with the prayer of the petition.

The evidence submitted shows that the change of name from Maria Estrella Veronica Primitiva
Duterte to Estrella Alfon is not proper and reasonable with respect to the surname. The fact that
petitioner has been using a different surname and has become known with such surname does not
constitute proper and reasonable cause to legally authorize and change her surname to Alfon. The
birth certificate clearly shows that the father of petitioner is Filomeno Duterte. Petitioner likewise
admitted this fact in her testimony. To allow petitioner to change her surname from Duterte to Alfon
is equivalent to allowing her to use her mother's surname. Article 364 of the Civil Code provides:

Legitimate and legitimated children shall principally use the surname of the father.

If another purpose of the petitioner is to carry the surname of Alfon because her uncle who reared
her since childhood has the surname "Alfon" then the remedy is not a petition for change of name.

WHEREFORE, the petition insofar as the first name is granted but denied with respect to the
surname. Petitioner is authorized to change her name from Maria Estrella Veronica Primitiva Duterte
to Estrella Alfon Duterte.

Let copy of this order be furnished the Local Civil Registrar of Pasig, Metro Manila pursuant to
Section 3, Rule 103 of the Rules of Court.

The lower court should have fully granted the petition.

The only reason why the lower court denied the petitioner's prayer to change her surname is that as legitimate child
of Filomeno Duterte and Estrella Alfon she should principally use the surname of her father invoking Art. 364 of the
Civil Code. But the word "principally" as used in the codal provision is not equivalent to "exclusively" so that there is
no legal obstacle if a legitimate or legitimated child should choose to use the surname of its mother to which it is
equally entitled. Moreover, this Court in Haw Liong vs. Republic, G.R. No. L-21194. April 29, 1966, 16 SCRA 677,
679, said: têñ.£îhqw â£

The following may be considered, among others, as proper or reasonable causes that may warrant
the grant of a petitioner for change of name; (1) when the name is ridiculous, tainted with dishonor,
or is extremely difficult to write or pronounce; (2) when the request for change is a consequence of a
change of' status, such as when a natural child is acknowledged or legitimated; and (3) when the
change is necessary to avoid confusion Tolentino, Civil Code of the Philippines, 1953 ed., Vol. 1, p.
660).

In the case at bar, it has been shown that petitioner has, since childhood, borne the name Estrella S. Alfon although
her birth records and baptismal certificate show otherwise; she was enrolled in the schools from the grades up to
college under the name Estrella S. Alfon; all her friends call her by this name; she finished her course in Nursing in
college and was graduated and given a diploma under this name; and she exercised the right of suffrage likewise
under this name. There is therefore ample justification to grant fully her petition which is not whimsical but on the
contrary is based on a solid and reasonable ground, i.e. to avoid confusion.

WHEREFORE, the Order appealed from is hereby modified in that, the petitioner is allowed to change not only her
first name but also her surname so as to be known as ESTRELLA S. ALFON. No costs.

2) Yasin vs Shari’a District Court, supra

3) Wang v Registrar, GR No. 159966, 30 Mar 2005

G.R. No. 159966. March 30, 2005

IN RE: PETITION FOR CHANGE OF NAME AND/OR CORRECTION/CANCELLATION OF ENTRY IN CIVIL

REGISTRY OF JULIAN LIN CARULASAN WANG also known as JULIAN LIN WANG, to be amended/corrected
as JULIAN LIN WANG, JULIAN LIN WANG, duly represented by his mother ANNA LISA WANG, Petitioners,
vs.
CEBU CITY CIVIL REGISTRAR, duly represented by the Registrar OSCAR B. MOLO, Respondents.

DECISION

TINGA, J.:

I will not blot out his name out of the book of life.
Revelation 3:5

On 22 September 2002, petitioner Julian Lin Carulasan Wang, a minor, represented by his mother Anna Lisa Wang,
filed a petition dated 19 September 2002 for change of name and/or correction/cancellation of entry in the Civil
Registry of Julian Lin Carulasan Wang. Petitioner sought to drop his middle name and have his registered name
changed from Julian Lin Carulasan Wang to Julian Lin Wang.

The petition was docketed as Special Proceedings Case No. 11458 CEB and raffled to the Regional Trial Court
(RTC) of Cebu City, Branch 57.

The RTC established the following facts:

Julian Lin Carulasan Wang was born in Cebu City on February 20, 1998 to parents Anna Lisa Wang and Sing-Foe
Wang who were then not yet married to each other. When his parents subsequently got married on September 22,
1998, ...they executed a deed of legitimation of their son so that the child’s name was changed from Julian Lin
Carulasan to Julian Lin Carulasan Wang….

The parents of Julian Lin Carulasan Wang plan to stay in Singapore for a long time because they will let him study
there together with his sister named Wang Mei Jasmine who was born in Singapore…. Since in Singapore middle
names or the maiden surname of the mother are not carried in a person’s name, they anticipate that Julian Lin
Carulasan Wang will be discriminated against because of his current registered name which carries a middle name.
Julian and his sister might also be asking whether they are brother and sister since they have different surnames.
Carulasan sounds funny in Singapore’s Mandarin language since they do not have the letter "R" but if there is, they
pronounce it as "L." It is for these reasons that the name of Julian Lin Carulasan Wang is requested to be changed
to Julian Lin Wang.1

On 30 April 2003, the RTC rendered a decision denying the petition.2 The trial court found that the reason given for
the change of name sought in the petition—that is, that petitioner Julian may be discriminated against when studies
in Singapore because of his middle name—did not fall within the grounds recognized by law. The trial court ruled
that the change sought is merely for the convenience of the child. Since the State has an interest in the name of a
person, names cannot be changed to suit the convenience of the bearers. Under Article 174 of the Family Code,
legitimate children have the right to bear the surnames of the father and the mother, and there is no reason why this
right should now be taken from petitioner Julian, considering that he is still a minor. The trial court added that when
petitioner Julian reaches the age of majority, he could then decide whether he will change his name by dropping his
middle name.3

Petitioner filed a motion for reconsideration of the decision but this was denied in a resolution dated 20 May
2004.4 The trial court maintained that the Singaporean practice of not carrying a middle name does not justify the
dropping of the middle name of a legitimate Filipino child who intends to study there. The dropping of the middle
name would be tantamount to giving due recognition to or application of the laws of Singapore instead of Philippine
law which is controlling. That the change of name would not prejudice public interest or would not be for a fraudulent
purpose would not suffice to grant the petition if the reason for the change of name is itself not reasonable.5

Petitioner then filed this Petition for Review on Certiorari (Under Rule 45)6 arguing that the trial court has decided a
question of substance not theretofore determined by the Court, that is: whether or not dropping the middle name of
a minor child is contrary to Article 1747 of the Family Code. Petitioner contends that "[W]ith globalization and mixed
marriages, there is a need for the Supreme Court to rule on the matter of dropping of family name for a child to
adjust to his new environment, for consistency and harmony among siblings, taking into consideration the "best
interest of the child."8 It is argued that convenience of the child is a valid reason for changing the name as long as it
will not prejudice the State and others. Petitioner points out that the middle name "Carulasan" will cause him undue
embarrassment and the difficulty in writing or pronouncing it will be an obstacle to his social acceptance and
integration in the Singaporean community. Petitioner also alleges that it is error for the trial court to have denied the
petition for change of name until he had reached the age of majority for him to decide the name to use, contrary to
previous cases9 decided by this Court that allowed a minor to petition for change of name.10

The Court required the Office of the Solicitor General (OSG) to comment on the petition. The OSG filed
its Comment11 positing that the trial court correctly denied the petition for change of name. The OSG argues that
under Article 174 of the Family Code, legitimate children have the right to bear the surnames of their father and
mother, and such right cannot be denied by the mere expedient of dropping the same. According to the OSG, there
is also no showing that the dropping of the middle name "Carulasan" is in the best interest of petitioner, since mere
convenience is not sufficient to support a petition for change of name and/or cancellation of entry.12 The OSG also
adds that the petitioner has not shown any compelling reason to justify the change of name or the dropping of the
middle name, for that matter. Petitioner’s allegation that the continued use of the middle name may result in
confusion and difficulty is allegedly more imaginary than real. The OSG reiterates its argument raised before the trial
court that the dropping of the child’s middle name could only trigger much deeper inquiries regarding the true
parentage of petitioner. Hence, while petitioner Julian has a sister named Jasmine Wei Wang, there is no confusion
since both use the surname of their father, Wang. Even assuming that it is customary in Singapore to drop the
middle name, it has also not been shown that the use of such middle name is actually proscribed by Singaporean
law.13
We affirm the decision of the trial court. The petition should be denied.

The Court has had occasion to express the view that the State has an interest in the names borne by individuals
and entities for purposes of identification, and that a change of name is a privilege and not a right, so that before a
person can be authorized to change his name given him either in his certificate of birth or civil registry, he must
show proper or reasonable cause, or any compelling reason which may justify such change. Otherwise, the request
should be denied.14

The touchstone for the grant of a change of name is that there be ‘proper and reasonable cause’ for which the
change is sought.15 To justify a request for change of name, petitioner must show not only some proper or
compelling reason therefore but also that he will be prejudiced by the use of his true and official name. Among the
grounds for change of name which have been held valid are: (a) when the name is ridiculous, dishonorable or
extremely difficult to write or pronounce; (b) when the change results as a legal consequence, as in legitimation; (c)
when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a
Filipino name, and was unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase signs of
former alienage, all in good faith and without prejudicing anybody; and (f) when the surname causes embarrassment
and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name
would prejudice public interest.16

In granting or denying petitions for change of name, the question of proper and reasonable cause is left to the sound
discretion of the court. The evidence presented need only be satisfactory to the court and not all the best evidence
available. What is involved is not a mere matter of allowance or disallowance of the request, but a judicious
evaluation of the sufficiency and propriety of the justifications advanced in support thereof, mindful of the
consequent results in the event of its grant and with the sole prerogative for making such determination being
lodged in the courts.17

The petition before us is unlike other petitions for change of name, as it does not simply seek to change the name of
the minor petitioner and adopt another, but instead seeks to drop the middle name altogether. Decided cases in this
jurisdiction involving petitions for change of name usually deal with requests for change of surname. There are only
a handful of cases involving requests for change of the given name18 and none on requests for changing or dropping
of the middle name. Does the law allow one to drop the middle name from his registered name? We have to answer
in the negative.

A discussion on the legal significance of a person’s name is relevant at this point. We quote, thus:

…For all practical and legal purposes, a man's name is the designation by which he is known and called in the
community in which he lives and is best known. It is defined as the word or combination of words by which a person
is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of
the world at large addressing him, or in speaking of or dealing with him. Names are used merely as one method of
indicating the identity of persons; they are descriptive of persons for identification, since, the identity is the essential
thing and it has frequently been held that, when identity is certain, a variance in, or misspelling of, the name is
immaterial.

The names of individuals usually have two parts: the given name or proper name, and the surname or family name.
The given or proper name is that which is given to the individual at birth or baptism, to distinguish him from other
individuals. The name or family name is that which identifies the family to which he belongs and is continued from
parent to child. The given name may be freely selected by the parents for the child; but the surname to which the
child is entitled is fixed by law.

A name is said to have the following characteristics: (1) It is absolute, intended to protect the individual from being
confused with others. (2) It is obligatory in certain respects, for nobody can be without a name. (3) It is fixed,
unchangeable, or immutable, at least at the start, and may be changed only for good cause and by judicial
proceedings. (4) It is outside the commerce of man, and, therefore, inalienable and intransmissible by act inter vivos
or mortis causa. (5) It is imprescriptible.19

This citation does not make any reference to middle names, but this does not mean that middle names have no
practical or legal significance. Middle names serve to identify the maternal lineage or filiation of a person as well as
further distinguish him from others who may have the same given name and surname as he has.

Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of
the father.20 The Family Code gives legitimate children the right to bear the surnames of the father and the
mother,21 while illegitimate children shall use the surname of their mother, unless their father recognizes their
filiation, in which case they may bear the father’s surname.22

Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and
his mother’s surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore
identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents
or acknowledged by the father in a public document or private handwritten instrument that he bears both his
mother’s surname as his middle name and his father’s surname as his surname, reflecting his status as a
legitimated child or an acknowledged illegitimate child.

Accordingly, the registration in the civil registry of the birth of such individuals requires that the middle name be
indicated in the certificate. The registered name of a legitimate, legitimated and recognized illegitimate child thus
contains a given or proper name, a middle name, and a surname.

Petitioner theorizes that it would be for his best interest to drop his middle name as this would help him to adjust
more easily to and integrate himself into Singaporean society. In support, he cites Oshita v. Republic23 and Calderon
v. Republic,24 which, however, are not apropos both.

In Oshita, the petitioner therein, a legitimate daughter of a Filipino mother, Buena Bartolome, and a Japanese father,
Kishimatsu Oshita, sought to change her name from Antonina B. Oshita to Antonina Bartolome. The Court granted
her petition based on the following considerations: she had elected Philippine citizenship upon reaching the age of
majority; her other siblings who had also elected Philippine citizenship have been using their mother’s surname; she
was embarrassed to bear a Japanese surname there still being ill feeling against the Japanese due to the last World
War; and there was no showing that the change of name was motivated by a fraudulent purpose or that it will
prejudice public interest.

In Calderon, the Court allowed petitioner Gertrudes Josefina del Prado, an illegitimate minor child acting through her
mother who filed the petition in her behalf, to change her name to Gertudes Josefina Calderon, taking the surname
of her stepfather, Romeo C. Calderon, her mother’s husband. The Court held that a petition for change of name of
an infant should be granted where to do is clearly for the best interest of the child. The Court took into consideration
the opportunity provided for the minor petitioner to eliminate the stigma of illegitimacy which she would carry if she
continued to use the surname of her illegitimate father. The Court pronounced that justice dictates that every person
be allowed to avail of any opportunity to improve his social standing as long as doing so he does not cause
prejudice or injury to the interests of the State or of other people.

Petitioner cites Alfon v. Republic,25 in arguing that although Article 174 of the Family Code gives the legitimate child
the right to use the surnames of the father and the mother, it is not mandatory such that the child could use only one
family name, even the family name of the mother. In Alfon, the petitioner therein, the legitimate daughter of
Filomeno Duterte and Estrella Alfon, sought to change her name from Maria Estrella Veronica Primitiva Duterte (her
name as registered in the Local Civil Registry) to Estrella S. Alfon (the name she had been using since childhood, in
her school records and in her voter’s registration). The trial court denied her petition but this Court overturned the
denial, ruling that while Article 364 of the Civil Code states that she, as a legitimate child, should principally use the
surname of her father, there is no legal obstacle for her to choose to use the surname of herm other to which she is
entitled. In addition, the Court found that there was ample justification to grant her petition, i.e., to avoid confusion.

Weighing petitioner’s reason of convenience for the change of his name against the standards set in the cases he
cites to support his contention would show that his justification is amorphous, to say the least, and could not warrant
favorable action on his petition.

The factual antecedents and unique circumstances of the cited cases are not at all analogous to the case at bar.
The instant case is clearly distinguishable from the cases of Oshita and Alfon, where the petitioners were already of
age when they filed their petitions for change of name. Being of age, they are considered to have exercised their
discretion and judgment, fully knowing the effects of their decision to change their surnames. It can also be
unmistakably observed that the reason for the grant of the petitions for change of name in these two cases was the
presence of reasonable or compelling grounds therefore. The Court, in Oshita, recognized the tangible animosity
most Filipinos had during that time against the Japanese as a result of World War II, in addition to the fact of therein
petitioner’s election of Philippine citizenship. In Alfon, the Court granted the petition since the petitioner had been
known since childhood by a name different from her registered name and she had not used her registered name in
her school records and voter’s registration records; thus, denying the petition would only result to confusion.

Calderon, on the other hand, granted the petition for change of name filed by a mother in behalf of her illegitimate
minor child. Petitioner cites this case to buttress his argument that he does not have to reach the age of majority to
petition for change of name. However, it is manifest in Calderon that the Court, in granting the petition for change of
name, gave paramount consideration to the best interests of the minor petitioner therein.

In the case at bar, the only reason advanced by petitioner for the dropping his middle name is convenience.
However, how such change of name would make his integration into Singaporean society easier and convenient is
not clearly established. That the continued use of his middle name would cause confusion and difficulty does not
constitute proper and reasonable cause to drop it from his registered complete name.

In addition, petitioner is only a minor. Considering the nebulous foundation on which his petition for change of name
is based, it is best that the matter of change of his name be left to his judgment and discretion when he reaches the
age of majority.26 As he is of tender age, he may not yet understand and appreciate the value of the change of his
name and granting of the same at this point may just prejudice him in his rights under our laws.

WHEREFORE, in view of the foregoing, the Petition for Review on Certiorari is DENIED.
4) Bar Matter No. 1625 Re Petition of Josephine Uy-Timosa, 13 July 2006

5) Remo v Secretary of Foreign Affairs, GR No. 169202, 5 Mar 2010

G.R. No. 169202 March 5, 2010

MARIA VIRGINIA V. REMO, Petitioner,

vs.
THE HONORABLE SECRETARY OF FOREIGN AFFAIRS, Respondent.

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review1 of the 27 May 2005 Decision2 and 2 August 2005 Resolution3 of the Court
of Appeals in CA-G.R. SP No. 87710. The Court of Appeals affirmed the decision of the Office of the President,
which in turn affirmed the decision of the Secretary of Foreign Affairs denying petitioner’s request to revert to the
use of her maiden name in her replacement passport.

The Facts

Petitioner Maria Virginia V. Remo is a married Filipino citizen whose Philippine passport was then expiring on 27
October 2000. Petitioner being married to Francisco R. Rallonza, the following entries appear in her passport:
"Rallonza" as her surname, "Maria Virginia" as her given name, and "Remo" as her middle name. Prior to the expiry
of the validity of her passport, petitioner, whose marriage still subsists, applied for the renewal of her passport with
the Department of Foreign Affairs (DFA) office in Chicago, Illinois, U.S.A., with a request to revert to her maiden
name and surname in the replacement passport.

Petitioner’s request having been denied, Atty. Manuel Joseph R. Bretana III, representing petitioner, wrote then
Secretary of Foreign Affairs Domingo Siason expressing a similar request.

On 28 August 2000, the DFA, through Assistant Secretary Belen F. Anota, denied the request, stating thus:

This has reference to your letter dated 17 August 2000 regarding one Ms. Maria Virginia V. Remo who is applying
for renewal of her passport using her maiden name.

This Office is cognizant of the provision in the law that it is not obligatory for a married woman to use her husband’s
name. Use of maiden name is allowed in passport application only if the married name has not been used in
previous application. The Implementing Rules and Regulations for Philippine Passport Act of 1996 clearly defines
the conditions when a woman applicant may revert to her maiden name, that is, only in cases of annulment of
marriage, divorce and death of the husband. Ms. Remo’s case does not meet any of these conditions.4 (Emphasis
supplied)

Petitioner’s motion for reconsideration of the above-letter resolution was denied in a letter dated 13 October 2000.5

On 15 November 2000, petitioner filed an appeal with the Office of the President.

On 27 July 2004, the Office of the President dismissed the appeal6 and ruled that Section 5(d) of Republic Act No.
8239 (RA 8239) or the Philippine Passport Act of 1996 "offers no leeway for any other interpretation than that only in
case of divorce, annulment, or declaration [of nullity] of marriage may a married woman revert to her maiden name
for passport purposes." The Office of the President further held that in case of conflict between a general and
special law, the latter will control the former regardless of the respective dates of passage. Since the Civil Code is a
general law, it should yield to RA 8239.

On 28 October 2004, the Office of the President denied the motion for reconsideration.7

Petitioner filed with the Court of Appeals a petition for review under Rule 43 of the Rules of Civil Procedure.

In its Decision of 27 May 2005, the Court of Appeals denied the petition and affirmed the ruling of the Office of the
President. The dispositive portion of the Court of Appeals’ decision reads:

WHEREFORE, premises considered, the petition is DENIED, and the resolution dated July 27, 2004, and the order
dated October 28, 2004 of the Office of the President in O.P. Case No. 001-A-9344 are hereby AFFIRMED.

SO ORDERED.8
Petitioner moved for reconsideration which the Court of Appeals denied in its Resolution dated 2 August 2005.

Hence, this petition.

The Court of Appeals’ Ruling

The Court of Appeals found no conflict between Article 370 of the Civil Code9 and Section 5(d) of RA 8239.10 The
Court of Appeals held that for passport application and issuance purposes, RA 8239 limits the instances when a
married woman applicant may exercise the option to revert to the use of her maiden name such as in a case of a
divorce decree, annulment or declaration of nullity of marriage. Since there was no showing that petitioner's
marriage to Francisco Rallonza has been annulled, declared void or a divorce decree has been granted to them,
petitioner cannot simply revert to her maiden name in the replacement passport after she had adopted her
husband’s surname in her old passport. Hence, according to the Court of Appeals, respondent was justified in
refusing the request of petitioner to revert to her maiden name in the replacement passport. 1av vphi1

The Issue

The sole issue in this case is whether petitioner, who originally used her husband’s surname in her expired
passport, can revert to the use of her maiden name in the replacement passport, despite the subsistence of her
marriage.

The Ruling of the Court

The petition lacks merit.

Title XIII of the Civil Code governs the use of surnames. In the case of a married woman, Article 370 of the Civil
Code provides:

ART. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband’s surname, or

(2) Her maiden first name and her husband's surname, or

(3) Her husband’s full name, but prefixing a word indicating that she is his wife, such as "Mrs."

We agree with petitioner that the use of the word "may" in the above provision indicates that the use of the
husband’s surname by the wife is permissive rather than obligatory. This has been settled in the case of Yasin v.
Honorable Judge Shari’a District Court.11

In Yasin,12 petitioner therein filed with the Shari’a District Court a "Petition to resume the use of maiden name" in
view of the dissolution of her marriage by divorce under the Code of Muslim Personal Laws of the Philippines, and
after marriage of her former husband to another woman. In ruling in favor of petitioner therein, the Court explained
that:

When a woman marries a man, she need not apply and/or seek judicial authority to use her husband’s name by
prefixing the word "Mrs." before her husband’s full name or by adding her husband’s surname to her maiden first
name. The law grants her such right (Art. 370, Civil Code). Similarly, when the marriage ties or vinculum no longer
exists as in the case of death of the husband or divorce as authorized by the Muslim Code, the widow or divorcee
need not seek judicial confirmation of the change in her civil status in order to revert to her maiden name as use of
her former husband’s is optional and not obligatory for her (Tolentino, Civil Code, p. 725, 1983 ed.; Art. 373, Civil
Code). When petitioner married her husband, she did not change her but only her civil status. Neither was she
required to secure judicial authority to use the surname of her husband after the marriage as no law requires it.
(Emphasis supplied)

Clearly, a married woman has an option, but not a duty, to use the surname of the husband in any of the ways
provided by Article 370 of the Civil Code.13 She is therefore allowed to use not only any of the three names provided
in Article 370, but also her maiden name upon marriage. She is not prohibited from continuously using her maiden
name once she is married because when a woman marries, she does not change her name but only her civil status.
Further, this interpretation is in consonance with the principle that surnames indicate descent.14

In the present case, petitioner, whose marriage is still subsisting and who opted to use her husband’s surname in
her old passport, requested to resume her maiden name in the replacement passport arguing that no law prohibits
her from using her maiden name. Petitioner cites Yasin as the applicable precedent. However, Yasin is not squarely
in point with this case. Unlike in Yasin, which involved a Muslim divorcee whose former husband is already married
to another woman, petitioner’s marriage remains subsisting. Another point, Yasin did not involve a request to
resume one’s maiden name in a replacement passport, but a petition to resume one’s maiden name in view of the
dissolution of one’s marriage.
The law governing passport issuance is RA 8239 and the applicable provision in this case is Section 5(d), which
states:

Sec. 5. Requirements for the Issuance of Passport. — No passport shall be issued to an applicant unless the
Secretary or his duly authorized representative is satisfied that the applicant is a Filipino citizen who has complied
with the following requirements: x x x

(d) In case of a woman who is married, separated, divorced or widowed or whose marriage has been annulled or
declared by court as void, a copy of the certificate of marriage, court decree of separation, divorce or annulment or
certificate of death of the deceased spouse duly issued and authenticated by the Office of the Civil Registrar
General: Provided, That in case of a divorce decree, annulment or declaration of marriage as void, the woman
applicant may revert to the use of her maiden name: Provided, further, That such divorce is recognized under
existing laws of the Philippines; x x x (Emphasis supplied)

The Office of the Solicitor General (OSG), on behalf of the Secretary of Foreign Affairs, argues that the highlighted
proviso in Section 5(d) of RA 8239 "limits the instances when a married woman may be allowed to revert to the use
of her maiden name in her passport." These instances are death of husband, divorce decree, annulment or nullity of
marriage. Significantly, Section 1, Article 12 of the Implementing Rules and Regulations of RA 8239 provides:

The passport can be amended only in the following cases:

a) Amendment of woman’s name due to marriage;

b) Amendment of woman’s name due to death of spouse, annulment of marriage or divorce initiated by a
foreign spouse; or

c) Change of surname of a child who is legitimated by virtue of a subsequent marriage of his parents.

Since petitioner’s marriage to her husband subsists, placing her case outside of the purview of Section 5(d) of RA
8239 (as to the instances when a married woman may revert to the use of her maiden name), she may not resume
her maiden name in the replacement passport.15 This prohibition, according to petitioner, conflicts with and, thus,
operates as an implied repeal of Article 370 of the Civil Code.

Petitioner is mistaken. The conflict between Article 370 of the Civil Code and Section 5(d) of RA 8239 is more
imagined than real. RA 8239, including its implementing rules and regulations, does not prohibit a married woman
from using her maiden name in her passport. In fact, in recognition of this right, the DFA allows a married woman
who applies for a passport for the first time to use her maiden name. Such an applicant is not required to adopt her
husband's surname.16

In the case of renewal of passport, a married woman may either adopt her husband’s surname or continuously use
her maiden name. If she chooses to adopt her husband’s surname in her new passport, the DFA additionally
requires the submission of an authenticated copy of the marriage certificate. Otherwise, if she prefers to continue
using her maiden name, she may still do so. The DFA will not prohibit her from continuously using her maiden
name.17

However, once a married woman opted to adopt her husband’s surname in her passport, she may not revert to the
use of her maiden name, except in the cases enumerated in Section 5(d) of RA 8239. These instances are: (1)
death of husband, (2) divorce, (3) annulment, or (4) nullity of marriage. Since petitioner’s marriage to her husband
subsists, she may not resume her maiden name in the replacement passport. Otherwise stated, a married woman's
reversion to the use of her maiden name must be based only on the severance of the marriage.

Even assuming RA 8239 conflicts with the Civil Code, the provisions of RA 8239 which is a special law specifically
dealing with passport issuance must prevail over the provisions of Title XIII of the Civil Code which is the general
law on the use of surnames. A basic tenet in statutory construction is that a special law prevails over a general
law,18 thus:

[I]t is a familiar rule of statutory construction that to the extent of any necessary repugnancy between a general and
a special law or provision, the latter will control the former without regard to the respective dates of passage.19

Moreover, petitioner’s theory of implied repeal must fail. Well-entrenched is the rule that an implied repeal is
disfavored. T he apparently conflicting provisions of a law or two laws should be harmonized as much as possible,
so that each shall be effective.20 For a law to operate to repeal another law, the two laws must actually be
inconsistent. The former must be so repugnant as to be irreconcilable with the latter act.21 This petitioner failed to
establish.
1avv phi1

The Court notes that petitioner would not have encountered any problems in the replacement passport had she
opted to continuously and consistently use her maiden name from the moment she was married and from the time
she first applied for a Philippine passport. However, petitioner consciously chose to use her husband’s surname
before, in her previous passport application, and now desires to resume her maiden name. If we allow petitioner’s
present request, definitely nothing prevents her in the future from requesting to revert to the use of her husband’s
surname. Such unjustified changes in one's name and identity in a passport, which is considered superior to all
other official documents,22 cannot be countenanced. Otherwise, undue confusion and inconsistency in the records of
passport holders will arise. Thus, for passport issuance purposes, a married woman, such as petitioner, whose
marriage subsists, may not change her family name at will.

The acquisition of a Philippine passport is a privilege. The law recognizes the passport applicant’s constitutional
right to travel. However, the State is also mandated to protect and maintain the integrity and credibility of the
passport and travel documents proceeding from it23 as a Philippine passport remains at all times the property of
the Government. The holder is merely a possessor of the passport as long as it is valid and the same may not be
surrendered to any person or entity other than the government or its representative.24

As the OSG correctly pointed out:

[T]he issuance of passports is impressed with public interest. A passport is an official document of identity and
nationality issued to a person intending to travel or sojourn in foreign countries. It is issued by the Philippine
government to its citizens requesting other governments to allow its holder to pass safely and freely, and in case of
need, to give him/her aid and protection. x x x

Viewed in the light of the foregoing, it is within respondent’s competence to regulate any amendments intended to
be made therein, including the denial of unreasonable and whimsical requests for amendments such as in the
instant case.25

WHEREFORE, we DENY the petition. We AFFIRM the 27 May 2005 Decision and 2 August 2005 Resolution of the
Court of Appeals in CA-G.R. SP No. 87710.

6) Grande vs Antonio, supra

VIII. Parental Authority;

A. Liability of parents
7) Libi v IAC, GR No. 70890, 18 Sep 1992

[G.R. No. 70890. September 18, 1992.]

CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON. INTERMEDIATE APPELLATE COURT, FELIPE
GOTIONG and SHIRLEY GOTIONG, Respondents.

Alex Y. Tan, for Petitioners.

Mario D. Ortiz and Danilo V. Ortiz for Private Respondents.

SYLLABUS

1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING FROM CRIMINAL OFFENSES
COMMITTED BY THEIR MINOR CHILDREN; RULE. — The parents are and should be held primarily liable for the civil liability
arising from criminal offenses committed by their minor children under their legal authority or control, or who live in their
company, unless it is proven that the former acted with the diligence of a good father of a family to prevent such damages.
That primary liability is premised on the provisions of Article 101 of the Revised Penal Code with respect to damages ex
delicto caused by their children 9 years of age or under, or over 9 but under 15 years of age who acted without discernment;
and, with regard to their children over 9 but under 15 years of age who acted with discernment, or 15 years or over but
under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code. Under said Article
2180, the enforcement of such liability shall be effected against the father and, in case of his death or incapacity, the
mother. This was amplified by the Child and Youth Welfare Code which provides that the same shall devolve upon the father
and, in case of his death or incapacity, upon the mother or, in case of her death or incapacity, upon the guardian, but the
liability may also be voluntarily assumed by a relative or family friend of the youthful offender. However, under the Family
Code, this civil liability is now, without such alternative qualification, the responsibility of the parents and those who exercise
parental authority over the minor offender. For civil liability arising from quasi-delicts committed by minors, the same rules
shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

DECISION

REGALADO, J.:

One of the ironic verities of life, it has been said, is that sorrow is sometimes a touchstone of love. A tragic illustration is
provided by the instant case, wherein two lovers died while still in the prime of their years, a bitter episode for those whose
lives they have touched. While we cannot expect to award complete assuagement to their families through seemingly prosaic
legal verbiage, this disposition should at least terminate the acrimony and rancor of an extended judicial contest resulting
from the unfortunate occurrence.

In this final denouement of the judicial recourse the stages whereof were alternately initiated by the parties, petitioners are
now before us seeking the reversal of the judgment of respondent court promulgated on January 2, 1985 in AC-G.R. CV No.
69060 with the following decretal portion: jgc:c hanrobles. com.ph

"WHEREFORE, the decision of the lower court dismissing plaintiff’s complaint is hereby reversed; and instead, judgment is
hereby rendered sentencing defendants, jointly and solidarily, to pay to plaintiffs the following amounts: chan roble s.com : virtual law lib rary

1. Moral damages, P30,000.000;

2. Exemplary damages, P10,000.00;

3. Attorney’s fees, P20,000.00, and costs.

However, denial of defendants-appellees’ counterclaims is affirmed." 1

Synthesized from the findings of the lower courts, it appears that respondent spouses are the legitimate parents of Julie Ann
Gotiong who, at the time of the deplorable incident which took place and from which she died on January 14, 1979, was an
18-year old first year commerce student of the University of San Carlos, Cebu City; while petitioners are the parents of
Wendell Libi, then a minor between 18 and 19 years of age living with his aforesaid parents, and who also died in the same
event on the same date.

For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi were sweethearts until December, 1978
when Julie Ann broke up her relationship with Wendell after she supposedly found him to be sadistic and irresponsible.
During the first and second weeks of January, 1979, Wendell kept pestering Julie Ann with demands for reconciliation but the
latter persisted in her refusal, prompting the former to resort to threats against her. In order to avoid him, Julie Ann stayed
in the house of her best friend, Malou Alfonso, at the corner of Maria Cristina and Juana Osmeña Streets, Cebu City, from
January 7 to 13, 1978.

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound inflicted with the same firearm, a Smith
and Wesson revolver licensed in the name of petitioner Cresencio Libi, which was recovered from the scene of the crime
inside the residence of private respondents at the corner of General Maxilom and D. Jakosalem streets of the same city.

Due to the absence of an eyewitness account of the circumstances surrounding the death of both minors, their parents, who
are the contending parties herein, posited their respective theories drawn from their interpretation of circumstantial
evidence, available reports, documents and evidence of physical facts.

Private respondents, bereaved over the death of their daughter, submitted that Wendell caused her death by shooting her
with the aforesaid firearm and, thereafter, turning the gun on himself to commit suicide. On the other hand, Petitioners,
puzzled and likewise distressed over the death of their son, rejected the imputation and contended that an unknown third
party, whom Wendell may have displeased or antagonized by reason of his work as a narcotics informer of the Constabulary
Anti-Narcotics Unit (CANU), must have caused Wendell’s death and then shot Julie Ann to eliminate any witness and thereby
avoid identification. cha nrob les.com: cralaw: red

As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the then Court of First Instance of Cebu
against the parents of Wendell to recover damages arising from the latter’s vicarious liability under Article 2180 of the Civil
Code. After trial, the court below rendered judgment on October 20, 1980 as follows: jgc:chan roble s.com.p h

"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing plaintiffs’ complaint for insufficiency of the
evidence. Defendants’ counterclaim is likewise denied for lack of sufficient merit." 2

On appeal to respondent court, said judgment of the lower court dismissing the complaint of therein plaintiffs-appellants was
set aside and another judgment was rendered against defendants-appellees who, as petitioners in the present appeal
by certiorari, now submit for resolution the following issues in this case: chanro b1es vi rtua l 1aw li bra ry

1. Whether or not respondent court correctly reversed the trial court in accordance with established decisional laws; and

2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent court to make petitioners liable for
vicarious liability. 3

In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer of Cebu, submitted his findings and
opinions on some postulates for determining whether or not the gunshot wound was inflicted on Wendell Libi by his own
suicidal act. However, undue emphasis was placed by the lower court on the absence of gunpowder or tattooing around the
wound at the point of entry of the bullet. It should be emphasized, however, that this is not the only circumstance to be
taken into account in the determination of whether it was suicide or not.

It is true that said witness declared that he found no evidence of contact or close-contact of an explosive discharge in the
entrance wound. However, as pointed out by private respondents, the body of deceased Wendell Libi must have been washed
at the funeral parlor, considering the hasty interment thereof a little after eight (8) hours from the occurrence wherein he
died. Dr. Cerna himself could not categorically state that the body of Wendell Libi was left untouched at the funeral parlor
before he was able to conduct his autopsy. It will also be noted that Dr. Cerna was negligent in not conducting a paraffin test
on Wendell Libi, hence possible evidence of gunpowder residue on Wendell’s hands was forever lost when Wendell was
hastily buried.
c ralawnad

More specifically, Dr. Cerna testified that he conducted an autopsy on the body of Wendell Libi about eight (8) hours after the
incident or, to be exact, eight (8) hours and twenty (20) minutes based on the record of death; that when he arrived at the
Cosmopolitan Funeral Homes, the body of the deceased was already on the autopsy table and in the stage of rigor mortis;
and that said body was not washed, but it was dried. 4 However, on redirect examination, he admitted that during the 8-
hour interval, he never saw the body nor did he see whether said body was wiped or washed in the area of the wound on the
head which he examined because the deceased was inside the morgue. 5 In fact, on cross-examination, he had earlier
admitted that as far as the entrance of the wound, the trajectory of the bullet and the exit of the wound are concerned, it is
possible that Wendell Libi shot himself. 6

He further testified that the muzzle of the gun was not pressed on the head of the victim and that he found no burning or
singeing of the hair or extensive laceration on the gunshot wound of entrance which are general characteristics of contact or
near-contact fire. On direct examination, Dr. Cerna nonetheless made these clarification: jgc:chan robles. com.ph

"Q Is it not a fact that there are certain guns which are so made that there would be no black residue or tattooing that could
result from these guns because they are what we call clean?

A Yes, sir. I know that there are what we call smokeless powder.

ATTY. ORTIZ: chanrob1es v irt ual 1aw l ibra ry

Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those indications that you said may not rule out the
possibility that the gun was closer than 24 inches, is that correct?

A If the . . . assuming that the gun used was .. the bullet used was a smokeless powder.

Q At any rate, doctor, from . . . disregarding those other matters that you have noticed, the singeing, etc., from the
trajectory, based on the trajectory of the bullet as shown in your own sketch, is it not a fact that the gun could have been
fired by the person himself, the victim himself, Wendell Libi, because it shows a point of entry a little above the right ear and
point of exit a little above that, to be very fair and on your oath?

A As far as the point of entrance is concerned and as far as the trajectory of the bullet is concerned and as far as the angle
or the manner of fire is concerned, it could have been fired by the victim." 7

As shown by the evidence, there were only two used bullets 8 found at the scene of the crime, each of which were the bullets
that hit Julie Ann Gotiong and Wendell Libi, respectively. Also, the sketch prepared by the Medico-Legal Division of the
National Bureau of Investigation, 9 shows that there is only one gunshot wound of entrance located at the right temple of
Wendell Libi. The necropsy report prepared by Dr. Cerna states: chanrob1e s virtual 1aw lib rary

x x x

"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest inferiorly by 0.2 cm., edges inverted,
oriented upward, located at the head, temporal region, right, 2.8 cms. behind and 5.5 cms. above right external auditory
meatus, directed slightly forward, upward and to the left, involving skin and soft tissues, making a punch-in fracture on the
temporal bone, right, penetrating cranial cavity, lacerating extensively along its course the brain tissues, fracturing parietal
bone, left, and finally making an EXIT wound, irregular, 2.0 x 1.8 cms., edges (e)verted, parietal region, left, 2.0 cms.
behind and 12.9 cms. above left external auditory meatus. chanroble s vi rtualawl ib rary c hanro bles. com:chan rob les.com. ph

x x x

"Evidence of contact or close-contact fire, such as burning around the gunshot wound of entrance, gunpowder tatooing (sic),
smudging, singeing of hair, extensive laceration or bursting of the gunshot wound of entrance, or separation of the skin from
the underlying tissue, are absent." 10

On cross-examination, Dr. Cerna demonstrated his theory which was made of record, thus: jgc:chanroble s.com. ph

"Q Now, will you please use yourself as Wendell Libi, and following the entrance of the wound, the trajectory of the bullet and
the exit of the wound, and measuring yourself 24 inches, will you please indicate to the Honorable Court how would it have
been possible for Wendell Libi to kill himself? Will you please indicate the 24 inches?

WITNESS: chanrob1e s virtual 1aw l ibra ry

A Actually, sir, the 24 inches is approximately one arm’s length.

ATTY. SENINING: chanrob1es vi rtua l 1aw li bra ry

I would like to make of record that the witness has demonstrated by extending his right arm almost straight towards his
head." 11

Private respondents assail the fact that the trial court gave credence to the testimonies of defendants’ witnesses Lydia Ang
and James Enrique Tan, the first being a resident of an apartment across the street from the Gotiongs and the second, a
resident of the house adjacent to the Gotiong residence, who declared having seen a "shadow" of a person at the gate of the
Gotiong house after hearing shots therefrom.

On cross-examination, Lydia Ang testified that the apartment where she was staying faces the gas station; that it is the
second apartment; that from her window she can see directly the gate of the Gotiongs and, that there is a firewall between
her apartment and the gas station. 12 After seeing a man jump from the gate of the Gotiongs to the rooftop of the Tans, she
called the police station but the telephone lines were busy. Later on, she talked with James Enrique Tan and told him that
she saw a man leap from the gate towards his rooftop. 13

However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the Gotiongs, but denied having talked
with anyone regarding what he saw. He explained that he lives in a duplex house with a garden in front of it; that his house
is next to Felipe Gotiong’s house; and he further gave the following answers to these questions: chan roble s.com : vi rtua l law lib rary

"ATTY. ORTIZ: (TO WITNESS).

Q What is the height of the wall of the Gotiong’s in relation to your house?

WITNESS: chanrob1e s virtual 1aw l ibra ry

A It is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)

Q And where were you looking from?

WITNESS: chanrob1e s virtual 1aw l ibra ry

A From upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

Q From Your living room window, is that correct?

WITNESS: chanrob1e s virtual 1aw l ibra ry

A Yes, but not very clear because the wall is high." 14

Analyzing the foregoing testimonies, we agree with respondent court that the same do not inspire credence as to the
reliability and accuracy of the witnesses’ observations, since the visual perceptions of both were obstructed by high walls in
their respective houses in relation to the house of herein private respondents. On the other hand, witness Manolo Alfonso,
testifying on rebuttal, attested without contradiction that he and his sister, Malou Alfonso, were waiting for Julie Ann Gotiong
when they heard her scream; that when Manolo climbed the fence to see what was going on inside the Gotiong house, he
heard the first shot; and, not more than five (5) seconds later, he heard another shot. Consequently, he went down from the
fence and drove to the police station to report the incident. 15 Manolo’s direct and candid testimony establishes and explains
the fact that it was he whom Lydia Ang and James Enrique Tan saw as the "shadow" of a man at the gate of the Gotiong
house.

We have perforce to reject petitioners’ effete and unsubstantiated pretension that it was another man who shot Wendell and
Julie Ann. It is significant that the Libi family did not even point to or present any suspect in the crime nor did they file any
case against any alleged "John Doe." Nor can we sustain the trial court’s dubious theory that Wendell Libi did not die by his
own hand because of the overwhelming evidence — testimonial, documentary and pictorial — the confluence of which point
to Wendell as the assailant of Julie Ann, his motive being revenge for her rejection of his persistent pleas for a
reconciliation. cha nro bles. com:cra law:red

Petitioners’ defense that they had exercised the due diligence of a good father of a family, hence they should not be civilly
liable for the crime committed by their minor son, is not borne out by the evidence on record either.

Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio Libi, owns a gun which he kept in a
safety deposit box inside a drawer in their bedroom. Each of these petitioners holds a key to the safety deposit box and
Amelita’s key is always in her bag, all of which facts were known to Wendell. They have never seen their son Wendell taking
or using the gun. She admitted, however, that on that fateful night the gun was no longer in the safety deposit box. 16 We,
accordingly, cannot but entertain serious doubts that petitioner spouses had really been exercising the diligence of a good
father of a family by safely locking the fatal gun away. Wendell could not have gotten hold thereof unless one of the keys to
the safety deposit box was negligently left lying around or he had free access to the bag of his mother where the other key
was.

The diligence of a good father of a family required by law in a parent and child relationship consists, to a large extent, of the
instruction and supervision of the child. Petitioners were gravely remiss in their duties as parents in not diligently supervising
the activities of their son, despite his minority and immaturity, so much so that it was only at the time of Wendell’s death
that they allegedly discovered that he was a CANU agent and that Cresencio’s gun was missing from the safety deposit box.
Both parents were sadly wanting in their duty and responsibility in monitoring and knowing the activities of their children
who, for all they know, may be engaged in dangerous work such as being drug informers, 17 or even drug users. Neither
was a plausible explanation given for the photograph of Wendell, with a handwritten dedication to Julie Ann at the back
thereof, 18 holding upright what clearly appears as a revolver and on how or why he was in possession of that firearm.

In setting aside the judgment of the court a quo and holding petitioners civilly liable, as explained at the start of this opinion,
respondent court waved aside the protestations of diligence on the part of petitioners and had this to say: jgc:chanroble s.com.p h

". . . It is still the duty of parents to know the activity of their children who may be engaged in this dangerous activity
involving the menace of drugs. Had the defendants-appellees been diligent in supervising the activities of their son, Wendell,
and in keeping said gun from his reach, they could have prevented Wendell from killing Julie Ann Gotiong. Therefore,
appellants are liable under Article 2180 of the Civil Code which provides: c hanrob1es vi rt ual 1aw li bra ry

‘The father, and in case of his death or incapacity, the mother, are responsible for the damages caused by their minor
children who live in their company.’

"Having been grossly negligent in preventing Wendell Libi from having access to said gun which was allegedly kept in a
safety deposit box, defendants-appellees are subsidiarily liable for the natural consequence of the criminal act of said minor
who was living in their company. This vicarious liability of herein defendants-appellees has been reiterated by the Supreme
Court in many cases, prominent of which is the case of Fuellas v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367),
which held that: chanrob 1es vi rtua l 1aw lib rary

‘The subsidiary liability of parents for damages caused by their minor children imposed by Article 2180 of the New Civil Code
covers obligations arising from both quasi-delicts and criminal offenses.’

‘The subsidiary liability of parent’s arising from the criminal acts of their minor children who acted with discernment is
determined under the provisions of Article 2180, N.C.C. and under Article 101 of the Revised Penal Code, because to hold
that the former only covers obligations which arise from quasi-delicts and not obligations which arise from criminal offenses,
would result in the absurdity that while for an act where mere negligence intervenes the father or mother may stand
subsidiarily liable for the damages caused by his or her son, no liability would attach if the damage is caused with criminal
intent.’ (3 SCRA 361-362).
". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi somehow got hold of the key to the drawer
where said gun was kept under lock without defendant-spouses ever knowing that said gun had been missing from that
safety box since 1978 when Wendell Libi had) a picture taken wherein he proudly displayed said gun and dedicated this
picture to his sweetheart, Julie Ann Gotiong; also since then, Wendell Libi was said to have kept said gun in his car, in
keeping up with his supposed role of a CANU agent . . ." chanro bles law lib rary : red nad

x x x

"Based on the foregoing discussions of the assigned errors, this Court holds that the lower court was not correct in dismissing
herein plaintiffs-appellants’ complaint because as preponderantly shown by evidence, defendants-appellees utterly failed to
exercise all the diligence of a good father of the family in preventing their minor son from committing this crime by means of
the gun of defendants-appellees which was freely accessible to Wendell Libi for they have not regularly checked whether said
gun was still under lock, but learned that it was missing from the safety deposit box only after the crime had been
committed." (Emphases ours.) 19

We agree with the conclusion of respondent court that petitioners should be held liable for the civil liability based on what
appears from all indications was a crime committed by their minor son. We take this opportunity, however, to digress and
discuss its ratiocination therefor on jurisprudential dicta which we feel require clarification.

In imposing sanctions for the so-called vicarious liability of petitioners, respondent court cites Fuellas v. Cadano, Et. Al. 20
which supposedly holds that" (t)he subsidiary liability of parents for damages caused by their minor children imposed by
Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts and criminal offenses," followed by an
extended quotation ostensibly from the same case explaining why under Article 2180 of the Civil Code and Article 101 of the
Revised Penal Code parents should assume subsidiary liability for damages caused by their minor children. The quoted
passages are set out two paragraphs back, with pertinent underscoring for purposes of the discussion hereunder. chanrobles law lib rary

Now, we do not have any objection to the doctrinal rule holding, the parents liable, but the categorization of their liability as
being subsidiary, and not primary, in nature requires a hard second look considering previous decisions of this court on the
matter which warrant comparative analyses. Our concern stems from our readings that if the liability of the parents for
crimes or quasi-delicts of their minor children is subsidiary, then the parents can neither invoke nor be absolved of civil
liability on the defense that they acted with the diligence of a good father of a family to prevent damages. On the other
hand, if such liability imputed to the parents is considered direct and primary, that diligence would constitute a valid and
substantial defense.

We believe that the civil liability of parents for quasi-delicts of their minor children, as contemplated in Article 2180 of the
Civil Code, is primary and not subsidiary. In fact, if we apply Article 2194 of said code which provides for solidary liability of
joint tortfeasors, the persons responsible for the act or omission, in this case the minor and the father and, in case of his
death of incapacity, the mother, are solidarily liable. Accordingly, such parental liability is primary and not subsidiary, hence
the last paragraph of Article 2180 provides that" (t)he responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father of a family to prevent damages." cralaw virt ua1aw libra ry

We are also persuaded that the liability of the parents for felonies committed by their minor children is likewise primary, not
subsidiary. Article 101 of the Revised Penal Code provides: jgc:chan roble s.com. ph

"ARTICLE 101. Rules regarding civil liability in certain cases. —

x x x

First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts committed by . . . a person under nine
years of age, or by one over nine but under fifteen years of age, who has acted without discernment, shall devolve upon
those having such person under their legal authority or control, unless it appears that there was no fault or negligence on
their part." (Emphasis supplied.) 21

Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing provision the civil liability of the parents
for crimes committed by their minor children is likewise direct and primary, and also subject to the defense of lack of fault or
negligence on their part, that is, the exercise of the diligence of a good father of a family.

That in both quasi-delicts and crimes the parents primarily respond for such damages is buttressed by the corresponding
provisions in both codes that the minor transgressor shall be answerable or shall respond with his own property only in the
absence or in case of insolvency of the former. Thus, for civil liability ex quasi delicto of minors, Article 2182 of the Civil Code
states that" (i)f the minor causing damage has no parents or guardian, the minor . . . shall be answerable with his own
property in an action against him where a guardian ad litem shall be appointed." For civil liability ex delicto of minors, an
equivalent provision is found in the third paragraph of Article 101 of the Revised Penal Code, to wit: jgc:chanrob les.co m.ph

"Should there be no person having such . . . minor under his authority, legal guardianship or control, or if such person be
insolvent, said . . . minor shall respond with (his) own property, excepting property exempt from execution, in accordance
with civil law."
cralaw virt ua1aw lib ra ry

The civil liability of parents for felonies committed by their minor children contemplated in the aforesaid rule in Article 101 of
the Revised Penal Code in relation to Article 2180 of the Civil Code has, aside from the aforecited case of Fuellas, been the
subject of a number of cases adjudicated by this Court, viz.: Exconde v. Capuno, Et Al., 22 Araneta v. Arreglado, 23 Salen,
Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v. Bangkili, Et Al., 25 and Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the
aforesaid cases were basically on the issue of the civil liability of parents for crimes committed by their minor children over 9
but under 15 years of age, who acted with discernment, and also of minors 15 years of aye or over, since these situations
are not covered by Article 101, Revised Penal Code. In both instances, this Court held that the issue of parental civil liability
should be resolved in accordance with the provisions of Article 2180 of the Civil Code for the reasons well expressed in Salen
and adopted in the cases hereinbefore enumerated that to hold that the civil liability under Article 2180 would apply only to
quasi-delicts and not to criminal offenses would result in the absurdity that in an act involving mere negligence the parents
would be liable but not where the damage is caused with criminal intent. In said cases, however, there are unfortunate
variances resulting in a regrettable inconsistency in the Court’s determination of whether the liability of the parents, in cases
involving either crimes or quasi-delicts of their minor children, is primary or subsidiary.
In Exconde, where the 15-year old minor was convicted of double homicide through reckless imprudence, in a separate civil
action arising from the crime the minor and his father were held jointly and severally liable for failure of the latter to prove
the diligence of a good father of a family. The same liability in solidum and, therefore, primary liability was imposed in a
separate civil action in Araneta on the parents and their 14-year old son who was found guilty of frustrated homicide, but on
the authority of Article 2194 of the Civil Code providing for solidary responsibility of two or more persons who are liable for a
quasi-delict.

However, in Salen, the father was declared subsidiarily liable for damages arising from the conviction of his son, who was
over 15 but less than 18 years of age, by applying Article 2180 but, this time, disregarding Article 2194 of the Civil Code. In
the present case, as already explained, the petitioners herein were also held liable but supposedly in line with Fuellas which
purportedly declared the parents subsidiarily liable for the civil liability for serious physical injuries committed by their 13-
year old son. On the other hand, in Paleyan, the mother and her 19-year old son were adjudged solidarily liable for damages
arising from his conviction for homicide by the application of Article 2180 of the Civil Code since this is likewise not covered
by Article 101 of the Revised Penal Code. Finally, in Elcano, although the son was acquitted in a homicide charge due to "lack
of intent, coupled with mistake," it was ruled that while under Article 2180 of the Civil Code there should be solidary liability
for damages, since the son, "although married, was living with his father and getting subsistence from him at the time of the
occurrence," but "is now of age, as a matter of equity" the father was only held subsidiarily liable.

It bears stressing, however, that the Revised Penal Code provides for subsidiary liability only for persons causing damages
under the compulsion of irresistible force or under the impulse of an uncontrollable fear; 27 innkeepers, tavernkeepers and
proprietors of establishments; 28 employers, teachers, persons and corporations engaged in industry; 29 and principals,
accomplices and accessories for the unpaid civil liability of their co-accused in the other classes. 30

Also, coming back to respondent court’s reliance on Fuellas in its decision in the present case, it is not exactly accurate to
say that Fuellas provided for subsidiary liability of the parents therein. A careful scrutiny shows that what respondent court
quoted verbatim in its decision now on appeal in the present case, and which it attributed to Fuellas, was the syllabus on the
law report of said case which spoke of "subsidiary" liability. However, such categorization does not specifically appear in the
text of the decision in Fuellas. In fact, after reviewing therein the cases of Exconde, Araneta and Salen and the discussions in
said cases of Article 101 of the Revised Penal Code in relation to Article 2180 of the Civil Code, this Court concluded its
decision in this wise:
jgc:cha nrob les.c om.ph

"Moreover, the case at bar was decided by the Court of Appeals on the basis of evidence submitted therein by both parties,
independent of the criminal case. And responsibility for fault or negligence under Article 2176 upon which the present action
was instituted, is entirely separate and distinct from the civil liability arising from fault or negligence under the Penal Code
(Art. 2177), and having in mind the reasons behind the law as heretofore stated, any discussion as to the minor’s criminal
responsibility is of no moment." cralaw virtua 1aw lib rary

Under the foregoing considerations, therefore, we hereby rule that the parents are and should be held primarily liable for the
civil liability arising from criminal offenses committed by their minor children under their legal authority or control, or who
live in their company, unless it is proven that the former acted with the diligence of a good father of a family to prevent such
damages. That primary liability is premised on the provisions of Article 101 of the Revised Penal Code with respect to
damages ex delicto caused by their children 9 years of age or under, or over 9 but under 15 years of age who acted without
discernment; and, with regard to their children over 9 but under 15 years of age who acted with discernment, or 15 years or
over but under 21 years of age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code. 31

Under said Article 2180, the enforcement of such liability shall be effected against the father and, in case of his death or
incapacity, the mother. This was amplified by the Child and Youth Welfare Code which provides that the same shall devolve
upon the father and, in case of his death or incapacity, upon the mother or, in case of her death or incapacity, upon the
guardian, but the liability may also be voluntarily assumed by a relative or family friend of the youthful offender. 32
However, under the Family Code, this civil liability is now, without such alternative qualification, the responsibility of the
parents and those who exercise parental authority over the minor offender. 33 For civil liability arising from quasi-delicts
committed by minors, the same rules shall apply in accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a felony or a quasi-delict committed by
Wendell Libi, respondent court did not err in holding petitioners liable for damages arising therefrom. Subject to the
preceding modifications of the premises relied upon by it therefor and on the bases of the legal imperatives herein explained,
we conjoin in its findings that said petitioners failed to duly exercise the requisite diligentissimi patris familias to prevent such
damages.

ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent Court of Appeals is hereby
AFFIRMED, with costs against petitioners.

B. Liability of teachers; heads

8) Palisoc vs Brillantes, GR No. 29025, 4 Oct 1971

G.R. No. L-29025 October 4, 1971

Spouses MOISES P. PALISOC and BRIGIDA P. PALISOC, plaintiffs-appellants,

vs.
ANTONIO C. BRILLANTES and TEODOSIO V. VALENTON, owner and President, respectively, of a school of
arts and trades, known under the name and style of "Manila Technical Institute" (M.I.T.), VIRGILIO L.
DAFFON and SANTIAGO M. QUIBULUE, defendants-appellees.

Leovillo C. Agustin for plaintiffs-appellants. .

Honorato S. Reyes for appellee Brillantes, et al. .

Villareal, Almacen Navarra & Amores for appellee Daffon. .

TEEHANKEE, J.:

An appeal in forma pauperis on pure questions of law from a decision of the Court of First Instance of Manila. .

Plaintiffs-appellants as parents of their sixteen-year old son, Dominador Palisoc, and a student in automotive
mechanics at the Manila Technical Institute, Quezon Boulevard, Manila, had filed on May 19, 1966, the action below
for damages arising from the death on March 10, 1966 of their son at the hands of a fellow student, defendant
Virgilio L. Daffon, at the laboratory room of the said Institute. .

Defendants, per the trial court's decision, are: "(T)he defendant Antonio C. Brillantes, at the time when the incident
which gave rise to his action occurred was a member of the Board of Directors of the institute;1 the defendant
Teodosio Valenton, the president thereof; the defendant Santiago M. Quibulue, instructor of the class to which the
deceased belonged; and the defendant Virgilio L. Daffon, a fellow student of the deceased. At the beginning the
Manila Technical Institute was a single proprietorship, but lately on August 2, 1962, it was duly incorporated."

The facts that led to the tragic death of plaintiffs' son were thus narrated by the trial court: "(T)he deceased
Dominador Palisoc and the defendant Virgilio L. Daffon were classmates, and on the afternoon of March 10, 1966,
between two and three o'clock, they, together with another classmate Desiderio Cruz were in the laboratory room
located on the ground floor. At that time the classes were in recess. Desiderio Cruz and Virgilio L. Daffon were
working on a machine while Dominador Palisoc was merely looking on at them. Daffon made a remark to the effect
that Palisoc was acting like a foreman. Because of this remark Palisoc slapped slightly Daffon on the face. Daffon, in
retaliation, gave Palisoc a strong flat blow on the face, which was followed by other fist blows on the stomach.
Palisoc retreated apparently to avoid the fist blows, but Daffon followed him and both exchanged blows until Palisoc
stumbled on an engine block which caused him to fall face downward. Palisoc became pale and fainted. First aid
was administered to him but he was not revived, so he was immediately taken to a hospital. He never regained
consciousness; finally he died. The foregoing is the substance of the testimony of Desiderio Cruz, the lone witness
to the incident."

The trial court expressly gave credence to this version of the incident, as testified to by the lone eyewitness,
Desiderio Cruz, a classmate of the protagonists, as that of a disinterested witness who "has no motive or reason to
testify one way or another in favor of any party" and rejected the self-exculpatory version of defendant Daffon
denying that he had inflicted any fist blows on the deceased. .

With the postmortem findings of Dr. Angelo Singian of the Manila Police Department who performed the autopsy re
"Cause of death: shock due to traumatic fracture of theribs (6th and 7th, left, contusion of the pancreas and stomach
with intra-gastric hemorrhage and slight subarachnoid hemorrhage on the brain," and his testimony that these
internal injuries of the deceased were caused "probably by strong fist blows," the trial court found defendant Daffon
liable for the quasi delict under Article 2176 of the Civil Code.3 It held that "(T)he act, therefore, of the accused
Daffon in giving the deceased strong fistblows in the stomach which ruptured his internal organs and caused his
death falls within the purview of this article of the Code."4

The trial court, however, absolved from liability the three other defendants-officials of the Manila Technical Institute,
in this wise:

... Their liabilities are based on the provisions of Article 2180 of the New Civil Code which reads:

Art. 2180. ... .

Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students and apprentices, so long as they
remain in their custody.

In the opinion of the Court, this article of the Code is not applicable to the case at bar, since this
contemplates the situation where the control or influence of the teachers and heads of school
establishments over the conduct and actions by the pupil supersedes those of the parents.

CIVIL LAW: DAMAGES ART 2180. NEW CIVIL CODE CONSTRUED: — The clause
"so long as they remain in their custody" contained in Article 2180 of the new civil
code contemplated a situation where the pupil lives and boards with the teacher,
such that the control or influence on the pupil supersedes those of the parents. In
those circumstances the control or influence over the conduct and actions of the
pupil as well as the responsibilities for their sort would pass from the father and
mother to the teachers. (Ciriaco L. Mercado, Petitioner vs. the Court of Appeals,
Manuel Quisumbing, Jr., et al., respondents, G.R. No. L-14862, May 30, 1960).5
 There is no evidence that the accused Daffon lived and boarded with his teacher or the other
defendant officials of the school. These defendants cannot therefore be made responsible for the tort
of the defendant Daffon.

Judgment was therefore rendered by the trial court as follows:

1. Sentencing the defendant Virgilio L. Daffon to pay the plaintiffs as heirs of the deceased
Dominador Palisoc (a) P6,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and
compensatory expenses; (c) P5,000.00 for moral damages; (d) P10,000.00 for loss of earning
power, considering that the deceased was only between sixteen and seventeen years, and in good
health when he died, and (e) P2,000.00 for attorney's fee, plus the costs of this action. .

2. Absolving the other defendants. .

3. Dismissing the defendants' counterclaim for lack of merit.

Plaintiffs' appeal raises the principal legal question that under the factual findings of the trial court, which are now
beyond review, the trial court erred in absolving the defendants-school officials instead of holding them jointly and
severally liable as tortfeasors, with defendant Daffon, for the damages awarded them as a result of their son's
death. The Court finds the appeal, in the main, to be meritorious. .

1. The lower court absolved defendants-school officials on the ground that the provisions of Article 2180, Civil Code,
which expressly hold "teachers or heads of establishments of arts and trades ... liable for damages caused by their
pupils and students and apprentices, so long as they remain in their custody," are not applicable to to the case at
bar, since "there is no evidence that the accused Daffon [who inflicted the fatal fistblows]6 lived and boarded with his
teacher or the other defendants-officials of the school. These defendants cannot therefore be made responsible for
the tort of the defendant Daffon."

The lower court based its legal conclusion expressly on the Court's dictum in Mercado vs. Court of Appeals,7 that
"(I)t would seem that the clause "so long as they remain in their custody," contemplates a situation where the pupil
lives and boards with the teacher, such that the control, direction and influence on the pupil supersedes those of the
parents. In these circumstances the control or influence over the conduct and actions of the pupil would pass from
the father and mother to the teacher; and so would the responsibility for the torts of the pupil. Such a situation does
not appear in the case at bar; the pupils appear to go to school during school hours and go back to their homes with
their parents after school is over." This dictum had been made in rejecting therein petitioner father's contention that
his minor son's school, Lourdes Catholic School at Kanlaon, Quezon City [which was not a party to the case] should
be held responsible, rather than him as father, for the moral damages of P2,000.00 adjudged against him for the
physical injury inflicted by his son on a classmate. [A cut on the right cheek with a piece of razor which costs only
P50.00 by way of medical expenses to treat and cure, since the wound left no scar.] The moral damages award was
after all set aside by the Court on the ground that none of the specific cases provided in Article 2219, Civil Code, for
awarding moral damages had been established, petitioner's son being only nine years old and not having been
shown to have "acted with discernment" in inflicting the injuries on his classmate. .

The dictum in Mercado was based in turn on another dictum in the earlier case of Exconde vs. Capuno,8 where the
only issue involved as expressly stated in the decision, was whether the therein defendant-father could be civilly
liable for damages resulting from a death caused in a motor vehicle accident driven unauthorizedly and negligently
by his minor son, (which issue was resolved adversely against the father). Nevertheless, the dictum in such earlier
case that "It is true that under the law abovequoted, teachers or directors of arts and trades are liable for any
damage caused by their pupils or apprentices while they are under their custody, but this provision only applies to
an institution of arts and trades and not to any academic educational institution" was expressly cited and quoted
in Mercado. .

2. The case at bar was instituted directly against the school officials and squarely raises the issue of liability of
teachers and heads of schools under Article 2180, Civil Code, for damages caused by their pupils and students
against fellow students on the school premises. Here, the parents of the student at fault, defendant Daffon, are not
involved, since Daffon was already of age at the time of the tragic incident. There is no question, either, that the
school involved is a non-academic school,9 the Manila Technical Institute being admittedly a technical vocational
and industrial school. .

The Court holds that under the cited codal article, defendants head and teacher of the Manila Technical Institute
(defendants Valenton and Quibulue, respectively) are liable jointly and severally for damages to plaintiffs-appellants
for the death of the latter's minor son at the hands of defendant Daffon at the school's laboratory room. No liability
attaches to defendant Brillantes as a mere member of the school's board of directors. The school itself cannot be
held similarly liable, since it has not been properly impleaded as party defendant. While plaintiffs sought to so
implead it, by impleading improperly defendant Brillantes, its former single proprietor, the lower court found that it
had been incorporated since August 2, 1962, and therefore the school itself, as thus incorporated, should have been
brought in as party defendant. Plaintiffs failed to do so, notwithstanding that Brillantes and his co-defendants in their
reply to plaintiffs' request for admission had expressly manifested and made of record that "defendant Antonio C.
Brillantes is not the registered owner/head of the "Manila Technical Institute" which is now a corporation and is not
owned by any individual person."10

3. The rationale of such liability of school heads and teachers for the tortious acts of their pupils and students, so
long as they remain in their custody, is that they stand, to a certain extent, as to their pupils and students, in loco
parentis and are called upon to "exercise reasonable supervision over the conduct of the child."11 This is expressly
provided for in Articles 349, 350 and 352 of the Civil Code.12 In the law of torts, the governing principle is that the
protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and hence, it
becomes their obligation as well as that of the school itself to provide proper supervision of the students' activities
during the whole time that they are at attendance in the school, including recess time, as well as to take the
necessary precautions to protect the students in their custody from dangers and hazards that would reasonably be
anticipated, including injuries that some student themselves may inflict willfully or through negligence on their fellow
students. .

4. As tersely summarized by Mr. Justice J.B.L. Reyes in his dissenting opinion in Exconde, "the basis of the
presumption of negligence of Art. 1903 [now 2180] is some culpa in vigilando that the parents, teachers, etc. are
supposed to have incurred in the exercise of their authority" 13 and "where the parent places the child under the
effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts
committed while under his custody, for the very reason that the parent is not supposed to interfere with the discipline
of the school nor with the authority and supervision of the teacher while the child is under instruction." The school
itself, likewise, has to respond for the fault or negligence of its school head and teachers under the same cited
article.14

5. The lower court therefore erred in law in absolving defendants-school officials on the ground that they could be
held liable under Article 2180, Civil Code, only if the student who inflicted the fatal fistblows on his classmate and
victim "lived and boarded with his teacher or the other defendants officials of the school." As stated above, the
phrase used in the cited article — "so long as (the students) remain in their custody" means the protective and
supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as
they are at attendance in the school, including recess time. There is nothing in the law that requires that for such
liability to attach the pupil or student who commits the tortious act must live and board in the school, as erroneously
held by the lower court, and the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to
have been set aside by the present decision. .

6. Defendants Valenton and Quibulue as president and teacher-in-charge of the school must therefore be held
jointly and severally liable for the quasi-delict of their co-defendant Daffon in the latter's having caused the death of
his classmate, the deceased Dominador Palisoc. The unfortunate death resulting from the fight between the
protagonists-students could have been avoided, had said defendants but complied with their duty of providing
adequate supervision over the activities of the students in the school premises to protect their students from harm,
whether at the hands of fellow students or other parties. At any rate, the law holds them liable unless they relieve
themselves of such liability, in compliance with the last paragraph of Article 2180, Civil Code, by "(proving) that they
observed all the diligence of a good father of a family to prevent damage." In the light of the factual findings of the
lower court's decision, said defendants failed to prove such exemption from liability. .

7. Plaintiffs-appellees' contention that the award of P6,000.00 as indemnity for the death of their son should be
increased to P12,000.00 as set by the Court in People vs. Pantoja,15 and observed in all death indemnity cases
thereafter is well taken. The Court, in Pantoja, after noting the decline in the purchasing power of the Philippine
peso, had expressed its "considered opinion that the amount of award of compensatory damages for death caused
by a crime or quasi-delict should now be P12,000.00." The Court thereby adjusted the minimum amount of
"compensatory damages for death caused by a crime or quasi-delict" as per Article 2206, Civil Code, from the old
stated minimum of P3,000.00 to P12,000.00, which amount is to be awarded "even though there may have been
mitigating circumstances" pursuant to the express provisions of said codal article. .

8. Plaintiffs-appellees' other claims on appeal that the lower court should have awarded exemplary damages and
imposed legal interest on the total damages awarded, besides increasing the award of attorney's fees all concern
matters that are left by law to the discretion of the trial court and the Court has not been shown any error or abuse in
the exercise of such discretion on the part of the trial court.16 Decisive here is the touchstone provision of Article
2231, Civil Code, that "In quasi-delicts, exemplary damages may be granted if the defendant acted with gross
negligence." No gross negligence on the part of defendants was found by the trial court to warrant the imposition of
exemplary damages, as well as of interest and increased attorney's fees, and the Court has not been shown in this
appeal any compelling reason to disturb such finding. .

ACCORDINGLY, the judgment appealed from is modified so as to provide as follows: .

1. Sentencing the defendants Virgilio L. Daffon, TeodosioV. Valenton and Santiago M. Quibulue jointly and
severally to pay plaintiffs as heirs of the deceased Dominador Palisoc (a) P12,000.00 for the death of Dominador
Palisoc; (b) P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for moral, damages; (d) P10,000.00 for
loss of earning power and (e) P2,000.00 for attorney's fee, plus the costs of this action in both instances; 2.
absolving defendant Antonio C. Brillantes from the complaint; and 3. dismissing defendants' counterclaims.

REYES, J.B.L., J., concurring opinion: ---

MAKALINTAL, J., dissenting: ---

9) Amadora vs CA, GR No. 47745, 15 Apr 1988

G.R. No. L-47745 April 15, 1988

JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA PANTALEON A.
AMADORA, JOSE A. AMADORA III, LUCY A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A.
AMADORA, SERREC A. AMADORA, VICENTE A. AMADORA and MARIA TISCALINA A.
AMADORA, petitioners
vs.
HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH SERGIO P.
DLMASO JR., CELESTINO DICON, ANIANO ABELLANA, PABLITO DAFFON thru his parents and natural
guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO VALENCIA, thru his guardian, A. FRANCISCO
ALONSO, respondents.

Jose S. Amadora & Associates for petitioners.

Padilla Law Office for respondents.

CRUZ, J.:

Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where he would ascend the stage and in the presence of
his relatives and friends receive his high school diploma. These ceremonies were scheduled on April 16, 1972. As it turned out, though, fate would intervene and
deny him that awaited experience. On April 13, 1972, while they were in the auditorium of their school, the Colegio de San Jose-Recoletos, a classmate, Pablito
Damon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as well. The victim was only seventeen years old. 1

Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as the victim's
parents, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio de San Jose-
Recoletos, its rector the high school principal, the dean of boys, and the physics teacher, together with Daffon and
two other students, through their respective parents. The complaint against the students was later dropped. After
trial, the Court of First Instance of Cebu held the remaining defendants liable to the plaintiffs in the sum of
P294,984.00, representing death compensation, loss of earning capacity, costs of litigation, funeral expenses, moral
damages, exemplary damages, and attorney's fees .3 On appeal to the respondent court, however, the decision was
reversed and all the defendants were completely absolved .4

In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the
respondent court found that Article 2180 was not applicable as the Colegio de San Jose-Recoletos was not a school
of arts and trades but an academic institution of learning. It also held that the students were not in the custody of the
school at the time of the incident as the semester had already ended, that there was no clear identification of the
fatal gun and that in any event the defendant, had exercised the necessary diligence in preventing the injury. 5

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972, and while in
its auditorium was shot to death by Pablito Daffon, a classmate. On the implications and consequences of these
facts, the parties sharply disagree.

The petitioners contend that their son was in the school to show his physics experiment as a prerequisite to his
graduation; hence, he was then under the custody of the private respondents. The private respondents submit that
Alfredo Amadora had gone to the school only for the purpose of submitting his physics report and that he was no
longer in their custody because the semester had already ended.

There is also the question of the identity of the gun used which the petitioners consider important because of an
earlier incident which they claim underscores the negligence of the school and at least one of the private
respondents. It is not denied by the respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys,
confiscated from Jose Gumban an unlicensed pistol but later returned it to him without making a report to the
principal or taking any further action .6 As Gumban was one of the companions of Daffon when the latter fired the
gun that killed Alfredo, the petitioners contend that this was the same pistol that had been confiscated from Gumban
and that their son would not have been killed if it had not been returned by Damaso. The respondents say, however,
that there is no proof that the gun was the same firearm that killed Alfredo.

Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is
invoked by both parties in support of their conflicting positions. The pertinent part of this article reads as follows:

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by
their pupils and students or apprentices so long as they remain in their custody.
Three cases have so far been decided by the Court in connection with the above-quoted provision, to wit: Exconde
v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed in this opinion
for a better resolution of the case at bar.

In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout, attended a
Rizal Day parade on instructions of the city school supervisor. After the parade, the boy boarded a jeep, took over
its wheel and drove it so recklessly that it turned turtle, resulting in the death of two of its passengers. Dante was
found guilty of double homicide with reckless imprudence. In the separate civil action flied against them, his father
was held solidarily liable with him in damages under Article 1903 (now Article 2180) of the Civil Code for the tort
committed by the 15-year old boy.

This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter
dictum (as it was not a party to the case) on the ground that it was riot a school of arts and trades. Justice J.B.L.
Reyes, with whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the school
authorities who should be held liable Liability under this rule, he said, was imposed on (1) teachers in general; and
(2) heads of schools of arts and trades in particular. The modifying clause "of establishments of arts and trades"
should apply only to "heads" and not "teachers."

Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor blade
during recess time at the Lourdes Catholic School in Quezon City, and the parents of the victim sued the culprits
parents for damages. Through Justice Labrador, the Court declared in another obiter (as the school itself had also
not been sued that the school was not liable because it was not an establishment of arts and trades. Moreover, the
custody requirement had not been proved as this "contemplates a situation where the student lives and boards with
the teacher, such that the control, direction and influences on the pupil supersede those of the parents." Justice
J.B.L. Reyes did not take part but the other members of the court concurred in this decision promulgated on May 30,
1960.

In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a classmate with fist blows
in the laboratory of the Manila Technical Institute. Although the wrongdoer — who was already of age — was not
boarding in the school, the head thereof and the teacher in charge were held solidarily liable with him. The Court
declared through Justice Teehankee:

The phrase used in the cited article — "so long as (the students) remain in their custody" — means
the protective and supervisory custody that the school and its heads and teachers exercise over the
pupils and students for as long as they are at attendance in the school, including recess time. There
is nothing in the law that requires that for such liability to attach, the pupil or student who commits
the tortious act must live and board in the school, as erroneously held by the lower court, and
the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been
set aside by the present decision.

This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed, in answer to
the dissenting opinion, that even students already of age were covered by the provision since they were equally in
the custody of the school and subject to its discipline. Dissenting with three others,11 Justice Makalintal was for
retaining the custody interpretation in Mercado and submitted that the rule should apply only to torts committed by
students not yet of age as the school would be acting only in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but added that
"since the school involved at bar is a non-academic school, the question as to the applicability of the cited codal
provision to academic institutions will have to await another case wherein it may properly be raised."

This is the case.

Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded and is sought to
be held liable under Article 2180; and unlike in Palisoc, it is not a school of arts and trades but an academic
institution of learning. The parties herein have also directly raised the question of whether or not Article 2180 covers
even establishments which are technically not schools of arts and trades, and, if so, when the offending student is
supposed to be "in its custody."

After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question
should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical
or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such
student, following the first part of the provision. This is the general rule. In the case of establishments of arts and
trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other
words, teachers in general shall be liable for the acts of their students except where the school is technical in nature,
in which case it is the head thereof who shall be answerable. Following the canon of reddendo singula
singulis "teachers" should apply to the words "pupils and students" and "heads of establishments of arts and trades"
to the word "apprentices."
The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said in
part:

I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades
and not to academic ones. What substantial difference is there between them insofar as concerns
the proper supervision and vice over their pupils? It cannot be seriously contended that an academic
teacher is exempt from the duty of watching that his pupils do not commit a tort to the detriment of
third Persons, so long as they are in a position to exercise authority and Supervision over the pupil.
In my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in Art.
1903 of the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of
establishments." The phrase is only an updated version of the equivalent terms "preceptores y
artesanos" used in the Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in
some culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the
exercise of their authority, it would seem clear that where the parent places the child under the
effective authority of the teacher, the latter, and not the parent, should be the one answerable for the
torts committed while under his custody, for the very reason/that the parent is not supposed to
interfere with the discipline of the school nor with the authority and supervision of the teacher while
the child is under instruction. And if there is no authority, there can be no responsibility.

There is really no substantial distinction between the academic and the non-academic schools insofar as torts
committed by their students are concerned. The same vigilance is expected from the teacher over the students
under his control and supervision, whatever the nature of the school where he is teaching. The suggestion in the
Exconde and Mercado Cases is that the provision would make the teacher or even the head of the school of arts
and trades liable for an injury caused by any student in its custody but if that same tort were committed in an
academic school, no liability would attach to the teacher or the school head. All other circumstances being the
same, the teacher or the head of the academic school would be absolved whereas the teacher and the head of the
non-academic school would be held liable, and simply because the latter is a school of arts and trades.

The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the basis
only of the nature of their respective schools. There does not seem to be any plausible reason for relaxing that
vigilance simply because the school is academic in nature and for increasing such vigilance where the school is
non-academic. Notably, the injury subject of liability is caused by the student and not by the school itself nor is it a
result of the operations of the school or its equipment. The injury contemplated may be caused by any student
regardless of the school where he is registered. The teacher certainly should not be able to excuse himself by
simply showing that he is teaching in an academic school where, on the other hand, the head would be held liable if
the school were non-academic.

These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the torts
committed by his students, why is it the head of the school only who is held liable where the injury is caused in a
school of arts and trades? And in the case of the academic or non- technical school, why not apply the rule also to
the head thereof instead of imposing the liability only on the teacher?

The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades
exercised a closer tutelage over his pupils than the head of the academic school. The old schools of arts and trades
were engaged in the training of artisans apprenticed to their master who personally and directly instructed them on
the technique and secrets of their craft. The head of the school of arts and trades was such a master and so was
personally involved in the task of teaching his students, who usually even boarded with him and so came under his
constant control, supervision and influence. By contrast, the head of the academic school was not as involved with
his students and exercised only administrative duties over the teachers who were the persons directly dealing with
the students. The head of the academic school had then (as now) only a vicarious relationship with the students.
Consequently, while he could not be directly faulted for the acts of the students, the head of the school of arts and
trades, because of his closer ties with them, could be so blamed.

It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and
trades, the consequent increase in their enrollment, and the corresponding diminution of the direct and personal
contract of their heads with the students. Article 2180, however, remains unchanged. In its present state, the
provision must be interpreted by the Court according to its clear and original mandate until the legislature, taking into
account the charges in the situation subject to be regulated, sees fit to enact the necessary amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of arts
and trades over the students. Is such responsibility co-extensive with the period when the student is actually
undergoing studies during the school term, as contended by the respondents and impliedly admitted by the
petitioners themselves?

From a reading of the provision under examination, it is clear that while the custody requirement, to repeat Palisoc v.
Brillantes, does not mean that the student must be boarding with the school authorities, it does signify that the
student should be within the control and under the influence of the school authorities at the time of the occurrence of
the injury. This does not necessarily mean that such, custody be co-terminous with the semester, beginning with the
start of classes and ending upon the close thereof, and excluding the time before or after such period, such as the
period of registration, and in the case of graduating students, the period before the commencement exercises. In the
view of the Court, the student is in the custody of the school authorities as long as he is under the control and
influence of the school and within its premises, whether the semester has not yet begun or has already ended.

It is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes
notwithstanding that before that day he has already registered and thus placed himself under its rules. Neither
should such discipline be deemed ended upon the last day of classes notwithstanding that there may still be certain
requisites to be satisfied for completion of the course, such as submission of reports, term papers, clearances and
the like. During such periods, the student is still subject to the disciplinary authority of the school and cannot
consider himself released altogether from observance of its rules.

As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective,
in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in the
enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues.
Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his
classmates and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and
subject to the discipline of the school authorities under the provisions of Article 2180.

During all these occasions, it is obviously the teacher-in-charge who must answer for his students' torts, in
practically the same way that the parents are responsible for the child when he is in their custody. The teacher-in-
charge is the one designated by the dean, principal, or other administrative superior to exercise supervision over the
pupils in the specific classes or sections to which they are assigned. It is not necessary that at the time of the injury,
the teacher be physically present and in a position to prevent it. Custody does not connote immediate and actual
physical control but refers more to the influence exerted on the child and the discipline instilled in him as a result of
such influence. Thus, for the injuries caused by the student, the teacher and not the parent shag be held responsible
if the tort was committed within the premises of the school at any time when its authority could be validly exercised
over him.

In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the teacher or
the head of the school of arts and trades and not on the school itself. If at all, the school, whatever its nature, may
be held to answer for the acts of its teachers or even of the head thereof under the general principle of respondeat
superior, but then it may exculpate itself from liability by proof that it had exercised the diligence of a bonus
paterfamilias.

Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held to
answer for the tort committed by the student. As long as the defendant can show that he had taken the necessary
precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Article 2180,
which also states that:

The responsibility treated of in this article shall cease when the Persons herein mentioned prove that
they observed all the diligence of a good father of a family to prevent damages.

In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco
parentis for the law does not require that the offending student be of minority age. Unlike the parent, who wig be
liable only if his child is still a minor, the teacher is held answerable by the law for the act of the student under him
regardless of the student's age. Thus, in the Palisoc Case, liability attached to the teacher and the head of the
technical school although the wrongdoer was already of age. In this sense, Article 2180 treats the parent more
favorably than the teacher.

The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in Palisoc
that the school may be unduly exposed to liability under this article in view of the increasing activism among the
students that is likely to cause violence and resulting injuries in the school premises. That is a valid fear, to be sure.
Nevertheless, it should be repeated that, under the present ruling, it is not the school that will be held directly liable.
Moreover, the defense of due diligence is available to it in case it is sought to be held answerable as principal for the
acts or omission of its head or the teacher in its employ.

The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate
supervision over them in the custody and instruction of the pupils pursuant to its rules and regulations for the
maintenance of discipline among them. In almost all cases now, in fact, these measures are effected through the
assistance of an adequate security force to help the teacher physically enforce those rules upon the students. Ms
should bolster the claim of the school that it has taken adequate steps to prevent any injury that may be committed
by its students.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly
answerable for the damage caused by his students as long as they are in the school premises and presumably
under his influence. In this respect, the Court is disposed not to expect from the teacher the same measure of
responsibility imposed on the parent for their influence over the child is not equal in degree. Obviously, the parent
can expect more obedience from the child because the latter's dependence on him is greater than on the teacher. It
need not be stressed that such dependence includes the child's support and sustenance whereas submission to the
teacher's influence, besides being coterminous with the period of custody is usually enforced only because of the
students' desire to pass the course. The parent can instill more las discipline on the child than the teacher and so
should be held to a greater accountability than the teacher for the tort committed by the child.

And if it is also considered that under the article in question, the teacher or the head of the school of arts and trades
is responsible for the damage caused by the student or apprentice even if he is already of age — and therefore less
tractable than the minor — then there should all the more be justification to require from the school authorities less
accountability as long as they can prove reasonable diligence in preventing the injury. After all, if the parent himself
is no longer liable for the student's acts because he has reached majority age and so is no longer under the former's
control, there is then all the more reason for leniency in assessing the teacher's responsibility for the acts of the
student.

Applying the foregoing considerations, the Court has arrived at the following conclusions:

1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-
Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school
auditorium to finish his physics experiment or merely to submit his physics report for what is important is that he was
there for a legitimate purpose. As previously observed, even the mere savoring of the company of his friends in the
premises of the school is a legitimate purpose that would have also brought him in the custody of the school
authorities.

2. The rector, the high school principal and the dean of boys cannot be held liable because none of them was the
teacher-in-charge as previously defined. Each of them was exercising only a general authority over the student body
and not the direct control and influence exerted by the teacher placed in charge of particular classes or sections and
thus immediately involved in its discipline. The evidence of the parties does not disclose who the teacher-in-charge
of the offending student was. The mere fact that Alfredo Amadora had gone to school that day in connection with his
physics report did not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of
Alfredo's killer.

3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was negligent in
enforcing discipline upon Daffon or that he had waived observance of the rules and regulations of the school or
condoned their non-observance. His absence when the tragedy happened cannot be considered against him
because he was not supposed or required to report to school on that day. And while it is true that the offending
student was still in the custody of the teacher-in-charge even if the latter was physically absent when the tort was
committed, it has not been established that it was caused by his laxness in enforcing discipline upon the student. On
the contrary, the private respondents have proved that they had exercised due diligence, through the enforcement of
the school regulations, in maintaining that discipline.

4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable especially in view
of the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of the students and returned
the same later to him without taking disciplinary action or reporting the matter to higher authorities. While this was
clearly negligence on his part, for which he deserves sanctions from the school, it does not necessarily link him to
the shooting of Amador as it has not been shown that he confiscated and returned pistol was the gun that killed the
petitioners' son.

5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable under the article
because only the teacher or the head of the school of arts and trades is made responsible for the damage caused
by the student or apprentice. Neither can it be held to answer for the tort committed by any of the other private
respondents for none of them has been found to have been charged with the custody of the offending student or has
been remiss in the discharge of his duties in connection with such custody.

In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced
that none of the respondents is liable for the injury inflicted by Pablito Damon on Alfredo Amadora that resulted in
the latter's death at the auditorium of the Colegio de San Jose-Recoletos on April 13, 1972. While we deeply
sympathize with the petitioners over the loss of their son under the tragic circumstances here related, we
nevertheless are unable to extend them the material relief they seek, as a balm to their grief, under the law they
have invoked.

WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.

MELENCIO-HERRERA, J., concurring and dissenting: ----------

GUTIERREZ, JR., J., concurring: ------------

10) St. Mary’s Acad v Carpitanos, GR No. 143363, 2/6/2002

G.R. No. 143363 February 6, 2002

ST. MARY'S ACADEMY, petitioner,
vs.
WILLIAM CARPITANOS and LUCIA S. CARPITANOS, GUADA DANIEL, JAMES DANIEL II, JAMES DANIEL,
SR., and VIVENCIO VILLANUEVA, respondents.

DECISION

PARDO, J.:

The Case

The case is an appeal via certiorari from the decision1 of the Court of Appeals as well as the resolution denying
reconsideration, holding petitioner liable for damages arising from an accident that resulted in the death of a student
who had joined a campaign to visit the public schools in Dipolog City to solicit enrollment.

The Facts

The facts, as found by the Court of Appeals, are as follows:

"Claiming damages for the death of their only son, Sherwin Carpitanos, spouses William Carpitanos and Lucia
Carpitanos filed on June 9, 1995 a case against James Daniel II and his parents, James Daniel Sr. and Guada
Daniel, the vehicle owner, Vivencio Villanueva and St. Mary’s Academy before the Regional Trial Court of Dipolog
City.

"On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City rendered its decision the dispositive
portion of which reads as follows:

"‘WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in the following manner:

1. Defendant St. Mary’s Academy of Dipolog City, is hereby ordered to pay plaintiffs William Carpitanos and Luisa
Carpitanos, the following sums of money:

a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of life of Sherwin S. Carpitanos;

b. FORTY THOUSAND PESOS (P40,000.00) actual damages incurred by plaintiffs for burial and related expenses;

c. TEN THOUSAND PESOS (P10,000.00) for attorney’s fees;

d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral damages; and to pay costs.

2. Their liability being only subsidiary, defendants James Daniel, Sr. and Guada Daniel are hereby ordered to pay
herein plaintiffs the amount of damages above-stated in the event of insolvency of principal obligor St. Mary’s
Academy of Dipolog City;

3. Defendant James Daniel II, being a minor at the time of the commission of the tort and who was under special
parental authority of defendant St. Mary’s Academy, is ABSOLVED from paying the above-stated damages, same
being adjudged against defendants St. Mary’s Academy, and subsidiarily, against his parents;

4. Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His counterclaim not being in order as earlier
discussed in this decision, is hereby DISMISSED.

IT IS SO ORDERED."’ (Decision, pp. 32-33; Records, pp. 205-206)."

"From the records it appears that from 13 to 20 February 1995, defendant-appellant St. Mary’s Academy of Dipolog
City conducted an enrollment drive for the school year 1995-1996. A facet of the enrollment campaign was the
visitation of schools from where prospective enrollees were studying. As a student of St. Mary’s Academy, Sherwin
Carpitanos was part of the campaigning group. Accordingly, on the fateful day, Sherwin, along with other high
school students were riding in a Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan
Elementary School, Larayan, Dapitan City. The jeep was driven by James Daniel II then 15 years old and a student
of the same school. Allegedly, the latter drove the jeep in a reckless manner and as a result the jeep turned turtle.

"Sherwin Carpitanos died as a result of the injuries he sustained from the accident."2

In due time, petitioner St. Mary’s academy appealed the decision to the Court of Appeals.3

On February 29, 2000, the Court of Appeals promulgated a decision reducing the actual damages to P25,000.00 but
otherwise affirming the decision a quo, in toto.4
On February 29, 2000, petitioner St. Mary’s Academy filed a motion for reconsideration of the decision. However, on
May 22, 2000, the Court of Appeals denied the motion.5

Hence, this appeal.6

The Issues

1) Whether the Court of Appeals erred in holding the petitioner liable for damages for the death of Sherwin
Carpitanos.

2) Whether the Court of Appeals erred in affirming the award of moral damages against the petitioner.

The Court’s Ruling

We reverse the decision of the Court of Appeals.

The Court of Appeals held petitioner St. Mary’s Academy liable for the death of Sherwin Carpitanos under Articles
2187 and 2198 of the Family Code, pointing out that petitioner was negligent in allowing a minor to drive and in not
having a teacher accompany the minor students in the jeep.

Under Article 218 of the Family Code, the following shall have special parental authority over a minor child while
under their supervision, instruction or custody: (1) the school, its administrators and teachers; or (2) the individual,
entity or institution engaged in child care. This special parental authority and responsibility applies to all authorized
activities, whether inside or outside the premises of the school, entity or institution. Thus, such authority and
responsibility applies to field trips, excursions and other affairs of the pupils and students outside the school
premises whenever authorized by the school or its teachers.9

Under Article 219 of the Family Code, if the person under custody is a minor, those exercising special parental
authority are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated
minor while under their supervision, instruction, or custody.10

However, for petitioner to be liable, there must be a finding that the act or omission considered as negligent was the
proximate cause of the injury caused because the negligence must have a causal connection to the accident.11

"In order that there may be a recovery for an injury, however, it must be shown that the ‘injury for which recovery is
sought must be the legitimate consequence of the wrong done; the connection between the negligence and the
injury must be a direct and natural sequence of events, unbroken by intervening efficient causes.’ In other words,
the negligence must be the proximate cause of the injury. For, ‘negligence, no matter in what it consists, cannot
create a right of action unless it is the proximate cause of the injury complained of.’ And ‘the proximate cause of an
injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have occurred.’"12

In this case, the respondents failed to show that the negligence of petitioner was the proximate cause of the death of
the victim.

Respondents Daniel spouses and Villanueva admitted that the immediate cause of the accident was not the
negligence of petitioner or the reckless driving of James Daniel II, but the detachment of the steering wheel guide of
the jeep.

In their comment to the petition, respondents Daniel spouses and Villanueva admitted the documentary exhibits
establishing that the cause of the accident was the detachment of the steering wheel guide of the jeep. Hence, the
cause of the accident was not the recklessness of James Daniel II but the mechanical defect in the jeep of Vivencio
Villanueva. Respondents, including the spouses Carpitanos, parents of the deceased Sherwin Carpitanos, did not
dispute the report and testimony of the traffic investigator who stated that the cause of the accident was the
detachment of the steering wheel guide that caused the jeep to turn turtle.

Significantly, respondents did not present any evidence to show that the proximate cause of the accident was the
negligence of the school authorities, or the reckless driving of James Daniel II. Hence, the respondents’ reliance on
Article 219 of the Family Code that "those given the authority and responsibility under the preceding Article shall be
principally and solidarily liable for damages caused by acts or omissions of the unemancipated minor" was
unfounded.

Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep of
respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who had
possession and control of the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the
jeep at the time of the accident.
Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment of
the steering wheel guide of the jeep, must be pinned on the minor’s parents primarily. The negligence of petitioner
St. Mary’s Academy was only a remote cause of the accident. Between the remote cause and the injury, there
intervened the negligence of the minor’s parents or the detachment of the steering wheel guide of the jeep.

"The proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result would not have occurred."13

Considering that the negligence of the minor driver or the detachment of the steering wheel guide of the jeep owned
by respondent Villanueva was an event over which petitioner St. Mary’s Academy had no control, and which was the
proximate cause of the accident, petitioner may not be held liable for the death resulting from such accident.

Consequently, we find that petitioner likewise cannot be held liable for moral damages in the amount of P500,000.00
awarded by the trial court and affirmed by the Court of Appeals.

Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of
the defendant’s wrongful act or omission.14 In this case, the proximate cause of the accident was not attributable to
petitioner.

For the reason that petitioner was not directly liable for the accident, the decision of the Court of Appeals ordering
petitioner to pay death indemnity to respondent Carpitanos must be deleted. Moreover, the grant of attorney’s fees
as part of damages is the exception rather than the rule.15 The power of the court to award attorney’s fees under
Article 2208 of the Civil Code demands factual, legal and equitable justification.16 Thus, the grant of attorney’s fees
against the petitioner is likewise deleted.

Incidentally, there was no question that the registered owner of the vehicle was respondent Villanueva. He never
denied and in fact admitted this fact. We have held that the registered owner of any vehicle, even if not used for
1âw phi 1

public service, would primarily be responsible to the public or to third persons for injuries caused the latter while the
vehicle was being driven on the highways or streets."17 Hence, with the overwhelming evidence presented by
petitioner and the respondent Daniel spouses that the accident occurred because of the detachment of the steering
wheel guide of the jeep, it is not the school, but the registered owner of the vehicle who shall be held responsible for
damages for the death of Sherwin Carpitanos.

The Fallo

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals18 and that of the trial
court.19 The Court remands the case to the trial court for determination of the liability of defendants, excluding
petitioner St. Mary’s Academy, Dipolog City. No costs.

C. Liability of schools
11) St. Jospeh v Miranda, GR No. 182353, 29 Jun 2010

G.R. No. 182353 June 29, 2010

ST. JOSEPH'S COLLEGE, SR. JOSEPHINI AMBATALI, SFIC, and ROSALINDA TABUGO, Petitioners,
vs.
JAYSON MIRANDA, represented by his father, RODOLFO S. MIRANDA, Respondent.

DECISION

NACHURA, J.:

This petition for review on certiorari seeks to set aside the Decision1 of the Court of Appeals (CA) in CA-G.R. CV No.
68367, which affirmed in toto the decision2 of the Regional Trial Court (RTC), Branch 221, Quezon City, in Civil
Case No. Q-95-22889.

The facts, as found by the CA, follow:

On November 17, 1994, at around 1:30 in the afternoon inside St. Joseph College’s [SJC’s] premises, the class to
which [respondent Jayson Val Miranda] belonged was conducting a science experiment about fusion of sulphur
powder and iron fillings under the tutelage of [petitioner] Rosalinda Tabugo, she being the subject teacher and
employee of [petitioner] SJC. The adviser of [Jayson’s] class is x x x Estefania Abdan.

Tabugo left her class while it was doing the experiment without having adequately secured it from any untoward
incident or occurrence. In the middle of the experiment, [Jayson], who was the assistant leader of one of the class
groups, checked the result of the experiment by looking into the test tube with magnifying glass. The test tube was
being held by one of his group mates who moved it close and towards the eye of [Jayson]. At that instance, the
compound in the test tube spurted out and several particles of which hit [Jayson’s] eye and the different parts of the
bodies of some of his group mates. As a result thereof, [Jayson’s] eyes were chemically burned, particularly his left
eye, for which he had to undergo surgery and had to spend for his medication. Upon filing of this case [in] the lower
court, [Jayson’s] wound had not completely healed and still had to undergo another surgery.

Upon learning of the incident and because of the need for finances, [Jayson’s] mother, who was working abroad,
had to rush back home for which she spent ₱36,070.00 for her fares and had to forego her salary from November
23, 1994 to December 26, 1994, in the amount of at least ₱40,000.00.

Then, too, [Jayson] and his parents suffered sleepless nights, mental anguish and wounded feelings as a result of
his injury due to [petitioners’] fault and failure to exercise the degree of care and diligence incumbent upon each one
of them. Thus, they should be held liable for moral damages. Also, [Jayson] sent a demand letter to [petitioners] for
the payment of his medical expenses as well as other expenses incidental thereto, which the latter failed to heed.
Hence, [Jayson] was constrained to file the complaint for damages. [Petitioners], therefore, should likewise
compensate [Jayson] for litigation expenses, including attorney’s fees.

On the other hand, [petitioners SJC, Sr. Josephini Ambatali, SFIC, and Tabugo] alleged that [Jayson] was a grade
six pupil of SJC in the school year 1994-1995. On November 17, 1994, at about 1:30 in the afternoon, the class to
which [Jayson] belong[s] was conducting a science experiment under the guidance and supervision of Tabugo, the
class science teacher, about fusion of sulphur powder and iron fillings by combining these elements in a test tube
and heating the same. Before the science experiment was conducted, [Jayson] and his classmates were given strict
instructions to follow the written procedure for the experiment and not to look into the test tube until the heated
compound had cooled off. [Jayson], however, a person of sufficient age and discretion and completely capable of
understanding the English language and the instructions of his teacher, without waiting for the heated compound to
cool off, as required in the written procedure for the experiment and as repeatedly explained by the teacher, violated
such instructions and took a magnifying glass and looked at the compound, which at that moment spurted out of the
test tube, a small particle hitting one of [Jayson’s] eyes.

Jayson was rushed by the school employees to the school clinic and thereafter transferred to St. Luke’s Medical
Center for treatment. At the hospital, when Tabago visited [Jayson], the latter cried and apologized to his teacher for
violating her instructions not to look into the test tube until the compound had cooled off.

After the treatment, [Jayson] was pronounced ready for discharge and an eye test showed that his vision had not
been impaired or affected. In order to avoid additional hospital charges due to the delay in [Jayson’s] discharge,
Rodolfo S. Miranda, [Jayson’s] father, requested SJC to advance the amount of ₱26,176.35 representing [Jayson’s]
hospital bill until his wife could arrive from abroad and pay back the money. SJC acceded to the request.

On December 6, 1994, however, the parents of [Jayson], through counsel, wrote SJC a letter demanding that it
should shoulder all the medical expenses of [Jayson] that had been incurred and will be incurred further arising from
the accident caused by the science experiment. In a letter dated December 14, 1994, the counsel for SJC,
represented by Sr. Josephini Ambatali, SFIC, explained that the school cannot accede to the demand because "the
accident occurred by reason of [Jayson’s] failure to comply with the written procedure for the experiment and his
teacher’s repeated warnings and instruction that no student must face, much less look into, the opening of the test
tube until the heated compound has cooled.3

Since SJC did not accede to the demand, Rodolfo, Jayson’s father, on Jayson’s behalf, sued petitioners for
damages.

After trial, the RTC rendered judgment, to wit:

WHEREFORE, premises considered, judgment is hereby rendered in favor of [Jayson] and against [petitioners].
This Court orders and holds the [petitioners] joint[ly] and solidarily liable to pay [Jayson] the following amount:

1. To pay [Jayson] the amount of ₱77,338.25 as actual damages; However, [Jayson] is ordered to reimburse
[petitioner] St. Joseph College the amount of ₱26,176.36 representing the advances given to pay [Jayson’s]
initial hospital expenses or in the alternative to deduct said amount of ₱26,176.36 from the ₱77,338.25
actual damages herein awarded by way of legal compensation;

2. To pay [Jayson] the sum of ₱50,000.00 as mitigated moral damages;

3. To pay [Jayson] the sum of ₱30,000.00 as reasonable attorney’s fees;

4. To pay the costs of suit.

SO ORDERED.4

Aggrieved, petitioners appealed to the CA. However, as previously adverted to, the CA affirmed in toto the ruling of
the RTC, thus:
WHEREFORE, in view of the foregoing, the assailed decision of the RTC of Quezon City, Branch 221 dated
September 6, 2000 is hereby AFFIRMED IN TOTO. Costs against [petitioners].5 1avv phi 1

Undaunted, petitioners appealed` by certiorari to this Court, adamant that the CA grievously erred, thus:

I. THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT FINDING THAT THE PROXIMATE CAUSE OF
JAYSON’S INJURY WAS HIS OWN ACT OF LOOKING AT THE HEATED TEST TUBE BEFORE THE
COMPOUND HAD COOLED IN COMPLETE DISREGARD OF INSTRUCTIONS GIVEN PRIOR TO THE
EXPERIMENT.

II. THE COURT OF APPEALS FAILED TO APPRECIATE THAT, IN LIGHT OF THE RULING IN THE CASE OF ST.
MARY’S COLLEGE V. WILLIAM CARPITANOS, x x x JAYSON’S CONTRIBUTORY NEGLIGENCE OF PEEKING
INTO THE TEST TUBE WAS IN FACT THE PROXIMATE CAUSE OF HIS INJURY FOR WHICH THE
PETITIONERS SHOULD NOT BE HELD LIABLE.

III. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE AWARD OF ACTUAL DAMAGES
DESPITE THE ABSENCE OF PROOF TO SUPPORT THE SAME.

IV. THE LOWER COURT GRIEVOUSLY ERRED IN AWARDING MORAL DAMAGES TO [JAYSON].

V. THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE AWARD OF ATTORNEY’S FEES TO
[JAYSON].

VI. THE LOWER COURT GRIEVOUSLY ERRED IN DENYING THE PETITIONERS’ COUNTERCLAIM.6

We find no reason to depart from the uniform rulings of the lower courts that petitioners were "negligent since they
all failed to exercise the required reasonable care, prudence, caution and foresight to prevent or avoid injuries to the
students."

Jurisprudence dictates that factual findings of the trial court, especially when affirmed by the appellate court, are
accorded the highest degree of respect and are considered conclusive between the parties.7 A review of such
findings by this Court is not warranted except for highly meritorious circumstances when: (1) the findings of a trial
court are grounded entirely on speculation, surmises or conjectures; (2) a lower court’s inference from its factual
findings is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion in the appreciation of
facts; (4) the findings of the appellate court go beyond the issues of the case, or fail to notice certain relevant facts
which, if properly considered, will justify a different conclusion; (5) there is a misappreciation of facts; (6) the findings
of fact are conclusions without mention of the specific evidence on which they are based, are premised on the
absence of evidence, or are contradicted by evidence on record.8 None of the foregoing exceptions which would
warrant a reversal of the assailed decision obtains in this instance.

Yet, petitioners maintain that the proximate cause of Jayson’s injury was his own negligence in disregarding the
instructions given by Tabugo prior to the experiment and peeking into the test tube. Petitioners invoke our ruling in
St. Mary’s Academy v. Carpitanos9 which absolved St. Mary’s Academy from liability for the untimely death of its
student during a school sanctioned activity, declaring that "the negligence of petitioner St. Mary’s Academy was only
a remote cause of the accident."

We are not convinced.

Contrary to petitioners’ assertions, the lower courts’ conclusions are borne out by the records of this case. Both
courts correctly concluded that the immediate and proximate cause of the accident which caused injury to Jayson
was the sudden and unexpected explosion of the chemicals, independent of any intervening cause. The assailed
Decision of the CA quotes with favor the RTC decision, thus:

In this case, [petitioners] failed to show that the negligence of [Jayson] was the proximate cause of the latter’s injury.
We find that the immediate cause of the accident was not the negligence of [Jayson] when he curiously looked into
the test tube when the chemicals suddenly exploded which caused his injury, but the sudden and unexpected
explosion of the chemicals independent of any intervening cause. [Petitioners] could have prevented the mishap if
they exercised a higher degree of care, caution and foresight. The court a quo correctly ruled that:

"All of the [petitioners] are equally at fault and are liable for negligence because all of them are responsible for
exercising the required reasonable care, prudence, caution and foresight to prevent or avoid injuries to the students.
The individual [petitioners] are persons charged with the teaching and vigilance over their students as well as the
supervision and ensuring of their well-being. Based on the facts presented before this Court, these [petitioners] were
remiss in their responsibilities and lacking in the degree of vigilance expected of them. [Petitioner] subject teacher
Rosalinda Tabugo was inside the classroom when the class undertook the science experiment although [Jayson]
insisted that said [petitioner] left the classroom. No evidence, however, was presented to establish that [petitioner]
Tabugo was inside the classroom for the whole duration of the experiment. It was unnatural in the ordinary course of
events that [Jayson] was brought to the school clinic for immediate treatment not by [petitioner] subject teacher
Rosalinda Tabugo but by somebody else. The Court is inclined to believe that [petitioner] subject teacher Tabugo
was not inside the classroom at the time the accident happened. The Court is also perplexed why none of the other
students (who were eyewitnesses to the incident) testified in Court to corroborate the story of the [petitioners]. The
Court, however, understands that these other students cannot testify for [Jayson] because [Jayson] is no longer
enrolled in said school and testifying for [Jayson] would incur the ire of school authorities. Estefania Abdan is equally
at fault as the subject adviser or teacher in charge because she exercised control and supervision over [petitioner]
Tabugo and the students themselves. It was her obligation to insure that nothing would go wrong and that the
science experiment would be conducted safely and without any harm or injury to the students. [Petitioner] Sr.
Josephini Ambatali is likewise culpable under the doctrine of command responsibility because the other individual
[petitioners] were under her direct control and supervision. The negligent acts of the other individual [petitioners]
were done within the scope of their assigned tasks.

xxxx

"The defense of due diligence of a good father of a family raised by [petitioner] St. Joseph College will not exculpate
it from liability because it has been shown that it was guilty of inexcusable laxity in the supervision of its teachers
(despite an apparent rigid screening process for hiring) and in the maintenance of what should have been a safe
and secured environment for conducting dangerous experiments. [Petitioner] school is still liable for the wrongful
acts of the teachers and employees because it had full information on the nature of dangerous science experiments
but did not take affirmative steps to avert damage and injury to students. The fact that there has never been any
accident in the past during the conduct of science experiments is not a justification to be complacent in just
preserving the status quo and do away with creative foresight to install safety measures to protect the students.
Schools should not simply install safety reminders and distribute safety instructional manuals. More importantly,
schools should provide protective gears and devices to shield students from expected risks and anticipated dangers.

"Ordinarily, the liability of teachers does not extend to the school or university itself, although an educational
institution may be held liable under the principle of RESPONDENT SUPERIOR. It has also been held that the
liability of the employer for the [tortuous] acts or negligence of its employees is primary and solidary, direct and
immediate and not conditioned upon the insolvency of or prior recourse against the negligent employee."10

Under the foregoing circumstances, we are hard pressed to disturb the findings of the RTC, which the CA affirmed.

Nonetheless, petitioners make much of the fact that Tabugo specifically instructed her students, including Jayson, at
the start of the experiment, not to look into the heated test tube before the compound had cooled off. Petitioners
would allocate all liability and place all blame for the accident on a twelve (12)-year-old student, herein respondent
Jayson.

We disagree.

As found by both lower courts, the proximate cause of Jayson’s injury was the concurrent failure of petitioners to
prevent the foreseeable mishap that occurred during the conduct of the science experiment. Petitioners were
negligent by failing to exercise the higher degree of care, caution and foresight incumbent upon the school, its
administrators and teachers.

Article 218 of the Family Code, in relation to Article 2180 of the Civil Code, bestows special parental authority on the
following persons with the corresponding obligation, thus:

Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall
have special parental authority and responsibility over the minor child while under their supervision, instruction or
custody.

Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the
school, entity or institution.

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also
for those of persons for whom one is responsible.

xxxx

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and
students or apprentices, so long as they remain in their custody.

Petitioners’ negligence and failure to exercise the requisite degree of care and caution is demonstrated by the
following:

1. Petitioner school did not take affirmative steps to avert damage and injury to its students although it had
full information on the nature of dangerous science experiments conducted by the students during class;

2. Petitioner school did not install safety measures to protect the students who conduct experiments in class;
 3. Petitioner school did not provide protective gears and devices, specifically goggles, to shield students
from expected risks and dangers; and

4. Petitioner Tabugo was not inside the classroom the whole time her class conducted the experiment,
specifically, when the accident involving Jayson occurred. In any event, the size of the class—fifty (50)
students— conducting the experiment is difficult to monitor.

Moreover, petitioners cannot simply deflect their negligence and liability by insisting that petitioner Tabugo gave
specific instructions to her science class not to look directly into the heated compound. Neither does our ruling in St.
Mary’s preclude their liability in this case.

Unfortunately for petitioners, St. Mary’s is not in point. In that case, respondents thereat admitted the documentary
exhibits establishing that the cause of the accident was a mechanical defect and not the recklessness of the minor,
James Daniel II, in driving the jeep. We held, thus:

Significantly, respondents did not present any evidence to show that the proximate cause of the accident was the
negligence of the school authorities, or the reckless driving of James Daniel II. x x x.

Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep of
respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who had
possession and control of the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the
jeep at the time of the accident.

Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment of
the steering wheel guide of the jeep, must be pinned on the minor’s parents primarily. The negligence of petitioner
St. Mary’s Academy was only a remote cause of the accident. Between the remote cause and the injury, there
intervened the negligence of the minor’s parents or the detachment of the steering wheel guide of the jeep.11

In marked contrast, both the lower courts similarly concluded that the mishap which happened during the science
experiment was foreseeable by the school, its officials and teachers. This neglect in preventing a foreseeable injury
and damage equates to neglect in exercising the utmost degree of diligence required of schools, its administrators
and teachers, and, ultimately, was the proximate cause of the damage and injury to Jayson. As we have held in St.
Mary’s, "for petitioner [St. Mary’s Academy] to be liable, there must be a finding that the act or omission considered
as negligent was the proximate cause of the injury caused because the negligence must have a causal connection
to the accident."12

As regards the contributory negligence of Jayson, we see no need to disturb the lower courts’ identical rulings
thereon:

As earlier discussed, the proximate cause of [Jayson’s] injury was the explosion of the heated compound
independent of any efficient intervening cause. The negligence on the part of [petitioner] Tabugo in not making sure
that the science experiment was correctly conducted was the proximate cause or reason why the heated compound
exploded and injured not only [Jayson] but his classmates as well. However, [Jayson] is partly responsible for his
own injury, hence, he should not be entitled to recover damages in full but must likewise bear the consequences of
his own negligence. [Petitioners], therefore, should be held liable only for the damages actually caused by their
negligence.13

Lastly, given our foregoing ruling, we likewise affirm the lower courts’ award of actual and moral damages, and grant
of attorney’s fees. The denial of petitioners’ counterclaim is also in order.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 68367 is
AFFIRMED. Costs against petitioners.

12) PSBA vs CA, GR No. 84698, 4 Feb 1992

G.R. No. 84698 February 4, 1992

PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM, BENJAMIN P. PAULINO, ANTONIO M.

MAGTALAS, COL. PEDRO SACRO and LT. M. SORIANO, petitioners,
vs.
COURT OF APPEALS, HON. REGINA ORDOÑEZ-BENITEZ, in her capacity as Presiding Judge of Branch 47,
Regional Trial Court, Manila, SEGUNDA R. BAUTISTA and ARSENIA D. BAUTISTA, respondents.

Balgos and Perez for petitioners.

Collantes, Ramirez & Associates for private respondents.

PADILLA, J.:

A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while on the second-floor
premises of the Philippine School of Business Administration (PSBA) prompted the parents of the deceased to file
suit in the Regional Trial Court of Manila (Branch 47) presided over by Judge (now Court of Appeals justice) Regina
Ordoñez-Benitez, for damages against the said PSBA and its corporate officers. At the time of his death, Carlitos
was enrolled in the third year commerce course at the PSBA. It was established that his assailants were not
members of the school's academic community but were elements from outside the school.

Specifically, the suit impleaded the PSBA and the following school authorities: Juan D. Lim (President), Benjamin P.
Paulino (Vice-President), Antonio M. Magtalas (Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a Lt.
M. Soriano (Assistant Chief of Security). Substantially, the plaintiffs (now private respondents) sought to adjudge
them liable for the victim's untimely demise due to their alleged negligence, recklessness and lack of security
precautions, means and methods before, during and after the attack on the victim. During the proceedings a quo, Lt.
M. Soriano terminated his relationship with the other petitioners by resigning from his position in the school.

Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since they are presumably sued
under Article 2180 of the Civil Code, the complaint states no cause of action against them, as jurisprudence on the
subject is to the effect that academic institutions, such as the PSBA, are beyond the ambit of the rule in the afore-
stated article.

The respondent trial court, however, overruled petitioners' contention and thru an order dated 8 December 1987,
denied their motion to dismiss. A subsequent motion for reconsideration was similarly dealt with by an order dated
25 January 1988. Petitioners then assailed the trial court's disposition before the respondent appellate court which,
in a decision * promulgated on 10 June 1988, affirmed the trial court's orders. On 22 August 1988, the respondent
appellate court resolved to deny the petitioners' motion for reconsideration. Hence, this petition.

At the outset, it is to be observed that the respondent appellate court primarily anchored its decision on the law
of quasi-delicts, as enunciated in Articles 2176 and 2180 of the Civil Code. 1 Pertinent portions of the appellate
court's now assailed ruling state:

Article 2180 (formerly Article 1903) of the Civil Code is an adoption from the old Spanish Civil Code.
The comments of Manresa and learned authorities on its meaning should give way to present day
changes. The law is not fixed and flexible (sic); it must be dynamic. In fact, the greatest value and
significance of law as a rule of conduct in (sic) its flexibility to adopt to changing social conditions
and its capacity to meet the new challenges of progress.

Construed in the light of modern day educational system, Article 2180 cannot be construed in its
narrow concept as held in the old case of Exconde vs. Capuno 2 and Mercado vs. Court of
Appeals; 3 hence, the ruling in the Palisoc 4 case that it should apply to all kinds of educational
institutions, academic or vocational.

At any rate, the law holds the teachers and heads of the school staff liable unless they relieve
themselves of such liability pursuant to the last paragraph of Article 2180 by "proving that they
observed all the diligence to prevent damage." This can only be done at a trial on the merits of the
case. 5

While we agree with the respondent appellate court that the motion to dismiss the complaint was correctly denied
and the complaint should be tried on the merits, we do not however agree with the premises of the appellate court's
ruling.

Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in loco parentis. This Court
discussed this doctrine in the afore-cited cases of Exconde, Mendoza, Palisoc and, more recently, in Amadora
vs. Court of Appeals. 6 In all such cases, it had been stressed that the law (Article 2180) plainly provides that the
damage should have been caused or inflicted by pupils or students of he educational institution sought to be held
liable for the acts of its pupils or students while in its custody. However, this material situation does not exist in the
present case for, as earlier indicated, the assailants of Carlitos were not students of the PSBA, for whose acts the
school could be made liable.

However, does the appellate court's failure to consider such material facts mean the exculpation of the petitioners
from liability? It does not necessarily follow.

When an academic institution accepts students for enrollment, there is established a contract between them,
resulting in bilateral obligations which both parties are bound to comply with. 7 For its part, the school undertakes to
provide the student with an education that would presumably suffice to equip him with the necessary tools and skills
to pursue higher education or a profession. On the other hand, the student covenants to abide by the school's
academic requirements and observe its rules and regulations.
Institutions of learning must also meet the implicit or "built-in" obligation of providing their students with an
atmosphere that promotes or assists in attaining its primary undertaking of imparting knowledge. Certainly, no
student can absorb the intricacies of physics or higher mathematics or explore the realm of the arts and other
sciences when bullets are flying or grenades exploding in the air or where there looms around the school premises a
constant threat to life and limb. Necessarily, the school must ensure that adequate steps are taken to maintain
peace and order within the campus premises and to prevent the breakdown thereof.

Because the circumstances of the present case evince a contractual relation between the PSBA and Carlitos
Bautista, the rules on quasi-delict do not really govern. 8 A perusal of Article 2176 shows that obligations arising from quasi-delicts or tort,
also known as extra-contractual obligations, arise only between parties not otherwise bound by contract, whether express or implied. However, this impression has
not prevented this Court from determining the existence of a tort even when there obtains a contract. In Air France vs. Carrascoso (124 Phil. 722), the private
respondent was awarded damages for his unwarranted expulsion from a first-class seat aboard the petitioner airline. It is noted, however, that the Court referred to
the petitioner-airline's liability as one arising from tort, not one arising from a contract of carriage. In effect, Air France is authority for the view that liability from tort
may exist even if there is a contract, for the act that breaks the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed. 231).

This view was not all that revolutionary, for even as early as 1918, this Court was already of a similar mind.
In Cangco vs. Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated thus:

The field of non-contractual obligation is much broader than that of contractual obligation,
comprising, as it does, the whole extent of juridical human relations. These two fields, figuratively
speaking, concentric; that is to say, the mere fact that a person is bound to another by contract does
not relieve him from extra-contractual liability to such person. When such a contractual relation
exists the obligor may break the contract under such conditions that the same act which constitutes
a breach of the contract would have constituted the source of an extra-contractual obligation had no
contract existed between the parties.

Immediately what comes to mind is the chapter of the Civil Code on Human Relations, particularly Article 21, which
provides:

Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good
custom or public policy shall compensate the latter for the damage. (emphasis supplied).

Air France penalized the racist policy of the airline which emboldened the petitioner's employee to forcibly oust the
private respondent to cater to the comfort of a white man who allegedly "had a better right to the seat." In Austro-
American, supra, the public embarrassment caused to the passenger was the justification for the Circuit Court of
Appeals, (Second Circuit), to award damages to the latter. From the foregoing, it can be concluded that should the
act which breaches a contract be done in bad faith and be violative of Article 21, then there is a cause to view the
act as constituting a quasi-delict.

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the contract between the
school and Bautista had been breached thru the former's negligence in providing proper security measures. This
would be for the trial court to determine. And, even if there be a finding of negligence, the same could give rise
generally to a breach of contractual obligation only. Using the test of Cangco, supra, the negligence of the school
would not be relevant absent a contract. In fact, that negligence becomes material only because of the contractual
relation between PSBA and Bautista. In other words, a contractual relation is a condition sine qua non to the
school's liability. The negligence of the school cannot exist independently of the contract, unless the negligence
occurs under the circumstances set out in Article 21 of the Civil Code.

This Court is not unmindful of the attendant difficulties posed by the obligation of schools, above-mentioned, for
conceptually a school, like a common carrier, cannot be an insurer of its students against all risks. This is specially
true in the populous student communities of the so-called "university belt" in Manila where there have been reported
several incidents ranging from gang wars to other forms of hooliganism. It would not be equitable to expect of
schools to anticipate all types of violent trespass upon their premises, for notwithstanding the security measures
installed, the same may still fail against an individual or group determined to carry out a nefarious deed inside
school premises and environs. Should this be the case, the school may still avoid liability by proving that the breach
of its contractual obligation to the students was not due to its negligence, here statutorily defined to be the omission
of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances
of persons, time and place. 9

As the proceedings a quo have yet to commence on the substance of the private respondents' complaint, the record
is bereft of all the material facts. Obviously, at this stage, only the trial court can make such a determination from the
evidence still to unfold.

WHEREFORE, the foregoing premises considered, the petition is DENIED. The court of origin (RTC, Manila, Br. 47)
is hereby ordered to continue proceedings consistent with this ruling of the Court. Costs against the petitioners.

D. Custody
i. Stranger
13) Medina v Makabili, GR No. L-26953, 28 Mar 1969
G.R. No. L-26953 March 28, 1969

ZENAIDA MEDINA, assisted by her husband, FELICIANO CASERO, petitioner-appellant,

vs.
DRA. VENANCIA L. MAKABALI, respondent-appellee.

Fausto D. Laquian for petitioner-appellant.

Maximino Q. Canlas for respondent-appellee.

REYES, J.B.L., J.:

Once more Courts are asked to arbitrate between rights and duties of parents and children, and between parent
and foster parent.

Appellant's claim for custody of a minor boy, Joseph Casero, was sought to be enforced by habeas
corpus proceedings in the Court of First Instance of Pampanga, in its Special Proceeding No. 1947. After hearing,
the writ was denied by the Court, and the case was appealed directly to this Supreme Court exclusively on points of
law.

Uncontested facts found by the Court below are that on February 4, 1961, petitioner Zenaida Medina gave birth to
a baby boy named Joseph Casero in the Makabali Clinic in San Fernando, Pampanga, owned and operated by
respondent Dra. Venancia Makabali, single, who assisted at the delivery. The boy was Zenaida's third, had with a
married man, Feliciano Casero.

The mother left the child with Dra. Makabali from his birth. The latter took care and reared Joseph as her own son;
had him treated at her expense for poliomyelitis by Dra. Fe del Mundo, in Manila, until he recovered his health; and
sent him to school. From birth until August 1966, the real mother never visited her child, and never paid for his
expenses.

The trial disclosed that petitioner Zenaida Medina lived with Feliciano Casero with her two other children
apparently with the tolerance, if not the acquiescence, of Caseros lawful wife who resides elsewhere, albeit the
offspring of both women are in good terms with each other; that Casero makes about P400.00 a month as a
mechanic, and Zenaida herself earns from 4 to 5 pesos a day.

The Court, upon calling Joseph on the witness stand, observed that the boy is fairly intelligent as a witness.
He never knew his mother, Zenaida. He was calling the respondent his "Mammy". The Court informed him
that his real mother is Zenaida. He was asked with whom to stay with his real mother or the respondent. The
boy pointed to the respondent and said "Mammy!" The Court asked him, "Why do you choose to stay with
your "Mammy?" He answered, "She is the one rearing me." This confrontation was made in the presence of
the two women, Zenaida, the petitioner, and the respondent, Dra. Makabali, in open court. (C.F.I. Rollo, p.
39).

After extracting from Dra. Makabali a promise to allow the minor a free choice with whom to live when he reaches
the age of 14, the Court held that it was for the child's best interest to be left with his foster mother and denied the
writ prayed for. The real mother appealed, as already stated.

We see no reason to disturb the order appealed from. 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 Peña, 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." 1

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). As remarked by the Court below, petitioner Zenaida Medina proved remiss in
these sacred duties; she not only failed to provide the child with love and care but actually deserted him, with not
even a visit, in his tenderest years, when he needed his mother the most. It may well be doubted what advantage
the child could derive from being coerced to abandon respondent's care and love to be compelled to stay with his
mother and witness her irregular menage a trois with Casero and the latter's legitimate wife. lawphi 1.ñet

It is hinted that respondent's motivation in refusing to surrender the boy is to coerce petitioner to pay for the rearing
of the child. This is not acceptable, for Dra. Makabali knew (at least at the trial) that any expectation on her part is
illusory, given Zenaida's meager resources, yet expressed willingness to care and educate him.
 No abuse of discretion being shown, but on the contrary, the appealed order being justified in fact and law, we hold
that said order should be, and hereby is, affirmed. Costs against appellant.

14) Luna v IAC, GR No. 68374, 18 Jun 1985

G.R. No. L-68374 June 18, 1985

HORACIO LUNA and LIBERTY HIZON-LUNA, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, HON ROQUE A. TAMAYO, as Presiding Judge of Regional Trial Court,
NCR Branch CXXXI1 Makati, Metro Manila, MARIA LOURDES SANTOS, and SIXTO
SALUMBIDES, respondents.

CONCEPCION, JR., J.:

Review on certiorari of the decision of the respondent appellate court in case CA-G. R. No. SP-01869, entitled:
" Horacio Luna, et al., petitioners, versus Hon. Roque A. Tamayo, etc., et al., respondents, " which affirmed an order
denying a motion to restrain the execution of a final judgment rendered in a habeas corpus case.

The records of the case show that the herein private respondent Maria Lourdes Santos is an illegitimate child of the
petitioner Horacio Luna who is married to his co-petitioner Liberty Hizon-Luna. Maria Lourdes Santos is married to
her correspondent Sixto Salumbides, and are the parents of Shirley Santos Salumbides, also known as Shirley Luna
Salumbides, who is the subject of this child custody case.

It appears that two or four months after the birth of the said Shirley Salumbides on April 7, 1975, her parents gave
her to the petitioners, a childless couple with considerable means, who thereafter showered her with love and
affection and brought her up as their very own. The couple doted upon Shirley who called them "Mama" and "Papa".
She calls her natural parents "Mommy" and "Daddy." When Shirley reached the age of four (4) years in 1979, she
was enrolled at the Maryknoll College in Quezon City, where she is now in Grade I I I.

A few months before September, 1980, her "Mama" and "Papa" decided to take Shirley abroad and show her
Disneyland and other places of interest in America. Shirley looked forward to this trip and was excited about it.
However, when the petitioners asked for the respondents' written consent to the child's application for a U.S. visa,
the respondents refused to give it, to the petitioners' surprise and chagrin Shirley was utterly disappointed. As a
result, the petitioners had to leave without Shirley whom they left with the private respondents, upon the latter's
request. The petitioners, however, left instructions with their chauffeur to take and fetch Shirley from Maryknoll
College every school day.

When the petitioners returned on October 29, 1980, they learned that the respondents had transferred Shirley to the
St. Scholastica College. The private respondents also refused to return Shirley to them. Neither did the said
respondents allow Shirley to visit the petitioners. In view thereof, the petitioners filed a petition for habeas corpus
with the Court of First Instance of Rizal, Branch XV, against the private respondents to produce the person of
Shirley and deliver her to their care and custody. The case was docketed in court as Spec. Proc. No. 9417, and after
the filing of an answer and due hearing, a decision was rendered on March 9, 1981, declaring the petitioners entitled
to the child's custody and forthwith granted the writ prayed for.

The private respondents appealed to the then Court of Appeals where the case was docketed as CA-G.R. No. SP-
12212, and in a decision dated April 7, 1982, the appealed decision was reversed and set aside and another
entered, ordering the petitioners, among other things, to turn over Shirley to the private respondents. The herein
petitioners filed a motion for the reconsideration of the decision but their motion was denied.

Consequently, the petitioners filed a petition for review of the decision of the appellate court. The case was docketed
herein as G.R. No. 60860 and on November 10, 1982, this Court, in a minute resolution, denied the petition for lack
of merit.

Upon finality of the judgment, the case was remanded to the court of origin and assigned to Regional Trial Court,
NCJR Branch CXXXII Makati, Metro Manila, presided over by respondent Judge Roque A. Tamayo who, thereafter,
issued an order directing the issuance of a writ of execution to satisfy and enforce the resolution of the Supreme
Court which affirmed the decision of the Court of Appeals.

The execution of the judgment was vigorously opposed by the petitioners who filed a motion for the reconsideration
of the order and to set aside the writ of execution on the ground of supervening events and circumstances, more
particularly, the subsequent emotional, psychological, and physiological condition of the child Shirley which make
the enforcement of the judgment sought to be executed unduly prejudicial, unjust and unfair, and cause irreparable
damage to the welfare and interests of the child. By reason thereof, the respondent judge called a conference
among the parties and their counsels, and conducted hearings on the petitioners' motion for reconsideration and to
set aside the writ of execution. Shirley made manifest during the hearing that she would kill herself or run away from
home if she should ever be separated from her Mama and Papa, the petitioners herein, and forced to stay with the
respondents. A portion of her testimony is quoted hereunder:

ATTY. CASTRO:

xxx xxx xxx

Q Would you want to have with your daddy and mommy, referring to Sixto
Salumbides and Maria Lourdes Salumbides

A No, sir.

Q Why not?

A Because they are cruel to me. They always spank me and they do not love me.
Whenever I am eating, they are not attending to me. It is up to me whether I like the
food or not.

xxx xxx xxx

Q Now, if you will be taken from your papa and mama (Luna spouses) and given to
your daddy and mommy (Salumbides spouses), what would you do if you will do
anything?

A I will either kill myself or I will escape. Even now they said they love me. I don't
believe them. I know they are not sincere. They are only saying that to me. And I
know those words were not coming from their hearts. If they will get me from my
papa and mama, they will be hurt because they know that my papa and mama love
me very much. 1

Dra. Cynthia Dulay Bruce, a child psychologist, affirmed her findings that —

... She (Shirley) has only grown more embittered, cautions, distrusting of her biological parents. She
threatens to kill herself or run away if given to her biological parents. She claims she would be very
unhappy with her biological parents since they do not understand her needs are selfish to her, and
don't know how to care for her. Presently, she is very difficult to encourage in seeing her biological
parents in a different light. 2

and that —

... I reviewed with them (Salumbides spouse) that at the present time, to get Shirley back in this
emotionally charged transaction, would hinder Shirley seeing them as truly loving and concerned
parents. She would more deeply distrust them if they uproot her from the home of the choice of Mr.
and Mrs. Luna. The biological parents wish to do what is also helpful to Shirley. I discussed with both
parties the recommendations of placement and follow up. 3

But, the respondent judge denied the petitioners' motion to set aside the writ of execution The petitioners filed a
motion for the reconsideration of the order and when it was denied, they filed a petition for certiorari and prohibition
with preliminary injunction and restraining order with the respondent Intermediate Appellate Court, which was
docketed therein as CA-G.R. No. SP-01869, to stop altogether the execution of the decision of the Court of Appeals
rendered in CA-G.R. No. SP-12212. The petition was duly heard, after which a decision was rendered on May 25,
1984, dismissing the petition, Hence, the present recourse.

The issue is whether or not procedural rules more particularly the duty of lower courts to enforce a final decision of
appellate courts in child custody cases, should prevail over and above the desire and preference of the child, to stay
with her grandparents instead of her biological parents and who had signified her intention Up kill herself or run
away from home if she should be separated from her grandparents and forced to live with her biological parents.

It is a well-known doctrine that when a judgment of a higher court is returned to the lower court, the only function of
the latter court is the ministerial one of issuing the order of execution. The lower court cannot vary the mandate of
the superior court, or examine it, for any other purpose than execution; nor review it upon any matter decided on
appeal or error apparent; nor intermeddle with it further than to settle so much as has been demanded. However, it
is also equally well-known that a stay of execution of a final judgment may be authorized whenever it is necessary to
accomplish the ends of justice as when there had been a change in the situation of the parties which makes such
execution inequitable; or when it appears that the controversy had never been submitted to the judgment of the
court; or when it appears that the writ of execution has been improvidently issued; or that it is defective in
substance; or is issued against the wrong party; or that the judgement debt has been paid or otherwise satisfied; or
when the writ has been issued without authority.

In the instant case, the petitioners claim that the child's manifestation to the trial court that she would kill herself or
run away from home if she should be forced to live with the private respondents is a supervening event that would
justify the cancellation of the execution of the final decision rendered by the Court of Appeals in CA-G.R. No. SP-
12212. The respondents, upon the other hand, maintain that there are no supervening developments and
circumstances since these events are not new as the Court of Appeals had taken into account the physiological and
emotional consideration of the transfer of custody of Shirley when it reversed the decision of the trial court and gave
to the private respondents the custody of the child Shirley; and besides, the wishes and desires of the child is no
hindrance to the parents' right to her custody since the right of the parents to the custody of their children
paramount.

We find merit in the petitioner. The manifestation of the child Shirley that she would kill herself or run away from
home if she should be taken away from the herein petitioners and forced to live with the private respondents, made
during the hearings on the petitioners' motion to set aside the writ of execution and reiterated in her letters to the
members of the Court dated September 19, 1984 4 and January 2, 1985, 5 and during the hearing of
the case before this Court, is a circumstance that would make the execution of the
judgment rendered in Spec. Proc. No. 9417 of the Court of First Instance of Rizal
inequitable, unfair and unjust, if not illegal. Article 363 of the Civil Code provides that in all
questions relating to the care, custody, education and property of the children, the latter's
welfare is paramount. This means that the best interest of the minor can override
procedural rules and even the rights of parents to the custody of their children. Since, in
this case, the very life and existence of the minor is at stake and the child is in an age
when she can exercise an intelligent choice, the courts can do no less than respect,
enforce and give meaning and substance to that choice and uphold her right to live in an
atmosphere conducive to her physical, moral and intellectual development. The threat 6

may be proven empty, but Shirley has a right to a wholesome family life that will provide
her with love, care and understanding, guidance and counseling. and moral and material
security. But what if the threat is for real.?
7

Besides, in her letters to the members of the Court, Shirley depicted her biological parents as selfish and cruel and
who beat her often; and that they do not love her. And, as pointed out by the child psychologist, Shirley has grown
more embitered cautious and dismissing of her biological parents. To return her to the custody of the private
respondents to face the same emotional environment which she is now complaining of would be indeed traumatic
and cause irreparable damage to the child. As requested by her, let us not destroy her future.

WHEREFORE, the petition should be, as it is hereby GRANTED and the writ prayed for issued, setting aside the
judgment of the respondent Intermediate Appellate Court in CA-G.R. No. SP-01869, and restraining the respondent
judge and/or his successors from enforcing the judgment rendered by the Court of Appeals in CA-G.R. No. SP-
12212. entitled: "Horacio Luna and Liberty Hizon-Luna, petitioners-appellees, versus Maria Lourdes Santos and
Sixto Salumbides, respondents-appellants." The decision rendered in Spec. Proc. No. 9417 of the Court of First
Instance of Rizal granting the herein petitioners custody of the child Shirley Salumbides should be maintained.
Without costs. SO ORDERED.

AQUINO, J., concurring: -----

MAKASIAR, J., dissenting: -----

ii. Illegitimate mother

15) Briones vs Miguel, GR No. 156343, 18 Oct 2004

G.R. No. 156343 October 18, 2004

JOEY D. BRIONES, petitioner,

vs.
MARICEL P. MIGUEL, FRANCISCA P. MIGUEL and LORETA P. MIGUEL, respondents.

DECISION

PANGANIBAN, J.:

An illegitimate child is under the sole parental authority of the mother. In the exercise of that authority, she is entitled
to keep the child in her company. The Court will not deprive her of custody, absent any imperative cause showing
her unfitness to exercise such authority and care.
 The Case

The Petition for Review1 before the Court seeks to reverse and set aside the August 28, 2002 Decision2 and the
December 11, 2002 Resolution3 of the Court of Appeals in CA-GR SP No. 69400.4 The dispositive portion of the
assailed Decision reads as follows:

"WHEREFORE, the petition is hereby DISMISSED. Respondent Loreta P. Miguel shall have custody over
the child Michael Kevin Pineda until he reaches ten (10) years of age. Once the said child is beyond ten (10)
years of age, the Court allows him to choose which parent he prefers to live with pursuant to Section 6, Rule
99 of the 1997 Rules of Civil Procedure, as amended. The petitioner, Joey D. Briones, shall help support the
child, shall have visitorial rights at least once a week, and may take the child out upon the written consent of
the mother.

"Acting on the petitioner’s ‘Urgent Motion for a Hold Departure Order’, and finding it to be without merit, the
same is DENIED."5

The challenged Resolution denied reconsideration.

The Facts

The CA summarized the antecedents of the case in this wise:

"On March 5, 2002, petitioner Joey D. Briones filed a Petition for Habeas Corpus against respondents
Maricel Pineda Miguel and Francisca Pineda Miguel, to obtain custody of his minor child Michael Kevin
Pineda.

"On April 25, 2002, the petitioner filed an Amended Petition to include Loreta P. Miguel, the mother of the
minor, as one of the respondents.

"A Writ of Habeas Corpus was issued by this Court on March 11, 2002 ordering the respondents to produce
before this Court the living body of the minor Michael Kevin Pineda on March 21, 2002 at 2:00 o’clock in the
afternoon.

"The petitioner alleges that the minor Michael Kevin Pineda is his illegitimate son with respondent Loreta P.
Miguel. He was born in Japan on September 17, 1996 as evidenced by his Birth Certificate. The respondent
Loreta P. Miguel is now married to a Japanese national and is presently residing in Japan.

"The petitioner further alleges that on November 4, 1998 he caused the minor child to be brought to the
Philippines so that he could take care of him and send him to school. In the school year 2000-2001, the
petitioner enrolled him at the nursery school of Blessed Angels L.A. School, Inc. in Caloocan City, where he
finished the nursery course.

"According to the petitioner, his parents, who are both retired and receiving monthly pensions, assisted him
in taking care of the child.

"On May 2, 2001, respondents Maricel P. Miguel and Francisca P. Miguel came to the house of the
petitioner in Caloocan City on the pretext that they were visiting the minor child and requested that they be
allowed to bring the said child for recreation at the SM Department store. They promised him that they will
bring him back in the afternoon, to which the petitioner agreed. However, the respondents did not bring him
back as promised by them.

"The petitioner went several times to respondent Maricel P. Miguel at Tanza, Tuguegarao City but he was
informed that the child is with the latter’s mother at Batal Heights, Santiago City. When he went there,
respondent Francisca P. Miguel told him that Michael Kevin Pineda is with her daughter at Tuguegarao City.

"He sought the assistance of the police and the Department of Social Welfare to locate his son and to bring
him back to him, but all his efforts were futile.

"Hence, he was constrained to file a Petition for Habeas Corpus with the Regional Trial Court of Caloocan
City which was docketed as SPC No. 2711. However, the said case was withdrawn ex-parte.

"The petitioner prays that the custody of his son Michael Kevin Pineda be given to him as his biological
father and [as] he has demonstrated his capability to support and educate him.

"On May 6, 2002, the respondents filed their Comment, in compliance with the May 2, 2002 Resolution of
this Court.
 "In their Comment, the respondent Loreta P. Miguel denies the allegation of the petitioner that he was the
one who brought their child to the Philippines and stated that she was the one who brought him here
pursuant to their agreement.

"Respondent Loreta P. Miguel likewise denies petitioner’s allegation that respondents Maricel P. Miguel and
Francisca P. Miguel were the ones who took the child from the petitioner or the latter’s parents. She averred
that she was the one who took Michael Kevin Pineda from the petitioner when she returned to the
Philippines and that the latter readily agreed and consented.

"Respondent Loreta P. Miguel alleges that sometime in October 2001, the petitioner was deported from
Japan under the assumed name of Renato Juanzon when he was found to have violated or committed an
infraction of the laws of Japan. She further stated that since the time the petitioner arrived in the Philippines,
he has not been gainfully employed. The custody of the child, according to respondent Loreta P. Miguel was
entrusted to petitioner’s parents while they were both working in Japan. She added that even before the
custody of the child was given to the petitioner’s parents, she has already been living separately from the
petitioner in Japan because the latter was allegedly maintaining an illicit affair with another woman until his
deportation.

"She likewise stated in her Comment that her marriage to a Japanese national is for the purpose of availing
of the privileges of staying temporarily in Japan to pursue her work so she could be able to send money
regularly to her son in the Philippines. She further stated that she has no intention of staying permanently in
Japan as she has been returning to the Philippines every six (6) months or as often as she could.

"Respondent Loreta P. Miguel prays that the custody of her minor child be given to her and invokes Article
213, Paragraph 2 of the Family Code and Article 363 of the Civil Code of the Philippines."

Ruling of the Court of Appeals

Applying Article 213 (paragraph 2) of the Family Code, the CA awarded the custody of Michael Kevin Pineda Miguel
to his mother, Respondent Loreta P. Miguel. While acknowledging that petitioner truly loved and cared for his son
and considering the trouble and expense he had spent in instituting the legal action for custody, it nevertheless
found no compelling reason to separate the minor from his mother. Petitioner, however, was granted visitorial rights.

Hence, this Petition.6

Issue

In his Memorandum, petitioner formulated the "ultimate" issue as follows: "x x x [w]hether or not [he], as the natural
father, may be denied the custody and parental care of his own child in the absence of the mother who is away."7

The Court’s Ruling

The Petition has no merit. However, the assailed Decision should be modified in regard to its erroneous application
of Section 6 of Rule 99 of the Rules of Court.

Sole Issue

Who Should Have Custody of the Child?

Petitioner concedes that Respondent Loreta has preferential right over their minor child. He insists, however, that
custody should be awarded to him whenever she leaves for Japan and during the period that she stays there. In
other words, he wants joint custody over the minor, such that the mother would have custody when she is in the
country. But when she is abroad, he -- as the biological father -- should have custody.

According to petitioner, Loreta is not always in the country. When she is abroad, she cannot take care of their child.
The undeniable fact, he adds, is that she lives most of the time in Japan, as evidenced by her Special Power of
Attorney dated May 28, 2001,8 granting to her sister temporary custody over the minor.

At present, however, the child is already with his mother in Japan, where he is studying,9 thus rendering petitioner’s
argument moot. While the Petition for Habeas Corpus was pending before the CA, petitioner filed on July 30, 2002,
an "Urgent Motion for a Hold Departure Order,"10 alleging therein that respondents were preparing the travel papers
of the minor so the child could join his mother and her Japanese husband. The CA denied the Motion for lack of
merit.11

Having been born outside a valid marriage, the minor is deemed an illegitimate child of petitioner and Respondent
Loreta. Article 176 of the Family Code of the Philippines12 explicitly provides that "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." This is the rule regardless of whether the father admits paternity.13
Previously, under the provisions of the Civil Code, illegitimate children were generally classified into two groups: (1)
natural, whether actual or by legal fiction; and (2) spurious, whether incestuous, adulterous or illicit.14 A natural child
is one born outside a lawful wedlock of parents who, at the time of conception of the child, were not disqualified by
any impediment to marry each other.15 On the other hand, a spurious child is one born of parents who, at the time of
conception, were disqualified to marry each other on account of certain legal impediments.16

Parental authority over recognized natural children who were under the age of majority was vested in the father or
the mother recognizing them.17 If both acknowledge the child, authority was to be exercised by the one to whom it
was awarded by the courts; if it was awarded to both, the rule as to legitimate children applied. In other words, in the
latter case, parental authority resided jointly in the father and the mother.18

The fine distinctions among the various types of illegitimate children have been eliminated in the Family
Code.19 Now, there are only two classes of children -- legitimate (and those who, like the legally adopted, have the
rights of legitimate children) and illegitimate. All children conceived and born outside a valid marriage are
illegitimate, unless the law itself gives them legitimate status.20

Article 54 of the Code provides these exceptions: "Children conceived or born before the judgment of annulment or
absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate.
Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate."

Under Article 176 of the Family Code, all illegitimate children are generally placed under one category, without any
distinction between natural and spurious.21 The concept of "natural child" is important only for purposes of
legitimation.22 Without the subsequent marriage, a natural child remains an illegitimate child.

Obviously, Michael is a natural ("illegitimate," under the Family Code) child, as there is nothing in the records
showing that his parents were suffering from a legal impediment to marry at the time of his birth. Both acknowledge
that Michael is their son. As earlier explained and pursuant to Article 176, parental authority over him resides in his
mother, Respondent Loreta, notwithstanding his father’s recognition of him.

David v. Court of Appeals23 held that the recognition of an illegitimate child by the father could be a ground for
ordering the latter to give support to, but not custody of, the child. The law explicitly confers to the mother sole
parental authority over an illegitimate child; it follows that only if she defaults can the father assume custody and
authority over the minor. Of course, the putative father may adopt his own illegitimate child;24 in such a case, the
child shall be considered a legitimate child of the adoptive parent.25

There is thus no question that Respondent Loreta, being the mother of and having sole parental authority over the
minor, is entitled to have custody of him.26 She has the right to keep him in her company.27 She cannot be deprived
of that right,28 and she may not even renounce or transfer it "except in the cases authorized by law."29

Not to be ignored in Article 213 of the Family Code is the caveat that, generally, no child under seven years of age
shall be separated from the mother, except when the court finds cause to order otherwise.

Only the most compelling of reasons, such as the mother’s unfitness to exercise sole parental authority, shall justify
her deprivation of parental authority and the award of custody to someone else.30 In the past, the following grounds
have been considered ample justification to deprive a mother of custody and parental authority: neglect or
abandonment,31 unemployment, immorality,32 habitual drunkenness, drug addiction, maltreatment of the child,
insanity, and affliction with a communicable disease.

Bearing in mind the welfare and the best interest of the minor as the controlling factor,33 we hold that the CA did not
err in awarding care, custody, and control of the child to Respondent Loreta. There is no showing at all that she is
unfit to take charge of him.

We likewise affirm the visitorial right granted by the CA to petitioner. In Silva v. Court of Appeals,34 the Court
sustained the visitorial right of an illegitimate father over his children in view of the constitutionally protected inherent
and natural right of parents over their children.35 Even when the parents are estranged and their affection for each
other is lost, their attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts
allow this affinity to suffer, absent any real, grave or imminent threat to the well-being of the child.

However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This provision contemplates a
situation in which the parents of the minor are married to each other, but are separated either by virtue of a decree
of legal separation or because they are living separately de facto. In the present case, it has been established that
petitioner and Respondent Loreta were never married. Hence, that portion of the CA Decision allowing the child to
choose which parent to live with is deleted, but without disregarding the obligation of petitioner to support the child.

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED with the MODIFICATION that the
disposition allowing the child, upon reaching ten (10) years of age, to choose which parent to live with
is DELETED for lack of legal basis. Costs against petitioner.
16) David vs CA, GR 111180, 16 Nov 1995

G.R. No. 111180 November 16, 1995

DAISIE T. DAVID, petitioner,

vs.
COURT OF APPEALS, RAMON R. VILLAR, respondents.

MENDOZA, J.:

Petitioner Daisie T. David worked as secretary of private respondent Ramon R. Villar, a businessman in Angeles
City. Private respondent is a married man and the father of four children, all grown-up. After a while, the relationship
between petitioner and private respondent developed into an intimate one, as a result of which a son, Christopher
J., was born on March 9, 1985 to them. Christopher J. was followed by two more children, both girls, namely
Christine, born on June 9, 1986, and Cathy Mae on April 24, 1988.

The relationship became known to private respondent's wife when Daisie took Christopher J, to Villar's house at
Villa Teresa in Angeles City sometime in 1986 and introduced him to Villar's legal wife.

After this, the children of Daisie were freely brought by Villar to his house as they were eventually accepted by his
legal family.

In the summer of 1991, Villar asked Daisie to allow Christopher J., then six years of age, to go with his family to
Boracay. Daisie agreed, but after the trip, Villar refused to give back the child. Villar said he had enrolled
Christopher J. at the Holy Family Academy for the next school year.

On July 30, 1991, Daisie filed a petition for habeas corpus on behalf of Christopher J.

After hearing, the Regional Trial Court, Branch 58 at Angeles City, rendered a decision, the dispositive portion of
which reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the petitioner and
against the respondent:

1. the rightful custody of the minor Christopher J. T. David is hereby given to the natural mother, the
herein petitioner Daisie T. David;

2. respondent is hereby ordered to give a temporary support of P3,000.00 a month to the subject
minor Christopher J. T. David, Christine David and Cathy Mae David to take effect upon the finality
of this decision; and

3. to pay the costs of this suit.

SO ORDERED.

On appeal, the Court of Appeals reversed, holding:

We agree with the respondent-appellant's view that this is not proper in a habeas corpus case.

Law and jurisprudence wherein the question of custody of a minor child may be decided in a habeas
corpus case contemplate a situation where the parents are married to each other but are separated.
This is so because under the Family Code, the father and mother have joint parental authority over
their legitimate children and in case of separation of the parents there is need to determine rightful
custody of their children. The same does not hold true in an adulterous relationship, as in the case at
bar, the child born out of such a relationship is under the parental authority of the mother by express
provision of the law. Hence, the question of custody and support should be brought in a case
singularly filed for the purpose. In point of fact, this is more advisable in the case at bar because the
trial court did not acquire jurisdiction over the other minor children of the petitioner-appellee and
respondent-appellant and, therefore, cannot properly provide for their support.

Admittedly, respondent-appellant is financially well-off, he being a very rich businessman; whereas,

petitioner-appellee depends upon her sisters and parents for support. In fact, he financially
supported petitioner-appellee and her three minor children. It is, therefore, for the best interest of
Christopher J that he should temporarily remain under the custody of respondent-appellant until the
issue on custody and support shall have been determined in a proper case.
 WHEREFORE, the decision appealed from is hereby SET ASIDE, and a NEW ONE ENTERED
dismissing the petition for habeas corpus in Special Proceeding No. 4489.

Daisie in turn filed this petition for review of the appellate court's decision.

Rule 102, §1 of the Rules of Court provides that "the writ of habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto."

It is indeed true, as the Court of Appeals observed, that the determination of the right to the custody of minor
children is relevant in cases where the parents, who are married to each other, are for some reason separated from
each other. It does not follow, however, that it cannot arise in any other situation. For example, in the case
of Salvaña v. Gaela,1 it was held that the writ of habeas corpus is the proper remedy to enable parents to regain the
custody of a minor daughter even though the latter be in the custody of a third person of her free will because the
parents were compelling her to marry a man against her will.

In the case at bar, Christopher J. is an illegitimate child since at the time of his conception, his father, private
respondent Ramon R. Villar, was married to another woman other than the child's mother. As such, pursuant to Art.
176 of the Family Code, Christopher J. is under the parental authority of his mother, the herein petitioner, who, as a
consequence of such authority, is entitled to have custody of him.2 Since, admittedly, petitioner has been deprived of
her rightful custody of her child by private respondent, she is entitled to issuance of the writ of habeas corpus.

Indeed, Rule 1021 §1 makes no distinction between the case of a mother who is separated from her husband and is
entitled to the custody of her child and that of a mother of an illegitimate child who, by law, is vested with sole
parental authority, but is deprived of her rightful custody of her child.

The fact that private respondent has recognized the minor child may be a ground for ordering him to give support to
the latter, but not for giving him custody of the child. Under Art. 213 of the Family Code, "no child under seven years
of age shall be separated from the mother unless the court finds compelling reasons to order otherwise."3

Nor is the fact that private respondent is well-off a reason for depriving petitioner of the custody of her children,
especially considering that she has been able to rear and support them on her own since they were born. Petitioner
is a market vendor earning from P2,000 to P3,000 per month in 1993 when the RTC decision was rendered. She
augments her income by working as secretary at the Computer System Specialist, Inc. earning a monthly income of
P4,500.00. She has an arrangement with her employer so that she can personally attend to her children. She works
up to 8:00 o'clock in the evening to make up for time lost during the day. That she receives help from her parents
and sister for the support of the three children is not a point against her. Cooperation, compassion, love and concern
for every member of the family are characteristics of the close family ties that bind the Filipino family and have made
it what it is.

Daisie and her children may not be enjoying a life of affluence that private respondent promises if the child lives with
him. It is enough, however, that petitioner is earning a decent living and is able to support her children according to
her means.

The Regional Trial Court ordered private respondent to give temporary support to petitioner in the amount of
P3,000.00 a month, pending the filing of an action for support, after finding that private respondent did not give any
support to his three children by Daisie, except the meager amount of P500.00 a week which he stopped giving them
on June 23, 1992. He is a rich man who professes love for his children. In fact he filed a motion for the execution of
the decision of the Court of Appeals, alleging that he had observed his son "to be physically weak and pale because
of malnutrition and deprivation of the luxury and amenities he was accustomed to when in the former custody of the
respondent." He prayed that he be given the custody of the child so that he can provide him with the "proper care
and education."

Although the question of support is proper in a proceeding for that purpose, the grant of support in this case is
justified by the fact that private respondent has expressed willingness to support the minor child. The order for
payment of allowance need not be conditioned on the grant to him of custody of the child. Under Art. 204 of the
Family Code, a person obliged to give support can fulfill his obligation either by paying the allowance fixed by the
court or by receiving and maintaining in the family dwelling the person who is entitled to support unless, in the latter
case, there is "a moral or legal obstacle thereto."

In the case at bar, as has already been pointed out, Christopher J., being less than seven years of age at least at
the time the case was decided by the RTC, cannot be taken from the mother's custody. Even now that the child is
over seven years of age, the mother's custody over him will have to be upheld because the child categorically
expressed preference to live with his mother. Under Art. 213 of the Family Code, courts must respect the "choice of
the child over seven years of age, unless the parent chosen is unfit" and here it has not been shown that the mother
is in any way unfit to have custody of her child. Indeed, if private respondent loves his child, he should not condition
the grant of support for him on the award of his custody to him (private respondent).
WHEREFORE, the decision of the Court of Appeals is REVERSED and private respondent is ORDERED to deliver
the minor Christopher J. T. David to the custody of his mother, the herein petitioner, and to give him temporary
support in the amount of P3,000.00, pending the fixing of the amount of support in an appropriate action.

iii. Letigimate mother

17) Espiritu vs CA, GR No. 115640, 15 Mar 1995

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, co-petitioner
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. 210-
222, 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.

18) Perez vs CA, GR No. 118870, 29 Mar 1996

G.R. No. 118870 March 29, 1996

NERISSA Z. PEREZ, petitioner,

vs.
THE COURT OF APPEALS (Ninth Division) and RAY C. PEREZ, respondents.

ROMERO, J.:p

Parties herein would have this Court duplicate the feat of King Solomon who was hailed in Biblical times for his sagacious, if, at times unorthodox, manner of
resolving conflicts, the most celebrated case being that when his authority was invoked to determine the identity of the real mother as between two women
claiming the same infant. Since there could only be one mother, the daunting task that confronted the king/judge was to choose the true one.

In the instant case, we are faced with the challenge of deciding, as between father and mother, who should have
rightful custody of a child who bears in his person both their genes.

While there is a provision of law squarely in point, the two courts whose authority have been invoked to render a
decision have arrived at diametrically opposite conclusions.

It has fallen upon us now to likewise act as judge between the trial court, on the one hand, and the appellate, on the
other.

On the issue of custody over the minor Ray Perez II, respondent Court of Appeals ruled in favor of the boy's father
Ray C. Perez, reversing the trial court's decision to grant custody to Nerissa Z. Perez, the child's mother.

Ray Perez, private respondent, is a doctor of medicine practicing in Cebu while Nerissa, his wife who is petitioner
herein, is a registered nurse. They were married in Cebu on December 6, 1986. After six miscarriages, two
operations and a high-risk pregnancy, petitioner finally gave birth to Ray Perez II in New York on July 20, 1992.

Petitioner who began working in the United States in October 1988, used part of her earnings to build a modest
house in Mandaue City, Cebu. She also sought medical attention for her successive miscarriages in New York. She
became a resident alien in February 1992.

Private respondent stayed with her in the U.S. twice and took care of her when she became pregnant. Unlike his
wife, however, he had only a tourist visa and was not employed.

On January 17, 1993, the couple and their baby arrived in Cebu. After a few weeks, only Nerissa returned to the
U.S. She alleged that they came home only for a five-week vacation and that they all had round-trip tickets.
However, her husband stayed behind to take care of his sick mother and promised to follow her with the baby.
According to Ray, they had agreed to reside permanently in the Philippines but once Nerissa was in New York, she
changed her mind and continued working. She was supposed to come back immediately after winding up her affairs
there.

When Nerissa came home a few days, before Ray II's first birthday, the couple was no longer on good terms. That
their love for each other was fading became apparent from their serious quarrels. Petitioner did not want to live near
her in-laws and rely solely on her husband's meager income of P5,000.00.1 She longed to be with her only child but
he was being kept away from her by her husband. Thus, she did not want to leave RJ (Ray Junior) with her husband
and in-laws. She wished for her son to grow up with his mother.

On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced his profession. He
maintained that it would not be difficult to live here since they have their own home and a car. They could live
comfortably on his P15,000.00 monthly income2 as they were not burdened with having to pay any debts.

Petitioner was forced to move to her parents' home on Guizo Street in Mandaue. Despite mediation by the priest
who solemnized their marriage, the couple failed to reconcile.

On July 26, 1993, Nerissa Z. Perez filed a petition for habeas corpus3 asking respondent Ray C. Perez to surrender
the custody of their son, Ray Z. Perez II, to her.
On August 27, 1993, the court a quo issued an Order awarding custody of the one-year old child to his mother,
Nerissa Perez, citing the second paragraph of Article 213 of the Family Code which provides that no child under
seven years of age shall be separated from the mother, unless the court finds compelling reasons to order
otherwise. The dispositive portion of the Order reads:

WHEREFORE, foregoing premises considered, Order is hereby issued ordering the respondent to
turn over the custody of their child Ray Cortes Perez II, his passport and round trip ticket to herein
petitioner with a warning that if he will escape together with the child for the purpose of hiding the
minor child instead of complying with this Order, that warrant for his arrest will be issued.

SO ORDERED.4

Upon appeal by Ray Perez, the Court of Appeals, on September 27, 1994, reversed the trial court's order and
awarded custody of the boy to his father.5

Petitioner's motion for reconsideration having been denied,6 she filed the instant petition for review where the sole
issue is the custody of Ray Perez II, now three years old.

Respondent court differed in opinion from the trial court and ruled that there were enough reasons to deny Nerissa
Perez custody over Ray II even if the child is under seven years old. It held that granting custody to the boy's father
would be for the child's best interest and welfare.7

Before us is the unedifying situation of a husband and wife in marital discord, struggling for custody of their only
child. It is sad that petitioner and private respondent have not found it in their hearts to understand each other and
live together once again as a family. Separated in fact, they now seek the Court's assistance in the matter of
custody or parental authority over the child.

The wisdom and necessity for the exercise of joint parental authority need not be belabored. The father and the
mother complement each other in giving nurture and providing that holistic care which takes into account the
physical, emotional, psychological, mental, social and spiritual needs of the child. By precept and example, they
mold his character during his crucial formative years.

However, the Court's intervention is sought in order that a decision may be made as to which parent shall be given
custody over the young boy. The Court's duty is to determine whether Ray Perez II will be better off with petitioner
or with private respondent. We are not called upon to declare which party committed the greater fault in their
domestic quarrel.

When the parents of the child are separated, Article 213 of the Family Code is the applicable law. It provides:

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

No child under seven years of age shall be separated from the mother. unless the court finds
compelling reasons to order otherwise. (Emphasis supplied).

Since the Code does not qualify the word "separation" to mean legal separation decreed by a court, couples who
are separated in fact, such as petitioner and private respondent, are covered within its terms.8

The Revised Rules of Court also contains a similar provision. Rule 99, section 6 (Adoption and Custody of Minors)
provides:

Sec. 6. Proceedings as to child whose parents are separated. Appeal. When husband and wife are
divorced or living separately, and apart from each other, and the questions as to the care, custody,
and control of a child or children of their marriage is brought before a Court of First Instance by
petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be
pertinent, shall award the care, custody, and control of each such child as will be for its best interest,
permitting the child to choose which parent it prefers to live with if it be over ten years of age, unless
the parent chosen be unfit to take charge of the child by reason of moral depravity, habitual
drunkenness, incapacity, or poverty. . . . No child under seven years of age shall be separated from
its mother, unless the court finds there are compelling reasons therefor. (Emphasis supplied)

The provisions of law quoted above clearly mandate that a child under seven years of age shall not be separated
from his mother unless the court finds compelling reasons to order otherwise. The use of the word "shall" in Article
213 of the Family Code and Rule 99, section 6 of the Revised Rules of Court connotes a mandatory character. In
the case of Lacson v. San Jose-Lacson,9 the Court declared:

The use of the word shall in article 363 10 of the Civil Code, coupled with the observations made by
the Code Commission in respect to the said legal provision, underscores its mandatory character. It
 prohibits in no uncertain terms the separation of a mother and her child below seven years, unless
such separation is grounded upon compelling reasons as determined by a court.11

The rationale for awarding the custody of children younger than seven years of age to their mother was explained by
the Code Commission:

The general rule is recommended in order to avoid many a tragedy where a mother has seen her
baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her
child of tender age. The exception allowed by the rule has to be for "compelling reasons" for the
good of the child; those cases must indeed be rare, if the mother's heart is not to be unduly hurt. If
she has erred, as in cases of adultery, the penalty of imprisonment and the divorce decree (relative
divorce) will ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have any
effect upon the baby who is as yet unable to understand her situation. (Report of the Code
Commission, p. 12)12

The Family Code, in reverting to the provision of the Civil Code that a child below seven years old should not be
separated from the mother (Article 363), has expressly repealed the earlier Article 17, paragraph three of the Child
and Youth Welfare Code (Presidential Decree No. 603) which reduced the child's age to five years.13

The general rule that a child under seven years of age shall not be separated from his mother finds its raison
d'être in the basic need of a child for his mother's loving care.14 Only the most compelling of reasons shall justify the
court's awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise
sole parental authority. In the past the following grounds have been considered ample justification to deprive a
mother of custody and parental authority: neglect, abandonment,15 unemployment and immorality,16 habitual
drunkenness,17 drug addiction, maltreatment of the child, insanity and being sick with a communicable disease.18

It has long been settled that in custody cases, 19 the foremost consideration is always the welfare and best interest of
the child. In fact, no less than an international instrument, the Convention on the Rights of the Child provides: "In all
actions concerning children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."20

Courts invariably look into all relevant factors presented by the contending parents, such as their material resources,
social and moral
situations.21

In the case at bench, financial capacity is not a determinative factor inasmuch as both parties have demonstrated
that they have ample means.

Respondent court stated that petitioner has no permanent place of work in the U.S.A. and has taken this point
against her. The records, however, show that she is employed in a New York hospital22 and was, at the time the
petition was filed, still abroad.23 She testified that she intends to apply for a job elsewhere, presumably to improve
her work environment and augment her income, as well as for convenience. 24 The Court takes judicial notice of the
fact that a registered nurse, such as petitioner, is still very much in demand in the United States. Unlike private
respondent, a doctor who by his own admission could not find employment there, petitioner immediately got a job in
New York. Considering her skill and experience petitioner should find no difficulty in obtaining work elsewhere,
should she desire to do so.

The decision under review casts doubt on petitioner's capability to take care of the child, particularly since she works
on twelve-hour shifts thrice weekly, at times, even at night. There being no one to help her look after the child, it is
alleged that she cannot properly attend to him. This conclusion is as unwarranted as it is unreasonable. First, her
present work schedule is not so unmanageable as to deprive her of quality time for Ray II. Quite a number of
working mothers who are away from home for longer periods of time are still able to raise a family well, applying
time management principles judiciously. Second, many a mother, finding herself in such a position, has invited her
own mother or relative to join her abroad, providing the latter with plane tickets and liberal allowances, to look after
the child until he is able to take care of himself. Others go on leave from work until such time as the child can be
entrusted to day-care centers. Delegating child care temporarily to qualified persons who run day-care centers does
not detract from being a good mother, as long as the latter exercises supervision, for even in our culture, children
are often brought up by housemaids or "yayas" under the eagle eyes of the mother. Third, private respondent's work
schedule was not presented in evidence at the trial. Although he is a general practitioner, the records merely show
that he maintains a clinic, works for several companies on retainer basis and teaches part-time.25 Hence, respondent
court's conclusion that "his work schedule is flexible (and h)e can always find time for his son"26 is not well-founded.
Fourth, the fact that private respondent lives near his parents and sister is not crucial in this case. Fifth, petitioner's
work schedule cited in the respondent court's decision is not necessarily permanent. Hospitals work in shifts and,
given a mother's instinctive desire to lavish upon her child the utmost care, petitioner may be expected to arrange
her schedule in such a way as to allocate time for him. Finally, it does not follow that petitioner values her career
more than her family simply because she wants to work in the United States. There are any number of reasons for a
person's seeking a job outside the country, e.g. to augment her income for the family's benefit and welfare, and for
psychological fulfillment, to name a few. In the instant case, it has been shown that petitioner earned enough from
her job to be able to construct a house for the family in Mandaue City. The record describes sketchily the relations
between Ray and Nerissa Perez. The transcripts of the three hearings are inadequate to show that petitioner did not
exert earnest efforts and make sacrifices to save her marriage.

It is not difficult to imagine how heart-rending it is for a mother whose attempts at having a baby were frustrated
several times over a period of six years to finally bear one, only for the infant to be snatched from her before he has
even reached his first year. The mother's role in the life of her child, such as Ray II, is well-nigh irreplaceable. In
prose and poetry, the depth of a mother's love has been immortalized times without number, finding as it does, its
justification, not in fantasy but in reality.

WHEREFORE, the petition for review is GRANTED. The decision of the Court of Appeals dated September 27,
1994 as well as its Resolution dated January 24, 1995 are hereby REVERSED and SET ASIDE. The Order of the
trial court dated August 27, 1993 is hereby REINSTATED. Custody over the minor Ray Z. Perez II is awarded to his
mother, herein petitioner Nerissa Z. Perez. This decision is immediately executory.

19) Pablo-Gualberto v Gualberto, GR No.154994, 6/28/05

G.R. No. 154994 June 28, 2005

JOYCELYN PABLO-GUALBERTO, petitioner,

vs.
CRISANTO RAFAELITO GUALBERTO V, respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 156254 June 28, 2005

CRISANTO RAFAELITO G. GUALBERTO V, petitioner,

vs.
COURT OF APPEALS; Hon. HELEN B. RICAFORT, Presiding Judge, Regional Trial Court Parañaque City,
Branch 260; and JOYCELYN D. PABLO-GUALBERTO, respondents.

DECISION

PANGANIBAN, J.:

When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle is often
over the custody of their children. The Court is now tasked to settle the opposing claims of the parents for
custody pendente lite of their child who is less than seven years of age. There being no sufficient proof of any
compelling reason to separate the minor from his mother, custody should remain with her.

The Case

Before us are two consolidated petitions. The first is a Petition for Review1 filed by Joycelyn Pablo-Gualberto under
Rule 45 of the Rules of Court, assailing the August 30, 2002 Decision2 of the Court of Appeals (CA) in CA-GR SP
No. 70878. The assailed Decision disposed as follows:

"WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED. The assailed Order of May
17, 2002 is hereby SET ASIDE and ANNULLED. The custody of the child is hereby ordered returned to [Crisanto
Rafaelito G. Gualberto V].

"The [respondent] court/Judge is hereby directed to consider, hear and resolve [petitioner’s] motion to lift the award
of custody pendente lite of the child to [respondent]."3

The second is a Petition for Certiorari4 filed by Crisanto Rafaelito Gualberto V under Rule 65 of the Rules of Court,
charging the appellate court with grave abuse of discretion for denying his Motion for Partial Reconsideration of the
August 30, 2002 Decision. The denial was contained in the CA’s November 27, 2002 Resolution, which we quote:

"We could not find any cogent reason why the [last part of the dispositive portion of our Decision of August 30, 2002]
should be deleted, hence, subject motion is hereby DENIED."5

The Facts

The CA narrated the antecedents as follows:

"x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the Regional Trial Court of Parañaque
City] a petition for declaration of nullity of his marriage to x x x Joycelyn D. Pablo Gualberto, with an ancillary prayer
for custody pendente lite of their almost 4-year-old son, minor Rafaello (the child, for brevity), whom [Joycelyn]
allegedly took away with her from the conjugal home and his school (Infant Toddler’s Discovery Center in
Parañaque City) when [she] decided to abandon [Crisanto] sometime in early February 2002[.] x x x [O]n April 2,
2002, [RTC Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for custody pendente lite. x x x
[B]ecause [Joycelyn] allegedly failed to appear despite notice, [Crisanto], a certain Col. Renato Santos, and Ms.
Cherry Batistel, testified before the x x x Judge; x x x documentary evidence [was] also presented[.] x x x [O]n April
3, 2002, x x x [the] Judge awarded custody pendente lite of the child to [Crisanto.] [T]he Order partly read x x x:

‘x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their minor child with her to Caminawit,
San Jose, Occidental Mindoro. At that time, the minor was enrolled at B.F. Homes, Parañaque City. Despite effort[s]
exerted by him, he has failed to see his child. [Joycelyn] and the child are at present staying with the former’s step-
father at the latter’s [residence] at Caminawit, San Jose, Occidental Mindoro.

‘Renato Santos, President of United Security Logistic testified that he was commissioned by [Crisanto] to conduct
surveillance on [Joycelyn] and came up with the conclusion that [she] is having lesbian relations with one Noreen
Gay Cuidadano in Cebu City.

‘The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper of the spouses who stated
that [the mother] does not care for the child as she very often goes out of the house and on one occasion, she saw
[Joycelyn] slapping the child.

‘Art. 211 of the Family Code provides as follows:

‘The father and the mother shall jointly exercise parental authority over the persons of their children. In the case of
disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.’

‘The authority of the father and mother over their children is exercised jointly. This recognition, however, does not
place her in exactly the same place as the father; her authority is subordinated to that of the father.

‘In all controversies regarding the custody of minors, the sole and foremost consideration is the physical,
educational, social and moral welfare of the child, taking into account the respective resources and social and moral
situations of the contending parties.

‘The Court believes that [Joycelyn] had no reason to take the child with her. Moreover, per Sheriff returns, she is not
with him at Caminawit, San Jose, Occidental Mindoro.

‘WHEREFORE, pendente lite, the Court hereby awards custody of the minor, Crisanto Rafaello P. Gualberto X to
his father, Crisanto Rafaelito G. Gualberto V.’

"x x x [O]n April 16, 2002, the hearing of [Joycelyn’s] motion to lift the award of custody pendente lite of the child to
[Crisanto] was set but the former did not allegedly present any evidence to support her motion. However, on May
17, 2002, [the] Judge allegedly issued the assailed Order reversing her Order of April 3, 2002 and this time
awarding custody of the child to [Joycelyn]. [T]he entire text of the Order [is] herein reproduced, to wit:

‘Submitted is [Crisanto’s] Motion to Resolve Prayer for Custody Pendente Lite and [Joycelyn’s] Motion to Dismiss
and the respective Oppositions thereto.

‘[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person referred to in the caption of the Petition
is one JOCELYN Pablo Gualberto and not Joycelyn Pablo Gualberto. [Joycelyn] knows she is the person referred to
in the Complaint. As a matter of fact, the body of the Complaint states her name correct[ly]. The law is intended to
facilitate and promote the administration of justice, not to hinder or delay it. Litigation should be practicable and
convenient. The error in the name of Joycelyn does not involve public policy and has not prejudiced [her].

‘This case was filed on March 12, 2002. Several attempts were made to serve summons on [Joycelyn] as shown by
the Sheriff’s returns. It appears that on the 4th attempt on March 21, 2002, both Ma. Daisy and x x x Ronnie
Nolasco, [Joycelyn’s mother and stepfather, respectively,] read the contents of the documents presented after which
they returned the same. lawphil.net

‘The Court believes that on that day, summons was duly served and this Court acquired jurisdiction over [Joycelyn].

‘The filing of [Joycelyn’s annulment] case on March 26, 2002 was an after thought, perforce the Motion to [D]ismiss
should be denied.

‘The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years old. Under Article 213 of the
Family Code, he shall not be separated from his mother unless the Court finds compelling reasons to order
otherwise. The Court finds the reason stated by [Crisanto] not [to] be compelling reasons. The father should
1avv phil.zw+

however be entitled to spend time with the minor. These do not appear compelling reasons to deprive him of the
company of his child.
‘When [Joycelyn] appeared before this Court, she stated that she has no objection to the father visiting the child
even everyday provided it is in Mindoro.

‘The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello P. Gualberto, with [the] right of
[Crisanto] to have the child with him every other weekend.

‘WHEREFORE:

1. The [M]otion to Dismiss is hereby DENIED;

2. Custody pendente lite is hereby given to the mother Joycelyn Pablo Gualberto with the right of the father,
x x x [Crisanto], to have him every other week-end.

3. Parties are admonished not to use any other agencies of the government like the CIDG to interfere in this
case and to harass the parties.’"6

In a Petition for Certiorari7 before the CA, Crisanto charged the Regional Trial Court (Branch 260) of Parañaque City
with grave abuse of discretion for issuing its aforequoted May 17, 2002 Order. He alleged that this Order
superseded, without any factual or legal basis, the still valid and subsisting April 3, 2002 Order awarding him
custody pendente lite of his minor son; and that it violated Section 14 of Article VII of the 1987 Constitution.

Ruling of the Court of Appeals

Partly in Crisanto’s favor, the CA ruled that grave abuse of discretion had been committed by the trial court in
reversing the latter court’s previous Order dated April 3, 2002, by issuing the assailed May 17, 2002 Order. The
appellate court explained that the only incident to resolve was Joycelyn’s Motion to Dismiss, not the issuance of the
earlier Order. According to the CA, the prior Order awarding provisional custody to the father should prevail, not only
because it was issued after a hearing, but also because the trial court did not resolve the correct incident in the later
Order.

Nonetheless, the CA stressed that the trial court judge was not precluded from considering and resolving Joycelyn’s
Motion to lift the award of custody pendente lite to Crisanto, as that Motion had yet to be properly considered and
ruled upon. However, it directed that the child be turned over to him until the issue was resolved.

Hence, these Petitions.8

Issues

In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration:

"1. Whether or not the Respondent Court of Appeals, when it awarded the custody of the child to the father,
violated Art. 213 of the Family Code, which mandates that ‘no child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons to order otherwise.’

"2. Is it Article 213 or Article 211 which applies in this case involving four-year old Rafaello?"9

On the other hand, Crisanto raises the following issues:

"A. Did Respondent Court commit grave abuse of discretion amounting to or in excess of jurisdiction when,
in its August 30, 2002 Decision, it ordered respondent court/Judge ‘to consider, hear and resolve the motion
to lift award of custody pendente lite of the child to petitioner and x x x denied the motion for reconsideration
thereof in its November 27, 2002 Resolution, considering that: (1) there is no such motion ever, then or now
pending, with the court a quo; (2) the November 27, 2002 Resolution is unconstitutional; and (3) the April 3,
2002 Order of respondent Judge, the validity of which has been upheld in the August 30, 2002 Decision of
the respondent Court, has become final and executory; and

"B. Ought not the ancillary remedies [o]f habeas corpus, because the whereabouts, physical and mental
condition of the illegally detained Minor Rafaello is now unknown to petitioner and preliminary mandatory
injunction with urgent prayer for immediate issuance of preliminary [injunction], petitioner having a clear and
settled right to custody of Minor Rafaello which has been violated and still is being continuously violated by
[petitioner Joycelyn], be granted by this Honorable Court?"10

Being interrelated, the procedural challenges and the substantive issues in the two Petitions will be addressed
jointly.

The Court’s Ruling

There is merit in the Petition in GR No. 154994, but not in GR No. 156254.
Preliminary Issue:

The Alleged Prematurity of the Petition in GR No. 154994

Before going into the merits of the present controversy, the Court shall first dispose of a threshold issue. In GR No.
154994, therein Respondent Crisanto contends that the Petition for Review was filed beyond the deadline (October
24, 2002) allowed by the Rules of Court and by this Court. He claims that Registry Bill No. 88 shows that the Petition
was sent by speed mail, only on November 4, 2002. Furthermore, he assails the Petition for its prematurity, since
his Motion for Partial Reconsideration of the August 30, 2002 CA Decision was still pending before the appellate
court. Thus, he argues that the Supreme Court has no jurisdiction over Joycelyn’s Petition.

Timeliness of the Petition

The manner of filing and service Joycelyn’s Petition by mail is governed by Sections 3 and 7 of Rule 13 of the Rules
of Court, which we quote:

"SEC. 3. Manner of filing. – The filing of pleadings, appearances, motions, notices, orders, judgments and all other
papers shall be made by presenting the original copies thereof, plainly indicated as such personally to the clerk of
court or by sending them by registered mail. xxx In the second case, the date of mailing of motions, pleadings and
other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt,
shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the
records of the case.

"x x x x x x x x x

"SEC. 7. Service by mail. – Service by registered mail shall be made by depositing the copy in the office, in a sealed
envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known,
with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten (10)
days if undelivered. If no registry service is available in the locality of either the sender of the addressee, service
may be done by ordinary mail. (Italics supplied)

The records disclose that Joycelyn received the CA’s August 30, 2002 Decision on September 9, 2002. On
September 17, she filed before this Court a Motion for a 30-day extension of time to file a petition for review on
certiorari. This Motion was granted,11 and the deadline was thus extended until October 24, 2002.

A further perusal of the records reveals that copies of the Petition were sent to this Court and to the parties by
registered mail12 at the Biñan, Laguna Post Office on October 24, 2002. This is the date clearly stamped on the face
of the envelope13 and attested to in the Affidavit of Service14 accompanying the Petition. Petitioner Joycelyn
explained that the filing and the service had been made by registered mail due to the "volume of delivery
assignments and the lack of a regular messenger."15

The Petition is, therefore, considered to have been filed on October 24, 2002, its mailing date as shown by the post
office stamp on the envelope. The last sentence of Section 3 of Rule 13 of the Rules provides that the date of filing
may be shown either by the post office stamp on the envelope or by the registry receipt. Proof of its filing, on the
other hand, is shown by the existence of the petition in the record, pursuant to Section 12 of Rule 13.16

The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows the date November 2, 2002, merely
discloses when the mail matters received by the Biñan Post Office on October 24, 2002, were dispatched or sent to
the Central Mail Exchange for distribution to their final destinations.17 The Registry Bill does not reflect the actual
mailing date. Instead, it is the postal Registration Book18 that shows the list of mail matters that have been registered
for mailing on a particular day, along with the names of the senders and the addressees. That book shows that
Registry Receipt Nos. 2832-A and 2832-B, pertaining to the mailed matters for the Supreme Court, were issued on
October 24, 2002.

Prematurity of the Petition

As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out that his Urgent Motion for Partial
Reconsideration19 was still awaiting resolution by the CA when she filed her Petition before this Court on October
24, 2002. The CA ruled on the Motion only on November 27, 2002.

The records show, however, that the Motion of Crisanto was mailed only on September 12, 2002. Thus, on
September 17, 2002, when Joycelyn filed her Motion for Extension of Time to file her Petition for Review, she might
have still been unaware that he had moved for a partial reconsideration of the August 20, 2002 CA Decision.
Nevertheless, upon being notified of the filing of his Motion, she should have manifested that fact to this Court.

With the CA’s final denial of Crisanto’s Motion for Reconsideration, Joycelyn’s lapse may be excused in the interest
of resolving the substantive issues raised by the parties.

First Issue:
Grave Abuse of Discretion

In GR No. 156254, Crisanto submits that the CA gravely abused its discretion when it ordered the trial court judge to
"consider, hear and resolve the motion to lift the award of custody pendente lite" without any proper motion by
Joycelyn and after the April 3, 2002 Order of the trial court had become final and executory. The CA is also charged
with grave abuse of discretion for denying his Motion for Partial Reconsideration without stating the reasons for the
denial, allegedly in contravention of Section 1 of Rule 36 of the Rules of Court.

The Order to Hear the Motion to Lift the Award of Custody Pendente Lite Proper

To begin with, grave abuse of discretion is committed when an act is 1) done contrary to the Constitution, the law or
jurisprudence;20 or 2) executed "whimsically or arbitrarily" in a manner "so patent and so gross as to amount to an
evasion of a positive duty, or to a virtual refusal to perform the duty enjoined."21 What constitutes grave abuse of
discretion is such capricious and arbitrary exercise of judgment as that which is equivalent, in the eyes of the law, to
lack of jurisdiction.22

On the basis of these criteria, we hold that the CA did not commit grave abuse of discretion.

First, there can be no question that a court of competent jurisdiction is vested with the authority to resolve even
unassigned issues. It can do so when such a step is indispensable or necessary to a just resolution of issues raised
in a particular pleading or when the unassigned issues are inextricably linked or germane to those that have been
pleaded.23 This truism applies with more force when the relief granted has been specifically prayed for, as in this
case.

Explicit in the Motion to Dismiss24 filed by Joycelyn before the RTC is her ancillary prayer for the court to lift and set
aside its April 3, 2002 Order awarding to Crisanto custody pendente lite of their minor son. Indeed, the necessary
consequence of granting her Motion to Dismiss would have been the setting aside of the Order awarding Crisanto
provisional custody of the child. Besides, even if the Motion to Dismiss was denied -- as indeed it was -- the trial
court, in its discretion and if warranted, could still have granted the ancillary prayer as an alternative relief.

Parenthetically, Joycelyn’s Motion need not have been verified because of the provisional nature of the April 3, 2002
Order. Under Rule 3825 of the Rules of Court, verification is required only when relief is sought from a final and
executory Order. Accordingly, the court may set aside its own orders even without a proper motion, whenever such
action is warranted by the Rules and to prevent a miscarriage of justice.26

Denial of the Motion for Reconsideration Proper

Second, the requirement in Section 1 of Rule 36 (for judges to state clearly and distinctly the reasons for their
dispositions) refers only to decisions and final orders on the merits, not to those resolving incidental matters.27 The
provision reads:

"SECTION 1. Rendition of judgments and final orders. – A judgment or final order determining the merits of the
case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the
law on which it is based, signed by him, and filed with the clerk of court." (Italics supplied)

Here, the declaration of the nullity of marriage is the subject of the main case, in which the issue of
custody pendente lite is an incident. That custody and support of common children may be ruled upon by the court
while the action is pending is provided in Article 49 of the Family Code, which we quote :

"Art. 49. During the pendency of the action28 and in the absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the support of the spouses and the custody and support of their
common children. x x x."

Clearly then, the requirement cited by Crisanto is inapplicable. In any event, in its questioned Resolution, the CA
clearly stated that it "could not find any cogent reason" to reconsider and set aside the assailed portion of its August
30, 2002 Decision.

The April 3, 2002 Order Not Final and Executory

Third, the award of temporary custody, as the term implies, is provisional and subject to change as circumstances
may warrant. In this connection, there is no need for a lengthy discussion of the alleged finality of the April 3, 2002
RTC Order granting Crisanto temporary custody of his son. For that matter, even the award of child custody after a
judgment on a marriage annulment is not permanent; it may be reexamined and adjusted if and when the parent
who was given custody becomes unfit.29

Second Issue:

Custody of a Minor Child

When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle is often
over the custody of their children. The Court is now tasked to settle the opposing claims of the parents for
custody pendente lite of their child who is less than seven years old.30 On the one hand, the mother insists that,
based on Article 213 of the Family Code, her minor child cannot be separated from her. On the other hand, the
father argues that she is "unfit" to take care of their son; hence, for "compelling reasons," he must be awarded
custody of the child.

Article 213 of the Family Code31 provides:

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

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to
order otherwise."

This Court has held that when the parents are separated, legally or otherwise, the foregoing provision governs the
custody of their child.32 Article 213 takes its bearing from Article 363 of the Civil Code, which reads:

"Art. 363. In all questions on the care, custody, education and property of children, the 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."(Italics supplied)

The general rule that children under seven years of age shall not be separated from their mother finds its raison
d’etre in the basic need of minor children for their mother’s loving care.33 In explaining the rationale for Article 363 of
the Civil Code, the Code Commission stressed thus:

"The general rule is recommended in order to avoid a tragedy where a mother has seen her baby torn away from
her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception
allowed by the rule has to be for ‘compelling reasons’ for the good of the child: those cases must indeed be rare, if
the mother’s heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and
the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not
have any effect upon the baby who is as yet unable to understand the situation." (Report of the Code Commission,
p. 12)

A similar provision is embodied in Article 8 of the Child and Youth Welfare Code (Presidential Decree No.
603).34 Article 17 of the same Code is even more explicit in providing for the child’s custody under various
circumstances, specifically in case the parents are separated. It clearly mandates that "no child under five years of
age shall be separated from his mother, unless the court finds compelling reasons to do so." The provision is
reproduced in its entirety as follows:

"Art. 17. Joint Parental Authority. – The father and the mother shall exercise jointly just and reasonable parental
authority and responsibility over their legitimate or adopted children. In case of disagreement, the father’s decision
shall prevail unless there is a judicial order to the contrary.

"In case of the absence or death of either parent, the present or surviving parent shall continue to exercise parental
authority over such children, unless in case of the surviving parent’s remarriage, the court for justifiable reasons,
appoints another person as guardian.

"In case of separation of his parents, no child under five years of age shall be separated from his mother, unless the
court finds compelling reasons to do so." (Italics supplied)

The above mandates reverberate in Articles 211, 212 and 213 of the Family Code. It is unmistakable from the
language of these provisions that Article 21135 was derived from the first sentence of the aforequoted Article 17;
Article 212,36 from the second sentence; and Article 213,37 save for a few additions, from the third sentence. It
should be noted that the Family Code has reverted to the Civil Code provision mandating that a child
below seven years should not be separated from the mother.38

Mandatory Character of Article 213 of the Family Code

In Lacson v. San Jose-Lacson,39 the Court held that the use of "shall" in Article 363 of the Civil Code and the
observations made by the Code Commission underscore the mandatory character of the word.40 Holding in that
case that it was a mistake to deprive the mother of custody of her two children, both then below the age of seven,
the Court stressed:

"[Article 363] prohibits in no uncertain terms the separation of a mother and her child below seven years, unless
such a separation is grounded upon compelling reasons as determined by a court."41
In like manner, the word "shall" in Article 213 of the Family Code and Section 642 of Rule 99 of the Rules of Court
has been held to connote a mandatory character.43 Article 213 and Rule 99 similarly contemplate a situation in
which the parents of the minor are married to each other, but are separated by virtue of either a decree of legal
separation or a de facto separation.44 In the present case, the parents are living separately as a matter of fact.

The Best Interest of the Child a Primary Consideration

The Convention on the Rights of the Child provides that "[i]n all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration."45

The principle of "best interest of the child" pervades Philippine cases involving adoption, guardianship, support,
personal status, minors in conflict with the law, and child custody. In these cases, it has long been recognized that in
choosing the parent to whom custody is given, the welfare of the minors should always be the paramount
consideration.46 Courts are mandated to take into account all relevant circumstances that would have a bearing on
the children’s well-being and development. Aside from the material resources and the moral and social situations of
each parent, other factors may also be considered to ascertain which one has the capability to attend to the
physical, educational, social and moral welfare of the children.47 Among these factors are the previous care and
devotion shown by each of the parents; their religious background, moral uprightness, home environment and time
availability; as well as the children’s emotional and educational needs

Tender-Age Presumption

As pointed out earlier, there is express statutory recognition that, as a general rule, a mother is to be preferred in
awarding custody of children under the age of seven. The caveat in Article 213 of the Family Code cannot be
ignored, except when the court finds cause to order otherwise.48

The so-called "tender-age presumption" under Article 213 of the Family Code may be overcome only
by compelling evidence of the mother’s unfitness. The mother has been declared unsuitable to have custody of her
children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease.49

Here, Crisanto cites immorality due to alleged lesbian relations as the compelling reason to deprive Joycelyn of
custody. It has indeed been held that under certain circumstances, the mother’s immoral conduct may constitute a
compelling reason to deprive her of custody.50

But sexual preference or moral laxity alone does not prove parental neglect or incompetence. Not even the fact that
a mother is a prostitute or has been unfaithful to her husband would render her unfit to have custody of her minor
child.51 To deprive the wife of custody, the husband must clearly establish that her moral lapses have had an
adverse effect on the welfare of the child or have distracted the offending spouse from exercising proper parental
care.52

To this effect did the Court rule in Unson III v. Navarro,53 wherein the mother was openly living with her brother-in-
law, the child’s uncle. Under that circumstance, the Court deemed it in the nine-year-old child’s best interest to free
her "from the obviously unwholesome, not to say immoral influence, that the situation in which the mother ha[d]
placed herself might create in [the child’s] moral and social outlook."54

In Espiritu v. CA,55 the Court took into account psychological and case study reports on the child, whose feelings of
insecurity and anxiety had been traced to strong conflicts with the mother. To the psychologist the child revealed,
among other things, that the latter was disturbed upon seeing "her mother hugging and kissing a ‘bad’ man who
lived in their house and worked for her father." The Court held that the "illicit or immoral activities of the mother had
already caused the child emotional disturbances, personality conflicts, and exposure to conflicting moral values x x
x."

Based on the above jurisprudence, it is therefore not enough for Crisanto to show merely that Joycelyn was a
lesbian. He must also demonstrate that she carried on her purported relationship with a person of the same sex in
the presence of their son or under circumstances not conducive to the child’s proper moral development. Such a
fact has not been shown here. There is no evidence that the son was exposed to the mother’s alleged sexual
proclivities or that his proper moral and psychological development suffered as a result.

Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort, ruled in her May 17, 2002 Order that
she had found the "reason stated by [Crisanto] not to be compelling"56 as to suffice as a ground for separating the
child from his mother. The judge made this conclusion after personally observing the two of them, both in the
courtroom and in her chambers on April 16, 2002, and after a chance to talk to the boy and to observe him firsthand.
This assessment, based on her unique opportunity to witness the child’s behavior in the presence of each parent,
should carry more weight than a mere reliance on the records. All told, no compelling reason has been adduced to
wrench the child from the mother’s custody.

No Grant of Habeas Corpus and Preliminary Injunction

As we have ruled that Joycelyn has the right to keep her minor son in her custody, the writ of habeas corpus and the
preliminary mandatory injunction prayed for by Crisanto have no leg to stand on. A writ of habeas corpus may be
issued only when the "rightful custody of any person is withheld from the person entitled thereto,"57 a situation that
does not apply here.

On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be granted, because Crisanto’s
right to custody has not been proven to be "clear and unmistakable."58 Unlike an ordinary preliminary injunction, the
writ of preliminary mandatory injunction is more cautiously regarded, since the latter requires the performance of a
particular act that tends to go beyond the maintenance of the status quo.59 Besides, such an injunction would serve
no purpose, now that the case has been decided on its merits.60

WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision of the Court of Appeals is
hereby REVERSED and the May 17, 2002 Regional Trial Court Order REINSTATED. The Petition in GR No.
156254 is DISMISSED. Costs against Petitioner Crisanto Rafaelito Gualberto V.

20) Dacasin vs Dacasin, GR No. 168785, 5 Feb 2010

G.R. No. 168785 February 5, 2010

HERALD BLACK DACASIN, Petitioner,

vs.
SHARON DEL MUNDO DACASIN, Respondent.

DECISION

CARPIO, J.:

The Case

For review1 is a dismissal2 of a suit to enforce a post-foreign divorce child custody agreement for lack of jurisdiction.

The Facts

Petitioner Herald Dacasin (petitioner), American, and respondent Sharon Del Mundo Dacasin (respondent), Filipino,
were married in Manila in April 1994. They have one daughter, Stephanie, born on 21 September 1995. In June
1999, respondent sought and obtained from the Circuit Court, 19th Judicial Circuit, Lake County, Illinois (Illinois
court) a divorce decree against petitioner.3 In its ruling, the Illinois court dissolved the marriage of petitioner and
respondent, awarded to respondent sole custody of Stephanie and retained jurisdiction over the case for
enforcement purposes.

On 28 January 2002, petitioner and respondent executed in Manila a contract (Agreement4 ) for the joint custody of
Stephanie. The parties chose Philippine courts as exclusive forum to adjudicate disputes arising from the
Agreement. Respondent undertook to obtain from the Illinois court an order "relinquishing" jurisdiction to Philippine
courts.

In 2004, petitioner sued respondent in the Regional Trial Court of Makati City, Branch 60 (trial court) to enforce the
Agreement. Petitioner alleged that in violation of the Agreement, respondent exercised sole custody over Stephanie.

Respondent sought the dismissal of the complaint for, among others, lack of jurisdiction because of the Illinois
court’s retention of jurisdiction to enforce the divorce decree.

The Ruling of the Trial Court

In its Order dated 1 March 2005, the trial court sustained respondent’s motion and dismissed the case for lack of
jurisdiction. The trial court held that: (1) it is precluded from taking cognizance over the suit considering the Illinois
court’s retention of jurisdiction to enforce its divorce decree, including its order awarding sole custody of Stephanie
to respondent; (2) the divorce decree is binding on petitioner following the "nationality rule" prevailing in this
jurisdiction;5 and (3) the Agreement is void for contravening Article 2035, paragraph 5 of the Civil Code6 prohibiting
compromise agreements on jurisdiction.7

Petitioner sought reconsideration, raising the new argument that the divorce decree obtained by respondent is void.
Thus, the divorce decree is no bar to the trial court’s exercise of jurisdiction over the case.
In its Order dated 23 June 2005, the trial court denied reconsideration, holding that unlike in the case of respondent,
the divorce decree is binding on petitioner under the laws of his nationality.

Hence, this petition.

Petitioner submits the following alternative theories for the validity of the Agreement to justify its enforcement by the
trial court: (1) the Agreement novated the valid divorce decree, modifying the terms of child custody from sole
(maternal) to joint;8 or (2) the Agreement is independent of the divorce decree obtained by respondent.

The Issue

The question is whether the trial court has jurisdiction to take cognizance of petitioner’s suit and enforce the
Agreement on the joint custody of the parties’ child.

The Ruling of the Court

The trial court has jurisdiction to entertain petitioner’s suit but not to enforce the Agreement which is void. However,
factual and equity considerations militate against the dismissal of petitioner’s suit and call for the remand of the case
to settle the question of Stephanie’s custody.

Regional Trial Courts Vested With Jurisdiction

to Enforce Contracts

Subject matter jurisdiction is conferred by law. At the time petitioner filed his suit in the trial court, statutory law vests
on Regional Trial Courts exclusive original jurisdiction over civil actions incapable of pecuniary estimation.9 An
action for specific performance, such as petitioner’s suit to enforce the Agreement on joint child custody, belongs to
this species of actions.10 Thus, jurisdiction-wise, petitioner went to the right court.

Indeed, the trial court’s refusal to entertain petitioner’s suit was grounded not on its lack of power to do so but on its
thinking that the Illinois court’s divorce decree stripped it of jurisdiction. This conclusion is unfounded. What the
Illinois court retained was "jurisdiction x x x for the purpose of enforcing all and sundry the various provisions of [its]
Judgment for Dissolution."11 Petitioner’s suit seeks the enforcement not of the "various provisions" of the divorce
decree but of the post-divorce Agreement on joint child custody. Thus, the action lies beyond the zone of the Illinois
court’s so-called "retained jurisdiction."

Petitioner’s Suit Lacks Cause of Action

The foregoing notwithstanding, the trial court cannot enforce the Agreement which is contrary to law.

In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on
stipulations contrary to law, morals, good customs, public order, or public policy.12 Otherwise, the contract is denied
legal existence, deemed "inexistent and void from the beginning."13 For lack of relevant stipulation in the Agreement,
these and other ancillary Philippine substantive law serve as default parameters to test the validity of the
Agreement’s joint child custody stipulations.14

At the time the parties executed the Agreement on 28 January 2002, two facts are undisputed: (1) Stephanie was
under seven years old (having been born on 21 September 1995); and (2) petitioner and respondent were no longer
married under the laws of the United States because of the divorce decree. The relevant Philippine law on child
custody for spouses separated in fact or in law15 (under the second paragraph of Article 213 of the Family Code) is
also undisputed: "no child under seven years of age shall be separated from the mother x x x."16 (This statutory
awarding of sole parental custody17 to the mother is mandatory,18 grounded on sound policy consideration,19 subject
only to a narrow exception not alleged to obtain here.20 ) Clearly then, the Agreement’s object to establish a post-
divorce joint custody regime between respondent and petitioner over their child under seven years old contravenes
Philippine law.

The Agreement is not only void ab initio for being contrary to law, it has also been repudiated by the mother when
she refused to allow joint custody by the father. The Agreement would be valid if the spouses have not divorced or
separated because the law provides for joint parental authority when spouses live together.21 However, upon
separation of the spouses, the mother takes sole custody under the law if the child is below seven years old and any
agreement to the contrary is void. Thus, the law suspends the joint custody regime for (1) children under seven of
(2) separated or divorced spouses. Simply put, for a child within this age bracket (and for commonsensical reasons),
the law decides for the separated or divorced parents how best to take care of the child and that is to give custody to
the separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code on the
maternal custody of children below seven years anymore than they can privately agree that a mother who is
unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole
custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive
maternal custody regime under the second paragraph of Article 213.22
It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to judicial custodial
agreements based on its text that "No child under seven years of age shall be separated from the mother, unless
the court finds compelling reasons to order otherwise." To limit this provision’s enforceability to court sanctioned
agreements while placing private agreements beyond its reach is to sanction a double standard in custody
regulation of children under seven years old of separated parents. This effectively empowers separated parents, by
the simple expedient of avoiding the courts, to subvert a legislative policy vesting to the separated mother sole
custody of her children under seven years of age "to avoid a tragedy where a mother has seen her baby torn away
from her."23 This ignores the legislative basis that "[n]o man can sound the deep sorrows of a mother who is
deprived of her child of tender age."24

It could very well be that Article 213’s bias favoring one separated parent (mother) over the other (father)
encourages paternal neglect, presumes incapacity for joint parental custody, robs the parents of custodial options,
or hijacks decision-making between the separated parents.25 However, these are objections which question the
law’s wisdom not its validity or uniform enforceability. The forum to air and remedy these grievances is the
legislature, not this Court. At any rate, the rule’s seeming harshness or undesirability is tempered by ancillary
agreements the separated parents may wish to enter such as granting the father visitation and other privileges.
These arrangements are not inconsistent with the regime of sole maternal custody under the second paragraph of
Article 213 which merely grants to the mother final authority on the care and custody of the minor under seven
years of age, in case of disagreements. 1avvphi 1

Further, the imposed custodial regime under the second paragraph of Article 213 is limited in duration, lasting only
until the child’s seventh year. From the eighth year until the child’s emancipation, the law gives the separated
parents freedom, subject to the usual contractual limitations, to agree on custody regimes they see fit to adopt.
Lastly, even supposing that petitioner and respondent are not barred from entering into the Agreement for the joint
custody of Stephanie, respondent repudiated the Agreement by asserting sole custody over Stephanie.
Respondent’s act effectively brought the parties back to ambit of the default custodial regime in the second
paragraph of Article 213 of the Family Code vesting on respondent sole custody of Stephanie.

Nor can petitioner rely on the divorce decree’s alleged invalidity - not because the Illinois court lacked jurisdiction or
that the divorce decree violated Illinois law, but because the divorce was obtained by his Filipino spouse26 - to
support the Agreement’s enforceability. The argument that foreigners in this jurisdiction are not bound by foreign
divorce decrees is hardly novel. Van Dorn v. Romillo27 settled the matter by holding that an alien spouse of a Filipino
is bound by a divorce decree obtained abroad.28 There, we dismissed the alien divorcee’s Philippine suit for
accounting of alleged post-divorce conjugal property and rejected his submission that the foreign divorce (obtained
by the Filipino spouse) is not valid in this jurisdiction in this wise:

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The
decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue
petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not
valid and binding in this jurisdiction, the same being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces the same being considered contrary to our concept of public policy
and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided
they are valid according to their national law. In this case, the divorce in Nevada released private respondent from
the marriage from the standards of American law, under which divorce dissolves the marriage.

xxxx

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no
standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets. As he is
bound by the Decision of his own country’s Court, which validly exercised jurisdiction over him, and whose decision
he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the
alleged conjugal property. (Emphasis supplied)

We reiterated Van Dorn in Pilapil v. Ibay-Somera29 to dismiss criminal complaints for adultery filed by the alien
divorcee (who obtained the foreign divorce decree) against his former Filipino spouse because he no longer
qualified as "offended spouse" entitled to file the complaints under Philippine procedural rules. Thus, it should be
clear by now that a foreign divorce decree carries as much validity against the alien divorcee in this jurisdiction as it
does in the jurisdiction of the alien’s nationality, irrespective of who obtained the divorce.

The Facts of the Case and Nature of Proceeding

Justify Remand

Instead of ordering the dismissal of petitioner’s suit, the logical end to its lack of cause of action, we remand the
case for the trial court to settle the question of Stephanie’s custody. Stephanie is now nearly 15 years old, thus
removing the case outside of the ambit of the mandatory maternal custody regime under Article 213 and bringing it
within coverage of the default standard on child custody proceedings – the best interest of the child.30 As the
question of custody is already before the trial court and the child’s parents, by executing the Agreement, initially
showed inclination to share custody, it is in the interest of swift and efficient rendition of justice to allow the parties to
take advantage of the court’s jurisdiction, submit evidence on the custodial arrangement best serving Stephanie’s
interest, and let the trial court render judgment. This disposition is consistent with the settled doctrine that in child
custody proceedings, equity may be invoked to serve the child’s best interest.31

WHEREFORE, we REVERSE the Orders dated 1 March 2005 and 23 June 2005 of the Regional Trial Court of
Makati City, Branch 60. The case is REMANDED for further proceedings consistent with this ruling.

IX. Support; 194-208; 305, 2164, 2164-66 NCC

21) Dolina vs Vallecera, GR No. 182367, December 15, 2010

G.R. No. 182367 December 15, 2010

CHERRYL B. DOLINA, Petitioner,

vs.
GLENN D. VALLECERA, Respondent.

DECISION

ABAD, J.:

This case is about a mother’s claim for temporary support of an unacknowledged child, which she sought in an
action for the issuance of a temporary protection order that she brought against the supposed father.

The Facts and the Case

In February 2008 petitioner Cherryl B. Dolina filed a petition with prayer for the issuance of a temporary protection
order against respondent Glenn D. Vallecera before the Regional Trial Court (RTC) of Tacloban City in P.O. 2008-
02-071 for alleged woman and child abuse under Republic Act (R.A.) 9262.2 In filling out the blanks in the pro-
forma complaint, Dolina added a handwritten prayer for financial support3 from Vallecera for their supposed child.
She based her prayer on the latter’s Certificate of Live Birth which listed Vallecera as the child’s father. The petition
also asked the RTC to order Philippine Airlines, Vallecera’s employer, to withhold from his pay such amount of
support as the RTC may deem appropriate.

Vallecera opposed the petition. He claimed that Dolina’s petition was essentially one for financial support rather than
for protection against woman and child abuses; that he was not the child’s father; that the signature appearing on
the child’s Certificate of Live Birth is not his; that the petition is a harassment suit intended to force him to
acknowledge the child as his and give it financial support; and that Vallecera has never lived nor has been living
with Dolina, rendering unnecessary the issuance of a protection order against him.

On March 13, 20084 the RTC dismissed the petition after hearing since no prior judgment exists establishing the
filiation of Dolina’s son and granting him the right to support as basis for an order to compel the giving of such
support. Dolina filed a motion for reconsideration but the RTC denied it in its April 4, 2008 Order,5 with an
admonition that she first file a petition for compulsory recognition of her child as a prerequisite for support.
Unsatisfied, Dolina filed the present petition for review directly with this Court.

The Issue Presented

The sole issue presented in this case is whether or not the RTC correctly dismissed Dolina’s action for temporary
protection and denied her application for temporary support for her child.

The Court’s Ruling

Dolina evidently filed the wrong action to obtain support for her child. The object of R.A. 9262 under which she filed
the case is the protection and safety of women and children who are victims of abuse or violence.6 Although the
issuance of a protection order against the respondent in the case can include the grant of legal support for the wife
and the child, this assumes that both are entitled to a protection order and to legal support.

Dolina of course alleged that Vallecera had been abusing her and her child. But it became apparent to the RTC
1avv phil

upon hearing that this was not the case since, contrary to her claim, neither she nor her child ever lived with
Vallecera. As it turned out, the true object of her action was to get financial support from Vallecera for her child, her
claim being that he is the father. He of course vigorously denied this.

To be entitled to legal support, petitioner must, in proper action, first establish the filiation of the child, if the same is
not admitted or acknowledged. Since Dolina’s demand for support for her son is based on her claim that he is
Vallecera’s illegitimate child, the latter is not entitled to such support if he had not acknowledged him, until Dolina
shall have proved his relation to him.7 The child’s remedy is to file through her mother a judicial action against
Vallecera for compulsory recognition.8 If filiation is beyond question, support follows as matter of obligation.9 In
short, illegitimate children are entitled to support and successional rights but their filiation must be duly proved.10

Dolina’s remedy is to file for the benefit of her child an action against Vallecera for compulsory recognition in order
to establish filiation and then demand support. Alternatively, she may directly file an action for support, where the
issue of compulsory recognition may be integrated and resolved.11

It must be observed, however, that the RTC should not have dismissed the entire case based solely on the lack of
any judicial declaration of filiation between Vallecera and Dolina’s child since the main issue remains to be the
alleged violence committed by Vallecera against Dolina and her child and whether they are entitled to protection.
But of course, this matter is already water under the bridge since Dolina failed to raise this error on review. This
omission lends credence to the conclusion of the RTC that the real purpose of the petition is to obtain support from
Vallecera.

While the Court is mindful of the best interests of the child in cases involving paternity and filiation, it is just as aware
of the disturbance that unfounded paternity suits cause to the privacy and peace of the putative father’s legitimate
family.12 Vallecera disowns Dolina’s child and denies having a hand in the preparation and signing of its certificate of
birth. This issue has to be resolved in an appropriate case.

ACCORDINGLY, the Court DENIES the petition and AFFIRMS the Regional Trial Court of Tacloban City’s Order
dated March 13, 2008 that dismissed petitioner Cherryl B. Dolina’s action in P.O. 2008-02-07, and Order dated April
4, 2008, denying her motion for reconsideration dated March 28, 2008.

22) Valino vs Adriano, GR No. 182894, 22 Apr 2014

G.R. No. 182894 April 22, 2014

FE FLORO VALINO, Petitioner,

vs.
ROSARIO D. ADRIANO, FLORANTE D. ADRIANO, RUBEN D. ADRIANO, MARIA TERESA ADRIANO
ONGOCO, VICTORIA ADRIANO BAYONA, and LEAH ANTONETTE D. ADRIANO, Respondents.

DECISION

MENDOZA, J.:

Challenged in this petition is the October 2, 2006 Decision1 and the May 9, 2008 Resolution2 of the Court of Appeals
(CA) in CA-G.R. CV No. 61613, which reversed the October 1, 1998 Decision3 of the Regional Trial Court, Branch
77, Quezon City (RTC) which ruled that petitioner Fe Floro Valino (Valino) was entitled to the remains of the
decedent.

The Facts:

Atty. Adriano Adriano (Atty. Adriano), a partner in the Pelaez Adriano and Gregorio Law Office, married respondent
Rosario Adriano (Rosario) on November 15, 1955. The couple had two (2) sons, Florante and Ruben Adriano; three
(3) daughters, Rosario, Victoria and Maria Teresa; and one (1) adopted daughter, Leah Antonette.

The marriage of Atty. Adriano and Rosario, however, turned sour and they were eventually separated-in-fact. Years
later, Atty. Adriano courted Valino, one of his clients, until they decided to live together as husband and wife.
Despite such arrangement, he continued to provide financial support to Rosario and their children (respondents).

In 1992, Atty. Adriano died of acute emphysema. At that time, Rosario was in the United States spending Christmas
with her children. As none of the family members was around, Valino took it upon herself to shoulder the funeral and
burial expenses for Atty. Adriano. When Rosario learned about the death of her husband, she immediately called
Valino and requested that she delay the interment for a few days but her request was not heeded. The remains of
Atty. Adriano were then interred at the mausoleum of the family of Valino at the Manila Memorial Park. Respondents
were not able to attend the interment.

Claiming that they were deprived of the chance to view the remains of Atty. Adriano before he was buried and that
his burial at the Manila Memorial Park was contrary to his wishes, respondents commenced suit against Valino
praying that they be indemnified for actual, moral and exemplary damages and attorney’s fees and that the remains
of Atty. Adriano be exhumed and transferred to the family plot at the Holy Cross Memorial Cemetery in Novaliches,
Quezon City.

In her defense, Valino countered that Rosario and Atty. Adriano had been separated for more than twenty (20) years
before he courted her. Valino claimed that throughout the time they were together, he had introduced her to his
friends and associates as his wife. Although they were living together, Valino admitted that he never forgot his
obligation to support the respondents. She contended that, unlike Rosario, she took good care of Atty. Adriano and
paid for all his medical expenses when he got seriously ill. She also claimed that despite knowing that Atty. Adriano
was in a coma and dying, Rosario still left for the United States. According to Valino, it was Atty. Adriano’s last wish
that his remains be interred in the Valino family mausoleum at the Manila Memorial Park.

Valino further claimed that she had suffered damages as result of the suit brought by respondents. Thus, she
prayed that she be awarded moral and exemplary damages and attorney’s fees.

Decision of the RTC

The RTC dismissed the complaint of respondents for lack of merit as well as the counterclaim of Valino after it found
them to have not been sufficiently proven.

The RTC opined that because Valino lived with Atty. Adriano for a very long time, she knew very well that it was his
wish to be buried at the Manila Memorial Park. Taking into consideration the fact that Rosario left for the United
States at the time that he was fighting his illness, the trial court concluded that Rosario did not show love and care
for him. Considering also that it was Valino who performed all the duties and responsibilities of a wife, the RTC
wrote that it could be reasonably presumed that he wished to be buried in the Valino family mausoleum.4

In disposing of the case, the RTC noted that the exhumation and the transfer of the body of Atty. Adriano to the
Adriano family plot at the Holy Cross Memorial Cemetery in Novaliches, Quezon City, would not serve any useful
purpose and so he should be spared and respected.5 Decision of the CA

On appeal, the CA reversed and set aside the RTC decision and directed Valino to have the remains of Atty.
Adriano exhumed at the expense of respondents. It likewise directed respondents, at their expense, to transfer,
transport and inter the remains of the decedent in the family plot at the Holy Cross Memorial Park in Novaliches,
Quezon City.

In reaching said determination, the CA explained that Rosario, being the legal wife, was entitled to the custody of
the remains of her deceased husband. Citing Article 305 of the New Civil Code in relation to Article 199 of the
Family Code, it was the considered view of the appellate court that the law gave the surviving spouse not only the
duty but also the right to make arrangements for the funeral of her husband. For the CA, Rosario was still entitled to
such right on the ground of her subsisting marriage with Atty. Adriano at the time of the latter’s death,
notwithstanding their 30-year separation in fact.

Like the RTC, however, the CA did not award damages in favor of respondents due to the good intentions shown by
Valino in giving the deceased a decent burial when the wife and the family were in the United States. All other
claims for damages were similarly dismissed.

The Sole Issue

The lone legal issue in this petition is who between Rosario and Valino is entitled to the remains of Atty. Adriano.

The Court’s Ruling

Article 305 of the Civil Code, in relation to what is now Article 1996 of the Family Code, specifies the persons who
have the right and duty to make funeral arrangements for the deceased. Thus:

Art. 305. The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the
order established for support, under Article 294. In case of descendants of the same degree, or of brothers and
sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. [Emphases
supplied]

Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following
persons in the order herein provided:

(1) The spouse;

(2) The descendants in the nearest degree;

(3) The ascendants in the nearest degree; and

(4) The brothers and sisters. (294a)

[Emphasis supplied]

Further, Article 308 of the Civil Code provides:

Art. 308. No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons
mentioned in Articles 294 and 305. [Emphases supplied]

In this connection, Section 1103 of the Revised Administrative Code provides:

Section 1103. Persons charged with the duty of burial. – The immediate duty of burying the body of a deceased
person, regardless of the ultimate liability for the expense thereof, shall devolve upon the persons herein below
specified:

(a) If the deceased was a married man or woman, the duty of the burial shall devolve upon the surviving spouse if
he or she possesses sufficient means to pay the necessary expenses;

x x x x. [Emphases supplied]

From the aforecited provisions, it is undeniable that the law simply confines the right and duty to make funeral
arrangements to the members of the family to the exclusion of one’s common law partner. In Tomas Eugenio, Sr. v.
Velez,7 a petition for habeas corpus was filed by the brothers and sisters of the late Vitaliana Vargas against her
lover, Tomas Eugenio, Sr., alleging that the latter forcibly took her and confined her in his residence. It appearing
that she already died of heart failure due to toxemia of pregnancy, Tomas Eugenio, Sr. sought the dismissal of the
petition for lack of jurisdiction and claimed the right to bury the deceased, as the common-law husband.

In its decision, the Court resolved that the trial court continued to have jurisdiction over the case notwithstanding the
death of Vitaliana Vargas. As to the claim of Tomas Eugenio, Sr. that he should be considered a "spouse" having
the right and duty to make funeral arrangements for his common-law wife, the Court ruled:

x x x Indeed, Philippine Law does not recognize common law marriages. A man and woman not legally married who
cohabit for many years as husband and wife, who represent themselves to the public as husband and wife, and who
are reputed to be husband and wife in the community where they live may be considered legally married in common
law jurisdictions but not in the Philippines.

While it is true that our laws do not just brush aside the fact that such relationships are present in our society, and
that they produce a community of properties and interests which is governed by law, authority exists in case law to
the effect that such form of co-ownership requires that the man and woman living together must not in any way be
incapacitated to contract marriage. In any case, herein petitioner has a subsisting marriage with another woman, a
legal impediment which disqualified him from even legally marrying Vitaliana. In Santero vs. CFI of Cavite, the
Court, thru Mr. Justice Paras, interpreting Art. 188 of the Civil Code (Support of Surviving Spouse and Children
During Liquidation of Inventoried Property) stated: "Be it noted, however, that with respect to 'spouse,' the same
must be the legitimate 'spouse' (not common-law spouses)."

There is a view that under Article 332 of the Revised Penal Code, the term "spouse" embraces common law relation
for purposes of exemption from criminal liability in cases of theft, swindling and malicious mischief committed or
caused mutually by spouses. The Penal Code article, it is said, makes no distinction between a couple whose
cohabitation is sanctioned by a sacrament or legal tie and another who are husband and wife de facto. But this view
cannot even apply to the facts of the case at bar. We hold that the provisions of the Civil Code, unless expressly
providing to the contrary as in Article 144, when referring to a "spouse" contemplate a lawfully wedded spouse.
Petitioner vis-a-vis Vitaliana was not a lawfully-wedded spouse to her; in fact, he was not legally capacitated to
marry her in her lifetime.8 [Emphases supplied]

As applied to this case, it is clear that the law gives the right and duty to make funeral arrangements to Rosario, she
being the surviving legal wife of Atty. Adriano. The fact that she was living separately from her husband and was in
the United States when he died has no controlling significance. To say that Rosario had, in effect, waived or
renounced, expressly or impliedly, her right and duty to make arrangements for the funeral of her deceased
husband is baseless. The right and duty to make funeral arrangements, like any other right, will not be considered
as having been waived or renounced, except upon clear and satisfactory proof of conduct indicative of a free and
voluntary intent to that end.9 While there was disaffection between Atty. Adriano and Rosario and their children when
he was still alive, the Court also recognizes that human compassion, more often than not, opens the door to mercy
and forgiveness once a family member joins his Creator. Notably, it is an undisputed fact that the respondents
wasted no time in making frantic pleas to Valino for the delay of the interment for a few days so they could attend
the service and view the remains of the deceased. As soon as they came to know about Atty. Adriano’s death in the
morning of December 19, 1992 (December 20, 1992 in the Philippines), the respondents immediately contacted
Valino and the Arlington Memorial Chapel to express their request, but to no avail.

Valino insists that the expressed wishes of the deceased should nevertheless prevail pursuant to Article 307 of the
Civil Code. Valino’s own testimony that it was Atty. Adriano’s wish to be buried in their family plot is being relied
upon heavily. It should be noted, however, that other than Valino’s claim that Atty. Adriano wished to be buried at
the Manila Memorial Park, no other evidence was presented to corroborate such claim. Considering that Rosario
equally claims that Atty. Adriano wished to be buried in the Adriano family plot in Novaliches, it becomes apparent
that the supposed burial wish of Atty. Adriano was unclear and undefinite. Considering this ambiguity as to the true
wishes of the deceased, it is the law that supplies the presumption as to his intent. No presumption can be said to
have been created in Valino’s favor, solely on account of a long-time relationship with Atty. Adriano.

Moreover, it cannot be surmised that just because Rosario was unavailable to bury her husband when she died, she
had already renounced her right to do so. Verily, in the same vein that the right and duty to make funeral
arrangements will not be considered as having been waived or renounced, the right to deprive a legitimate spouse
of her legal right to bury the remains of her deceased husband should not be readily presumed to have been
exercised, except upon clear and satisfactory proof of conduct indicative of a free and voluntary intent of the
deceased to that end. Should there be any doubt as to the true intent of the deceased, the law favors the legitimate
family. Here, Rosario’s keenness to exercise the rights and obligations accorded to the legal wife was even
bolstered by the fact that she was joined by the children in this case.

Even assuming, ex gratia argumenti, that Atty. Adriano truly wished to be buried in the Valino family plot at the
Manila Memorial Park, the result remains the same. Article 307 of the Civil Code provides:

Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such
expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the
funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other
members of the family.

From its terms, it is apparent that Article 307 simply seeks to prescribe the "form of the funeral rites" that should
govern in the burial of the deceased. As thoroughly explained earlier, the right and duty to make funeral
arrangements reside in the persons specified in Article 305 in relation to Article 199 of the Family Code. Even if
Article 307 were to be interpreted to include the place of burial among those on which the wishes of the deceased
shall be followed, Dr. Arturo M. Tolentino (Dr. Tolentino), an eminent authority on civil law, commented that it is
generally recognized that any inferences as to the wishes of the deceased should be established by some form of
testamentary disposition.10 As Article 307 itself provides, the wishes of the deceased must be expressly provided. It
cannot be inferred lightly, such as from the circumstance that Atty. Adriano spent his last remaining days with
Valino. It bears stressing once more that other than Valino’s claim that Atty. Adriano wished to be buried at the
Valino family plot, no other evidence was presented to corroborate it.

At any rate, it should be remembered that the wishes of the decedent with respect to his funeral are not absolute. As
Dr. Tolentino further wrote:

The dispositions or wishes of the deceased in relation to his funeral, must not be contrary to law. They must not
violate the legal and reglamentary provisions concerning funerals and the disposition of the remains, whether as
regards the time and manner of disposition, or the place of burial, or the ceremony to be observed.11 [Emphases
supplied]

In this case, the wishes of the deceased with respect to his funeral are limited by Article 305 of the Civil Code in
relation to Article 199 of the Family Code, and subject the same to those charged with the right and duty to make the
proper arrangements to bury the remains of their loved-one. As aptly explained by the appellate court in its
disquisition:

The testimony of defendant-appellee Fe Floro Valino that it was the oral wish of Atty. Adriano Adriano that he be
interred at the Floro family’s mausoleum at the Manila Memorial Park, must bend to the provisions of the law. Even
assuming arguendo that it was the express wish of the deceased to be interred at the Manila Memorial Park, still,
the law grants the duty and the right to decide what to do with the remains to the wife, in this case, plaintiff-appellant
Rosario D. Adriano, as the surviving spouse, and not to defendant-appellee Fe Floro Valino, who is not even in the
list of those legally preferred, despite the fact that her intentions may have been very commendable. The law does
not even consider the emotional fact that husband and wife had, in this case at bench, been separated-in-fact and
had been living apart for more than 30 years.12

As for Valino’s contention that there is no point in exhuming and transferring the remains of Atty. Adriano, it should
be said that the burial of his remains in a place other than the Adriano family plot in Novaliches runs counter to the
wishes of his family. It does not only violate their right provided by law, but it also disrespects the family because the
remains of the patriarch are buried in the family plot of his live-in partner.

It is generally recognized that the corpse of an individual is outside the commerce of man. However, the law
recognizes that a certain right of possession over the corpse exists, for the purpose of a decent burial, and for the
exclusion of the intrusion by third persons who have no legitimate interest in it. This quasi-property right, arising out
of the duty of those obligated by law to bury their dead, also authorizes them to take possession of the dead body
for purposes of burial to have it remain in its final resting place, or to even transfer it to a proper place where the
memory of the dead may receive the respect of the living. This is a family right. There can be no doubt that persons
having this right may recover the corpse from third persons.13

All this notwithstanding, the Court finds laudable the acts of Valino in taking care of Atty. Adriano during his final
moments and giving him a proper burial. For her sacrifices, it would indeed be unkind to assess actual or moral
damages against her. As aptly explained by the CA:
The trial court found that there was good faith on the part of defendant-appellee Fe Floro Valino, who, having lived
with Atty. Adriano after he was separated in fact from his wife, lovingly and caringly took care of the well-being of
Atty. Adriano Adriano while he was alive and even took care of his remains when he had died.

On the issue of damages, plaintiffs-appellants are not entitled to actual damages. Defendant-appellee Fe Floro
Valino had all the good intentions in giving the remains of Atty. Adriano a decent burial when the wife and family
were all in the United States and could not attend to his burial. Actual damages are those awarded in satisfaction of,
or in recompense for, loss or injury sustained. To be recoverable, they must not only be capable of proof but must
actually be proven with a reasonable degree of certainty. In this case at bench, there was no iota of evidence
presented to justify award of actual damages.

Plaintiffs-appellants are not also entitled to moral and exemplary damages. Moral damages may be recovered only
1âwphi 1

if the plaintiff is able to satisfactorily prove the existence of the factual basis for the damages and its causal
connection with the acts complained of because moral damages although incapable of pecuniary estimation are
designed not to impose a penalty but to compensate for injury sustained and actual damages suffered. No injury
was caused to plaintiffs-appellants, nor was any intended by anyone in this case. Exemplary damages, on the other
hand, may only be awarded if claimant is able to establish his right to moral, temperate, liquidated or compensatory
damages. Unfortunately, neither of the requirements to sustain an award for either of these damages would appear
to have been adequately established by plaintiffs-appellants.

As regards the award of attorney's fees, it is an accepted doctrine that the award thereof as an item of damages is
the exception rather than the rule, and counsel's fees are not to be awarded every time a party wins a suit. The
power of the court to award attorney's fees under Article 2208 of the New Civil Code demands factual, legal and
equitable justification, without which the award is a conclusion without a premise, its basis being improperly left to
speculation and conjecture. In this case, we have searched but found nothing in plaintiffs-appellants' suit that
justifies the award of attorney's fees.14

Finally, it should be said that controversies as to who should make arrangements for the funeral of a deceased have
often aggravated the bereavement of the family and disturbed the proper solemnity which should prevail at every
funeral. It is for the purpose of preventing such controversies that the Code Commission saw it best to include the
provisions on "Funerals."15

WHEREFORE, the petition is DENIED.

23) Del Socorro v Van Wilsem, GR No. 193707, 12/10/ 2014

G.R. No. 193707 December 10, 2014

NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO VAN WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse and set
aside the Orders1 dated February 19, 2010 and September 1, 2010, respectively, of the Regional Trial Court of
Cebu City (RTC-Cebu), which dismissed the criminal case entitled People of the Philippines v. Ernst Johan
Brinkman Van Wilsem, docketed as Criminal Case No. CBU-85503, for violation of Republic Act (R.A.) No. 9262,
otherwise known as the Anti-Violence Against Women and Their Children Act of 2004.

The following facts are culled from the records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted marriage in Holland
on September 25, 1990.2 On January 19, 1994, they were blessed with a son named Roderigo Norjo Van Wilsem,
who at the time of the filing of the instant petition was sixteen (16) years of age.3

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by the appropriate
Court of Holland.4 At that time, their son was only eighteen (18) months old.5 Thereafter, petitioner and her son came
home to the Philippines.6

According to petitioner, respondent made a promise to provide monthly support to their son in the amount of Two
Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or less).7 However, since the arrival of
petitioner and her son in the Philippines, respondent never gave support to the son, Roderigo.8
Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan, Cebu, and since then,
have been residing thereat.9 Respondent and his new wife established a business known as Paree Catering, located
at Barangay Tajao, Municipality of Pinamungahan, Cebu City.10 To date, all the parties, including their son,
Roderigo, are presently living in Cebu City.11

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from respondent. However,
respondent refused to receive the letter.12

Because of the foregoing circumstances, petitioner filed a complaint affidavit with the Provincial Prosecutor of Cebu
City against respondent for violation of Section 5, paragraph E(2) of R.A. No. 9262 for the latter’s unjust refusal to
support his minor child with petitioner.13 Respondent submitted his counter-affidavit thereto, to which petitioner also
submitted her reply-affidavit.14 Thereafter, the Provincial Prosecutor of Cebu City issued a Resolution recommending
the filing of an information for the crime charged against herein respondent.

The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof, states that:

That sometime in the year 1995 and up to the present, more or less, in the Municipality of Minglanilla, Province of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there
wilfully, unlawfully and deliberately deprive, refuse and still continue to deprive his son RODERIGO NORJO VAN
WILSEM, a fourteen (14) year old minor, of financial support legally due him, resulting in economic abuse to the
victim. CONTRARY TO LAW.15

Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order against
respondent.16 Consequently, respondent was arrested and, subsequently, posted bail.17 Petitioner also filed a
Motion/Application of Permanent Protection Order to which respondent filed his Opposition.18 Pending the resolution
thereof, respondent was arraigned.19 Subsequently, without the RTC-Cebu having resolved the application of the
protection order, respondent filed a Motion to Dismiss on the ground of: (1) lack of jurisdiction over the offense
charged; and (2) prescription of the crime charged.20

On February 19, 2010, the RTC-Cebu issued the herein assailed Order,21 dismissing the instant criminal case
against respondent on the ground that the facts charged in the information do not constitute an offense with respect
to the respondent who is an alien, the dispositive part of which states:

WHEREFORE, the Court finds that the facts charged in the information do not constitute an offense with respect to
the accused, he being an alien, and accordingly, orders this case DISMISSED.

The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional liberty is hereby cancelled
(sic) and ordered released.

SO ORDERED.

Cebu City, Philippines, February 19, 2010.22

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent’s obligation to support their
child under Article 19523 of the Family Code, thus, failure to do so makes him liable under R.A. No. 9262 which
"equally applies to all persons in the Philippines who are obliged to support their minor children regardless of the
obligor’s nationality."24

On September 1, 2010, the lower court issued an Order25 denying petitioner’s Motion for Reconsideration and
reiterating its previous ruling. Thus:

x x x The arguments therein presented are basically a rehash of those advanced earlier in the memorandum of the
prosecution. Thus, the court hereby reiterates its ruling that since the accused is a foreign national he is not subject
to our national law (The Family Code) in regard to a parent’s duty and obligation to givesupport to his child.
Consequently, he cannot be charged of violating R.A. 9262 for his alleged failure to support his child. Unless it is
conclusively established that R.A. 9262 applies to a foreigner who fails to give support tohis child, notwithstanding
that he is not bound by our domestic law which mandates a parent to give such support, it is the considered opinion
of the court that no prima faciecase exists against the accused herein, hence, the case should be dismissed.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.

Cebu City, Philippines, September 1, 2010.26

Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor child under Philippine law; and
 2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his unjustified
failure to support his minor child.27

At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the fact that the
same was directly lodged with the Supreme Court, consistent with the ruling in Republic v. Sunvar Realty
Development Corporation,28 which lays down the instances when a ruling of the trial court may be brought on appeal
directly to the Supreme Court without violating the doctrine of hierarchy of courts, to wit:

x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this Court, in case
only questions of law are raised or involved. This latter situation was one that petitioners found themselves in when
they filed the instant Petition to raise only questions of law. In Republic v. Malabanan, the Court clarified the three
modes of appeal from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ of error under Rule 41,
whereby judgment was rendered in a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2)
by a petition for review under Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate
jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court under Rule 45. "The first mode of
appeal is taken to the [Court of Appeals] on questions of fact or mixed questions of fact and law. The second mode
of appeal is brought to the CA on questions of fact, of law, or mixed questions of fact and law. The third mode of
appealis elevated to the Supreme Court only on questions of law." (Emphasis supplied)

There is a question of law when the issue does not call for an examination of the probative value of the evidence
presented or of the truth or falsehood of the facts being admitted, and the doubt concerns the correct application of
law and jurisprudence on the matter. The resolution of the issue must rest solely on what the law provides on the
given set of circumstances.29

Indeed, the issues submitted to us for resolution involve questions of law – the response thereto concerns the
correct application of law and jurisprudence on a given set of facts, i.e.,whether or not a foreign national has an
obligation to support his minor child under Philippine law; and whether or not he can be held criminally liable under
R.A. No. 9262 for his unjustified failure to do so.

It cannot be negated, moreover, that the instant petition highlights a novel question of law concerning the liability of
a foreign national who allegedly commits acts and omissions punishable under special criminal laws, specifically in
relation to family rights and duties. The inimitability of the factual milieu of the present case, therefore, deserves a
definitive ruling by this Court, which will eventually serve as a guidepost for future cases. Furthermore, dismissing
the instant petition and remanding the same to the CA would only waste the time, effort and resources of the courts.
Thus, in the present case, considerations of efficiency and economy in the administration of justice should prevail
over the observance of the hierarchy of courts.

Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless, we do not fully agree
with petitioner’s contentions.

To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that the legal
obligation to support exists.

Petitioner invokes Article 19530 of the Family Code, which provides the parent’s obligation to support his child.
Petitioner contends that notwithstanding the existence of a divorce decree issued in relation to Article 26 of the
Family Code,31 respondent is not excused from complying with his obligation to support his minor child with
petitioner.

On the other hand, respondent contends that there is no sufficient and clear basis presented by petitioner that she,
as well as her minor son, are entitled to financial support.32 Respondent also added that by reason of the Divorce
Decree, he is not obligated topetitioner for any financial support.33

On this point, we agree with respondent that petitioner cannot rely on Article 19534 of the New Civil Code in
demanding support from respondent, who is a foreign citizen, since Article 1535 of the New Civil Code stresses the
principle of nationality. In other words, insofar as Philippine laws are concerned, specifically the provisions of the
Family Code on support, the same only applies to Filipino citizens. By analogy, the same principle applies to
foreigners such that they are governed by their national law with respect to family rights and duties.36

The obligation to give support to a child is a matter that falls under family rights and duties. Since the respondent is
a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject to the laws of his country, not
to Philippinelaw, as to whether he is obliged to give support to his child, as well as the consequences of his failure to
do so.37

In the case of Vivo v. Cloribel,38 the Court held that –

Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of the Philippines,
for that Code cleaves to the principle that family rights and duties are governed by their personal law, i.e.,the laws of
the nation to which they belong even when staying in a foreign country (cf. Civil Code, Article 15).39
It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under Article195 of the
Family Code as a consequence of the Divorce Covenant obtained in Holland. This does not, however, mean that
respondent is not obliged to support petitioner’s son altogether.

In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving
the foreign law.40 In the present case, respondent hastily concludes that being a national of the Netherlands, he is
governed by such laws on the matter of provision of and capacity to support.41 While respondent pleaded the laws of
the Netherlands in advancing his position that he is not obliged to support his son, he never proved the same.

It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not impose upon
the parents the obligation to support their child (either before, during or after the issuance of a divorce decree),
because Llorente v. Court of Appeals,42 has already enunciated that:

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to takejudicial notice
of them. Like any other fact, they must be alleged and proved.43

In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine of processual
presumption shall govern. Under this doctrine, if the foreign law involved is not properly pleaded and proved, our
courts will presume that the foreign law is the same as our local or domestic or internal law.44 Thus, since the law of
the Netherlands as regards the obligation to support has not been properly pleaded and proved in the instant case,
it is presumed to be the same with Philippine law, which enforces the obligation of parents to support their children
and penalizing the non-compliance therewith.

Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that a divorce obtained in a foreign land as well as its
legal effects may be recognized in the Philippines in view of the nationality principle on the matter of status of
persons, the Divorce Covenant presented by respondent does not completely show that he is notliable to give
support to his son after the divorce decree was issued. Emphasis is placed on petitioner’s allegation that under the
second page of the aforesaid covenant, respondent’s obligation to support his child is specifically stated,46 which
was not disputed by respondent.

We likewise agree with petitioner that notwithstanding that the national law of respondent states that parents have
no obligation to support their children or that such obligation is not punishable by law, said law would still not find
applicability,in light of the ruling in Bank of America, NT and SA v. American Realty Corporation,47 to wit:

In the instant case, assuming arguendo that the English Law on the matter were properly pleaded and proved in
accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs.
Sy-Gonzales, said foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy of the forum,
the said foreign law, judgment or order shall not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object public
order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.

The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing
the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the
merits in any one is available as a ground for the dismissal of the others. Moreover, foreign law should not be
applied when its application would work undeniable injustice to the citizens or residents of the forum. To give justice
is the most important function of law; hence, a law, or judgment or contract that is obviously unjust negates the
fundamental principles of Conflict of Laws.48

Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to support his child
nor penalize the noncompliance therewith, such obligation is still duly enforceable in the Philippines because it
would be of great injustice to the child to be denied of financial support when the latter is entitled thereto.

We emphasize, however, that as to petitioner herself, respondent is no longer liable to support his former wife, in
consonance with the ruling in San Luis v. San Luis,49 to wit:

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longerbe considered marriedto
the alien spouse. Further, she should not be required to perform her marital duties and obligations. It held:
To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private
respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just.
Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She
should not be discriminated against in her own country if the ends of justice are to be served. (Emphasis added)50

Based on the foregoing legal precepts, we find that respondent may be made liable under Section 5(e) and (i) of
R.A. No. 9262 for unjustly refusing or failing to give support topetitioner’s son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their
children is committed through any of the following acts:

xxxx

(e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child
has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or
attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of
force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child.
This shall include, butnot limited to, the following acts committed with the purpose or effect of controlling or
restricting the woman's or her child's movement or conduct:

xxxx

(2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or
deliberately providing the woman's children insufficient financial support; x x x x

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not
limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor childrenof
access to the woman's child/children.51

Under the aforesaid special law, the deprivation or denial of financial support to the child is considered anact of
violence against women and children.

In addition, considering that respondent is currently living in the Philippines, we find strength in petitioner’s claim that
the Territoriality Principle in criminal law, in relation to Article 14 of the New Civil Code, applies to the instant case,
which provides that: "[p]enal laws and those of public security and safety shall be obligatory upon all who live and
sojourn in Philippine territory, subject to the principle of public international law and to treaty stipulations." On this
score, it is indisputable that the alleged continuing acts of respondent in refusing to support his child with petitioner
is committed here in the Philippines as all of the parties herein are residents of the Province of Cebu City. As such,
our courts have territorial jurisdiction over the offense charged against respondent. It is likewise irrefutable that
jurisdiction over the respondent was acquired upon his arrest.

Finally, we do not agree with respondent’s argument that granting, but not admitting, that there is a legal basis for
charging violation of R.A. No. 9262 in the instant case, the criminal liability has been extinguished on the ground of
prescription of crime52 under Section 24 of R.A. No. 9262, which provides that:

SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty (20) years. Acts
falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing offense,53 which
started in 1995 but is still ongoing at present. Accordingly, the crime charged in the instant case has clearly not
prescribed.

Given, however, that the issue on whether respondent has provided support to petitioner’s child calls for an
examination of the probative value of the evidence presented, and the truth and falsehood of facts being admitted,
we hereby remand the determination of this issue to the RTC-Cebu which has jurisdiction over the case.

WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and September 1, 2010,
respectively, of the Regional Trial Court of the City of Cebu are hereby REVERSED and SET ASIDE. The case is
REMANDED to the same court to conduct further proceedings based on the merits of the case.

X. Summary Proceedings
24) Republic vs Narceda, GR No. 182760, 10 Apr 2013

G.R. No. 182760 April 10, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
ROBERT P. NARCEDA, Respondent.

RESOLUTION

SERENO, CJ.:

The present case stems from a Petition for Review1 filed by the Republic of the Philippines (petitioner), praying for
the reversal of the Decision2 of the Court of Appeals (CA) dated 14 November 2007 and its subsequent
Resolution3 dated 29 April 2008. The CA dismissed the appeal of petitioner, because it supposedly lacked
jurisdiction to decide the matter. It held that the Decision4 of the Regional Trial Court of Balaoan, La Union (RTC)
declaring the presumptive death of Marina B. Narceda (Marina) was immediately final and executory, "because by
express provision of law, the judgment of the RTC is not appealable."5

Robert P. Narceda (respondent) married Marina on 22 July 1987. A reading of the Marriage Contract6 he presented
will reveal that at the time of their wedding, Marina was only 17 years and 4 months old.

According to respondent, Marina went to Singapore sometime in 1994 and never returned since.7 There was never
any communication between them. He tried to look for her, but he could not find her. Several years after she left,
one of their town mates in Luna, La Union came home from Singapore and told him that the last time she saw his
wife, the latter was already living with a Singaporean husband.8

In view of her absence and his desire to remarry,9 respondent filed with the RTC on 16 May 2002 a Petition for a
judicial declaration of the presumptive death and/or absence of Marina.10

The RTC granted respondent’s Petition in a Decision11 dated 5 May 2005, the dispositive portion of which reads:

WHEREFORE, premises considered, the Court hereby renders judgment declaring the PRESUMPTIVE DEATH of
MARINA B. NARCEDA for all legal intents and purposes of law as provided for in Rule 131, Sec. 3(w-4), Rules of
Court, without prejudice to the effect of re-appearance of the absent spouse.

SO ORDERED.12

Petitioner, through the Office of the Solicitor General (OSG), appealed the foregoing Decision to the CA. According
to petitioner, respondent failed to conduct a search for his missing wife with the diligence required by law and
enough to give rise to a "well-founded" belief that she was dead.13

The CA dismissed the appeal ruling that the hearing of a petition for the declaration of presumptive death is a
summary proceeding under the Family Code and is thus governed by Title XI thereof.14 Article 247 of the Family
Code provides that the judgment of the trial court in summary court proceedings shall be immediately final and
executory. The dispositive portion of the CA Decision reads:

WHEREFORE, premises considered, the instant appeal is hereby DISMISSED OUTRIGHT on the GROUND OF
LACK OF JURISDICTION, and this Court hereby reiterates the fact that the RTC Decision is immediately final and
executory because by express provision of law, the judgment of the RTC is not appealable.

SO ORDERED.15

The OSG filed a Motion for Reconsideration, but it was likewise denied through the CA’s 29 April 2008 Resolution.16

Petitioner now comes to this Court, through Rule 45, alleging as follows:

1. The Court of Appeals erred in dismissing the Petition on the ground of lack of jurisdiction.17

2. Respondent has failed to establish a well-founded belief that his absentee spouse is dead.18

The OSG insists that the CA had jurisdiction to entertain the Petition, because respondent had failed to establish a
well-founded belief that his absentee spouse was dead.19 The OSG cites Republic v. CA (Jomoc),20 in which this
Court ruled:

By the trial court’s citation of Article 41 of the Family Code, it is gathered that the petition of Apolinaria Jomoc to
have her absent spouse declared presumptively dead had for its purpose her desire to contract a valid subsequent
marriage. Ergo, the petition for that purpose is a "summary proceeding," following above-quoted Art. 41, paragraph
2 of the Family Code.

xxxx
there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary proceeding under the
Family Code, not a special proceeding under the Revised Rules of Court appeal for which calls for the filing of a
Record on Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial court's
order sufficed. (Emphasis in the original)21

The CA points out, however, that because the resolution of a petition for the declaration of presumptive death
requires a summary proceeding, the procedural rules to be followed are those enumerated in Title XI of the Family
Code. Articles 238, 247, and 253 thereof read:

Art. 238. Until modified by the Supreme Court, the procedural rules provided for in this Title shall apply as regards
separation in fact between husband and wife, abandonment by one of the other, and incidents involving parental
authority.

xxxx

Art. 247. The judgment of the court shall be immediately final and executory.

xxxx

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

The appellate court argues that there is no reglementary period within which to perfect an appeal in summary
judicial proceedings under the Family Code, because the judgments rendered thereunder, by express provision of
Article 247, are immediately final and executory upon notice to the parties.22 In support of its stance, it cited Republic
v. Bermudez-Lorino (Bermudez-Lorino),23 in which this Court held:

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect an
appeal, precisely because judgments rendered thereunder, by express provision of Section 247, Family Code,
supra, are "immediately final and executory." It was erroneous, therefore, on the part of the RTC to give due course
to the Republic's appeal and order the transmittal of the entire records of the case to the Court of Appeals.

An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is immediately
final and executory. As we have said in Veloria vs. Comelec, "the right to appeal is not a natural right nor is it a part
of due process, for it is merely a statutory privilege." Since, by express mandate of Article 247 of the Family Code,
all judgments rendered in summary judicial proceedings in Family Law are "immediately final and executory," the
right to appeal was not granted to any of the parties therein. The Republic of the Philippines, as oppositor in the
petition for declaration of presumptive death, should not be treated differently. It had no right to appeal the RTC
decision of November 7, 2001.24

We agree with the CA.

Article 41 of the Family Code provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive
years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of
the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must
institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse.

This Court has already declared in Republic v. Granda25 that Jomoc cannot be interpreted as having superseded our
pronouncements in Bermudez-Lorino, because Jomoc does not expound on the characteristics of a summary
proceeding under the Family Code; Bermudez-Lorino, however, squarely touches upon the impropriety of an
ordinary appeal as a vehicle for questioning a trial court’s decision in a summary proceeding for the declaration of
presumptive death under Article 41 of the Family Code.26

As explained in Republic v. Tango,27 the remedy of a losing party in a summary proceeding is not an ordinary
appeal, but a petition for certiorari, to wit:

By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and
executory. As a matter of course, it follows that no appeal can be had of the trial court's judgment in a summary
proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It
goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion
amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the
Doctrine of Hierarchy of Courts. To be sure, even if the Court's original jurisdiction to issue a writ of certiorari is
concurrent with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum. From the decision of the Court of Appeals, the losing party may then
file a petition for review on certiorari under Rule 45 of the Rules of Court with the Supreme Court. This is because
the errors which the court may commit in the exercise of jurisdiction are merely errors of judgment which are the
proper subject of an appeal.

When the OSG filed its notice of appeal under Rule 42, it availed itself of the wrong remedy. As a result, the
1âw phi 1

running of the period for filing of a Petition for Certiorari continued to run and was not tolled. Upon lapse of that
period, the Decision of the RTC could no longer be questioned. Consequently, petitioner's contention that
respondent has failed to establish a well-founded belief that his absentee spouse is dead28 may no longer be
entertained by this Court.

WHEREFORE, the instant Petition is DENIED. The 14 November 2007 Decision of the Court Appeals and its
subsequent 29 April 2008 Resolution in CA-G.R. CV No. 85704, dismissing the appeal of the Republic of the
Philippines are AFFIRMED.

The Decision of the Regional Trial Court of Balaoan, La Union in Special Proceeding No. 622 dated 5 May 2005
declaring the presumptive death of Marina B. Narceda is hereby declared FINAL and EXECUTORY.

25) Republic vs Olaybar, GR No. 189538, 10 Feb 2014

G.R. No. 189538 February 10, 2014

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
MERLINDA L. OLAYBAR, Respondent.

DECISION

PERALTA, J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court are the Regional Trial
Court1 (RTC) Decision2 dated May 5, 2009 and Order3 dated August 25, 2009 in SP. Proc. No. 16519-CEB. The
assailed decision granted respondent Merlinda L. Olaybar's petition for cancellation of entries in the latter's marriage
contract; while the assailed order denied the motion for reconsideration filed by petitioner Republic of the Philippines
through the Office of the Solicitor General (OSG).

The facts of the case are as follows:

Respondent requested from the National Statistics Office (NSO) a Certificate of No Marriage (CENOMAR) as one of
the requirements for her marriage with her boyfriend of five years. Upon receipt thereof, she discovered that she
was already married to a certain Ye Son Sune, a Korean National, on June 24, 2002, at the Office of the Municipal
Trial Court in Cities (MTCC), Palace of Justice. She denied having contracted said marriage and claimed that she
did not know the alleged husband; she did not appear before the solemnizing officer; and, that the signature
appearing in the marriage certificate is not hers.4 She, thus, filed a Petition for Cancellation of Entries in the Marriage
Contract, especially the entries in the wife portion thereof.5 Respondent impleaded the Local Civil Registrar of Cebu
City, as well as her alleged husband, as parties to the case.

During trial, respondent testified on her behalf and explained that she could not have appeared before Judge
Mamerto Califlores, the supposed solemnizing officer, at the time the marriage was allegedly celebrated, because
she was then in Makati working as a medical distributor in Hansao Pharma. She completely denied having known
the supposed husband, but she revealed that she recognized the named witnesses to the marriage as she had met
them while she was working as a receptionist in Tadels Pension House. She believed that her name was used by a
certain Johnny Singh, who owned a travel agency, whom she gave her personal circumstances in order for her to
obtain a passport.6 Respondent also presented as witness a certain Eufrocina Natinga, an employee of MTCC,
Branch 1, who confirmed that the marriage of Ye Son Sune was indeed celebrated in their office, but claimed that
the alleged wife who appeared was definitely not respondent.7 Lastly, a document examiner testified that the
signature appearing in the marriage contract was forged.8

On May 5, 2009, the RTC rendered the assailed Decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered, the petition is granted in favor of the petitioner, Merlinda L. Olaybar.
The Local Civil Registrar of Cebu City is directed to cancel all the entries in the WIFE portion of the alleged marriage
contract of the petitioner and respondent Ye Son Sune.
SO ORDERED.9

Finding that the signature appearing in the subject marriage contract was not that of respondent, the court found
basis in granting the latter’s prayer to straighten her record and rectify the terrible mistake.10

Petitioner, however, moved for the reconsideration of the assailed Decision on the grounds that: (1) there was no
clerical spelling, typographical and other innocuous errors in the marriage contract for it to fall within the provisions
of Rule 108 of the Rules of Court; and (2) granting the cancellation of all the entries in the wife portion of the alleged
marriage contract is, in effect, declaring the marriage void ab initio.11

In an Order dated August 25, 2009, the RTC denied petitioner’s motion for reconsideration couched in this wise:

WHEREFORE, the court hereby denies the Motion for Reconsideration filed by the Republic of the Philippines.
Furnish copies of this order to the Office of the Solicitor General, the petitioner’s counsel, and all concerned
government agencies.

SO ORDERED.12

Contrary to petitioner’s stand, the RTC held that it had jurisdiction to take cognizance of cases for correction of
entries even on substantial errors under Rule 108 of the Rules of Court being the appropriate adversary proceeding
required. Considering that respondent’s identity was used by an unknown person to contract marriage with a Korean
national, it would not be feasible for respondent to institute an action for declaration of nullity of marriage since it is
not one of the void marriages under Articles 35 and 36 of the Family Code.13

Petitioner now comes before the Court in this Petition for Review on Certiorari under Rule 45 of the Rules of Court
seeking the reversal of the assailed RTC Decision and Order based on the following grounds:

I.

RULE 108 OF THE REVISED RULES OF COURT APPLIES ONLY WHEN THERE ARE ERRORS IN THE
ENTRIES SOUGHT TO BE CANCELLED OR CORRECTED.

II.

GRANTING THE CANCELLATION OF "ALL THE ENTRIES IN THE WIFE PORTION OF THE ALLEGED
MARRIAGE CONTRACT," IS IN EFFECT DECLARING THE MARRIAGE VOID AB INITIO. 14

Petitioner claims that there are no errors in the entries sought to be cancelled or corrected, because the entries
made in the certificate of marriage are the ones provided by the person who appeared and represented herself as
Merlinda L. Olaybar and are, in fact, the latter’s personal circumstances.15 In directing the cancellation of the entries
in the wife portion of the certificate of marriage, the RTC, in effect, declared the marriage null and void ab
initio.16 Thus, the petition instituted by respondent is actually a petition for declaration of nullity of marriage in the
guise of a Rule 108 proceeding.17

We deny the petition.

At the outset, it is necessary to stress that a direct recourse to this Court from the decisions and final orders of the
RTC may be taken where only questions of law are raised or involved. There is a question of law when the doubt
arises as to what the law is on a certain state of facts, which does not call for the examination of the probative value
of the evidence of the parties.18 Here, the issue raised by petitioner is whether or not the cancellation of entries in the
marriage contract which, in effect, nullifies the marriage may be undertaken in a Rule 108 proceeding. Verily,
petitioner raised a pure question of law.

Rule 108 of the Rules of Court sets forth the rules on cancellation or correction of entries in the civil registry, to wit:

SEC. 1. Who may file petition. – Any person interested in any act, event, order or decree concerning the civil
status of persons which has been recorded in the civil register, may file a verified petition for the cancellation
or correction of any entry relating thereto, with the Regional Trial Court of the province where the
corresponding civil registry is located.

SEC. 2. Entries subject to cancellation or correction. – Upon good and valid grounds, the following entries in
the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations;
(e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or
recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation
of a minor; and (o) changes of name.
 SEC. 3. Parties. – When cancellation or correction of an entry in the civil register is sought, the civil registrar
and all persons who have or claim any interest which would be affected thereby shall be made parties to the
proceeding.

SEC. 4. Notice and Publication. – Upon the filing of the petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in
the petition. The court shall also cause the order to be published once a week for three (3) consecutive
weeks in a newspaper of general circulation in the province.

SEC. 5. Opposition. – The civil registrar and any person having or claiming any interest under the entry
whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from
the last date of publication of such notice, file his opposition thereto.

SEC. 6. Expediting proceedings. – The court in which the proceedings is brought may make orders
expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the
parties pending such proceedings.

SEC. 7. Order. – After hearing, the court may either dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon
the civil registrar concerned who shall annotate the same in his record.

Rule 108 of the Rules of Court provides the procedure for cancellation or correction of entries in the civil registry.
The proceedings may either be summary or adversary. If the correction is clerical, then the procedure to be adopted
is summary. If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial,
and the procedure to be adopted is adversary. Since the promulgation of Republic v. Valencia19 in 1986, the Court
has repeatedly ruled that "even substantial errors in a civil registry may be corrected through a petition filed under
Rule 108, with the true facts established and the parties aggrieved by the error availing themselves of the
appropriate adversarial proceeding."20 An appropriate adversary suit or proceeding is one where the trial court has
conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel
have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly
weighed and considered.21

It is true that in special proceedings, formal pleadings and a hearing may be dispensed with, and the remedy [is]
granted upon mere application or motion. However, a special proceeding is not always summary. The procedure
laid down in Rule 108 is not a summary proceeding per se. It requires publication of the petition; it mandates the
inclusion as parties of all persons who may claim interest which would be affected by the cancellation or correction;
it also requires the civil registrar and any person in interest to file their opposition, if any; and it states that 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. Thus, as long as the procedural requirements in Rule 108 are followed,
it is the appropriate adversary proceeding to effect substantial corrections and changes in entries of the civil
register.22

In this case, the entries made in the wife portion of the certificate of marriage are admittedly the personal
circumstances of respondent. The latter, however, claims that her signature was forged and she was not the one
who contracted marriage with the purported husband. In other words, she claims that no such marriage was entered
into or if there was, she was not the one who entered into such contract. It must be recalled that when respondent
tried to obtain a CENOMAR from the NSO, it appeared that she was married to a certain Ye Son Sune. She then
sought the cancellation of entries in the wife portion of the marriage certificate.

In filing the petition for correction of entry under Rule 108, respondent made the Local Civil Registrar of Cebu City,
as well as her alleged husband Ye Son Sune, as parties-respondents. It is likewise undisputed that the procedural
requirements set forth in Rule 108 were complied with. The Office of the Solicitor General was likewise notified of
the petition which in turn authorized the Office of the City Prosecutor to participate in the proceedings. More
importantly, trial was conducted where respondent herself, the stenographer of the court where the alleged marriage
was conducted, as well as a document examiner, testified. Several documents were also considered as evidence.
With the testimonies and other evidence presented, the trial court found that the signature appearing in the subject
marriage certificate was different from respondent’s signature appearing in some of her government issued
identification cards.23 The court thus made a categorical conclusion that respondent’s signature in the marriage
certificate was not hers and, therefore, was forged. Clearly, it was established that, as she claimed in her petition, no
such marriage was celebrated.

Indeed the Court made a pronouncement in the recent case of Minoru Fujiki v. Maria Paz Galela Marinay, Shinichi
Maekara, Local Civil Registrar of Quezon City, and the Administrator and Civil Registrar General of the National
Statistics Office24 that:

To be sure, a petition for correction or cancellation of an entry in the civil registry cannot substitute for an action to
invalidate a marriage. A direct action is necessary to prevent circumvention of the substantive and procedural
safeguards of marriage under the Family Code, A.M. No. 02-11-10-SC and other related laws. Among these
safeguards are the requirement of proving the limited grounds for the dissolution of marriage, support pendente lite
of the spouses and children, the liquidation, partition and distribution of the properties of the spouses and the
investigation of the public prosecutor to determine collusion. A direct action for declaration of nullity or annulment of
marriage is also necessary to prevent circumvention of the jurisdiction of the Family Courts under the Family Courts
Act of 1997 (Republic Act No. 8369), as a petition for cancellation or correction of entries in the civil registry may be
filed in the Regional Trial Court where the corresponding civil registry is located. In other words, a Filipino citizen
cannot dissolve his marriage by the mere expedient of changing his entry of marriage in the civil registry.

Aside from the certificate of marriage, no such evidence was presented to show the existence of marriage. Rather,
1âw phi 1

respondent showed by overwhelming evidence that no marriage was entered into and that she was not even aware
of such existence. The testimonial and documentary evidence clearly established that the only "evidence" of
marriage which is the marriage certificate was a forgery. While we maintain that Rule 108 cannot be availed of to
determine the validity of marriage, we cannot nullify the proceedings before the trial court where all the parties had
been given the opportunity to contest the allegations of respondent; the procedures were followed, and all the
evidence of the parties had already been admitted and examined. Respondent indeed sought, not the nullification of
marriage as there was no marriage to speak of, but the correction of the record of such marriage to reflect the truth
as set forth by the evidence. Otherwise stated, in allowing the correction of the subject certificate of marriage by
cancelling the wife portion thereof, the trial court did not, in any way, declare the marriage void as there was no
marriage to speak of.

WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Regional Trial Court Decision
dated May 5, 2009 and Order dated August 25, 2009 in SP. Proc. No. 16519-CEB, are AFFIRMED.

26) Fujiki vs Marinay, supra