G.R. No.

182367

December 15, 2010

CHERRYL B. DOLINA, Petitioner, vs. GLENN D. VALLECERA, Respondent. DECISION ABAD, J.: This case is about a mothers 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 latters Certificate of Live Birth which listed Vallecera as the childs father. The petition also asked the RTC to order Philippine Airlines, Valleceras employer, to withhold from his pay such amount of support as the RTC may deem appropriate. Vallecera opposed the petition. He claimed that Dolinas petition was essentially one for financial support rather than for protection against woman and child abuses; that he was not the childs father; that the signature appearing on the childs 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 Dolinas 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 Dolinas action for temporary protection and denied her application for temporary support for her child. The Courts 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.1avvphil But it became apparent to the RTC 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 Dolinas demand for support for her son is based on her claim that he is Valleceras 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 childs 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 Dolinas 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 Dolinas 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 fathers legitimate family.12 Vallecera disowns Dolinas 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 Citys Order dated March 13, 2008 that dismissed petitioner Cherryl B. Dolinas action in P.O. 2008-02-07, and Order dated April 4, 2008, denying her motion for reconsideration dated March 28, 2008. SO ORDERED. ROBERTO A. ABAD Associate Justice

A.M. No. 2002-12-SC

January 22, 2003

RE: ADMINISTRATIVE COMPLAINT FOR NON-PAYMENT OF DEBT AGAINST NAHREN HERNAEZ CARPIO, J.: The Case Every employee of the judiciary must be an example of integrity, uprightness and honesty. The willful failure to pay just debts is conduct unbecoming a public official and is a ground for disciplinary action. The Facts In a letter-complaint dated June 14, 2002 addressed to Chief Justice Hilario G. Davide, Jr., complainant Roberta Entena ("Entena" for brevity) wrote that Nahren Hernaez ("Hernaez" for brevity), a Utility Worker II of the Leave Division of this Court, is a lessee in one of her apartments. Entena claims that Hernaez has been occupying said apartment but failed to pay the monthly rentals from July 2001 until the present. Entena filed an action for ejectment against Hernaez and the latter promised to pay the rents but until now, no payment has been made. Pertinent portions of Entena's letter-complaint read: "xxx xxx xxx

"Muli po akong lumalapit sa inyo at lubos na umaasa na tutugunan po ninyo ang aking hinaing tungkol kay Nahren Hernaez, na inyong kawani. "xxx xxx xxx."

In a Memorandum dated July 10, 2002, Atty. Eden T. Candelaria, Deputy Clerk of Court and Chief Administrative Officer of this Court, directed Hernaez to comment on Entena's lettercomplaint within five days from receipt thereof. Hernaez failed to comply with the said directive. Thus, another notice dated July 29, 2002 was sent to Hernaez to submit the required comment within a non-extendible period of three working days from receipt thereof. In her Comment dated August 5, 2002, Hernaez claims that her parents were the real lessees of Entena. Hernaez avers that her parents requested her to live with them temporarily to look after their welfare since they are already old and sickly. She was merely delivering the rental payments of her parents to Entena. She alleges that she had been demanding official receipts from Entena but to no avail. She further alleges that, as suggested by her lawyer, she would vacate the premises on or before August 17, 2002. Atty. Candelaria's Findings and Recommendation The parties were required to appear on August 29, 2002 (before the Office of Administrative Services for investigation. As requested by Entena's lawyer, the investigation was postponed and the initial investigation was conducted on September 3, 2002. Atty. Candelaria made the following findings: "During the investigation conducted by this Office on 3 September 2002, it was initially gathered that the true lessees of the complainant were Mr. and Mrs. Vicente De La Cuesta, the parents of herein respondent, in the amount of P6,000.00 a month. Respondent used to live with them in the said premises. However, in January of 2001, Mr. and Mrs. De La Cuesta left for the province to stay there for good leaving respondent and her family in the apartment. Complainant and respondent never had any written contract of lease on the premises vacated by her parents. However, respondent continued to occupy the premises and even paid rentals for the first three (3) months of her family's stay in the premises from January 2001. Thereafter, no other payments were made by respondent. For respondent's failure to pay her monthly rentals, a complaint was filed before the Tanggapan ng Barangay, Sikatuna Village 3, Quezon City. On 7 July 2001, complainant and respondent appeared before the Barangay Lupon where the latter acknowledged that as of 31 July 2001 her outstanding rental arrears amounts to P27,000.00 and she (respondent) promised to pay the same by the end of

the month (July 2001). However, respondent never made good her promise to pay as agreed and persistently failed to pay the succeeding monthly rentals. Again, a conference was scheduled before the Barangay Lupon on 3 September 2001 for the same case but respondent never appeared thereat. As a consequence, her non-appearance was made the basis for the issuance of a certification to file action in court by the Lupon. In a handwritten note dated 16 February 2002, Ms. Hernaez promised to vacate the premises by the end of the month of February 2002. However, she failed to fulfill the same. On March 1, 2002, Ms. Hernaez executed a promissory note and acknowledged her indebtedness to complainant in the amount of P51,000.00 and promised to pay the same even after she vacate the property. Based from the records, it appears that as of August 2002, the total rental arrears of Ms. Hernaez amounted to Eighty Five Thousand Pesos (P85,000.00). As alleged by complainant, she surreptitiously vacate the premises on August 31, 2002. At the time this administrative case was filed in this Office, a case for ejectment and collection of unpaid rentals against Ms. Hernaez is now pending trial before the Quezon City Metropolitan Trial Court. During the scheduled conference of this case, complainant expressed willingness to enter into a compromise agreement with respondent which the latter readily agreed. After two successive conferences scheduled on different dates with the parties, no amicable settlement was arrived at due to the stubborn attitude of respondent. Complainant even proposed that payment be made on a staggered basis and promised to withdraw her complaint if respondent would only fulfill her obligations. Despite said offer, respondent never bothered to settle her account not even for a cent. In view of respondent's failure to settle her obligations with complainant, the latter decided to push through with this administrative complaint, hence, this recommendation." Atty. Candelaria recommended that Hernaez be suspended for ten (10) working days for willful failure to pay her just debts, with a stern warning that a repetition of the same or similar offense shall be dealt with more severely. Atty. Candelaria is of the view that although this is Hernaez's first offense, reprimand is too light a penalty for the offense committed. Atty. Candelaria opines that Hernaez's continuing failure to pay her rentals in arrears is indicative of her lack of intention to pay her just and valid debts. Moreover, Hernaez clandestinely left the premises and never bothered to inform Entena of her whereabouts. Hernaez, being an employee of the highest court of the land, should have been an epitome of integrity and honesty. The Court's Ruling

"Siya po ay aking inihabla ng Ejectment, marami na po siyang beses na nangako sa akin na magbabayad siya, ngunit dumaan na po ang mga araw at buwan na kanyang ipinangako subalit magpasahanggang ngayon ay hindi pa din po niya ako binabayaran. "Ang sabi po niya ay ituloy ko ang aking habla laban sa kanya, dahil sa siya ay isang kawani ng Kataas-taasang Hukuman na pinangungunahan ninyo ay kayang kaya daw po niyang patagalin ang kaso, at mahihirapan daw po akong mapaalis siya sa kanyang inuupuhang apartment. Totoo po ba ito? "Ang kabuuan po ng kanyang pagkakautang sa upa ay P69,000.00, ito po ay mula po noong Hulyo 2001, hanggang May 2002. "Bakit po ang isang tulad niya na ang tungkuling pangalagaan ang kapakanan ng mamamayan bilang kawani ng Kataastaasang Hukuman ay siya pa po ang nagsasamantala sa isang katulad ko na ang tanging pinagkukunan ng aking inaasahan at ikinabubuhay ay ang paupahang apartment, ay siya pa ang nagbibigay ng sakit ng aking loob lalo pa't ako na isang matanda na.

We agree with Atty. Candelaria's finding that Hernaez should be held administratively liable for willful failure to pay her just debts. Section 46, Chapter 6 of Book V, Title I, Subtitle A (Civil Service Commission) of the Revised Administrative Code of 1987 (E.O No. 292) provides: "SEC. 46. Discipline: General Provisions. (A) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process. (b) The following shall be grounds for disciplinary action: xxx xxx xxx

penalty of reprimand for the first offense, suspension for one to thirty days for the second offense, and dismissal for the third offense. The penalty imposed by law is not directed at Hernaez's private life but at her actuations which are unbecoming a public official. 2 However, this case is Hernaez's first offense which should merit only the penalty of reprimand and not suspension of ten days as recommended by Atty. Candelaria. Consistent with Section 23 of the Omnibus Rules and the ruling in Christine G. Uy v. Bonifacio Magallanes, Jr., Process Server, RTC, Branch 30, Bayombong, Nueva Vizcaya, 3 the appropriate penalty on Hernaez is a severe reprimand. Being an employee of the highest court of the land, Hernaez has failed to live up to the strictest standards of honesty, uprightness and integrity in the public service. The image of a court of justice is mirrored in the conduct, official and otherwise, of the personnel who work thereat, from the highest Justice to the lowest personnel. Court employees have been enjoined to adhere to the exacting standards of morality and decency in their professional and private conduct in order to preserve the good name and integrity of the courts of justice. 4 However, we cannot order Hernaez to pay civil indemnity to Entena because this is an administrative case and the Court is not a collection agency. 5 WHEREFORE, respondent Nahren D. Hernaez, Utility Worker II of the Leave Division of this Court, is SEVERELY REPRIMANDED for her willful failure to pay her just debts, tantamount to conduct unbecoming a court employee. She is further WARNED that the commission of the same or similar acts in the future will be dealt with more severely by this Court. SO ORDERED. Davide, Jr., C .J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Bellosillo, J., on leave.

(22) Willful failure to pay just debts or willful failure to pay taxes due to the government;" "Just debts" as defined in Section 23, Rule XIV of the Omnibus Rules Implementing Book V of E.O. 292 refers to: 1. claims adjudicated by a court of law, or 2. claims the existence and justness of which are admitted by the debtor. In the instant case, Hernaez admitted the existence of her indebtedness and the justness thereof. In the conference before the Barangay Lupon held on July 7, 2001, Hernaez promised to pay her rentals in arrears from March 15, 2001 to July 31, 2001 in the amount of P27,000.00. Hernaez also promised to pay said amount by the end of July 2001. However, Hernaez never made good her promise prompting the Barangay Lupon to issue a Certification to File Action in Court on September 13, 2001. Thus, Entena filed an ejectment case against Hernaez before the Metropolitan Trial Court of Quezon City, Branch XXXV, docketed as Civil Case No. 35-28346. Hernaez, in a handwritten note dated February 16, 2002, promised to vacate the premises by the end of February 2002 but failed to do so. She is indebted to Entena in the accumulated amount of P85,000.00, which amount Hernaez does not dispute. Out of this amount, Hernaez executed on March 1, 2002 a promissory note to Entena for P51,000.00. The balance represents the rentals accumulated from March 2002 to August 31, 2002 when Hernaez left the premises. 1 Verily, by her unjust refusal to pay her admitted debts, Hernaez's administrative liability under the Revised Administrative Code is beyond dispute. Section 23 of the same Omnibus Rules classifies the willful failure to pay just debts as a light offense and prescribes the

G.R. No. 127578 February 15, 1999 MANUEL DE ASIS, petitioner, vs. COURT OF APPEALS, HON. JAIME T. HAMOY, Branch 130, RTC, Kalookan City and GLEN CAMIL ANDRES DE ASIS represented by her mother/guardian VIRCEL D. ANDRES, respondents. PURISIMA, J.: Petition for certiorari under Rule 65 oft he Revised Rules of Court seeking to nullify the decision of the Court of Appeals which affirmed the trial court's Orders, dated November 25, 1993 and February 4, 1994, respectively, denying petitioner's Motion to Dismiss the Complaint in Civil Case No. C-16107, entitled "Glen Camil Andres de Asis, etc. vs. Manuel de Asis", and the motion for reconsideration. The pertinent facts leading to the filing of the petition at bar are as follows: On October 14, 1988, Vircel D. Andres, (the herein private respondent) in her capacity as the legal guardian of the minor, Glen Camil Andres de Asis, brought an action for maintenance and support against Manuel de Asis, docketed as Civil Case No. Q-88-935 before the Regional Trial Court of Quezon City, Branch 94, alleging that the defendant Manuel de Asis (the petitioner here) is the father of subject minor Glen Camil Andres de Asis, and the former refused and/or failed to provide for the maintenance of the latter, despite repeated demands. In his Answer, petitioner denied his paternity of the said minor and theorized that he cannot therefore be required to provide support for him. On July 4, 1989, private respondent Vircel D. Andres, through counsel, sent in a manifestation the pertinent portion of which, reads; 1. That this proposed Amended Answer, defendant (herein petitioner) has made a judicial admission/declaration that "1). defendant denies that the said minor child (Glen Camil) is his child 2) he (petitioner) has no obligation to the plaintiff Glen Camil . . . 2. That with the aforesaid judicial admission/declarations by the defendant, it seems futile and a useless exercise to claim support from said defendant. 3. That under the foregoing circumstances it would be more practical that plaintiff withdraws the complains against the defendant subject to the condition that the defendant should not pursue his counterclaim in the above-entitled case, . . . 1

By virtue of the said manifestation, both the plaintiff and the defendant agreed to move for the dismissal of the case. Acting thereupon, the Regional Trial Court a quo issued the following Order of August 8, 1989, dismissing Civil Case No. Q-88-935 with prejudice, to wit: Acting on the manifestation of Atty. Romualdo C. delos Santos, counsel for the defendant, that counsel for the plaintiff Atty. Ismael J. Andres has no objection that this case be withdrawn provided that the defendant will withdraw the counterclaim, as prayed for, let the case be dismissed with prejudice. SO ORDERED. 2 On September 7, 1995, another Complaint for maintenance and support was brought against Manuel A. de Asis, this time in the name of Glen Camil Andres de Asis, represented by her legal guardian/mother, Vircel D. Andres. Docketed as Civil Case No. C-16107 before Branch 130 of the Regional Trial Court of Kalookan, the said Complaint prayed, thus: WHEREFORE, premises considered, it is respectfully prayed that judgment be rendered ordering defendant: 1. To pay plaintiff the sum of not less than P2,000.00 per month for every month since June 1, 1987 as support in arrears which defendant failed to provide plaintiff shortly after her birth in June 1987 up to present; 2. To give plaintiff a monthly allowance of P5,000.00 to be paid in advance on or before the 5th of each and every month. 3. To give plaintiff by way of support pendente lite a monthly allowance of P5,000.00 per month, the first monthly allowance to start retroactively from the first day of this month and the subsequent ones to be paid in advance on or before the 5th of each succeeding month. 4. To pay the costs of suit. Plaintiff prays for such other relief just and equitable under the premises. 3 On October 8, 1993, petitioner moved to dismiss the Complaint on the ground of res judicata, alleging that Civil Case C-16107 is barred by the prior judgment which dismissed with prejudice Civil Case Q -88-935. In the Order dated November 25, 1993 denying subject motion to dismiss, the trial court ruled that res judicata is inapplicable in an action for support for the reason that renunciation or waiver of future support is prohibited by law. Petitioner's motion for

reconsideration of the said Order met the same fate. It was likewise denied. Petitioner filed with the Court of Appeals a Petition for Certiorari. But on June 7, 1996, the Court of Appeals found that the said Petition devoid of merit and dismissed the same. Undaunted, petitioner found his way to this court via the present petition, posing the question whether or not the public respondent acted with grave abuse of discretion amounting to lack or excess of jurisdiction in upholding the denial of the motion to dismiss by the trial court, and holding that an action for support cannot be barred by res judicata. To buttress his submission, petitioner invokes the previous dismissal of the Complaint for maintenance and support, Civil Case Q-88-935, filed by the mother and guardian of the minor, Glen Camil Andres de Asis, (the herein private respondent). In said case, the complainant manifested that because of the defendant's judicial declaration denying that he is the father of subject minor child, it was "futile and a useless exercise to claim support from defendant". Because of such manifestation, and defendant's assurance that he would not pursue his counterclaim anymore, the parties mutually agreed to move for the dismissal of the complaint. The motion was granted by the Quezon City Regional Trial Court, which then dismissed the case with prejudice. Petitioner contends that the aforecited manifestation, in effect admitted the lack of filiation between him and the minor child, which admission binds the complainant, and since the obligation to give support is based on the existence of paternity and filiation between the child and the putative parent, the lack thereof negates the right to claim for support. Thus, petitioner maintains that the dismissal of the Complaint by the lower court on the basis of the said manifestation bars the present action for support, especially so because the order of the trial court explicitly stated that the dismissal of the case was with prejudice. The petition is not impressed with merit. The right to receive support can neither be renounced nor transmitted to a third person. Article 301 of the Civil Code, the law in point, reads: Art. 301. The right to receive support cannot be renounced, nor can it be transmitted to a third person. Neither can it be compensated with what the recipient owes the obligor. . . . Furthermore, compromise. future support cannot be the subject of a

Art. 2035, ibid, provides, that: No compromise upon the following questions shall be valid: (1) The civil status of persons; (2) The validity of a marriage or legal separation; (3) Any ground for legal separation (4) Future support; (5) The jurisdiction of courts; (6) Future legitime. The raison d' etre behind the proscription against renunciation, transmission and/or compromise of the right to support is stated, thus: The right to support being founded upon the need of the recipient to maintain his existence, he is not entitled to renounce or transfer the right for this would mean sanctioning the voluntary giving up of life itself. The right to life cannot be renounce; hence, support which is the means to attain the former, cannot be renounced. xxx xxx xxx To allow renunciation or transmission or compensation of the family right of a person to support is virtually to allow either suicide or the conversion of the recipient to a public burden. This is contrary to public policy. 4 In the case at bar, respondent minor's mother, who was the plaintiff in the first case, manifested that she was withdrawing the case as it seemed futile to claim support from petitioner who denied his paternity over the child. Since the right to claim for support is predicated on the existence of filiation between the minor child and the putative parent, petitioner would like us to believe that such manifestation admitting the futility of claiming support from him puts the issue to rest and bars any and all future complaint for support. The manifestation sent in by respondent's mother in the first case, which acknowledged that it would be useless to pursue its complaint for support, amounted to renunciation as it severed the vinculum that gives the minor, Glen Camil, the right to claim support from his putative parent, the petitioner. Furthermore, the agreement entered into between the petitioner and respondent's mother for the dismissal of the complaint for maintenance and support conditioned upon the dismissal of the counterclaim is in the nature of a compromise which cannot be

countenanced. It violates the compromise of the right to support.

prohibition

against

any

Thus, the admission made by counsel for the wife of the facts alleged in a motion of the husband, in which the latter prayed that his obligation to support be extinguished cannot be considered as an assent to the prayer, and much less, as a waiver of the right to claim for support. 5 It is true that in order to claim support, filiation and/or paternity must first be shown between the claimant and the parent. However, paternity and filiation or the lack of the same is a relationship that must be judicially established and it is for the court to declare its existence or absence. It cannot be left to the will or agreement of the parties. The civil status of a son having been denied, and this civil status, from which the right to support is derived being in issue, it is apparent that no effect can be .given to such a claim until an authoritative declaration has been made as to the existence of the cause. 6 Although in the case under scrutiny, the admission may be binding upon the respondent, such an admission is at most evidentiary and does not conclusively establish the lack of filiation. Neither are we persuaded by petitioner's theory that the dismissal with prejudice of Civil Case Q-88-935 has the effect of res judicata on the subsequent case for support. The case of Advincula vs. Advincula 7 comes to the fore. In Advincula, the minor, Manuela Advincula, instituted a case for acknowledgment and support against her putative father, Manuel Advincula. On motion of both parties and for the reason that the "plaintiff has lost interest and is no longer interested in continuing the case against the defendant and has no further evidence to introduce in support of the complaint", the case was dismissed. Thereafter, a similar case was instituted by Manuela, which the defendant moved to dismiss, theorizing that the dismissal of the first case precluded the filing of the second case. In disposing such case, this Court ruled, thus: The new Civil Code provides that the allowance for support is provisional because the amount may be increased or decreased depending upon the means of the giver and the needs of the recipient (Art. 297); and that the right to receive support cannot be renounced nor can it be transmitted to a third person neither can it be compensated with what the recipient owes the obligator (Art .301). Furthermore, the right to support can not be waived or transferred to third parties and future support cannot be the subject of compromise (Art. 2035; Coral v. Gallego, 38 O.G. 3135, cited in IV Civil Code by Padilla, p. 648; 1956 Ed.). This

being true, it is indisputable that the present action for support can be brought, notwithstanding the fact the previous case filed against the same defendant was dismissed. And it also appearing that the dismissal of Civil Case No. 3553, was not an adjudication upon the merits, as heretofore shown, the right of herein plaintiff-appellant to reiterate her suit for support and acknowledgment is available, as her needs arise. Once the needs of plaintiff arise, she has the right to bring an action for support, for it is only then that her cause for action is accrues.. . . xxx xxx xxx It appears that the former dismissal was predicated upon compromise. Acknowledgment, affecting as it does the civil status of a persons and future support, cannot be the subject of compromise (pars. 1 & 4, Art. 2035, Civil Code). Hence, the first dismissal cannot have force and effect and can not bar the filing of another action, asking for the same relief against the same defendant. (emphasis supplied). Conformably, notwithstanding the dismissal of Civil Case Q-88935 and the lower court's pronouncement that such dismissal was with prejudice, the second action for support may still prosper. WHEREFORE, the petition under consideration is hereby DISMISSED and the decision of the Court of Appeals AFFIRMED. No pronouncement as to costs. SO ORDERED. Romero, Vitug, Panganiban and Gonzaga-Reyes, JJ., concur.

G.R. No. 82606 December 18, 1992 PRIMA PARTOSA-JO, petitioner, vs. THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO and CONSING), respondents. CRUZ, J.: The herein private respondent, Jose Jo, admits to having cohabited with three women and fathered fifteen children. The first of these women, the herein petitioner, claims to be his legal wife whom he begot a daughter, Monina Jo. The other women and their respective offspring are not parties of these case. In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal property, docketed as Civil Case No. 51, in addition to an earlier action for support, also against him and docketed as Civil Case No. 36, in the Regional Trial Court of Negros Oriental, Branch 35. The two cases were consolidated and tried jointly. On November 29, 1983, Judge German G. Lee, Jr. rendered an extensive decision, the dispositive portion of which read: WHEREFORE, in view of all the foregoing arguments and considerations, this court hereby holds that the plaintiff Prima Partosa was legally married to Jose Jo alias Ho Hang, alias Consing, and, therefore, is entitled to support as the lawfully wedded wife and the defendant is hereby ordered to give a monthly support of P500.00 to the plaintiff Prima Partosa, to be paid on or before the 5th day of every month, and to give to the plaintiff the amount of P40,000.00 for the construction of the house in Zamboanguita, Negros Oriental where she may live separately from the defendant being entitled under the law to separate maintenance being the innocent spouse and to pay the amount of P19,200.00 to the plaintiff by way of support in arrears and to pay the plaintiff the amount of P3,000.00 in the concept of attorney's fees. As will be noticed, there was a definite disposition of the complaint for support but none of the complaint for judicial separation of conjugal property. Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the trial court in the complaint for support. 1 The complaint for judicial separation of conjugal property was dismissed for lack of a cause of action and on the ground that separation by agreement was not covered by Article 178 of the Civil Code. When their motions for reconsideration were denied, both parties came to this Court for relief. The private respondent's petition

for review on certiorari was dismissed for tardiness in our resolution dated February 17, 1988, where we also affirmed the legality of the marriage between Jose and Prima and the obligation of the former to support her and her daughter. This petition deals only with the complaint for judicial separation of conjugal property. It is here submitted that the Court of Appeals erred in holding that: a) the judicial separation of conjugal property sought was not allowed under Articles 175, 178 and 191 of the Civil Code; and b) no such separation was decreed by the trial court in the dispositive portion of its decision. The private respondent contends that the decision of the trial court can longer be reviewed at this time because it has a long since become final and executory. As the decretal portion clearly made no disposition of Civil Case No. 51, that case should be considered impliedly dismissed. The petitioner should have called the attention of the trial court to the omission so that the proper rectification could be made on time. Not having done so, she is now concluded by the said decision, which can no longer be corrected at this late hour. We deal first with the second ground. While admitting that no mention was made of Civil Case No. 51 in the dispositive portion of the decision of the trial court, the petitioner argues that a disposition of the case was nonetheless made in the penultimate paragraph of the decision reading as follows: It is, therefore, hereby ordered that all properties in question are considered properties of Jose Jo, the defendant in this case, subject to separation of property under Article 178, third paragraph of the Civil Code, which is subject of separate proceedings as enunciated herein. The petitioner says she believed this to be disposition enough and so did not feel it was necessary for her to appeal, particularly since the order embodied in that paragraph was in her favor. It was only when the respondent court observed that there was no dispositive portion regarding that case and so ordered its dismissal that she found it necessary to come to this Court for relief. The petitioner has a point. The dispositive portion of the decision in question was incomplete insofar as it carried no ruling on the complaint for judicial separation of conjugal property although it was extensively discussed in the body of the decision. The drafting of the decision was indeed not exactly careful. The petitioner's

counsel, noting this, should have taken immediate steps for the rectification for the omission so that the ruling expressed in the text of the decision could have been embodied in the decretal portion. Such alertness could have avoided this litigation on a purely technical issue. Nevertheless, the technicality invoked in this case should not be allowed to prevail over considerations of substantive justive. After all, the technical defect is not insuperable. We have said time and again that where there is an ambiguity caused by an omission or a mistake in the dispositive portion of the decision, this Court may clarify such an ambiguity by an amendment even after the judgment have become final. 2 In doing so, the Court may resort to the pleading filed by the parties and the findings of fact and the conclusions of law expressed in the text or body of the decision. 3 The trial court made definite findings on the complaint for judicial separation of conjugal property, holding that the petitioner and the private respondent were legally married and that the properties mentioned by the petitioner were acquired by Jo during their marriage although they were registered in the name of the apparent dummy. There is no question therefore that the penultimate paragraph of the decision of the trial court was a ruling based upon such findings and so should have been embodied in the dispositive portion. The respondent court should have made the necessary modification instead of dismissing Civil Case No. 51 and thus upholding mere form over substance. In the interest of substantive justice, and to expedite these proceedings, we hereby make such modification. And now to the merits of Civil Case No. 51. The Court of Appeals dismissed the complaint on the ground that the separation of the parties was due to their agreement and not because of abondonment. The respondent court relied mainly on the testimony of the petitioner, who declared under oath that she left Dumaguete City, where she and Jo were living together "because that was our agreement." It held that a agreement to live separately without just cause was void under Article 221 of the Civil Code and could not sustain any claim of abandonment by the aggrieved spouse. Its conclusion was that the only remedy availabe to the petitioner was legal separation under Article 175 of the Civil Code, 4 by virtue of which the conjugal partnership of property would be terminated. The petitioner contends that the respondent court has misinterpreted Articles 175, 178 and 191 of the Civil Code. She submits that the agreement between her and the private respondent was for her to temporarily live with her parents

during the initial period of her pregnancy and for him to visit and support her. They never agreed to separate permanently. And even if they did, this arrangement was repudiated and ended in 1942, when she returned to him at Dumaguete City and he refused to accept her. The petitioner invokes Article 178 (3) of the Civil Code, which reads: Art. 178. The separation in fact between husband and wife without judicial approval, shall not affect the conjugal partnership, except that: xxx xxx xxx (3) If the husband has abandoned the wife without just cause for at least one year, she may petition the court for a receivership, or administration by her of the conjugal partnership property or separation of property. The above-quoted provision has been superseded by Article 128 of the Family Code, which states: Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, of for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to martial, parental or property relations. A spouse is deemed to have abondoned the other when he or she has left the conjugal dwelling without any intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. Under the this provision, the aggrieved spouse may petition for judicial separation on either of these grounds: 1. Abondonment by a spouse of the other without just cause; and 2. Failure of one spouse to comply with his or her obligations to the family without just cause, even if she said spouse does not leave the other spouse. Abandonment implies a departure by one spouse with the avowed intent never to return, followed by prolonged absence

without just cause, and without in the meantime providing in the least for one's family although able to do so. 5 There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation. 6 This idea is clearly expressed in the above-quoted provision, which states that "a spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning." The record shows that as early as 1942, the private respondent had already rejected the petitioner, whom he denied admission to their conjugal home in Dumaguete City when she returned from Zamboanguita. The fact that she was not accepted by Jo demonstrates all too clearly that he had no intention of resuming their conjugal relationship. Moreover, beginning 1968 until the determination by this Court of the action for support in 1988, the private respondent refused to give financial support to the petitioner. The physical separation of the parties, coupled with the refusal by the private respondent to give support to the petitioner, sufficed to constitute abandonment as a ground for the judicial separation of their conjugal property. In addition, the petitioner may also invoke the second ground allowed by Article 128, for the fact is that he has failed without just cause to comply with his obligations to the family as husband or parent. Apart form refusing to admit his lawful wife to their conjugal home in Dumaguete City, Jo has freely admitted to cohabiting with other women and siring many children by them. It was his refusal to provide for the petitioner and their daughter that prompted her to file the actions against him for support and later for separation of the conjugal property, in which actions, significantly, he even denied being married to her. The private respondent has not established any just cause for his refusal to comply with his obligations to his wife as dutiful husband. Their separation thus falls also squarely under Article 135 of the Family Code, providing as follows: Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: xxx xxx xxx (6) That at the time of the petition, the spouse have been separated in fact for at least one year and reconciliation is highly improbable. The amendments introduced in the Family Code are applicable to the case before us although they became effective only on August 3, 1988. As we held in Ramirez v. Court of Appeals: 7 The greater weight of authority is inclined to the view that an appellate court, in reviewing a judgment on appeal, will dispose

of a question according to the law prevailing at the term of such disposition, and not according to the law prevailing at the time of rendition of the appealed judgement. The court will therefore reverse a judgement which was correct at the time it was originally rendered where, by statute, there has been an intermediate change in the law which renders such judgement erroneous at the time the case was finally disposed of on appeal. The order of judicial separation of the properties in question is based on the finding of both the trial and respondent courts that the private respondent is indeed their real owner. It is these properties that should now be divided between him and the petitioner, on the assumption that they were acquired during coverture and so belong to the spouses half and half. As the private respondent is a Chinese citizen, the division must include such properties properly belonging to the conjugal partnership as may have been registered in the name of other persons in violation of the Anti-Dummy Law. The past has caught up with the private respondent. After his extramarital flings and a succession of illegitimate children, he must now make an accounting to his lawful wife of the properties he denied her despite his promise to their of his eternal love and care. WHEREFORE, the petition is GRANTED and the assailed decision of the respondent court is MODIFIED. Civil Case No. 51 is hereby decided in favor the plaintiff, the petitioner herein, and the conjugal property of the petitioner and the private respondent is hereby ordered divided between them, share and share alike. This division shall be implemented by the trial court after determination of all the properties pertaining to the said conjugal partnership, including those that may have been illegally registered in the name of the persons. SO ORDERED. Padilla, Grio-Aquino and Bellosillo, JJ., concur.

G.R. No. 160172

February 13, 2008

REINEL ANTHONY B. DE CASTRO, petitioner, vs. ANNABELLE ASSIDAO-DE CASTRO, respondent. DECISION TINGA, J.: This is a petition for review of the Decision1 of the Court of Appeals in CA-GR CV. No. 69166,2 declaring that (1) Reianna Tricia A. De Castro is the legitimate child of the petitioner; and (2) that the marriage between petitioner and respondent is valid until properly nullified by a competent court in a proceeding instituted for that purpose. The facts of the case, as culled from the records, follow. Petitioner and respondent met and became sweethearts in 1991. They planned to get married, thus they applied for a marriage license with the Office of the Civil Registrar of Pasig City in September 1994. They had their first sexual relation sometime in October 1994, and had regularly engaged in sex thereafter. When the couple went back to the Office of the Civil Registrar, the marriage license had already expired. Thus, in order to push through with the plan, in lieu of a marriage license, they executed an affidavit dated 13 March 1995 stating that they had been living together as husband and wife for at least five years. The couple got married on the same date, with Judge Jose C. Bernabe, presiding judge of the Metropolitan Trial Court of Pasig City, administering the civil rites. Nevertheless, after the ceremony, petitioner and respondent went back to their respective homes and did not live together as husband and wife. On 13 November 1995, respondent gave birth to a child named Reinna Tricia A. De Castro. Since the childs birth, respondent has been the one supporting her out of her income as a government dentist and from her private practice. On 4 June 1998, respondent filed a complaint for support against petitioner before the Regional Trial Court of Pasig City (trial court.3 In her complaint, respondent alleged that she is married to petitioner and that the latter has "reneged on his responsibility/obligation to financially support her "as his wife and Reinna Tricia as his child."4 Petitioner denied that he is married to respondent, claiming that their marriage is void ab initio since the marriage was facilitated by a fake affidavit; and that he was merely prevailed upon by respondent to sign the marriage contract to save her from embarrassment and possible administrative prosecution due to her pregnant state; and that he was not able to get parental

advice from his parents before he got married. He also averred that they never lived together as husband and wife and that he has never seen nor acknowledged the child. In its Decision dated 16 October 2000,5 the trial court ruled that the marriage between petitioner and respondent is not valid because it was solemnized without a marriage license. However, it declared petitioner as the natural father of the child, and thus obliged to give her support. Petitioner elevated the case to the Court of Appeals, arguing that the lower court committed grave abuse of discretion when, on the basis of mere belief and conjecture, it ordered him to provide support to the child when the latter is not, and could not have been, his own child. The Court of Appeals denied the appeal. Prompted by the rule that a marriage is presumed to be subsisting until a judicial declaration of nullity has been made, the appellate court declared that the child was born during the subsistence and validity of the parties marriage. In addition, the Court of Appeals frowned upon petitioners refusal to undergo DNA testing to prove the paternity and filiation, as well as his refusal to state with certainty the last time he had carnal knowledge with respondent, saying that petitioners "forgetfulness should not be used as a vehicle to relieve him of his obligation and reward him of his being irresponsible."6 Moreover, the Court of Appeals noted the affidavit dated 7 April 1998 executed by petitioner, wherein he voluntarily admitted that he is the legitimate father of the child. The appellate court also ruled that since this case is an action for support, it was improper for the trial court to declare the marriage of petitioner and respondent as null and void in the very same case. There was no participation of the State, through the prosecuting attorney or fiscal, to see to it that there is no collusion between the parties, as required by the Family Code in actions for declaration of nullity of a marriage. The burden of proof to show that the marriage is void rests upon petitioner, but it is a matter that can be raised in an action for declaration of nullity, and not in the instant proceedings. The proceedings before the trial court should have been limited to the obligation of petitioner to support the child and his wife on the basis of the marriage apparently and voluntarily entered into by petitioner and respondent.7 The dispositive portion of the decision reads: WHEREFORE, premises considered, the Decision dated 16 October 2000, of the Regional Trial Court of Pasig City, National Capital Judicial Region, Brach 70, in JDRC No. 4626, is AFFIRMED with the MODIFICATIONS (1) declaring Reianna Tricia A. De Castro, as the legitimate child of the appellant and the appellee and (2) declaring the marriage on 13 March 1995 between the appellant and the appellee valid until properly annulled by a competent court in a proceeding instituted for that purpose. Costs against the appellant.8

Petitioner filed a motion for reconsideration, but the motion was denied by the Court of Appeals.9 Hence this petition. Before us, petitioner contends that the trial court properly annulled his marriage with respondent because as shown by the evidence and admissions of the parties, the marriage was celebrated without a marriage license. He stresses that the affidavit they executed, in lieu of a marriage license, contained a false narration of facts, the truth being that he and respondent never lived together as husband and wife. The false affidavit should never be allowed or admitted as a substitute to fill the absence of a marriage license.10 Petitioner additionally argues that there was no need for the appearance of a prosecuting attorney in this case because it is only an ordinary action for support and not an action for annulment or declaration of absolute nullity of marriage. In any case, petitioner argues that the trial court had jurisdiction to determine the invalidity of their marriage since it was validly invoked as an affirmative defense in the instant action for support. Citing several authorities,11 petitioner claims that a void marriage can be the subject of a collateral attack. Thus, there is no necessity to institute another independent proceeding for the declaration of nullity of the marriage between the parties. The refiling of another case for declaration of nullity where the same evidence and parties would be presented would entail enormous expenses and anxieties, would be time-consuming for the parties, and would increase the burden of the courts.12 Finally, petitioner claims that in view of the nullity of his marriage with respondent and his vigorous denial of the childs paternity and filiation, the Court of Appeals gravely erred in declaring the child as his legitimate child. In a resolution dated 16 February 2004, the Court required respondent and the Office of the Solicitor General (OSG) to file their respective comments on the petition.13 In her Comment,14 respondent claims that the instant petition is a mere dilatory tactic to thwart the finality of the decision of the Court of Appeals. Echoing the findings and rulings of the appellate court, she argues that the legitimacy of their marriage cannot be attacked collaterally, but can only be repudiated or contested in a direct suit specifically brought for that purpose. With regard to the filiation of her child, she pointed out that compared to her candid and straightforward testimony, petitioner was uncertain, if not evasive in answering questions about their sexual encounters. Moreover, she adds that despite the challenge from her and from the trial court, petitioner strongly objected to being subjected to DNA testing to prove paternity and filiation.15 For its part, the OSG avers that the Court of Appeals erred in holding that it was improper for the trial court to declare null and void the marriage of petitioner and respondent in the action for

support. Citing the case of Nial v. Bayadog,16 it states that courts may pass upon the validity of a marriage in an action for support, since the right to support from petitioner hinges on the existence of a valid marriage. Moreover, the evidence presented during the proceedings in the trial court showed that the marriage between petitioner and respondent was solemnized without a marriage license, and that their affidavit (of a man and woman who have lived together and exclusively with each other as husband and wife for at least five years) was false. Thus, it concludes the trial court correctly held that the marriage between petitioner and respondent is not valid.17 In addition, the OSG agrees with the findings of the trial court that the child is an illegitimate child of petitioner and thus entitled to support.18 Two key issues are presented before us. First, whether the trial court had the jurisdiction to determine the validity of the marriage between petitioner and respondent in an action for support and second, whether the child is the daughter of petitioner. Anent the first issue, the Court holds that the trial court had jurisdiction to determine the validity of the marriage between petitioner and respondent. The validity of a void marriage may be collaterally attacked.19 Thus, in Nial v. Bayadog, we held: However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause "on the basis of a final judgment declaring such previous marriage void" in Article 40 of the Family Code connotes that such final judgment need not be obtained only for purpose of remarriage.20 Likewise, in Nicdao Cario v. Yee Cario,21 the Court ruled that it is clothed with sufficient authority to pass upon the validity of two marriages despite the main case being a claim for death benefits. Reiterating Nial, we held that the Court may pass upon the validity of a marriage even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. However, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a marriage an absolute nullity.22

Under the Family Code, the absence of any of the essential or formal requisites shall render the marriage void ab initio, whereas a defect in any of the essential requisites shall render the marriage voidable.23 In the instant case, it is clear from the evidence presented that petitioner and respondent did not have a marriage license when they contracted their marriage. Instead, they presented an affidavit stating that they had been living together for more than five years.24 However, respondent herself in effect admitted the falsity of the affidavit when she was asked during cross-examination, thus ATTY. CARPIO: Q But despite of (sic) the fact that you have not been living together as husband and wife for the last five years on or before March 13, 1995, you signed the Affidavit, is that correct? A Yes, sir.25

tax exemption in favor of respondent, admitted that he is the father of the child, thus stating: 1. I am the legitimate father of REIANNA TRICIA A. DE CASTRO who was born on November 3, 1995 at Better Living, Paraaque, Metro Manila;30 We are likewise inclined to agree with the following findings of the trial court: That Reinna Tricia is the child of the respondent with the petitioner is supported not only by the testimony of the latter, but also by respondents own admission in the course of his testimony wherein he conceded that petitioner was his former girlfriend. While they were sweethearts, he used to visit petitioner at the latters house or clinic. At times, they would go to a motel to have sex. As a result of their sexual dalliances, petitioner became pregnant which ultimately led to their marriage, though invalid, as earlier ruled. While respondent claims that he was merely forced to undergo the marriage ceremony, the pictures taken of the occasion reveal otherwise (Exhs. "B," "B-1," to "B-3," "C," "C-1" and "C-2," "D," "D-1" and "D-2," "E," "E-1" and "E-2," "F," "F-1" and "F-2," "G," "G-1" and "G-2" and "H," "H-1" to "H-3"). In one of the pictures (Exhs. "D," "D-1" and "D-2"), defendant is seen putting the wedding ring on petitioners finger and in another picture (Exhs. "E," "E-1" and "E-2") respondent is seen in the act of kissing the petitioner.31 WHEREFORE, the petition is granted in part. The assailed Decision and Resolution of the Court of Appeals in CA-GR CV No. 69166 are SET ASIDE and the decision of the Regional Trial Court Branch 70 of Pasig City in JDRC No. 4626 dated 16 October 2000 is hereby REINSTATED. SO ORDERED. DANTE O. TINGA Associate Justice

The falsity of the affidavit cannot be considered as a mere irregularity in the formal requisites of marriage. The law dispenses with the marriage license requirement for a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The aim of this provision is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicants name for a marriage license.26 In the instant case, there was no "scandalous cohabitation" to protect; in fact, there was no cohabitation at all. The false affidavit which petitioner and respondent executed so they could push through with the marriage has no value whatsoever; it is a mere scrap of paper. They were not exempt from the marriage license requirement. Their failure to obtain and present a marriage license renders their marriage void ab initio. Anent the second issue, we find that the child is petitioners illegitimate daughter, and therefore entitled to support. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.27 Thus, one can prove illegitimate filiation through the record of birth appearing in the civil register or a final judgment, an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned, or the open and continuous possession of the status of a legitimate child, or any other means allowed by the Rules of Court and special laws.28 The Certificate of Live Birth29 of the child lists petitioner as the father. In addition, petitioner, in an affidavit waiving additional

G.R. No. 81969 September 26, 1988 JOCELYN RULONA-AL AWADHI, petitioner, vs. HON. ABDULMAJID J. ASTIH, District Judge of the Fourth Sharia Judicial District Court and NABIL AL-AWADHI, respondents. Citizens Legal Assistance Office for petitioner. Talib Umpar for private respondent. GRIO-AQUINO, J.: A petition for review on certiorari was filed by Jocelyn Rulona-Al Awadhi, assailing the order dated January 12, 1988 of the Sharia Judicial District Court of Marawi City which denied her motion to dismiss Special Proceedings No. 011-87, entitled "Nabil AlAwadhi, Petitioner, vs. Jocelyn Rulonba, Respondent" for custody and guardianship of their minor children named Abdul Wahab Nabil, 5 years old, Adare Nabil, 3 years old, and Sabihab Al Abdullah Nabil, 6 months old. The petitioner and the private respondent were married in Kuwait on August 1, 1981. The petitioner is a Filipino nurse and a Roman Catholic. Her husband, the private respondent is a Kuwaiti student. The petitioner resides with her children in Sta. Cruz, Calape, Bohol, while the private respondent resides at 497 Pamaong Street, Tagbiliran City. On or about August 25, 1987, she filed an action for support and guardianship of her three (3) minor children (who are in her custody) in the Regional Trial Court, Branch 2, in Tagbilaran City (Civil Case No. 4170, entitled "Jocelyn Rulona-Al Awadhi Petitioner, vs. Nabil Al-Awadhi Defendant"). Upon her motion, she was appointed the children's guardian by order of the court dated August 25, 1987 (Annex B, p. 20, Rollo). The defendant, her husband filed in the same court a motion to be allowed to exercise joint parental authority over their children (Annex C, p. 21, Rollo). However, without waiting for the action of the Tagbilaran Court, he filed on November 4, 1987 a petition for custody and guardianship of their minor children in the Fourth Sharia District Court in Marawi City (Annex A, p. 10, Rollo). It was docketed therein as Special Proceeding No. 011-87. After having been summoned, the petitioner filed a motion to dismiss the petition on the grounds that: (1) the court has no jurisdiction over the subject of the petition, nor over the parties, least of all, herself; (2) there is another action pending between the same parties for the same cause; and (3) improper venue (Annex B, p. 45, Rollo). In its order dated November 20, 1987, the Sharia District Court denied her motion to dismiss (Annex C, p. 23, Rollo). Its order

was based on Section 13 of the Special Rules of Procedure in the Sharia Courts which provides: Section 13. Pleadings and Motions Disallowed. The court shall not allow the filing of the following pleadings, petitions or motions, to wit: (a) Motion to dismiss or to quash; (b) Motion for a bill of particulars; (c) Motion for extension of time to file pleadings or any other paper; (d) Motion to declare defendant in default; (e) Reply, third party complaints, or intervention; (f) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (g) Petition for relief from judgment; (h) Motion for new trial or re-opening of trial; and (i) Any dilatory motion for postponement. Petitioner's motion for reconsideration of that order (Annex D, p. 24, Rollo) was also denied by the court on January 12, 1988. Hence, this petition for review raising only the legal issue of jurisdiction, or lack of it, of the respondent Sharia District Court over the parties and the subject matter of the case. Only the Sharia District Judge filed a Comment on the petition; the private respondent did not. Article 13, Title II of the Code of Muslim Personal Laws of the Philippines (PD 1083) provides: BOOK TWO TITLE II Chapter One APPLICABILITY CLAUSE Art. 13. Application (1) The provisions of this Title shall apply to marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim, and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines.

(2) In case of a marriage between a Muslim and non-Muslim, solemnized not in accordance with Muslim law or this Code, the Civil Code of the Philippines shall apply. (3) Subject to the provisions of the preceding paragraphs, the essential requisites and legal impediments to marriage, divorce, paternity and filiation, guardianship and custody of minors, support and maintenance, claims for customary dower (mahr), betrothal, breach of contract to marry, solemnization and registration of marriage and divorce, rights and obligations between husband and wife, parental authority, and the property relations between husband and wife shall be governed by this Code and other applicable Muslim laws. (Emphasis supplied.) In view of the following admitted facts: (1) That the plaintiff husband in Spl. Proc. No. 011-87 is not a Philippine Muslim but a Kuwaiti national; (2) That he resides at 49-7 Pamaong Extension, Tagbilaran City, Bohol, not in Marawi City where the Sharia court sits; (3) That the defendant wife (herein petitioner Jocelyn Rulona) is a Filipino citizen and a non- Muslim (a Roman Catholic Christian); (4) That their Muslim marriage was not solemnized in any part of the Philippines, for they were married in Kuwait (Annex A, par. 2, p. 40, Rollo); and (5) That they do not reside within the Fourth Sharia District, embracing the provinces of Lanao del Norte and Lanao del Sur, and the cities of Iligan and Marawi (Art. 138-d, P.D. No. 1083), for both of them reside in the province of Bohol; it should have been self-evident to the Fourth Sharia District Court that it had no jurisdiction over the spouses of their marriage, nor over the custody and guardianship of their children (Art. 143, P.D. No. 1083). The Regional Trial Court, Branch II, at Tagbilaran City which had assumed jurisdiction over petitioner's complaint for support and guardianship of her children on August 25, 1987 (p. 19, Rollo), may not be divested of its jurisdiction over the parties (the husband having voluntarily submitted to its jurisdiction by filing a motion therein for joint custody of his children) by the Fourth Sharia District Court in Marawi City by the husband's filing therein three (3) months later his own petition for custody and guardianship of his children (p.10, Rollo). The rule is that once a court has assumed jurisdiction of a case, its jurisdiction shall continue until the case is finished. It may not be ousted from its jurisdiction by a co-equal court (People vs. Layno, 111 SCRA 20; Denila vs. Bellosillo, 64 SCRA 63; Lat vs. PLDT, 67 SCRA 425; and People vs. Ocaya, 83 SCRA 218).

10

Moreover, Article 3 of the Muslim Code (P.D. No. 1083 expressly provides: Art. 3. Conflict of provisions ... (3) The provisions of this Code shall be applicable only to Muslims and nothing herein shall be construed to operate to the prejudice of a Non-Muslim. The application of the Muslim Code to the Christian wife will be prejudicial to her. The Code of Muslim Personal Laws was promulgated to fulfill "the aspiration of the Filipino Muslims to have their system of laws enforced in their communities" (Exec. Order No. 442, Dec. 23, 1974). Those communities are found in the ten (10) Mindanao provinces and six (6) cities comprised within the five (5) Sharia judicial districts which were created under Article 138 of the Muslim Code. As neither the petitioner nor the private respondent and their children live in or are members of those communities, they do not come within the ambit of the Sharia courts' jurisdiction. Instead of invoking a procedural technicality, the respondent court should have recognized its lack of jurisdiction over the parties and promptly dismissed the action, for, without jurisdiction, all its proceedings would be, as they were, a futile and invalid exercise. A summary rule prohibiting the filing of a motion to dismiss should not be a bar to the dismissal of the action for lack of jurisdiction when the jurisdictional infirmity is patent on the face of the complaint itself, in view of the fundamental procedural doctrine that the jurisdiction of a court may be challenged at anytime and at any stage of the action (Tijam vs. Sibonghanoy, 23 SCRA 29, 35-36; Crisostomo vs. Court of Appeals, 32 SCRA 54; Zulueta vs. Pan American World Airways, Inc., 49 SCRA 1, 6; Nueva Vizcaya Chamber of Commerce vs. Court of Appeals, 97 SCRA 856). WHEREFORE, the petition for certiorari is granted. All the proceedings in special Proceeding No. 011-87 of the Fourth Sharia District Court at Marawi City are annulled and the petition therein is dismissed. Costs against the private respondent. SO ORDERED. Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

11

G.R. No. 85692 July 3l, 1989 ANGELITO F. MAGLALANG, petitioner, vs. COURT OF APPEALS, 11TH DIV., REGIONAL TRIAL COURT, BR. 29, SAN PABLO CITY AND GIL C. MAGLALANG, respondents. Zosimo D. Tanalega for petitioner. F.M. Poonin & Associates for private respondent. GANCAYCO, J.: The application of the principle of res judicata is the main issue in this case. The secondary issue is whether or not a case involving the civil status of a person should first be referred to the appropriate barangay officials for possible settlement in accordance with the barangay arbitration law. Lourdes S. Flores is the natural mother of Angelito Maglalang who was born on July 6,1966. On March 13,1981, she filed a complaint for support against Gil C. Maglalang in the then Court of First Instance of San Pablo City, alleging, among others, that she once served as a domestic helper of Gil during which time they had sexual relations and that as a consequence thereof, she begot a son, Angelito; that the latter's birth was not recorded in the local civil registrar's office due to inadvertence; that for four years since the birth of the child, she was given a weekly allowance of Pl0.00 to cover expenses for milk; that she was given an allowance of P15.00 a month for her own maintenance until the child graduated from elementary school; that the said allowance was increased to P20.00 a month until September, 1980; that thereafter, she had to wash clothes for other people in order to survive so she became sickly; and that she needed a monthly allowance of P500.00 for the support and education of the child, and an additional sum of P200.00 monthly for support pendente lite, as well as attorney's fees. However, the parties eventually filed a joint motion to dismiss alleging: 1) That plaintiff has decided to withdraw her complaint or to cause the dismissal of the same against the defendant, for the reason that after pondering about the matter for a considerable length of time, she now seriously doubts that the said defendant is the person with whom she had her child named Angelito; 2) That by reason, thereof, Article 283 of the New Civil Code is not applicable to the herein plaintiff and the defendant and to the above-named child of the plaintiff, hence, plaintiff is no longer interested to prosecute this case;

3) That the parties hereto waive and forego any and all their other claims and counter-claims under their complaint and answer, respectively. The motion was granted in an order of the Regional Trial Court in San Pablo City dated August 11, 1983. The case was dismissed with prejudice. On February 11, 1987, Lourdes filed a motion for leave of court in the same case for Angelito Maglalang to continue and revive the case for support inasmuch as he had already attained the age of majority. The said motion was denied on March 23, 1987. Two motions for the reconsideration of the order of denial were also denied. Thus, on April 29, 1987, Angelito filed in the same court a complaint for support and declaration of his status as natural child of Gil C. Maglalang with hereditary rights. A motion to dismiss the complaint on the ground of res judicata and for lack of cause of action was filed by Gil. The motion to dismiss was granted by the trial court in an order dated June 2, 1987. Angelito elevated the case to the Court of Appeals wherein in due course a decision was rendered on June 20,1988 affirming the appealed order. 1 A motion for reconsideration filed by Angelito was denied on August 5, 1988. Hence, the herein petition the primordial issue being is whether or not res judicata has set in. We affirm. The original action for support for petitioner Angelito filed by his mother, Lourdes Flores, is predicated on the claim that Gil is the natural father of petitioner. However, in the joint motion to dismiss signed by Gil and Lourdes as well as their counsels, it is categorically stated that she seriously doubts that Angelito is the son of Gil, so that Article 283 of the Civil Code is not applicable; that she was no longer interested in prosecuting the case; and that they were waiving any claim or counterclaim against each other. As above-stated, the case was dismissed with prejudice. Petitioner then filed the complaint for support and acknowledgment as a natural child against Gil. He alleges that the cause of action in his complaint is different from the one in the first complaint and that there is no identity of parties. We disagree. While it may be true that in the first case the ostensible cause of action is for support while in the second suit it is for support and acknowledgment as a natural child, there can be no question that the causes of action in both cases are the same. As earlier observed, before petitioner may be afforded support, it must be established that the petitioner is the natural child of Gil. The same evidence is required in both cases.

By the same token, even considering that the plaintiff in the first case was Lourdes, she litigated not only in her own behalf but also in representation of her minor child, the petitioner. Obviously, there is Identity of parties in the two cases. Thus, the questioned order of dismissal with prejudice issued by the trial court, which order had already become final and executory, amounts to res judicata which bars the prosecution of any similar case. 2 By virtue of the said order, the issue of the alleged filiation of Angelito had been put to rest when Lourdes admitted that Gil is not the father of petitioner. 3 No rule is more settled in this jurisdiction than that there is res judicata when the following requisites are present1. the judgment or order must be final; 2. the court rendering it must have jurisdiction over the subject matter and of the parties; 3. that it must be a judgment on the merits; and 4. that there must be identity of parties, Identity of subject matter and identity of cause of action . 4 The other issue relating to prior resort to barangay arbitration proceedings as a pre-condition to the filing of a complaint before the court can be resolved by a cursory examination of Section 6 of Presidential Decree No. 1508, the law on barangay arbitration, to wit: SECTION 6. Conciliation, pre-condition to filing of complaint. No complaint, petition, action or proceeding involving any matter within the authority of the Lupon as provided in Section 2 hereof shall be filed or instituted in court or any other government office for adjudication unless there has been a confrontation of the parties before the Lupon Chairman or the Pangkat and no conciliation or settlement has been reached as certified by the Lupon Secretary or the Pangkat Secretary, attested by the Lupon or Pangkat Chairman or unless the settlement has been repudiated. However, the parties may go directly to court in the following cases: (1) Where the accused is under detention; (2) Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; (3) Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and

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(4) Where the action may otherwise be barred by the Statute of Limitations. From the foregoing, it is dear that a case involving the civil status of a person i.e., the acknowledgment of a natural child is not among the cases where prior resort to barangay arbitration is not necessary. The reason is obvious. The possibility of settlement at this level is encouraged even in such cases before the issue is brought to the courts. More so when there is cogent basis for the civil status being sought to be established. In the instant case, the requirement of prior resort to barangay arbitration was not satisfied. Thus, the dismissal of the case for lack of cause of action is called for. WHEREFORE, the petition is DISMISSED for lack of merit. No costs. SO ORDERED. Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

13

G.R. No. 121298

July 31, 2001

undertake the registration of the sale and transfer of title to his name. The transfer of title, however, never materialized. Upon learning about what his wife did and to appease Honorato Hong, Genaro Ruiz, Sr. executed another deed of sale in favor of Hong on July 22, 1986. This deed of sale contained the same contents as in the April 23, 1986 deed of sale and was also duly notarized. On August 18, 1986, Amor Ruiz, joined by her three (3) children, namely Genaro C. Ruiz, Jr., Angelo C. Ruiz, and Maria Lourdes C. Ruiz filed with the Regional Trial Court, Branch 24, Cebu City a complaint for Support with prayer for a writ of attachment against her husband, docketed as Civil Case No. CEB-5268. The subject of the writ of attachment was Lot 8485-B which was declared the exclusive property of Genaro Ruiz, Sr.1 Honorato Hong filed a third party claim. In this Support case, a compromise agreement was entered into by the parties on October 27, 1988 whereby Genaro Ruiz, Sr. acknowledged his obligation for support in arrears in the amount of P363,000.00 plus attorneys fees of P20,000. On November 9, 1988, the trial court approved said compromise agreement and rendered a decision based on said compromise agreement. When Genaro Ruiz, Sr. failed to comply with his obligation, the trial judge issued a writ of execution directing the sheriff to enforce the same. Meanwhile, on January 26, 1989, Honorato Hong filed a case for Specific Performance with damages and a prayer for a writ of preliminary injunction against Genaro Ruiz, Sr. and/or Amor Ruiz, et. al. with the RTC, Branch 12, Cebu City. This was docketed as Civil Case No. CEB-7555. The action was for the delivery of the title of the subject land which was sold to him by Genaro Ruiz, Sr., as evidenced by a Deed of Absolute Sale dated April 23, 1986. Hong also prayed for a writ of preliminary injunction to enjoin the sheriff in CEB-5268 (Support Case) from conducting the auction sale. The trial court, however, did not act on the latter motion so the auction sale of the subject lot in CEB5268 proceeded as scheduled with Amor Ruiz as the lone bidder. Honorato Hong subsequently filed an amended complaint in CEB7555 (Specific Performance Case) reiterating his assertion that Genaro Ruiz, Sr. and his wife, Amor Ruiz and daughter, Maria Lourdes withheld the deed of sale from him over the subject property. He further alleged that they connived in filing the Support case in order to take the property back from him. Hong also prayed that the Sheriff be restrained from issuing the Certificate of Sale in favor of the Ruizes and that the latter surrender to him the owners duplicate copy of the title covering the questioned land.

GENARO RUIZ, SR., AMOR C. RUIZ and MARIA LOURDES RUIZ, petitioners, vs. COURT OF APPEALS and HONORATO HONG, respondents. x---------------------------------------------------------x G.R. No. 122123 July 31, 2001 GENARO RUIZ, JR., ANGELO RUIZ, et al., petitioners, vs. COURT OF APPEALS and HONORATO HONG, respondents. KAPUNAN, J.: The subject of controversy in these consolidated cases (G.R. No. 121298 and G.R. No. 122123) is a piece of land, Lot No. 8485-B covered by TCT No. 2135 registered under the name of Genaro Ruiz, Sr. Adjacent to this land which is located in Tabunok, Talisay, Cebu is the real property of Honorato Hong where he operated a lumberyard. Before his demise, Genaro Ruiz, Sr. sold his property to Honorato Hong. Petitioners who are the heirs of Genaro Ruiz, Sr. assail the conveyance, asserting that their right over the land was more superior than that of the private respondent. The antecedent facts are as follows: Genaro Ruiz, Sr., already in his late seventies was a very sickly man. In order to defray the cost of his continuous medication and hospitalization, he was constrained to obtain loans from his neighbor, Honorato Hong. He used the subject land which was his exclusive property as collateral. On April 23, 1986, Genaro Ruiz,Sr. finally decided to convey the land to Honorato Hong for a consideration of P350,000.00. Hong issued a check in the amount of P100,000.00 in favor of Genaro Ruiz, Sr. representing part of the balance of the purchase price, in addition to the sums of money earlier obtained from him. The deed of sale was duly notarized. It was agreed that the transfer of title to Hongs name would be undertaken by the vendor. The relationship between Genaro Ruiz, Sr. and his wife, Amor Ruiz was estranged but Honorato Hong was a good friend to both of them. Apparently, Amor Ruiz was also borrowing money from Honorato Hong in her personal capacity. She used the subject land as security so that sometime in November, 1985, Honorato Hong and Amor Ruiz executed a Memorandum of Agreement whereby Hong took possession of the TCT of said land for safekeeping. Sometime in July, 1986, Amor Ruiz demanded the return of the certificate of title from Honorato Hong alleging that she would

Defendant Genaro Ruiz, Sr. failed to file an answer. Consequently, he was declared in default. Ex-parte presentation of evidence by plaintiff therefore ensued. On June 19, 1989, Hong amended his complaint to implead other defendants, herein petitioners, Amor C. Ruiz, wife of Genaro Ruiz, Sr. and the children, Maria Lourdes C. Ruiz, et. al. On July 27, 1989, Genaro Ruiz, Sr. died. On September 6, 1989, the other defendants filed their answer. In the Answer, they claimed that there was never a sale of the questioned land to Honorato Hong by Genaro Ruiz, Sr.; thus, the levy and the execution in CEB-5268 (Support Case) were valid. On September 14, 1989, a pre-trial conference was held. On October 16, 1989, Honorato Hong moved to amend his complaint to include other reliefs and in order for the complaint to conform to the evidence already presented. On August 27, 1990, the trial court in CEB-7555 (Specific Performance Case) granted the Motion to Amend Complaint and a writ of preliminary injunction was issued enjoining the sheriff from issuing the Certificate of Sale in CEB-5268 (Support Case). This order of the trial court allowing the issuance of the Preliminary Injunction was assailed by the petitioners on a petition for certiorari filed with the Court of Appeals, docketed as CA-G.R. SP No. 23032. While CA-G.R. SP No. 23032 was pending, the trial court in CEB7555 (Specific Performance Case) rendered a decision on the merits on September 28, 1990, with the following decretal portion: WHEREFORE, all the foregoing considered, judgment is hereby [rendered] in favor of the plaintiff as follows: 1. Declaring plaintiff to be the owner of Lot No. 8485-B and consequently; a) ordering defendant Amor Ruiz to deliver TCT No. 2135 covering the same to him; and b) ordering Amor Ruiz, et al. to vacate the property with plaintiff having the option to refund her of her expenses in constructing her improvements thereon or paying the value which the lot may have acquired by reason of said improvements; 2. Declaring the writ of attachment, levy and execution sale of Lot No. 8485-B in CEB-5268 to be null and void; 3. Making permanent the writ of preliminary injunction issued herein; and

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4. Ordering defendant Amor Ruiz to pay plaintiff actual damages hereby assessed at P20,000.00, the sum of P30,000.00 in moral damages, P10,000.00 for attorneys fees and P5,000.00 for litigation expenses. Defendants counterclaim is, as it is hereby, dismissed for lack of merit. SO ORDERED.2 Dissatisfied with the decision, petitioners appealed to the Court of Appeals, (CA-G.R. CV No. 35673). On July 31, 1995, the respondent court affirmed the decision of the trial court in toto.3 Hence, petitioners filed the instant petition for review, docketed as G.R. No. 121298, asserting that: THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN UPHOLDING THE TRIAL COURTS RULING IN THE SPECIFIC PERFORMANCE CASE NULLIFYING THE WRIT OF ATTACHMENT AND AUCTION SALE PROCEEDING IN THE SUPPORT CASE AND ORDERING PETITIONER TO DELIVER TO RESPONDENT THE TITLE OF LOT NO. 8485-B, BECAUSE OF AN ALLEGED DEED OF ABSOLUTE SALE WHICH WAS NOT REGISTERED AS MANDATED UNDER SECTION 1, PD 1521.4 Meanwhile, on March 23, 1992, the CA in CA-G.R. SP No. 23032 promulgated a decision annulling and setting aside the Orders of the RTC dated August 27, 1990 which granted the issuance of the writ of preliminary injunction enjoining the Sheriff of Cebu from issuing the Certificate of Sale in favor of Amor Ruiz, et. al.5 The dispositive portion reads as follows: WHEREFORE, the Orders: (1) of the Regional Trial Court, Branch 12, at Cebu City, in the SPECIFIC PERFORMANCE case allowing the issuance of the writ of preliminary injunction and the writ itself enjoining the Sheriff of Cebu from issuing the Certificate of Sale in favor of Amor Ruiz, et al.; and (2) of the Regional Trial Court, Branch 24, also at Cebu City with the same tenorrestraining sheriff Camaso in issuing the Certificate of Sale in favor of Amor Ruiz, et al., are hereby ANNULLED and SET ASIDE. SO ORDERED. On the strength of this CA decision, a Certificate of Sale was accordingly issued in favor of Amor Ruiz. Since no redemption was made by Genaro Ruiz, Sr. or his successors-in-interest, a definite Deed of Sale was issued in favor of Amor Ruiz. Amor Ruiz and children were then placed in possession and control of certain portions of Lot 8485-B.

Hong filed a motion for reconsideration alleging that a writ of possession can not be issued in favor of Amor Ruiz since he was in actual physical possession of the subject lot pursuant to Rule 39, Section 35. Petitioners again moved for the full implementation of the writ of possession in their favor which was denied by the trial court in CEB-5268 (Support Case) on June 1, 1994. Thus, petitioners went up to the Court of Appeals raising the pivotal issue as to whether the respondent court can be compelled to order the respondent sheriff to deliver possession of Lot 8485-B to herein petitioners.6 On February 10, 1995, the CA speaking through J. Barcelona answered in the negative in this wise: A writ of possession is complementary to a writ of execution (Cometa v. Intermediate Appellate Court, 151 SCRA 568 [1987], and the levy by the sheriff on property by virtue of a writ of execution may be considered as made under authority of the court only when the property levied upon unquestionable belongs to the judgment debtor Sy v. Discaya,181 SCRA 384 (1990]) x x x. Stated otherwise, the court issuing a writ of execution is supposed to enforce its authority only over properties of the debtor. x x x This is precisely the very nature of Civil Case No. CEB-7555, an action filed by respondent Hong for Specific Performance and Damages, with prayer for Preliminary Injunction. Directly raised therein is the issue of ownership of Lot No. 8485-B which has been previously attached, levied upon and sold in public auction by respondent sheriff for the satisfaction of the judgment in Civil Case No. CEB-5266, an action for support in Arrears filed by herein petitioners. In fact, a decision has already been rendered in the SPECIFIC PERFORMANCE case declaring Hong as the lawful and absolute owner of said property in question. However, the aforementioned decision is now on appeal before this Court. Nevertheless, we find this issue as requiring pre-emptive resolution. For, if herein respondent Hong is adjudged as, indeed, the owner of Lot 8485-B, then respondent court has no power whatsoever to enforce its authority over such property since it belongs to a person other than the judgment debtor, and consequently, herein petitioners are not entitled to its possession.7 From this adverse decision, petitioners filed another petition with this Court, docketed as G.R. No. 122123 alleging that: RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN

UPHOLDING THE TRIAL COURTS REFUSAL TO IMPLEMENT THE WRIT OF POSSESSION IT ISSUED OVER LOT NO. 8485-B IN FAVOR OF PETITIONERS, CONSIDERING THE LATTERS UNQUESTIONABLE OWNERSHIP AND RIGHT OF POSSESSION THEREOF.8 On January 29, 1996, the Court resolved to consolidate the two petitions (G.R. No. 121298 and G.R. No. 122123). The real issue in these consolidated cases is: Who between the parties has a preferred right over the subject land? Petitioners assail the findings of the respondent court in both cases that they had no more right over the land since the subject land was already sold to Honorato Hong as early as April 23, 1986 for a valuable consideration, as evidenced by a duly notarized deed of sale. Petitioners assert that they have a better right over the subject land claiming that as against a deed of sale which was unregistered, the attachment of Lot No. 8485-B in CEB-5268 (Support Case) was indeed more superior. We find no merit in the petitions. There is no dispute that both the trial court and the respondent court found that the subject land was already sold to Honorato Hong as early as April 23, 1986, as evidenced by a deed of sale which was duly notarized and reiterated in another deed of sale executed on July 22, 1986, also duly notarized. This is a finding which we need not disturb. Settled is the rule that factual findings of the trial court, especially when affirmed by the Court of Appeals, is well-nigh conclusive upon this Court.9 While there are exceptions to this rule, we do not find any cogent reason to depart from such rule in the case at bar. The pertinent findings of the trial court which is worth quoting are as follows: xxx the evidence for the plaintiff shows that Genaro Ruiz had been separated from his wife, Amor Ruiz, on an on-and-off basis for several years preceding his death in July 1989; that at that time, Genaro Ruiz was in his late 70s with only one eye and suffering from kidney, arthritis and other ailments which necessitated his continuous medication and hospitalization; that consequently he was constrained to obtain loans and cash advances from the plaintiff using the land in question, which was his exclusive property inherited from the estate of Laureano Ruiz his father (Exhibits "B" & "B-3"), as his security therefor (see Answer of Genaro Ruiz in Civil Case No. CEB-3268 marked Exhibit "D" & "D-1"); that ultimately, he sold and conveyed the property to the plaintiff by virtue of a Deed of Absolute Sale dated April 23, 1986 (Ibid, par. 8, Exhibit "A", Deed of Absolute

15

Sale). On the same date, April 23, 1986, the plaintiff issued Solidbank Check No. 165589 (Exhibit "Q") to payee Genaro B. Ruiz in the amount of P100,000.00 representing part of the remaining balance of the purchase price which in addition to the various installments in the form of loans/cash advances to Genaro Ruiz totalled P350,000.00. The check was encashed by Genaro Ruiz at Solidbank, Taboan Branch, the following day as shown by the ledger of the bank account of Honorato Hong (Exhibit "V", Exhibit "K-1"; tsn 2/21/90, p. 3). After the execution of the deed of sale and notarization of the same by Atty. Marino E. Martinquilla, Honorato Hong left the original of the deed of sale together with all the copies thereof, except for one duplicate copy which he retained to Genaro Ruiz to effectuate the transfer of the title to him it being the standard practice for the vendor of a piece of land, and also to allow Ruiz to talk to his wife about the matter. After the passage of several weeks, still no documents were delivered to Honorato Hong. Sometime in July 1986, Amor Ruiz came to Hong telling him that she and her husband had reconciled and assuring him that she will be the one to work for the transfer of the title of the land in Hongs name. For this purpose, Amor Ruiz asked for the owners copy of the certificate of title which had been entrusted by her to Hong in 1985 for safekeeping per their memorandum of agreement (Exhibit "2") and also to serve as security for loans obtained by Amor Ruiz herself from Honorato Hong (Exhibits "W", "X", "Y", "Z", "AA", "BB" and "CC"). Plaintiff, happy that the spouses had reconciled and confident that there were no more hitches, turned over the transfer certificate of title to Amor Ruiz, later even giving her a check for P5,000.00 (Exhibits "W" also marked "12" & "12-A"). Amor Ruiz failed to return with a new certificate of title along with the Deed of Sale and pertinent papers. Realizing that he had been duped, Honorato Hong attempted to transfer the title to his name by means of the single duplicate copy that he retained in his possession but the same was not acceptable to the BIR. Thus, he requested Genaro Ruiz to execute a second Deed of Absolute Sale dated July 22, 1986 with practically the same contents (Exhibit "K") this time notarized before Atty. Rogelio Lucmayon. By virtue of this Deed of Absolute Sale, Hong was able to obtain a BIR certificate authorizing registration of the property in his name (Exhibit "L", page 203, Record) after payment of the capital gains tax (Exhibits "M" & "N", page 205 & 206, Record). However, Honorato Hong was never able to have the sale registered nor the title transferred in his name inasmuch as the TCT was never returned by Amor Ruiz, a fact admitted by the latter in her testimony (tsn, 3/14/90, p. 21). Thus, he filed this case. Undoubtedly, Genaro Ruiz, Sr. had already conveyed the subject land to Honorato Hong as early as April 23, 1986 and such sale was reiterated in a deed of sale executed on July 22, 1986. Notwithstanding private respondents failure to have the sale registered, petitioners can not claim that they had no knowledge of such conveyance to Honorato Hong. Thus, their right over the

land which they acquired through a registered attachment in the action for Support (CEB-5268) can not be more superior and preferred than that of private respondent. While it is true that in case of a conflict between a vendee and an attaching creditor, an attaching creditor who registers the order of attachment and the sale of the property to him as the highest bidder acquires a valid title to the property, as against a vendee who had previously bought the same property from the registered owner but who failed to register his deed of sale.10 This is because registration is the operative act that binds or affects the land insofar as third persons are concerned.11 It is upon registration that there is notice to the whole world.12 But where a party has knowledge of a prior existing interest which is unregistered at that time he acquired a right to the same land, his knowledge of that prior unregistered interest has the effect of registration as to him. Knowledge of an unregistered sale is equivalent to registration. As held in Fernandez v. Court of Appeals,13 Section 50 of Act No. 496 (now Sec. 51 of P.D. 1529), provides that the registration of the deed is the operative act to bind or affect the land insofar as third persons are concerned. But where the party has knowledge of a prior existing interest which is unregistered at the time he acquired a right to the same land, his knowledge of that prior unregistered interest has the effect of registration as to him. The torrens system cannot be used as a shield for the commission of fraud (Gustillo v. Maravilla, 48 Phil. 442). As far as private respondent Zenaida Angeles and her husband Justiniano are concerned, the non-registration of the affidavit admitting their sale of a portion of 110 square meters of the subject land to petitioners cannot be invoked as a defense because (K)nowledge of an unregistered sale is equivalent to registration (Winkleman v. Veluz, 43 Phil. 604). This knowledge of the conveyance to Honorato Hong can not be denied. The records disclose that after the sale, private respondent was able to introduce improvements on the land such as a concrete two-door commercial building, a concrete fence around the property, concrete floor of the whole area and G.I. roofing. Acts of ownership and possession were exercised by the private respondent over the land. By these overt acts, it can not therefore be gainsaid that petitioner was not aware that private respondent had a prior existing interest over the land. Genaro Ruiz, Sr., in his Answer submitted in the case for Support filed against him by petitioners (CEB-5268), particularly mentioned that he was constrained to sell the subject land to Honorato Hong on April 23, 1986. We quote: xxx

4. Defendant who is now 75 years old with one eye and has an illness of arthritis, kidney trouble, and other illnesses, is impossible to go abroad. Said allegation is highly impossible with his frail physical condition, it is defendant who is more in dire need of support in order to sustain his medicines. Because of his illness, he was forced to get cash advances from Mr. Honorato Hong, specially when he was confined in the hospital. These cash advances accumulated and since he has no other guarantee but his only parcel of land, he sold it absolutely on April 23, 1986. xxx WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that judgment be rendered in favor of the defendant and against the plaintiffs and to issue an order to lift the order of attachment on the real property, more particularly on Lot 8485-B he sold on April 23, 1986 for the reason that since that date he no longer owned it. Defendant further pray for the dismissal of the instant complaint and to grant defendants counterclaim. 14 This was a declaration made by the owner himself, a statement which could be considered as a declaration against interest. Genaro Ruiz, Sr., the registered owner categorically stated that he had already sold the land to Honorato Hong on April 23, 1986 so his wife had no basis to attach the subject land. Genaro Ruiz, Sr. would not have made an allegation if it were not true. Such statement must be given weight and credence as against the party who declares otherwise and has no proof to rebut the same. Moreover, the sale of the property was evidenced by duly notarized deeds of sale executed on April 23, 1986 and again on July 22, 1986. Documents acknowledged before notaries public are public documents and public documents are admissible in evidence without necessity of preliminary proof as to their authenticity and due execution. They have in their favor the presumption of regularity, and to contradict the same, there must be evidence that is clear, convincing and more than merely preponderant.15 Petitioners, however, attempt to challenge the authenticity of the document executed on July 22, 1986 by insisting that there was actually no sale of the subject land to the private respondent. They assert, among others, that Honorato Hong could not have surrendered the TCT to Amor Ruiz if he was indeed the owner already of the subject land; secondly, if the land was sold to him as early as April 23, 1986, it strains credulity to offer the same land for sale again on July 22, 1986; thirdly, at that time of the levy in the Support case, the title was free from all liens and encumbrances.

16

We can not give merit to these contentions of the petitioner. Cognizant with the rule that findings of facts are well within the province of the trial court for they have clearly observed the demeanor of the witnesses when testifying in court, we bind ourselves to respect such findings of the trial court. As observed by the trial court: Apart from being unrebutted, the testimony of the plaintiff is credible in itself. xxx This testimony was delivered in an earnest, logical, and straightforward manner which inspired confidence, something that can not be said of Amor Ruiz whose conduct and demeanor rendered her undeserving of credence.16 Anent the allegation that Honorato Hong would not have returned the TCT if the land was sold to him, it should be noted that a Memorandum of Agreement was executed between Honorato Hong and Amor Ruiz whereby the former would keep in his possession the TCT for safekeeping. Obviously, this served as a security for the money Amor Ruiz borrowed from Honorato Hong for herself. On the pretext that Amor Ruiz would undertake the transfer of title to Hongs name, she was able to get the TCT from Honorato Hong and never returned or delivered it to him. Quite embarrassed with the actuations of his wife, Genaro Ruiz, Sr. caused the execution of another deed of sale bearing the same contents and amount of consideration in the April 23, 1986 Deed of Sale for the purpose of registering it in his name. If to the petitioner, this defies logic, such reiteration of the execution of the deed of sale in favor of the private respondent certainly buttresses the vendors intention of selling the land to the vendee. The two deeds of sale duly notarized are more than enough proof of such conveyance. Petitioners, on the other hand, never presented any proof to rebut the same but only flimsy surmises and conjectures. At that time of the levy in the Support case, the TCT was obviously free from all liens and encumbrances since Genaro Ruiz, Sr. and/or Honorato Hong could not have anticipated that petitioners would file an action for Support against Genaro Ruiz, Sr. and attach the subject property. We agree more with the observation that the action for Support was precisely filed to adversely affect the conveyance of the land to Honorato Hong. Petitioners capitalize on the Court of Appeals decision in CA-G.R. SP No. 23032 where the court ruled on the validity of the levy and execution sale of the questioned property and allowed the issuance of the certificate of sale in their favor. Since said decision has already become final and executory on June 9, 1992,17 then their right to possess the land is unquestionable. To this assertion, the respondent court only have this to say:

It is misleading for defendants-appellants to insist that this Court in CA-G.R. SP No. 23032 had finally settled the issue on the validity of the levy and the execution sale of the questioned property. A reading of the decision in CA-G.R. SP No. 23032 would show that what was ruled upon therein was the validity of the injunction issued by the trial court enjoining the issuance of the certificate of sale. This Court in said special case had declared void the writ of injunction issued by the trial court and declared that the issuance of a certificate of sale is ministerial and mandatory in view of the completion of the auction sale. This Court had explicitly ruled that the award of the questioned land to the highest bidder shall be subjected to the outcome of the claims made by plaintiff-appellee. This Court in CA-G.R. SP No. 23032, explained: "The issuance of a Certificate of Sale is obviously an incident of a validly conducted auction sale, thus, is mandatory and reduce to being a ministerial act of the Sheriff because the rule employs the word must connoting imperativeness. But, since the subject property sold by virtue of a writ of execution has been claimed by Hong, the Certificate of Sale to be issued by the Sheriff shall make express mention of the existence of such third-party claim."18 From the foregoing, we find no reversible error with the finding that all the attendant circumstances in the case at bar lead to the inevitable conclusion that the subject land was indeed already sold to Honorato Hong by virtue of a Deed of Sale long before it was subjected to an execution sale on June 13, 1989. As such, petitioners obviously did not acquire any more right over the subject land from its predecessor. Genaro Ruiz, Sr. had actually nothing more to pass on to his wife and children. We quote the respondent courts ruling on the matter: Section 35, Rule 39, Revised Rules of Court provides that a purchaser of real property at an execution sale "shall be substituted to and acquire all the right, title, interest and claim of the judgment debtor to the property as of the time of the levy." It follows that, if at that time, the judgment debtor had no more right to or interest in the property because he had already sold it to another, as repeatedly declared by Genaro Ruiz in his pleadings in CEB-5263 (Br. 24) and CEB-5309 (Br. 23), then the purchaser acquired nothing. Inasmuch as, at this time, the judgment debtor Genaro Ruiz no longer had any right or interest in the property. Amor Ruiz as judgment creditor and purchaser at the execution sale acquired nothing.19 In Dagupan Trading Co. v. Macam,20 we held that: x x x It is our considered view that what should determine the issue are the provisions of the last paragraph of Section 35, Rule

39 of the Rules of Court, to the effect that upon the execution and delivery of the final certificate of sale in favor of the purchaser of land sold in an execution sale, such purchaser "shall be substituted to and acquire all the right, title, interest and claim of the judgment debtor to the property as of the time of the levy." Now We ask: What was the interest and claim of Sammy Maron on the one-eighth portion of the property inherited by him and his co-heirs, at the time of the levy? The answer must necessarily be that he had none, because for a considerable time prior to the levy, his interest had already been conveyed to appellee, "fully and irretrievably" - as the Court of Appeals held. Consequently, subsequent levy made on the property for the purpose of satisfying the judgment rendered against Sammy Maron in favor of the Manila Trading Company was void and of no effect (Buson vs. Licuaco, 13 Phil. 357-358; Landig vs. U.S. Commercial Company, G.R. No. L-3597, July 31, 1951). x x x Accordingly, as rightful owner of the subject land, private respondent is, therefore, entitled to the injunctive relief enjoining the sheriff in the Support case from issuing a Certificate of Sale covering Lot 8585-B in favor of the petitioners. Likewise, petitioners are not entitled to the writ of possession of the subject land. WHEREFORE, the Decision of the Court of Appeals dated July 31, 1995 in G.R. No. 121298 and the Decision dated February 10, 1995 in G.R. No. 122123 are hereby AFFIRMED. SO ORDERED. Puno, Pardo, and Ynares-Santiago, JJ., concur. Davide, Jr., C.J., (Chairman), on official leave.

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G.R. No. 162571

June 15, 2005

ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF APPEALS AND MINOR MARTIN JOSE PROLLAMANTE, REPRESENTED BY HIS MOTHER/GUARDIAN FE ANGELA PROLLAMANTE, respondents. DECISION CORONA, J.: At issue in this petition for certiorari 1 is whether or not the Court of Appeals (CA) gravely erred in exercising its discretion, amounting to lack or excess of jurisdiction, in issuing a decision2 and resolution3 upholding the resolution and order of the trial court,4 which denied petitioners motion to dismiss private respondents complaint for support and directed the parties to submit themselves to deoxyribonucleic acid (DNA) paternity testing. Respondents Fe Angela and her son Martin Prollamante sued Martins alleged biological father, petitioner Arnel L. Agustin, for support and support pendente lite before the Regional Trial Court (RTC) of Quezon City, Branch 106.5 In their complaint, respondents alleged that Arnel courted Fe in 1992, after which they entered into an intimate relationship. Arnel supposedly impregnated Fe on her 34th birthday on November 10, 1999. Despite Arnels insistence on abortion, Fe decided otherwise and gave birth to their child out of wedlock, Martin, on August 11, 2000 at the Capitol Medical Hospital in Quezon City. The babys birth certificate was purportedly signed by Arnel as the father. Arnel shouldered the pre-natal and hospital expenses but later refused Fes repeated requests for Martins support despite his adequate financial capacity and even suggested to have the child committed for adoption. Arnel also denied having fathered the child. On January 19, 2001, while Fe was carrying five-month old Martin at the Capitol Hills Golf and Country Club parking lot, Arnel sped off in his van, with the open car door hitting Fes leg. This incident was reported to the police. In July 2001, Fe was diagnosed with leukemia and has, since then, been undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for support.6 In his amended answer, Arnel denied having sired Martin because his affair and intimacy with Fe had allegedly ended in 1998, long before Martins conception. He claimed that Fe had at least one other secret lover. Arnel admitted that their relationship started in 1993 but "he never really fell in love with (Fe) not only because (she) had at least one secret lover, a certain Jun, but also because she proved to be scheming and

overly demanding and possessive. As a result, theirs was a stormy on-and-off affair. What started as a romantic liaison between two consenting adults eventually turned out to be a case of fatal attraction where (Fe) became so obsessed with (Arnel), to the point of even entertaining the idea of marrying him, that she resorted to various devious ways and means to alienate (him) from his wife and family. Unable to bear the prospect of losing his wife and children, Arnel terminated the affair although he still treated her as a friend such as by referring potential customers to the car aircon repair shop"7 where she worked. Later on, Arnel found out that Fe had another erstwhile secret lover. In May 2000, Arnel and his entire family went to the United States for a vacation. Upon their return in June 2000, Arnel learned that Fe was telling people that he had impregnated her. Arnel refused to acknowledge the child as his because their "last intimacy was sometime in 1998."8 Exasperated, Fe started calling Arnels wife and family. On January 19, 2001, Fe followed Arnel to the Capitol Hills Golf and Country Club parking lot to demand that he acknowledge Martin as his child. According to Arnel, he could not get through Fe and the discussion became so heated that he had no "alternative but to move on but without bumping or hitting any part of her body."9 Finally, Arnel claimed that the signature and the community tax certificate (CTC) attributed to him in the acknowledgment of Martins birth certificate were falsified. The CTC erroneously reflected his marital status as single when he was actually married and that his birth year was 1965 when it should have been 1964.10 In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having sired Martin but expressed willingness to consider any proposal to settle the case.11 On July 23, 2002, Fe and Martin moved for the issuance of an order directing all the parties to submit themselves to DNA paternity testing pursuant to Rule 28 of the Rules of Court.12 Arnel opposed said motion by invoking his constitutional right against self-incrimination.13 He also moved to dismiss the complaint for lack of cause of action, considering that his signature on the birth certificate was a forgery and that, under the law, an illegitimate child is not entitled to support if not recognized by the putative father.14 In his motion, Arnel manifested that he had filed criminal charges for falsification of documents against Fe (I.S. Nos. 02-5723 and 02-7192) and a petition for cancellation of his name appearing in Martins birth certificate (docketed as Civil Case No. Q-02-46669). He attached the certification of the Philippine National Police Crime Laboratory that his signature in the birth certificate was forged. The trial court denied the motion to dismiss the complaint and ordered the parties to submit themselves to DNA paternity

testing at the expense of the applicants. The Court of Appeals affirmed the trial court. Thus, this petition. In a nutshell, petitioner raises two issues: (1) whether a complaint for support can be converted to a petition for recognition and (2) whether DNA paternity testing can be ordered in a proceeding for support without violating petitioners constitutional right to privacy and right against selfincrimination.15 The petition is without merit. First of all, the trial court properly denied the petitioners motion to dismiss because the private respondents complaint on its face showed that they had a cause of action against the petitioner. The elements of a cause of action are: (1) the plaintiffs primary right and the defendants corresponding primary duty, and (2) the delict or wrongful act or omission of the defendant, by which the primary right and duty have been violated. The cause of action is determined not by the prayer of the complaint but by the facts alleged.16 In the complaint, private respondents alleged that Fe had amorous relations with the petitioner, as a result of which she gave birth to Martin out of wedlock. In his answer, petitioner admitted that he had sexual relations with Fe but denied that he fathered Martin, claiming that he had ended the relationship long before the childs conception and birth. It is undisputed and even admitted by the parties that there existed a sexual relationship between Arnel and Fe. The only remaining question is whether such sexual relationship produced the child, Martin. If it did, as respondents have alleged, then Martin should be supported by his father Arnel. If not, petitioner and Martin are strangers to each other and Martin has no right to demand and petitioner has no obligation to give support. Preliminaries aside, we now tackle the main issues. Petitioner refuses to recognize Martin as his own child and denies the genuineness and authenticity of the childs birth certificate which he purportedly signed as the father. He also claims that the order and resolution of the trial court, as affirmed by the Court of Appeals, effectively converted the complaint for support to a petition for recognition, which is supposedly proscribed by law. According to petitioner, Martin, as an unrecognized child, has no right to ask for support and must first establish his filiation in a separate suit under Article 28317 in relation to Article 26518 of the Civil Code and Section 1, Rule 10519 of the Rules of Court. The petitioners contentions are without merit.

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The assailed resolution and order did not convert the action for support into one for recognition but merely allowed the respondents to prove their cause of action against petitioner who had been denying the authenticity of the documentary evidence of acknowledgement. But even if the assailed resolution and order effectively integrated an action to compel recognition with an action for support, such was valid and in accordance with jurisprudence. In Tayag v. Court of Appeals,20 we allowed the integration of an action to compel recognition with an action to claim ones inheritance: In Paulino, we held that an illegitimate child, to be entitled to support and successional rights from the putative or presumed parent, must prove his filiation to the latter. We also said that it is necessary to allege in the complaint that the putative father had acknowledged and recognized the illegitimate child because such acknowledgment is essential to and is the basis of the right to inherit. There being no allegation of such acknowledgment, the action becomes one to compel recognition which cannot be brought after the death of the putative father. The ratio decidendi in Paulino, therefore, is not the absence of a cause of action for failure of the petitioner to allege the fact of acknowledgment in the complaint, but the prescription of the action. Applying the foregoing principles to the case at bar, although petitioner contends that the complaint filed by herein private respondent merely alleges that the minor Chad Cuyugan is an illegitimate child of the deceased and is actually a claim for inheritance, from the allegations therein the same may be considered as one to compel recognition. Further, that the two causes of action, one to compel recognition and the other to claim inheritance, may be joined in one complaint is not new in our jurisprudence. As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 Phil. 763 [1922]) wherein we said: The question whether a person in the position of the present plaintiff can in any event maintain a complex action to compel recognition as a natural child and at the same time to obtain ulterior relief in the character of heir, is one which in the opinion of this court must be answered in the affirmative, provided always that the conditions justifying the joinder of the two distinct causes of action are present in the particular case. In other words, there is no absolute necessity requiring that the action to compel acknowledgment should have been instituted and prosecuted to a successful conclusion prior to the action in which that same plaintiff seeks additional relief in the character of heir. Certainly, there is nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here

applied different from that generally applicable in other cases. x xx The conclusion above stated, though not heretofore explicitly formulated by this court, is undoubtedly to some extent supported by our prior decisions. Thus, we have held in numerous cases, and the doctrine must be considered well settled, that a natural child having a right to compel acknowledgment, but who has not been in fact legally acknowledged, may maintain partition proceedings for the division of the inheritance against his coheirs x x x; and the same person may intervene in proceedings for the distribution of the estate of his deceased natural father, or mother x x x. In neither of these situations has it been thought necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in partition suits and distribution proceedings the other persons who might take by inheritance are before the court; and the declaration of heirship is appropriate to such proceedings. (Underscoring supplied) Although the instant case deals with support rather than inheritance, as in Tayag, the basis or rationale for integrating them remains the same. Whether or not respondent Martin is entitled to support depends completely on the determination of filiation. A separate action will only result in a multiplicity of suits, given how intimately related the main issues in both cases are. To paraphrase Tayag, the declaration of filiation is entirely appropriate to these proceedings. On the second issue, petitioner posits that DNA is not recognized by this Court as a conclusive means of proving paternity. He also contends that compulsory testing violates his right to privacy and right against self-incrimination as guaranteed under the 1987 Constitution. These contentions have no merit. Given that this is the very first time that the admissibility of DNA testing as a means for determining paternity has actually been the focal issue in a controversy, a brief historical sketch of our past decisions featuring or mentioning DNA testing is called for. In the 1995 case of People v. Teehankee21 where the appellant was convicted of murder on the testimony of three eyewitnesses, we stated as an obiter dictum that "while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or the DNA test result (emphasis supplied)." Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court of Appeals,22 promulgated in 1997, we cautioned against the use of DNA because "DNA, being a relatively new science, (had) not as yet been accorded official recognition by our courts. Paternity (would) still have to be resolved by such conventional evidence

as the relevant incriminating acts, verbal and written, by the putative father." In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated in Tijing v. Court of Appeals:23 A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress. The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence came in 2002 with our en banc decision in People v. Vallejo24 where the rape and murder victims DNA samples from the bloodstained clothes of the accused were admitted in evidence. We reasoned that "the purpose of DNA testing (was) to ascertain whether an association exist(ed) between the evidence sample and the reference sample. The samples collected (were) subjected to various chemical processes to establish their profile." A year later, in People v. Janson,25 we acquitted the accused charged with rape for lack of evidence because "doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts!" In 2004, in Tecson, et al. v. COMELEC26 where the Court en banc was faced with the issue of filiation of then presidential candidate Fernando Poe Jr., we stated: In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals, this Court has acknowledged the strong weight of DNA testing

19

Moreover, in our en banc decision in People v. Yatar,27 we affirmed the conviction of the accused for rape with homicide, the principal evidence for which included DNA test results. We did a lengthy discussion of DNA, the process of DNA testing and the reasons for its admissibility in the context of our own Rules of Evidence: Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all living organisms. A persons DNA is the same in each cell and it does not change throughout a persons lifetime; the DNA in a persons blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins. xxx xxx xxx In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques. Based on Dr. de Ungrias testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination. The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are identical with semen taken from the victims vaginal canal. Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial. Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive. In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion

over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure. Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or nonexistence. Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. Significantly, we upheld the constitutionality of compulsory DNA testing and the admissibility of the results thereof as evidence. In that case, DNA samples from semen recovered from a rape victims vagina were used to positively identify the accused Joel "Kawit" Yatar as the rapist. Yatar claimed that the compulsory extraction of his blood sample for DNA testing, as well as the testing itself, violated his right against self-incrimination, as embodied in both Sections 12 and 17 of Article III of the Constitution. We addressed this as follows: The contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion. The right against self-incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. Over the years, we have expressly excluded several kinds of object evidence taken from the person of the accused from the realm of self-incrimination. These include photographs,28 hair,29 and other bodily substances.30 We have also declared as constitutional several procedures performed on the accused such as pregnancy tests for women accused of adultery,31 expulsion of morphine from ones mouth32 and the tracing of ones foot to determine its identity with bloody footprints.33 In Jimenez v. Caizares,34 we even authorized the examination of a womans genitalia, in an action for annulment filed by her husband, to verify his claim that she was impotent, her orifice being too small for his penis. Some of these procedures were, to be sure, rather invasive and involuntary, but all of them were constitutionally sound. DNA testing and its results, per our ruling in Yatar,35 are now similarly acceptable. Nor does petitioners invocation of his right to privacy persuade us. In Ople v. Torres,36 where we struck down the proposed national computerized identification system embodied in Administrative Order No. 308, we said: In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological

advancements that enhance public service and the common good... Intrusions into the right must be accompanied by proper safeguards that enhance public service and the common good. Historically, it has mostly been in the areas of legality of searches and seizures,37 and the infringement of privacy of communication38 where the constitutional right to privacy has been critically at issue. Petitioners case involves neither and, as already stated, his argument that his right against selfincrimination is in jeopardy holds no water. His hollow invocation of his constitutional rights elicits no sympathy here for the simple reason that they are not in any way being violated. If, in a criminal case, an accused whose very life is at stake can be compelled to submit to DNA testing, we see no reason why, in this civil case, petitioner herein who does not face such dire consequences cannot be ordered to do the same. DNA paternity testing first came to prominence in the United States, where it yielded its first official results sometime in 1985. In the decade that followed, DNA rapidly found widespread general acceptance.39 Several cases decided by various State Supreme Courts reflect the total assimilation of DNA testing into their rules of procedure and evidence. The case of Wilson v. Lumb40 shows that DNA testing is so commonly accepted that, in some instances, ordering the procedure has become a ministerial act. The Supreme Court of St. Lawrence County, New York allowed a party who had already acknowledged paternity to subsequently challenge his prior acknowledgment. The Court pointed out that, under the law, specifically Section 516 of the New York Family Court Act, the Family Court examiner had the duty, upon receipt of the challenge, to order DNA tests:41 516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law shall establish the paternity of and liability for the support of a child pursuant to this act. Such acknowledgment must be reduced to writing and filed pursuant to section four thousand one hundred thirty-five-b of the public health law with the registrar of the district in which the birth occurred and in which the birth certificate has been filed. No further judicial or administrative proceedings are required to ratify an unchallenged acknowledgment of paternity. (b) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law may be rescinded by either signators filing of a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial proceeding

20

(including a proceeding to establish a support order) relating to the child in which either signator is a party. For purposes of this section, the "date of an administrative or a judicial proceeding" shall be the date by which the respondent is required to answer the petition. After the expiration of sixty days of the execution of the acknowledgment, either signator may challenge the acknowledgment of paternity in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment. Upon receiving a partys challenge to an acknowledgment, the court shall order genetic marker tests or DNA tests for the determination of the childs paternity and shall make a finding of paternity, if appropriate, in accordance with this article. Neither signators legal obligations, including the obligation for child support arising from the acknowledgment, may be suspended during the challenge to the acknowledgment except for good cause as the court may find. If a party petitions to rescind an acknowledgment and if the court determines that the alleged father is not the father of the child, or if the court finds that an acknowledgment is invalid because it was executed on the basis of fraud, duress, or material mistake of fact, the court shall vacate the acknowledgment of paternity and shall immediately provide a copy of the order to the registrar of the district in which the childs birth certificate is filed and also to the putative father registry operated by the department of social services pursuant to section three hundred seventy-two-c of the social services law. In addition, if the mother of the child who is the subject of the acknowledgment is in receipt of child support services pursuant to title six-A of article three of the social services law, the court shall immediately provide a copy of the order to the child support enforcement unit of the social services district that provides the mother with such services. (c) A determination of paternity made by any other state, whether established through the parents acknowledgment of paternity or through an administrative or judicial process, must be accorded full faith and credit, if and only if such acknowledgment meets the requirements set forth in section 452(a)(7) of the social security act. (emphasis supplied) DNA testing also appears elsewhere in the New York Family Court Act:42 532. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests. a) The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the courts own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as

reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test ordered pursuant to this section or pursuant to section one hundred eleven-k of the social services law shall be received in evidence by the court pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of the results of any such genetic marker or DNA test or tests indicate at least a ninetyfive percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall establish, if unrebutted, the paternity of and liability for the support of a child pursuant to this article and article four of this act. (b) Whenever the court directs a genetic marker pursuant to this section, a report made as subdivision (a) of this section may be received pursuant to rule forty-five hundred eighteen of the law and rules if offered by any party. or DNA test provided in in evidence civil practice

adjudicated as T.M.H.s father by default, to have the said judgment vacated, even after six years, once he had shown through a genetic marker test that he was not the childs father. In this case, G.G. only requested the tests after the Department of Social Services, six years after G.G. had been adjudicated as T.M.H.s father, sought an increase in his support obligation to her. In Greco v. Coleman,45 the Michigan Supreme Court while ruling on the constitutionality of a provision of law allowing nonmodifiable support agreements pointed out that it was because of the difficulty of determining paternity before the advent of DNA testing that such support agreements were necessary: As a result of DNA testing, the accuracy with which paternity can be proven has increased significantly since the parties in this lawsuit entered into their support agreement(current testing methods can determine the probability of paternity to 99.999999% accuracy). However, at the time the parties before us entered into the disputed agreement, proving paternity was a very significant obstacle to an illegitimate child's access to child support. The first reported results of modern DNA paternity testing did not occur until 1985. ("In fact, since its first reported results in 1985, DNA matching has progressed to 'general acceptance in less than a decade'"). Of course, while prior bloodtesting methods could exclude some males from being the possible father of a child, those methods could not affirmatively pinpoint a particular male as being the father. Thus, when the settlement agreement between the present parties was entered in 1980, establishing paternity was a far more difficult ordeal than at present. Contested paternity actions at that time were often no more than credibility contests. Consequently, in every contested paternity action, obtaining child support depended not merely on whether the putative father was, in fact, the child's biological father, but rather on whether the mother could prove to a court of law that she was only sexually involved with one man--the putative father. Allowing parties the option of entering into private agreements in lieu of proving paternity eliminated the risk that the mother would be unable meet her burden of proof. It is worth noting that amendments to Michigans Paternity law have included the use of DNA testing:46 722.716 Pretrial proceedings; blood or tissue typing determinations as to mother, child, and alleged father; court order; refusal to submit to typing or identification profiling; qualifications of person conducting typing or identification profiling; compensation of expert; result of typing or identification profiling; filing summary report; objection; admissibility; presumption; burden of proof; summary disposition.

(c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first instance, paid by the moving party. If the moving party is financially unable to pay such cost, the court may direct any qualified public health officer to conduct such test, if practicable; otherwise, the court may direct payment from the funds of the appropriate local social services district. In its order of disposition, however, the court may direct that the cost of any such test be apportioned between the parties according to their respective abilities to pay or be assessed against the party who does not prevail on the issue of paternity, unless such party is financially unable to pay. (emphasis supplied) In R.E. v. C.E.W.,43 a decision of the Mississippi Supreme Court, DNA tests were used to prove that H.W., previously thought to be an offspring of the marriage between A.C.W. and C.E.W., was actually the child of R.E. with whom C.E.W. had, at the time of conception, maintained an adulterous relationship. In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G.,44 the 4th Department of the New York Supreme Courts Appellate Division allowed G.G., who had been

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Sec. 6. (1) In a proceeding under this act before trial, the court, upon application made by or on behalf of either party, or on its own motion, shall order that the mother, child, and alleged father submit to blood or tissue typing determinations, which may include, but are not limited to, determinations of red cell antigens, red cell isoenzymes, human leukocyte antigens, serum proteins, or DNA identification profiling, to determine whether the alleged father is likely to be, or is not, the father of the child. If the court orders a blood or tissue typing or DNA identification profiling to be conducted and a party refuses to submit to the typing or DNA identification profiling, in addition to any other remedies available, the court may do either of the following: (a) Enter a default judgment at the request of the appropriate party. (b) If a trial is held, allow the disclosure of the fact of the refusal unless good cause is shown for not disclosing the fact of refusal. (2) A blood or tissue typing or DNA identification profiling shall be conducted by a person accredited for paternity determinations by a nationally recognized scientific organization, including, but not limited to, the American association of blood banks. xxx xxx xxx (5) If the probability of paternity determined by the qualified person described in subsection (2) conducting the blood or tissue typing or DNA identification profiling is 99% or higher, and the DNA identification profile and summary report are admissible as provided in subsection (4), paternity is presumed. If the results of the analysis of genetic testing material from 2 or more persons indicate a probability of paternity greater than 99%, the contracting laboratory shall conduct additional genetic paternity testing until all but 1 of the putative fathers is eliminated, unless the dispute involves 2 or more putative fathers who have identical DNA. (6) Upon the establishment of the presumption of paternity as provided in subsection (5), either party may move for summary disposition under the court rules. this section does not abrogate the right of either party to child support from the date of birth of the child if applicable under section 7. (emphasis supplied) In Rafferty v. Perkins,47 the Supreme Court of Mississippi ruled that DNA test results showing paternity were sufficient to overthrow the presumption of legitimacy of a child born during the course of a marriage:

The presumption of legitimacy having been rebutted by the results of the blood test eliminating Perkins as Justin's father, even considering the evidence in the light most favorable to Perkins, we find that no reasonable jury could find that Easter is not Justin's father based upon the 99.94% probability of paternity concluded by the DNA testing. In S.J.F. and J.C.F. v. R.C.W.,48 the North Dakota Supreme Court upheld an order for genetic testing given by the Court of Appeals, even after trial on the merits had concluded without such order being given. Significantly, when J.C.F., the mother, first filed the case for paternity and support with the District Court, neither party requested genetic testing. It was only upon appeal from dismissal of the case that the appellate court remanded the case and ordered the testing, which the North Dakota Supreme Court upheld. The case of Kohl v. Amundson,49 decided by the Supreme Court of South Dakota, demonstrated that even default judgments of paternity could be vacated after the adjudicated father had, through DNA testing, established non-paternity. In this case, Kohl, having excluded himself as the father of Amundsons child through DNA testing, was able to have the default judgment against him vacated. He then obtained a ruling ordering Amundson to reimburse him for the amounts withheld from his wages for child support. The Court said "(w)hile Amundson may have a remedy against the father of the child, she submit(ted) no authority that require(d) Kohl to support her child. Contrary to Amundson's position, the fact that a default judgment was entered, but subsequently vacated, (did) not foreclose Kohl from obtaining a money judgment for the amount withheld from his wages." In M.A.S. v. Mississippi Dept. of Human Services,50 another case decided by the Supreme Court of Mississippi, it was held that even if paternity was established through an earlier agreed order of filiation, child support and visitation orders could still be vacated once DNA testing established someone other than the named individual to be the biological father. The Mississippi High Court reiterated this doctrine in Williams v. Williams.51 The foregoing considered, we find no grave abuse of discretion on the part of the public respondent for upholding the orders of the trial court which both denied the petitioners motion to dismiss and ordered him to submit himself for DNA testing. Under Rule 65 of the 1997 Rules of Civil Procedure, the remedy of certiorari is only available "when any tribunal, board or officer has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law."52 In Land Bank of the Philippines v. the Court of Appeals53 where we dismissed a special civil action for certiorari under Rule 65, we discussed at

length the nature of such a petition and just what was meant by "grave abuse of discretion": Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. The special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment. The raison detre for the rule is when a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. In such a scenario, the administration of justice would not survive. Hence, where the issue or question involved affects the wisdom or legal soundness of the decision not the jurisdiction of the court to render said decisionthe same is beyond the province of a special civil action for certiorari. The proper recourse of the aggrieved party from a decision of the CA is a petition for review on certiorari under Rule 45 of the Revised Rules of Court. On the other hand, if the error subject of the recourse is one of jurisdiction, or the act complained of was perpetrated by a quasi-judicial officer or agency with grave abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the said Rules. (emphasis supplied) In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or personal hostility that would amount to grave abuse of discretion on the part of the Court of Appeals. The respondent court acted entirely within its jurisdiction in promulgating its decision and resolution, and any error made would have only been an error in judgment. As we have discussed, however, the decision of the respondent court, being firmly anchored in law and jurisprudence, was correct. Epilogue For too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a

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dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity. WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Court of Appeals decision dated January 28, 2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in toto. Costs against petitioner. SO ORDERED. Panganiban, (Chairman), Sandoval-Gutierrez, Carpio-Morales, and Garcia, JJ., concur.

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G.R. No. 104796 March 6, 1998 SPOUSES ROSALINA S. DE LEON and ALEJANDRO L. DE LEON, petitioners, vs. THE COURT OF APPEALS, GLICERIO MA. ELAYDA II, FEDERICO ELAYDA and DANILO ELAYDA, respondents. MENDOZA, J.: The question for decision is whether in assessing the docket fees to be paid for the filing of an action for annulment or rescission of a contract of sale, the value of the real property, subject matter of the contract, should be used as basis, or whether the action should be considered as one which is not capable of pecuniary estimation and therefore the fee charged should be a flat rate of P400.00 as provided in Rule 141, 7(b)(1) of the Rules of Court. The trial court held the fees should be based on the value of the property, but the Court of Appeals reversed and held that the flat rate should be charged. Hence this petition for review on certiorari. The facts are as follows: On August 8, 1991, private respondents filed in the Regional Trial Court of Quezon City a complaint for annulment or rescission of a contract of sale of two (2) parcels of land against petitioners, praying for the following reliefs: 1. Ordering the nullification or rescission of the Contract of Conditional Sale (Supplementary Agreement) for having violated the rights of plaintiffs (private respondents) guaranteed to them under Article 886 of the Civil Code and/or violation of the terms and conditions of the said contract. 2. Declaring void ab initio the Deed of Absolute Sale for being absolutely simulated; and 3. Ordering defendants (petitioners) to pay plaintiffs (private respondents) attorney's fees in the amount of P100,000.00. Other reliefs and remedies as are just and equitable in the premises are also prayed for. 1 Upon the filing of the complaint, the clerk of court required private respondents to pay docket and legal fees in the total amount of P610.00, broken down as follows: P450.00 Docket fee for the Judicial Development Fund under Official Receipt No. 1877773 150.00 Docket fee for the General Fund under Official Receipt No. 6834215

10.00 for the Legal Research Fund under Official Receipt No. 6834450. 2 On September 26, 1991, petitioners moved for the dismissal of the complaint on the ground that the trial court did not acquire jurisdiction over the case by reason of private respondents' nonpayment of the correct amount of docket fees. Petitioners contended that in addition to the fees already paid based on the claim for P100,000.00 for attorney's fees, private respondents should have paid docket fees in the amount of P21,640.00, based on the alleged value of the two (2) parcels of land subject matter of the contract of sale sought to be annulled. 3 On September 30, 1991, private respondents filed opposition to the motion to dismiss, arguing that outright dismissal of their complaint was not warranted on the basis of the alleged nonpayment of the correct amount of docket fees, considering that the amount paid by them was that assessed by the clerk of court. 4 On October 9, 1991, petitioners filed a reply to which private respondents filed, on October 17, 1991, a rejoinder. On October 21, 1991, the trial court 5 denied petitioners' motion to dismiss but required private respondents to pay the amount of docket fees based on the estimated value of the parcels of land in litigation as stated in the complaint. Private respondents filed a motion for reconsideration but their motion was denied by the trial court. They therefore, brought the matter to the Court of Appeals which, on February 26, 1992, rendered a decision 6 annulling the orders of the trial court. The appellate court held that an action for rescission or annulment of contract is not susceptible of pecuniary estimation and, therefore, the docket fees should not be based on the value of the real property, subject matter of the contract sought to be annulled or rescinded. Petitioners moved for reconsideration, but their motion was denied in a resolution dated March 25, 1992 of the appellate court. Hence, the petition for review on certiorari. Rule 141 of the Rules of Court provides: Sec. 7. Clerks of Regional Trial Courts. (a) For filing an action or a permissive counter-claim or money claim against an estate not based on judgment, or for filing with leave of court a thirdparty, fourth-party, etc. complaint, or a complaint in intervention, and for all clerical services in the same, if the totalsum claimed, exclusive of interest, or the stated value of the property in litigation, is: 1. Not more than P20,000.00 P120.00 2. More than P20,000.00 but less than P40,000.00 150.00 3. P40,000.00 or more but less than P60,000.00 200.00

4. P60,000.00 or more but less than P80,000.00 250.00 5. P80,000.00 or more but less than P100,000.00 400.00 6. P100,000.00 or more but less than P150,000.00 600.00 7. For each P1,000.00 in excess of P150,000.00 5.00 (b) For filing: 1. Actions where the value of the subject matter cannot be estimated P400.00 2. Special civil actions except judicial foreclosure of mortgage which shall be governed by paragraph (a) above 400.00 3. All other actions not involving property 400.00 In a real action, the assessed value of the property, or if there is none, the estimated value thereof shall be alleged by the claimant and shall be the basis in computing the fees. (emphasis added) Petitioners argue that an action for annulment or rescission of a contract of sale of real property is a real action and, therefore, the amount of the docket fees to be paid by private respondent should be based either on the assessed value of the property, subject matter of the action, or its estimated value as alleged in the complaint, pursuant to the last paragraph of 7(b) of Rule 141, as amended by the Resolution of the Court dated September 12, 1990. Since private respondents alleged that the land, in which they claimed an interest as heirs, had been sold for P4,378,000.00 to petitioners, this amount should be considered the estimated value of the land for the purpose of determining the docket fees. On the other hand, private respondents counter that an action for annulment or rescission of a contract of sale of real property is incapable of pecuniary estimation and, so, the docket fees should be the fixed amount of P400.00 in Rule 141, 7(b)(1). In support of their argument, they cite the cases of Lapitan v. Scandia, Inc. 7 and Bautista v. Lim. 8 In Lapitan this Court, in an opinion by Justice J.B.L. Reyes, held: A review of the jurisprudence of this Court indicates that in determining whether an action is one the subject matter of which is not capable of pecuniary estimation, this Court has adopted the criterion of first ascertaining the nature of the principal action or remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal

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courts or in the courts of first instance would depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money, or where the money claim is purely incidental to, or a consequence of, the principal relief sought, like in suits to have the defendant perform his part of the contract (specific performance) and in actions for support, or for annulment of a judgment or to foreclose a mortgage, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts of first instance. The rationale of the rule is plainly that the second class cases, besides the determination of damages, demand an inquiry into other factors which the law has deemed to be more within the competence of courts of first instance, which were the lowest courts of record at the time that the first organic laws of the Judiciary were enacted allocating jurisdiction (Act 136 of the Philippine Commission of June 11, 1901). Actions for specific performance of contracts have been expressly pronounced to be exclusively cognizable by courts of first instance: De Jesus vs. Judge Garcia, L-26816, February 28, 1967; Manufacturer's Distributors, Inc. vs. Yu Siu Liong, L21285, April 29, 1966. And no cogent reason appears, and none is here advanced by the parties, why an action for rescission (or resolution) should be differently treated, a "rescission" being counterpart, so to speak, of "specific performance". In both cases, the court would certainly have to undertake an investigation into facts that would justify one act or the other. No award for damages may be had in an action for rescission without first conducting an inquiry into matters which would justify the setting aside of a contract, in the same manner that courts of first instance would have to make findings of fact and law in actions not capable of pecuniary estimation expressly held to be so by this Court, arising from issues like those raised in Arroz v. Alojado, et al., L-22153, March 31, 1967 (legality or illegality of the conveyance sought for and the determination of the validity of the money deposit made); De Ursua v. Pelayo, L13285, April 18, 1950 (validity of a judgment); Bunayog v. Tunas, L-12707, December 23, 1959 (validity of mortgage); Baito v. Sarmiento, L-13105, August 25, 1960 (the relations of the parties, the right to support created by the relation, etc., in actions for support); De Rivera, et al. v. Halili, L-15159, September 30, 1963 (the validity or nullity of documents upon which claims are predicated). Issues of the same nature may be raised by a party against whom an action for rescission has been brought, or by the plaintiff himself. It is, therefore, difficult to see why a prayer for damages in an action for rescission should be taken as the basis for concluding such action as one capable of pecuniary estimation a prayer which must be included in the main action if plaintiff is to be compensated for what he may have suffered as a result of the breach committed by defendant, and not later on precluded from recovering damages by the rule

against splitting a cause of action and discouraging multiplicity of suits. Conformably with this discussion of actions "where the value of the case cannot be estimated," the Court in Bautista v. Lim, held that an action for rescission of contract is one which cannot be estimated and therefore the docket fee for its filing should be the flat amount of P200.00 as then fixed in the former Rule 141, 141, 5(10). Said this Court: We hold that Judge Dalisay did not err in considering Civil Case No. V-144 as basically one for rescission or annulment of contract which is not susceptible of pecuniary estimation (1 Moran's Comments on the Rules of Court, 1970 Ed, p. 55; Lapitan vs. Scandia, Inc., L-24668, July 31, 1968, 24 SCRA 479, 781-483). Consequently, the fee for docketing it is P200, an amount already paid by plaintiff, now respondent Matilda Lim. (She should pay also the two pesos legal research fund fee, if she has not paid it, as required in Section 4 of Republic Act No. 3870, the charter of the U.P. Law Center). Thus, although eventually the result may be the recovery of land, it is the nature of the action as one for rescission of contract which is controlling. The Court of Appeals correctly applied these cases to the present one. As it said: We would like to add the observations that since the action of petitioners [private respondents] against private respondents [petitioners] is solely for annulment or rescission which is not susceptible of pecuniary estimation, the action should not be confused and equated with the "value of the property" subject of the transaction; that by the very nature of the case, the allegations, and specific prayer in the complaint, sans any prayer for recovery of money and/or value of the transaction, or for actual or compensatory damages, the assessment and collection of the legal fees should not be intertwined with the merits of the case and/or what may be its end result; and that to sustain private respondents' [petitioners'] position on what the respondent court may decide after all, then the assessment should be deferred and finally assessed only after the court had finally decided the case, which cannot be done because the rules require that filing fees should be based on what is alleged and prayed for in the face of the complaint and paid upon the filing of the complaint. WHEREFORE, the decision of the Court of Appeals is AFFIRMED. SO ORDERED. Regalado, Melo, Puno and Martinez, JJ., concur.

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G.R. No. 145527

May 28, 2002

AUGUSTUS CAEZAR R. GAN, petitioner, vs. HON. ANTONIO C. REYES, in his capacity as Presiding Judge of RTC-Br. 61, Baguio City, ALBERT G. TOLENTINO, in his capacity as RTC Sheriff of Baguio City, and FRANCHESKA JOY C. PONDEVIDA, assisted by BERNADETTE C. PONDEVIDA, respondents. BELLOSILLO, J.: Quite apprehensive that she would not be able to send to school her three (3)-year old daughter Francheska Joy S. Pondevida, Bernadette S. Pondevida wrote petitioner Augustus Caezar R. Gan1 demanding support for their "love child." Petitioner, in his reply, denied paternity of the child. An exasperated Bernadette thereafter instituted in behalf of her daughter a complaint against petitioner for support with prayer for support pendente lite.2 Petitioner moved to dismiss on the ground that the complaint failed to state a cause of action. He argued that since Francheska's certificate of birth indicated her father as "UNKNOWN," there was no legal or factual basis for the claim of support.3 His motion, however, was denied by the trial court.4 Despite denial of his motion, petitioner failed to file his answer within the reglementary period. Thus, on 19 January 2000 private respondent moved that petitioner be declared in default, which motion was granted. In its Order declaring petitioner in default the trial court noted that petitioner's Motion to Admit Answer was filed more than ninety (90) days after the expiration of the reglementary period, and only after private respondent moved that petitioner be declared in default. Petitioner's motion for reconsideration was also denied. Hence, the court received the evidence of private respondent ex parte. After finding that the claim of filiation and support was adequately proved, the trial court rendered its Decision on 12 May 2000 ordering petitioner to recognize private respondent Francheska Joy S. Pondevida as his illegitimate child and support her with P20,000.00 every month to be paid on or before the 15th of each month starting 15 April 2000. Likewise petitioner was ordered to pay Francheska Joy S. Pondevida the accumulated arrears of P20,000.00 per month from the day she was born, P50,000.00 as attorney's fees and P25,000.00 for expenses of litigation, plus P20,000.00 on or before the 15th of every month from 15 May 2000 as alimony pendente lite should he desire to pursue further remedies against private respondent.5 Forthwith, private respondent moved for execution of the judgment of support, which the trial court granted by issuing a

writ of execution, citing as reason therefor private respondent's immediate need for schooling.6 Pursuant to the writ, the sheriff levied upon a motor vehicle, a Honda City, with Plate No. UMT 884, registered in the name of "A.B. Leasing & Fin. Corp., Leased to: G & G Trading," and found within the premises of petitioner's warehouse in Caloocan City.7 Meanwhile, petitioner appealed the Judgment to the Court of Appeals.8 On 9 June 2000 petitioner filed a petition for certiorari and prohibition with the Court of Appeals imputing grave abuse of discretion to the trial court for ordering the immediate execution of the judgment. Petitioner averred that the writ of execution was issued despite the absence of a good reason for immediate enforcement. Petitioner insisted that as the judgment sought to be executed did not yet attain finality there should be an exceptional reason to warrant its execution. He further alleged that the writ proceeded from an order of default and a judgment rendered by the trial court in complete disregard of his "highly meritorious defense." Finally, petitioner impugned the validity of the writ as he argued that it was issued without notice to him. Petitioner stressed the fact that he received copy of the motion for immediate execution two (2) weeks after its scheduled hearing.9 On 31 August 2000 the Court of Appeals dismissed the petition on the ratiocination that under Sec. 4, Rule 39 of the 1997 Rules of Civil Procedure judgments for support are immediately executory and cannot be stayed by an appeal. Thus, it did not help petitioner any to argue that there were no good reasons to support its immediate execution. The second challenge hurled against the validity of the writ concerning the lack of notice and hearing was likewise dismissed with the appeals court favoring substantial justice over technicalities. Lastly, petitioner's justification for belatedly filing his answer, i.e., miscommunication with his lawyer, was disregarded since it fell short of the statutory requirements of "fraud, accident, mistake or excusable negligence."10 His motion for reconsideration having been denied, petitioner came to us impugning the dismissal of his petition for certiorari. Petitioner argues that under the rules a judgment for support which is subject of an appeal cannot be executed absent any good reason for its immediate execution. Petitioner likewise attacks the validity of the writ asserting that it was issued in violation of his right to notice and hearing. Petitioner also seeks the setting aside of the default order and the judgment rendered thereafter for the reason that should he be allowed to prove his defense of adultery, the claim of support would be most likely denied.11 Petitioner claims that in an action by a child against his putative father, adultery of the child's mother would be a valid defense to show that the child is a fruit of adulterous

relations for, in such case, it would not be the child of the defendant and therefore not entitled to support. Parenthetically, how could he be allowed to prove the defense of adultery when it was not even hinted that he was married to the mother of Francheska Joy. Petitioner consents to submit to Dioxyribonucleic Acid (DNA) Testing to resolve the issue of paternity, which test he claims has a reputation for accuracy.12 A careful review of the facts and circumstances of this case fails to persuade this Court to brand the issuance of the writ of execution by the trial court and affirmed by the Court of Appeals with the vice of grave abuse of discretion. There is no evidence indeed to justify the setting aside of the writ on the ground that it was issued beyond the legitimate bounds of judicial discretion. Section 4, Rule 39, of the Rules of Court clearly states that, unless ordered by the trial court, judgments in actions for support are immediately executory and cannot be stayed by an appeal. This is an exception to the general rule which provides that the taking of an appeal stays the execution of the judgment and that advance executions will only be allowed if there are urgent reasons therefor. The aforesaid provision peremptorily calls for immediate execution of all judgments for support and makes no distinction between those which are the subject of an appeal and those which are not. To consider then petitioner's argument that there should be good reasons for the advance execution of a judgment would violate the clear and explicit language of the rule mandating immediate execution. Petitioner is reminded that to the plain words of a legal provision we should make no further explanation. Absoluta sententia expositore non indiget. Indeed, the interpretation which petitioner attempts to foist upon us would only lead to absurdity, its acceptance negating the plain meaning of the provision subject of the petition. Petitioner would also have us annul the writ of execution on the ground that he was not notified of its issuance. We are unable to accept such a plea for enough has been done by petitioner to delay the execution of the writ. As the records show, in partial fulfillment of the writ of execution petitioner surrendered a sedan which apparently was not his as it was later ordered released to a third party who laid claim over the levied vehicle.13 Also, petitioner filed before the Court of Appeals a Motion for Leave to Deposit in Court Support Pendente Lite promising to deposit the amount due as support every 15th of the month, but to date has not deposited any amount in complete disavowal of his undertaking.14 He was not even deterred from appealing before us and needlessly taking up our time and energy by posing legal questions that can be characterized, at best, as flimsy and trivial. We are thus not prepared to abrogate the writ of execution issued in favor of private respondent for substantial justice would be better served if petitioner be precluded from

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interposing another barrier to the immediate execution of the support judgment. We are not intimating that in every case the right to notice of hearing can be disregarded. That is not so. It appears in this case that there has been too much temporizing in the execution of the writ which must not be allowed to thwart the constitutional mandate for speedy disposition of cases. As has been said, a technicality should be an aid to justice and not its great hindrance and chief enemy.15 Truly, if the writ of execution would be voided on this ground alone, then procedural rules which were primarily drafted to protect parties in the realm of constitutional guarantees would acquire a new sanctity at the expense of equity and justice. Lastly, we note that no useful purpose would be served if we dwell on petitioner's arguments concerning the validity of the judgment by default and his insistence that he be subjected, together with private respondent Bernadette C. Pondevida to DNA testing to settle the issue of paternity. The futility of his arguments is very apparent. It is not for us at this instance to review or revise the Decision rendered by the trial court for to do so would pre-empt the decision which may be rendered by the Court of Appeals in the main case for support. In all cases involving a child, his interest and welfare are always the paramount concerns. There may be instances where, in view of the poverty of the child, it would be a travesty of justice to refuse him support until the decision of the trial court attains finality while time continues to slip away. An excerpt from the early case of De Leon v. Soriano16 is relevant, thus: The money and property adjudged for support and education should and must be given presently and without delay because if it had to wait the final judgment, the children may in the meantime have suffered because of lack of food or have missed and lost years in school because of lack of funds. One cannot delay the payment of such funds for support and education for the reason that if paid long afterwards, however much the accumulated amount, its payment cannot cure the evil and repair the damage caused. The children with such belated payment for support and education cannot act as gluttons and eat voraciously and unwisely, afterwards, to make up for the years of hunger and starvation. Neither may they enrol in several classes and schools and take up numerous subjects all at once to make up for the years they missed in school, due to non-payment of the funds when needed. WHEREFORE, finding no reversible error in the Decision sought to be reviewed, the instant petition is DENIED. The 31 August 2000 Decision of the Court of Appeals dismissing the Petition for Certiorari instituted by petitioner Augustus Caezar C. Gan and upholding the validity of the 2 June 2000 Writ of Execution

issued by the Regional Trial Court Br. 61, Baguio City, in Civil Case No. 4234-R, is AFFIRMED. Costs against petitioner. SO ORDERED. Mendoza, Quisumbing, De Leon, Jr., and Corona, JJ., concur.

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G.R. No. 131286

March 18, 2004

JOSE LAM, petitioner, vs. ADRIANA CHUA, respondent. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a petition for review on certiorari assailing the Decision1 dated June 11, 1997 and the Resolution dated October 27, 1997 of the Court of Appeals in CA-G.R. CV. No. 51107, entitled, "Adriana Chua, Petitioner-Appellee vs. Jose Lam, Respondent-Appellant." The case commenced on March 11, 1994 upon the filing of a petition for declaration of nullity of marriage by Adriana Chua against Jose Lam in the Regional Trial Court of Pasay City (Branch 109). Adriana alleged in the petition that: she and Jose were married on January 13, 1984; out of said marriage, they begot one son, John Paul Chua Lam; Jose was psychologically incapacitated to comply with the essential marital obligations of marriage but said incapacity was not then apparent; such psychological incapacity of Jose became manifest only after the celebration of the marriage when he frequently failed to go home, indulged in womanizing and irresponsible activities, such as, mismanaging the conjugal partnership of gains; in order to save what was left of the conjugal properties, she was forced to agree with Jose on the dissolution of their conjugal partnership of gains and the separation of present and future properties; said agreement was approved by the Regional Trial Court of Makati City (Branch 149) in a Decision dated February 28, 1994; they had long been separated in bed and board; they have agreed that the custody of their child will be with her, subject to visitation rights of Jose. Adriana prayed that the marriage between her and Jose be declared null and void but she failed to claim and pray for the support of their child, John Paul. Summons was duly served on Jose Lam on March 22, 1994. Despite the lapse of fifteen days after service of summons, no responsive pleading was filed by him. Hence, the trial court issued an Order dated April 13, 1994, directing Asst. City Prosecutor Bonifacio Barrera to conduct an investigation for determination whether or not there was collusion between the parties and to submit his report thereon. On April 28, 1994, Asst. City Prosecutor Barrera filed his Report stating that "there seems to be no collusion between the parties".2 The trial court then set the case for hearing. The lone witness was Adriana herself. She testified that her marriage with Jose was arranged by her parents in the traditional Chinese way; that her married life was abnormal because Jose very seldom came home, never worked for a living and instead kept asking for

money from her to buy his sports cars; that she was also the one spending for all the expenses of their only child, John Paul.3 After her testimony, counsel for Adriana formally offered the documentary evidence. No evidence was presented regarding the amount of support needed by John Paul or the capacity of Jose to give support. On June 23, 1994, Adriana filed an Urgent Motion to Re-Open4 on the ground that she was able to secure additional new evidence which were significant, material and indispensable. On July 6, 1994, the trial court granted the motion to re-open the case and held a hearing for the reception of additional evidence. The Pasay RTC admitted into evidence the Marriage Contract dated May 25, 1977 between Jose and one Celia Santiago, and another Marriage Contract dated May 6, 1982 between Jose and one Evan Lock,5 showing that Jose had been married twice before he married Adriana in 1984. On August 4, 1994, the Pasay RTC rendered its Decision6 the dispositive portion of which reads as follows: IN VIEW OF ALL THE FOREGOING, the Court hereby declares the marriage between petitioner Adriana Chua and respondent Jose Lam null and void for being bigamous by nature. The Local Civil Registrar of Quezon City and the Office of the Civil Registrar General are hereby ordered to cancel the marriage between Adriana Chua and Jose Lam celebrated on January 13, 1984 by Hon. Guillermo L. Loja of the Metropolitan Trial Court, Quezon City. Likewise, respondent Jose Lam is hereby ordered to give a monthly support to his son John Paul Chua Lam in the amount of P20,000.00. SO ORDERED.7 On November 3, 1994, Jose filed a Motion for Reconsideration8 thereof but only insofar as the decision awarded monthly support to his son in the amount of P20,000.00. He argued that there was already a provision for support of the child as embodied in the decision9 dated February 28, 1994 of the Makati RTC wherein he and Adriana agreed to contribute P250,000.00 each to a common fund for the benefit of the child, to wit: 8. Nothing herein shall diminish the rights both parties with respect to their son. In the child, the Second Party shall retain care and visitation rights by the First Party to be mutual arrangements. and obligations of best interest of the custody, subject to exercised through

required, to be used solely and exclusively for the benefit of their son. Said common fund shall be managed and administered by the Second Party, subject to periodic accounting, until the son reaches majority age.10 Jose further alleged in his motion that his contribution to the common fund had even amounted to P500,000.00. On August 22, 1995, the Pasay RTC issued an Order denying Jose Lams motion for reconsideration ruling that the compromise agreement entered into by the parties and approved by the Makati RTC before the marriage was declared null and void ab initio by the Pasay RTC, is of no moment and cannot limit and/or affect the support ordered by the latter court. Jose then appealed the Pasay RTCs decision to the Court of Appeals, assigning only a single error of the trial court: THE LOWER COURT SERIOUSLY ERRED IN ORDERING APPELLANT TO GIVE A MONTHLY SUPPORT OF P20,000.00 TO HIS SON BECAUSE THIS WOULD, IN EFFECT, REQUIRE APPELLANT TO PAY TWICE THE MONTHLY SUPPORT FOR HIS CHILD. BESIDES, THE LOWER COURT HAS DULY ADMITTED THE FACT THAT THERE WAS A DECISION ISSUED BY ANOTHER COURT REQUIRING APPELLANT TO CONTRIBUTE THE AMOUNT OF P250,000.00 AS THE LATTERS SHARE IN THE COMMON FUND FOR SUPPORT OF THE CHILD, SUBJECT TO PERIODIC ACCOUNTING AND TO BE MANAGED BY APPELLEE.11 On June 11, 1997, the Court of Appeals promulgated its decision affirming the Pasay RTCs decision in all respects. Jose filed a motion for reconsideration of the Decision but in a Resolution dated October 27, 1997, the Court of Appeals denied the same. Hence, Jose filed the present petition for review on certiorari under Rule 45 of the Rules of Court, likewise raising a single error of the appellate court, to wit: THE HONORABLE COURT OF APPEALS ERRED IN DECIDING LEGAL QUESTIONS OF SUBSTANCE NOT IN ACCORDANCE WITH LAW AND JURISPRUDENCE IN FINDING THAT THE TRIAL COURTS RULING THAT THE COMPROMISE AGREEMENT BETWEEN PETITIONER AND RESPONDENT WHERE THEY BOUND THEMSELVES TO CONTRIBUTE THE AMOUNT OF TWO HUNDRED FIFTY THOUSAND PESOS (P250,000.00) TO A COMMON FUND FOR THE BENEFIT OF THEIR CHILD DOES NOT BAR THE TRIAL COURT IN ANNULMENT CASE TO AGAIN AWARD SUPPORT IN FAVOR OF THE CHILD. The Pasay RTC and the Court of Appeals are both correct insofar as they ruled that the amount of support is by no means permanent. In Advincula vs. Advincula,12 we held that another action for support could be filed again by the same plaintiff

9. It is hereby agreed by the First Party and the Second Party that the First Party and the Second Party shall initially contribute P250,000.00 each to a common fund, to be increased as

28

notwithstanding the fact that the previous case for support filed against the same defendant was dismissed. We further held in said case that: . . . Judgment for support does not become final. The right to support is of such nature that its allowance is essentially provisional; for during the entire period that a needy party is entitled to support, his or her alimony may be modified or altered, in accordance with his increased or decreased needs, and with the means of the giver. It cannot be regarded as subject to final determination.13 Thus, there is no merit to the claim of Jose that the compromise agreement between him and Adriana, as approved by the Makati RTC and embodied in its decision dated February 28, 1994 in the case for voluntary dissolution of conjugal partnership of gains, is a bar to any further award of support in favor of their child John Paul. The provision for a common fund for the benefit of their child John Paul, as embodied in the compromise agreement between herein parties which had been approved by the Makati RTC, cannot be considered final and res judicata since any judgment for support is always subject to modification, depending upon the needs of the child and the capabilities of the parents to give support. Having settled the issue on the authority of the trial court to award support for the child in an action for declaration of nullity of marriage of the childs parents, this Court will now discuss the propriety of the proceedings conducted by the Pasay RTC and the decision it rendered, as affirmed by the Court of Appeals. The Court notes four circumstances that taint the regularity of the proceedings and the decision rendered by the trial court. First, the only ground alleged in the petition for declaration of nullity of marriage filed by Adriana with the Pasay RTC is the psychological incapacity of Jose without any prayer for the support of her child. Adriana presented, formally offered her evidence in support of the petition and submitted the case for decision as of May 12, 1994.14 But on a motion to re-open filed by her on June 23, 1994, the trial court set the case for reception of evidence on July 6, 1994 and subsequently allowed Adriana to present evidence of two previous marriages contracted by Jose with other women to prove that the marriage between Adriana and Jose was null and void for being bigamous. It is only at the July 6, 1994 hearing that respondent Adriana first claimed support for John Paul when she testified in open court. The petition of Adriana was, in effect, substantially changed by the admission of the additional evidence. The ground relied on for nullity of the marriage was changed from the psychological incapacity of Jose to that of existence of previous marriages of

Jose with two different women with an additional claim for support of the child. Such substantial changes were not reflected in the petition filed with the trial court, as no formal amendment was ever made by Adriana except the insertion of the handwritten phrase "And for respondent to support the child of petitioner in an amount this Honorable Court may deem just and reasonable"15 found at the ultimate paragraph of the petition, as allowed by the Pasay RTC. There is nothing on record to show that petitioner Jose was notified of the substantial changes in the petition of Adriana. Second, the Pasay RTC did not give Jose an opportunity to be present on July 6, 1994 for the presentation of evidence by Adriana and to refute the same. Although copy of the motion filed on June 23, 1994 with a notice of hearing on June 27, 1994 was sent to Jose, the record does not show that he received the notice in due time; neither does the record show that he was notified of the subsequent hearing held on July 6, 1994 where Adriana presented the marriage certificates and claimed for the support of their child sans the presence of Jose. Third, the records do not show that petitioner was sent a copy of the Order dated July 6, 1994 wherein the trial court granted the Urgent Motion to Re-Open of respondent Adriana and forthwith allowed her to present her evidence to prove that petitioner herein contracted previous marriages with different women. Fourth, the evidence presented by respondent regarding her claim for support for John Paul is glaringly insufficient and cannot be made a valid basis upon which the Pasay RTC could have determined the monthly amount of P20,000.00 for the support to be given to John Paul by petitioner Jose. A party who has been declared in default is entitled to service of substantially amended or supplemental pleadings.16 Considering that in cases of declaration of nullity of marriage or annulment of marriage, there can be no default pursuant to Section 6, Rule 18 of the Revised Rules of Court17 in relation to Article 48 of the Family Code,18 it is with more reason that petitioner should likewise be entitled to notice of all proceedings. Furthermore, the lower courts are reminded of the ruling of the Court in Asian Transmission Corporation vs. Canlubang Sugar Estates,19 to wit: It is also a general principle of law that a court cannot set itself in motion, nor has it power to decide questions except as presented by the parties in their pleadings. Anything that is decided beyond them is coram non-judice and void. Therefore where a court enters a judgment or awards relief beyond the prayer of the complaint or the scope of its allegations the excessive relief is not merely irregular but is void for want of jurisdiction, and is open to collateral attack.

The appellate court also ruled that a judgment of a court upon a subject within its general jurisdiction, but which is not brought before it by any statement or claim of the parties, and is foreign to the issues submitted for its determination, is a nullity. (Emphasis supplied) Pursuant to the foregoing principle, it is a serious error for the trial court to have rendered judgment on issues not presented in the pleadings as it was beyond its jurisdiction to do so. The amendment of the petition to reflect the new issues and claims against Jose was, therefore, indispensable so as to authorize the court to act on the issue of whether the marriage of Jose and Adriana was bigamous and the determination of the amount that should have been awarded for the support of John Paul. When the trial court rendered judgment beyond the allegations contained in the copy of the petition served upon Jose, the Pasay RTC had acted in excess of its jurisdiction and deprived petitioner Lam of due process. Insofar as the declaration of nullity of the marriage between Adriana and Jose for being bigamous is concerned, the decision rendered by the Pasay RTC could be declared as invalid for having been issued beyond its jurisdiction. Nonetheless, considering that Jose, did not assail the declaration of nullity of his marriage with Adriana in his motion for reconsideration which he filed with the Pasay RTC. In the petitions he filed in the Court of Appeals and with us, he likewise did not raise the issue of jurisdiction of the Pasay RTC to receive evidence and render judgment on his previous marriages with other woman which were not alleged in the petition filed by Adriana. Petitioner Jose is estopped from questioning the declaration of nullity of his marriage with Adriana and therefore, the Court will not undo the judgment of the Pasay RTC declaring the marriage of Adriana and Jose null and void for being bigamous. It is an axiomatic rule that while a jurisdictional question may be raised at any time, this, however, admits of an exception where estoppel has supervened.20 Consequently, the Court will only resolve the lone issue raised by Jose in the present petition for review on certiorari which is the award of support for his child, John Paul. The Pasay RTC should have been aware that in determining the amount of support to be awarded, such amount should be in proportion to the resources or means of the giver and the necessities of the recipient, pursuant to Articles 194, 201 and 202 of the Family Code, to wit: Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

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The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. Art. 201. The amount of support, in the cases referred to in Articles 19521 and 196,22 shall be in proportion to the resources or means of the giver and to the necessities of the recipient. Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. It is incumbent upon the trial court to base its award of support on the evidence presented before it. The evidence must prove the capacity or resources of both parents who are jointly obliged to support their children as provided for under Article 195 of the Family Code; and the monthly expenses incurred for the sustenance, dwelling, clothing, medical attendance, education and transportation of the child. In this case, the only evidence presented by respondent Adriana regarding her claim for support of the child is her testimony, which is quoted below in verbatim: Atty. Lorbes: Q - After discovering that your husband had contracted two valid marriages prior to your marriage, how do you feel about it? A - I felt it is unfair to my life. Q - Considering the bigamous marriage contract by your husband with you, what do you want to request to the Honorable Court? A - I want to request the Court that the respondent be ordered to support my little boy. Court: Q - How much support do you want? A - P20,000.00 to P25,000.00 Q - Is there a prayer for support? Atty. Lorbes: A - None, Your Honor.

Court: Get the original copy of the complaint, add and sign it for the support of the boy. A - Yes, Your Honor.23 Evidently, such testimony does not establish the amount needed by the child nor the amount that the parents are reasonably able to give. We take note of the Compromise Agreement, approved by and embodied in the decision of the Makati RTC, portions of which read as follows: 8. Nothing herein shall diminish the rights both parties with respect to their son. In the child, the Second Party shall retain care and visitation rights by the First Party to be mutual arrangements. and obligations of best interest of the custody, subject to exercised through

The matter of support is a question that may be raised and threshed out before the Makati RTC as it was the court that approved the Compromise Agreement, or before the Pasay RTC where the petition for declaration of nullity or annulment of marriage is filed. In the interest of orderly administration of justice, the Court deems it proper that the issue on support should be resolved by the Pasay RTC where the claim for support of the child was initiated by Adriana. The trial courts action of merely ordering in open court during the July 6, 1994 hearing that a prayer for support be written and inserted in the petition filed by respondent Adriana does not constitute proper amendment and notice upon petitioner Jose. Consequently, herein petitioner Jose was deprived of due process when the trial court proceeded to hear the case on a motion to re-open and render judgment without giving Jose the requisite notice and the opportunity to refute the new claim against him. Verily, the manner by which the trial court arrived at the amount of support awarded to John Paul was whimsical, arbitrary and without any basis. Such being the case, the Court has no other recourse but to reverse the decision of the Court of Appeals and Pasay RTC insofar as the award of support is concerned and order the remand of the case to Pasay RTC for further proceedings as to the issue regarding support. WHEREFORE, the petition for review on certiorari is GRANTED. The Decision and Resolution of the Court of Appeals in CA-G.R. CV. No. 51107, dated June 11, 1997 and October 27, 1997, dismissing the appeal and denying the motion for reconsideration, respectively, are hereby SET ASIDE but only insofar as the award of support in favor of John Paul Chua Lam is concerned. The Decision dated August 4, 1994 and the Order of the Regional Trial Court of Pasay City (Branch 109), dated August 22, 1995, are REVERSED and SET ASIDE for being null and void, likewise only insofar as the matter on support is concerned. Let the records of Civil Case No. 94-0331 be remanded to the Regional Trial Court of Pasay City (Branch 109) which is DIRECTED to reopen the trial of Civil Case No. 94-0331 with respect to the claim of Adriana Chua against Jose Lam for the support of John Paul Chua Lam and conduct hearings for further reception of evidence for the proper determination of the proper amount of support to be awarded to the child John Paul Chua Lam. SO ORDERED.

9. It is hereby agreed by the First Party and the Second Party that the First Party and the Second Party shall initially contribute P250,000.00 each to a common fund, to be increased as required, to be used solely and exclusively for the benefit of their son. Said common fund shall be managed and administered by the Second Party, subject to periodic accounting, until the son reaches majority age. WHEREFORE, finding the aforequoted agreement to be in order, and not being contrary to law, morals or public policy, the same is hereby APPROVED. Accordingly, the conjugal partnership of gains existing between the said spouses is dissolved and a decree of complete separation is established in accordance with the provisions of Chapter 6 of the Family Code of the Philippines. The parties are hereby enjoined to faithfully comply with the conditions of their Agreement as embodied in this petition and the same shall, as between the parties, be deemed to be a decision and/or award in the matters treated in the aforesaid settlement. Let a copy of this petition as well as the foregoing Decision be recorded in the proper local civil registries and registries of property at the expense of the herein petitioners pursuant to Article 139 of the Family Code. SO ORDERED. GIVEN this 28th day of February, 1994 at Makati, Metro Manila.24

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G.R. No. 176464

February 4, 2010

who continued to insist that they independently from petitioners family.

live

separately

and

EDWARD N. LIM, Petitioner, vs. MA. CHERYL STA. CRUZ-LIM, Respondent. DECISION NACHURA, J.: This petition raises a far-from-novel issue, i.e., the invalidity of a marriage on the ground of either or both of the parties psychological incapacity. However, similar petitions continue to hound the lower courts, even with the stringent requirements for the grant of declaration of nullity of marriage on the ground of psychological incapacity, given the facility with which married persons are diagnosed with personality disorders. The instant petition for review on certiorari assails the decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 74822, which reversed the decision2 of the Regional Trial Court (RTC), Branch 140, Makati City, in Civil Case No. 99-1852. First, the all too familiar antecedents of man-meets-woman; they get married after a whirlwind relationship; and, not surprisingly, the marriage goes awry. Petitioner Edward N. Lim and respondent Maria Cheryl Sta. CruzLim met in 1978 in Cebu, where petitioner, who resides in Makati City, spent a semestral break from college; and respondent, who resides in Gingoog City, Cagayan de Oro, was a boarder in petitioners uncles house. At that time, petitioner was twenty-six (26) years old, a college student, and working in the family business, while respondent was a secretarial student. After less than a year of courtship via long distance phone calls, petitioner and respondent became sweethearts in early 1979. Within that year, or on December 8, 1979, the two were wed at the Don Bosco Church in Makati City, with a reception at Midtown Ramada Hotel. As is customary among those of Chinese descent, petitioner and respondent took up residence with the formers grandparents and parents in Forbes Park, Makati City. The couple was blessed with three (3) children: Lester Edward,3 Candice Grace,4 and Mariano III.5 During their stay in Forbes Park, all living, household and medical expenses were paid and provided by petitioners grandparents. Petitioners salary of P6,000.00 for working in the family distillery went straight to respondent. Despite all these amenities, the setup and living arrangement rankled respondent,

October 14, 1990 proved to be a black-letter day for the union of petitioner and respondent. That morning, respondent registered a complaint, which was recorded in the police blotter of the Makati City police, about a prior incident where she caught petitioner in their house in a compromising situation with the stay-in caregiver of petitioners grandmother. This incident landed on the pages of a tabloid newspaper, Abante, where petitioner, his grandparents house and the family business were all named and identified. Naturally, this caused embarrassment and humiliation to petitioner and to the rest of his family and relatives. Also, on that same day, respondent finally left petitioner and brought with her their three (3) children. Respondent forcibly opened their cabinet and cleaned out the contents thereof, which included petitioners passport, jewelry, and a land title in petitioners name. Respondent likewise filed a criminal complaint for Concubinage and Physical Injuries against petitioner which was eventually dismissed by the investigating prosecutor for lack of merit. Subsequently, respondent filed with the RTC of Makati City an action for support against petitioner and petitioners parents. Thereafter, the trial court directed petitioner to give a monthly support of P6,000.00 and, in case of his inability to do so, petitioners parents were also decreed to give a monthly support for the three minor children in the amount of P34,000.00.6 On October 29, 1999, petitioner filed a petition and sought the declaration of nullity of his marriage to respondent on the ground of the latters psychological incapacity under Article 36 of the Family Code. Three years thereafter, on July 22, 2002, petitioner filed an amended petition including an allegation of his own psychological incapacity, as both he and respondent were diagnosed with personality disordersdependent personality disorder and histrionic personality disorder, respectively. Following the exchange of pleadings between the parties, petitioner presented evidence, which consisted of the testimonies of Dr. Cecilia C. Villegas, a psychiatrist; and Maxima Adato, petitioners co-employee in the distillery. In addition, petitioner offered in evidence Dr. Villegas Psychiatric Report, which concluded that the parties were suffering from personality disorders. Respondent, despite filing an Answer to the petition denying the allegations therein, waived her right to present evidence. Based on the foregoing, primarily on the Psychiatric Report, the RTC declared the marriage between petitioner and respondent

null and void as the two were psychologically incapacitated to comply with the essential marital obligations. The RTC disposed of the case, to wit: WHEREFORE, premises considered, the Court hereby DECLARES the marriage of EDWARD N. LIM and MA. CHERYL STA. CRUZ on December 8, 1979 in Makati City VOID AB INITIO on ground of psychological incapacity of both parties pursuant to Article 36 of the Family Code with all the effects and consequences of all the existing provisions of law. As regards the custody of the children, considering that all of them are over seven (7) years of age, the Court shall take into account the choice of each of the child, unless the Court finds compelling reasons to order otherwise. Let copies thereof be sent to the Office of Local Civil Registrar of Makati City and the National Statistics Office, Quezon City who are directed to CANCEL from their respective Civil Registries the marriage of EDWARD N. LIM and CHERYL STA. CRUZ on December 8, 1979 in Makati City. The Conjugal Partnership of the Spouses shall be liquidated, partitioned, and distributed in accordance with the provisions of Articles 50 and 51 of the Family Code.7 Disagreeing completely with the RTCs disposition, the Office of the Solicitor General (OSG) appealed to the CA, questioning the RTCs finding that the parties were psychologically incapacitated to comply with the essential marital obligations. The appellate court granted the OSGs appeal and reversed the trial court. It ruled thus: WHEREFORE, premises considered, the instant appeal is GRANTED. Accordingly, the assailed Decision dated March 25, 2002 is hereby REVERSED and SET ASIDE. The marriage between herein parties is hereby declared subsisting and valid.8 Hence, this petition for review on certiorari positing the singular issue of whether the marriage between petitioner and respondent is null and void on the ground of the parties psychological incapacity. We deny the petition. The seminal ruling in Santos v. Court of Appeals9 cites three (3) factors characterizing psychological incapacity to perform the essential marital obligations: (1) gravity, (2) juridical antecedence, (3) incurability. We expounded on the foregoing, to wit: The incapacity must be grave or serious such that the party would be incapable of carrying out the ordinary duties required

31

in marriage; it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved. Given the foregoing stringent requisites and without going into the non-exclusive list found in Republic v. Court of Appeals,10 petitioner, as the party alleging his own psychological incapacity and that of his spouse, had the special albatross to prove that he and his wife were suffering from "the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage."11 Instead, petitioner presented the Psychiatric Report of Dr. Villegas, the conclusions drawn are reprinted in full: PSYCHODYNAMICS OF THE CASE: Edward is of Chinese descent, born and grew up in a Philippine environment. He was raised and educated in Philippine school. However, despite his prominent Filipino exposure, his immediate family still practice a strong cultural Chinese tradition within his home. Very clannish, all family members has to stay in one roof, in a communal style of living, with the elders in this case, the grandparents are recognized as the authority. Most of the family members tend to rebel, but at the end, tendency to be submissive and passive were developed. But despite physical closeness, Edward did not build close attachments to his parents. The father was exceptionally temperamental and moody, while the mother was extremely asocial, isolated, withdrawn and seclusive, that repelled him from both of them. Surrogate parenting from his grandparents satisfied his dependency needs. He developed into a kind, obedient, submissive and passive adult, which became the center of jealousy and rivalry among the siblings. Under stressful situation, he became depressed and had suicidal intentions. He felt so secure with his grandparents, that he subordinated his needs to them. He allowed them to assume responsibilities for major areas of his life, as in his family decision and independence. He has difficulty expressing disagreements with others, especially with his wife, because of fear of loss of support or approval. So that even an abusive spouse may be tolerated for long periods, in order not to disturb the sense of attachments. A persevering worker, he had difficulties initiating change due to lack of self-confidence in judgment or abilities, rather than lack of motivation or energy. Within 10 years in marriage, he tried hard to grant his wifes wishes, but to no avail. His wife left him in October, 1990 together with their three children, whom he missed very much. The death of his

grandfather in 1994 was a big blow to him, but he finds solace and security in visiting his grave every Sunday since then. On the other hand, Cheryl was initially congenial, which lasted only for a short period of time. Later, her immaturity interfered with her behavioral pattern and adjustment. Apparently, she could not recognize realities in their family set-up and will insist on her fantasized wishes. When not granted, shell go into tantrums, moodiness, anger, hostilities, exhibitions and dramatizations, just to get attention and to emphasize her wants. Her attention-getting devices will be endless and her suggestibility to the influence of others is very fertile. Based on the family background, pattern of behavior, and outcome of their marriage, clinical evidence showed that Mr. Edward Lim is suffering from a Dependent Personality Disorder, while Cheryl is suffering from Histrionic Personality Disorder associated with immaturity, that render both of them psychologically incapacitated to perform the duties and responsibilities of marriage.1avvphi1 The root cause of the above clinical condition on the part of Edward was due to overindulgence and overprotection of his surrogate parents, that left no room for him to develop his own abilities, encouraging too much dependence, lack of selfconfidence, self-doubt, passivity, pessimism, and depression. How much of the Dependent Disorder was due to developmental defect and how much was due to strong Chinese culture and traditions, will be difficult to assess. On the part of Cheryl, the root cause was due to unsatisfied dependency needs that finds gratification in adult stage, in the form of attention-seeking devices, manifested in her clinical symptoms. Both existed prior to marriage, but became obviously manifested only after the celebration, due to marital stresses and demands. Both disorders are considered permanent and incurable, because they started early in their developmental stage and therefore became so engrained in their personality structure. Both are severe and grave in degree, because they hampered their normal functioning, specifically related to a difficult heterosexual adjustment.12 In addition, Dr. Villegas testified in the lower court as to the findings contained in the Psychiatric Report. Thus, on direct examination, Dr. Villegas testimony consisted of the following: Q- Can you tell the Court how you happened to know the petitioner? A- He was referred to me by his counsel for psychological and psychiatric evaluation related to his application for nullity of marriage in this Honorable Court, maam.

Q- And were you able to actually conduct an examination for the purposes that you have stated? A- Yes, maam. Q- How many times were you able to examine or meet the petitioner? A- I met him three (3x) times, maam. That was on January 10, January 14 and January 17, year 2000. Q- And is there any other witness or person that you have met for the purpose of evaluating the behavior and personality of petitioner? A- Yes, maam. I was able to interview a long time employee that they have in their company in the person of Mrs. Emmy Adato who herself know the petitioner since he was eight (8) years old, maam. xxxx Q- Do you affirm before this Honorable Court the conclusions that you have arrived at to be correct? A- Yes, maam. Q- And what was the conclusion after you conducted the evaluation of the character of petitioner, as well as that of the respondent? A- After my intensive interview about the circumstances of their marriage, family background of the petitioner and also the family background of the respondent, it is the opinion of the examiner that the petitioner Mr. Edward Lim is suffering from DEPENDENT PERSONALITY DISORDER that renders him psychologically incapacitated to perform the duties and responsibilities of marriage, maam. On the other hand, based on the informations and clinical data gathered from the petitioner and my other informant, Ms. Emmy Adato, it is the opinion of the examiner that the respondent is suffering from HISTRIONIC PERSONALITY DISORDER associated with an immaturity that renders her psychologically incapacitated to perform the duties and responsibilities of marriage. Q- In your capacity as expert, a psychiatrist of forty (40) years, can you conclude that this deficiencies or defects that you found are sufficient ground to nullify the marriage under Article 36? A- Yes, maam. Q- Do you conclude also these deficiencies are continuous and permanent?

32

A- Yes, maam. Q- Would you conclude therefore would you consider it as valid ground for the annulment of the marriage? A- Yes, maam.13 On cross examination by the prosecutor, Dr. Villegas testified as follows: Q- Doctor, you have testified that it was only the petitioner whom you have examined and evaluated with (sic)? A- Yes, maam. Q- And the other person whom you have interviewed was the employee of the petitioner? A- Yes, maam. Q- No other person whom you have interviewed? A- None, maam. Q- You did not interview the surrogate parents of petitioner? A- No, maam. Q- Did you attempt to communicate with the respondent of this case for the purpose of interviewing her? A- Yes, maam. [A]nd I have made this through the petitioner who has contacted his children in Cagayan De Oro, maam. Q- So you are telling us, Doctor, that the respondent is in Cagayan De Oro? A- Yes, maam. Q- And despite your invitation, she did not appear to you? A- Yes, maam. Q- So based from your Report on the circumstances of marriage, the information regarding the marriage of parties in this case came from the petitioner? A- Yes, sir. Q- And the family background you have made on Cheryl, the respondent also came from the petitioner?

A- Yes, maam. Q- And the interview you have made on Adato, the employee of petitioner, she gave you some background of the respondent here? A- Yes, maam. Q- But most of the informations you have gathered from her were pertaining to the petitioner? A- Yes, maam. Q- So practically, the evaluation you have made were based on the interview only on both the employee and the petitioner himself? A- Yes, maam. Q- You did not conduct a series of tests to determine or evaluate further? A- No, maam. Q- You have not collaborated with any psychologists so as to get some psychological evaluation on petitioner? A- No, maam. But the clearer picture of the case presented to me is a very clear picture already of the psychiatric disorder which did not necessitated (sic) the assistance of a psychologist because it is obvious, the signs and symptoms are obviously manifested by the parties. Q- How many times did you meet the petitioner? A- Three (3) times maam. Q- And the duration of interview or examination on petitioner is how long? A- It lasted for about one and a half hours to two and a half hours. Q- For each session? A- For each session. Q- So you were able to examine him for a duration of six (6) hours, more or less. In the six (6) or seven (7) hours, you were able to make the conclusions which you have made in your report?

A- Yes, maam. A psychiatric interview is a very structured interview Q- When did you find out that you dont have to resort to psychological evaluation? A- Even on my interview, I already kn[e]w that I will not be referring this case to a psychological evaluation because the signs and symptoms are already very clear. Q- What are these signs and symptoms? A- The family background, for example, which gave the rootcause, of this case are very, very typical ground that can bring about Q- Did you not have any suspicion that the petitioner might be giving you some informations which would given (sic) some presumption to nullifying his marriage? A- I have no basis to doubt that kind of information that he might be lying. During the one and a half to two hours of interview based on his reactions, the way he answers me, the way he grimaces and also, his statements that he has been giving me are very sincere on his part, that he even, despite the fact that that happened already about eleven years ago, I could still appreciate how much he feels, so devastated, so frustrated and disappointed about family life. Q- You made a conclusion about the personality of both the petitioner and the respondent. Would you say that even if petitioner would marry again, the same manifestations would exist in the second marriage? A- It would depend again on the personality profile of the would be partner that he will be having. So it is not really absolute in his case, in a personality profile, but it would again depend on the personality profile of the would-be partner that he will be having, maam.14 It was folly for the trial court to accept the findings and conclusions of Dr. Villegas with nary a link drawn between the "psychodynamics of the case" and the factors characterizing the psychological incapacity. Dr. Villegas sparse testimony does not lead to the inevitable conclusion that the parties were psychologically incapacitated to comply with the essential marital obligations. Even on questioning from the trial court, Dr. Villegas testimony did not illuminate on the parties alleged personality disorders and their incapacitating effect on their marriage:

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Q- Doctora, you gave a conclusion that the respondent is suffering from Histrionic Personality Disorder associated with immaturity. Did you discover the antecedents of this disorder? A- Yes, your honor. Q- What did you find out? A- I found out from her family background that the parents were separated. She lived with a stepfather and therefore their family relationship were only preoccupied by earning a living and no attention were given to the children. When the children were growing up, specifically Cheryl (interrupted). Q- By the way, who supplied you this information? A- The petitioner. Q- You never discussed the matter with the respondent or any of her relatives, except the husband? A- None, maam. Q- Now, you have interviewed Mr. Lim three (3) times. What tests did you give to him aside from the interview? A- I did not give him any test because a psychological examination is given by a psychologist who acts as a laboratory aide to a psychiatrist and therefore, if there are some doubts in our clinical interviews, that is the time we refer the case to a psychologist for a sort of clarification in our clinical interviews. Q- As far as the gravity of the disorder of petitioner is concerned do you have any suggestions as to the cure of the same? A- Because the psychological/psychiatric incapacity has been formed or developed during his early years of development, I would say that it is ingrained in his personality and therefore, no amount of psychiatric assistance or medicines can help him improve his personality, your honor.15 The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM IV),16 provides general diagnostic criteria for personality disorders: A. An enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individuals culture. This pattern is manifested in two (2) or more of the following areas: (1) cognition (i.e., ways of perceiving and interpreting self, other people, and events)

(2) affectivity (i.e., the range, intensity, appropriateness of emotional response) (3) interpersonal functioning (4) impulse control

lability,

and

(6) feels uncomfortable or helpless when alone because of exaggerated fears of being unable to care for himself or herself; (7) urgently seeks another relationship as a source of care and support when a close relationship ends; (8) is unrealistically preoccupied with fears of being left to take care of himself or herself. 301.5 HISTRIONIC PERSONALITY DISORDER A pervasive pattern of excessive emotionality and attention seeking, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following: (1) is uncomfortable in situations in which he or she is not the center of attention; (2) interaction with others is often characterized inappropriate sexually seductive or provocative behavior; by

B. The enduring pattern is inflexible and pervasive across a broad range of personal and social situations. C. The enduring pattern leads to clinically significant distress or impairment in social, occupational or other important areas of functioning. D. The pattern is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood. E. The enduring pattern is not better accounted for as a manifestation or a consequence of another mental disorder. F. The enduring pattern is not due to the direct physiological effects of a substance (i.e., a drug of abuse, a medication) or a general medical condition (e.g., head trauma). The alleged personality disorders of the parties have the following specified diagnostic criteria: 301.6 DEPENDENT PERSONALITY DISORDER A pervasive and excessive need to be taken care of that leads to submissive and clinging behavior and fears of separation, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following: (1) has difficulty making everyday decisions without excessive amount of advice and reassurance from others; an

(3) displays rapidly shifting and shallow expressing of emotions; (4) consistently uses physical appearance to draw attention to self; (5) has a style of speech that is excessively impressionistic and lacking in detail; (6) shows self-dramatization, theatricality, and exaggerated expression of emotion; (7) is suggestible, circumstances; and i.e., easily influenced by others or

(2) needs others to assume responsibility for most major areas of his or her life; (3) has difficulty expressing disagreement with others because of fear of loss of support or approval. Note: do not include realistic fears of retribution; (4) has difficulty intiating projects or doing things on his or her own (because of a lack of self-confidence in judgment or abilities rather than a lack of motivation or energy); (5) goes to excessive lengths to obtain nurturance and support from others, to the point of volunteering to do things that are unpleasant;

(8) considers relationships to be more intimate than they actually are. Significantly, nowhere in Dr. Villegas Psychiatric Report and in her testimony does she link particular acts of the parties to the DSM IVs list of criteria for the specific personality disorders. Curiously, Dr. Villegas global conclusion of both parties personality disorders was not supported by psychological tests properly administered by clinical psychologists specifically trained in the tests use and interpretation. The supposed personality disorders of the parties, considering that such diagnoses were made, could have been fully established by psychometric and neurological tests which are designed to measure specific aspects of peoples intelligence, thinking, or personality.17

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Concededly, a copy of DSM IV, or any of the psychology textbooks, does not transform a lawyer or a judge into a professional psychologist. A judge should not substitute his own psychological assessment of the parties for that of the psychologist or the psychiatrist. However, a judge has the bounden duty to rule on what the law is, as applied to a certain set of facts. Certainly, as in all other litigations involving technical or special knowledge, a judge must first and foremost resolve the legal question based on law and jurisprudence. The expert opinion of a psychiatrist arrived at after a maximum of seven (7) hours of interview, and unsupported by separate psychological tests, cannot tie the hands of the trial court and prevent it from making its own factual finding on what happened in this case. The probative force of the testimony of an expert does not lie in a mere statement of his theory or opinion, but rather in the assistance that he can render to the courts in showing the facts that serve as a basis for his criterion and the reasons upon which the logic of his conclusion is founded.18 WHEREFORE, the petition is hereby DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 74822 is hereby AFFIRMED. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice

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A.C. No. 6313

September 7, 2006

CATHERINE JOIE P. VITUG, complainant, vs. ATTY. DIOSDADO M. RONGCAL, respondent. DECISION TINGA, J.: The allegations raised in this complaint for disbarment are more sordid, if not tawdry, from the usual. As such, close scrutiny of these claims is called for. Disbarment and suspension of a lawyer, being the most severe forms of disciplinary sanction, should be imposed with great caution and only in those cases where the misconduct of the lawyer as an officer of the court and a member of the bar is established by clear, convincing and satisfactory proof.1 Under consideration is the administrative complaint for disbarment filed by Catherine Joie P. Vitug (complainant) against Atty. Diosdado M. Rongcal (respondent). A classic case of "he said, she said," the parties' conflicting versions of the facts as culled from the records are hereinafter presented. Complainant narrates that she and respondent met sometime in December 2000 when she was looking for a lawyer to assist her in suing Arnulfo Aquino ("Aquino"), the biological father of her minor daughter, for support. Her former classmate who was then a Barangay Secretary referred her to respondent. After several meetings with complainant, respondent sent a demand letter2 in her behalf to Aquino wherein he asked for the continuance of the monthly child support Aquino used to give, plus no less than P300,000.00 for the surgical operation their daughter would need for her congenital heart ailment. At around this point, by complainant's own admission, she and respondent started having a sexual relationship. She narrates that this twist in the events began after respondent started calling on her shortly after he had sent the demand letter in her behalf. Respondent allegedly started courting her, giving her financial aid. Soon he had progressed to making sexual advances towards complainant, to the accompaniment of sweet inducements such as the promise of a job, financial security for her daughter, and his services as counsel for the prospective claim for support against Aquino. Complainant acknowledges that she succumbed to these advances, assured by respondent's claim that the lawyer was free to marry her, as his own marriage had already been annulled. On 9 February 2001, respondent allegedly convinced complainant to sign an Affidavit of Disclaimer3 ("Affidavit")

categorically stating that even as Aquino was denoted as the father in the birth certificate4 of her daughter, he was, in truth, not the real father. She was not allowed to read the contents of the Affidavit, she claims. Respondent supposedly assured her that the document meant nothing, necessary as it was the only way that Aquino would agree to give her daughter medical and educational support. Respondent purportedly assured complainant that despite the Affidavit, she could still pursue a case against Aquino in the future because the Affidavit is not a public document. Because she completely trusted him at this point, she signed the document "without even taking a glance at it."5 On 14 February 2001, respondent allegedly advised complainant that Aquino gave him P150,000.00 cash and P58,000.00 in two (2) postdated checks to answer for the medical expenses of her daughter. Instead of turning them over to her, respondent handed her his personal check6 in the amount of P150,000.00 and promised to give her the balance of P58,000.00 soon thereafter. However, sometime in April or May 2001, respondent informed her that he could not give her the said amount because he used it for his political campaign as he was then running for the position of Provincial Board Member of the 2nd District of Pampanga. Complainant maintains that inspite of their sexual relationship and the fact that respondent kept part of the money intended for her daughter, he still failed in his promise to give her a job. Furthermore, he did not file the case against Aquino and referred her instead to Atty. Federico S. Tolentino, Jr. ("Atty. Tolentino"). Sometime in 2002, assisted by Atty. Tolentino, complainant filed a criminal case for child abuse as well as a civil case against Aquino. While the criminal case was dismissed, the civil case was decided on 30 August 2004 by virtue of a compromise agreement.7 It was only when said cases were filed that she finally understood the import of the Affidavit. Complainant avers that respondent failed to protect her interest when he personally prepared the Affidavit and caused her to sign the same, which obviously worked to her disadvantage. In making false promises that all her problems would be solved, aggravated by his assurance that his marriage had already been annulled, respondent allegedly deceived her into yielding to his sexual desires. Taking advantage of the trust and confidence she had in him as her counsel and paramour, her weak emotional state, and dire financial need at that time, respondent was able to appropriate for himself money that rightfully belonged to her daughter. She argues that respondent's aforementioned acts constitute a violation of his oath as a lawyer as well as the Code of Professional Responsibility ("Code"), particularly Rule 1.01, Rule 1.02, Rule 16.01, Rule 16.02, and Canon 7.8 Hence, she filed the instant complaint9 dated 2 February 2004.

Expectedly, respondent presents a different version. According to him, complainant needed a lawyer who would file the aforementioned action for support. Complainant's former high school classmate Reinilda Bansil Morales, who was also his fellow barangay official, referred her to him. He admits sending a demand letter to her former lover, Aquino, to ask support for the child.10 Subsequently, he and Aquino communicated through an emissary. He learned that because of Aquino's infidelity, his relationship with his wife was strained so that in order to settle things the spouses were willing to give complainant a lump sum provided she would execute an affidavit to the effect that Aquino is not the father of her daughter. Respondent relayed this proposal to complainant who asked for his advice. He then advised her to study the proposal thoroughly and with a practical mindset. He also explained to her the pros and cons of pursuing the case. After several days, she requested that he negotiate for an out-of-court settlement of no less than P500,000.00. When Aquino rejected the amount, negotiations ensued until the amount was lowered to P200,000.00. Aquino allegedly offered to issue four postdated checks in equal amounts within four months. Complainant disagreed. Aquino then proposed to rediscount the checks at an interest of 4% a month or a total of P12,000.00. The resulting amount was P188,000.00. Complainant finally agreed to this arrangement and voluntarily signed the Affidavit that respondent prepared, the same Affidavit adverted to by complainant. He denies forcing her to sign the document and strongly refutes her allegation that she did not know what the Affidavit was for and that she signed it without even reading it, as he gave her the draft before the actual payment was made. He notes that complainant is a college graduate and a former bank employee who speaks and understands English. He likewise vehemently denies pocketing P58,000.00 of the settlement proceeds. When complainant allegedly signed the Affidavit, the emissary handed to her the sum of P150,000.00 in cash and she allegedly told respondent that he could keep the remaining P38,000.00, not P58,000.00 as alleged in the complaint. Although she did not say why, he assumed that it was for his attorney's fees. As regards their illicit relationship, respondent admits of his sexual liaison with complainant. He, however, denies luring her with sweet words and empty promises. According to him, it was more of a "chemistry of (sic) two consensual (sic) adults,"11 complainant then being in her thirties. He denies that he tricked her into believing that his marriage was already annulled. Strangely, respondent devotes considerable effort to demonstrate that complainant very well knew he was married when they commenced what was to him, an extra-marital liaison. He points out that, first, they had met through his

36

colleague, Ms. Morales, a friend and former high school classmate of hers. Second, they had allegedly first met at his residence where she was actually introduced to his wife. Subsequently, complainant called his residence several times and actually spoke to his wife, a circumstance so disturbing to respondent that he had to beg complainant not to call him there. Third, he was the Punong Barangay from 1994 to 2002, and was elected President of the Association of Barangay Council ("ABC") and as such was an ex-officio member of the Sangguniang Bayan of Guagua, Pampanga. He ran for the position of Provincial Board Member in 2001. Thus, he was known in his locality and it was impossible for complainant not to have known of his marital status especially that she lived no more than three (3) kilometers away from his house and even actively helped him in his campaign. Respondent further alleges that while the demand for support from Aquino was being worked out, complainant moved to a rented house in Olongapo City because a suitor had promised her a job in the Subic Naval Base. But months passed and the promised job never came so that she had to return to Lubao, Pampanga. As the money she received from Aquino was about to be exhausted, she allegedly started to pester respondent for financial assistance and urged him to file the Petition for Support against Aquino. While respondent acceded to her pleas, he also advised her "to look for the right man"12 and to stop depending on him for financial assistance. He also informed her that he could not assist her in filing the case, as he was the one who prepared and notarized the Affidavit. He, however, referred her to Atty. Tolentino. In August 2002, respondent finally ended his relationship with complainant, but still he agreed to give her monthly financial assistance of P6,000.00 for six (6) months. Since then, they have ceased to meet and have communicated only through an emissary or by cellphone. In 2003, complainant begged him to continue the assistance until June when her alleged fianc from the United States would have arrived. Respondent agreed. In July 2003, she again asked for financial assistance for the last time, which he turned down. Since then he had stopped communicating to her. Sometime in January 2004, complainant allegedly went to see a friend of respondent. She told him that she was in need of P5,000.00 for a sari-sari store she was putting up and she wanted him to relay the message to respondent. According to this friend, complainant showed him a prepared complaint against respondent that she would file with the Supreme Court should the latter not accede to her request. Sensing that he was being blackmailed, respondent ignored her demand. True enough, he alleges, she filed the instant complaint.

On 21 July 2004, the case was referred to the Integrated Bar of the Philippines ("IBP") for investigation, report and recommendation.13 After the parties submitted their respective position papers and supporting documents, the Investigating Commissioner rendered his Report and Recommendation14 dated 2 September 2005. After presenting the parties' conflicting factual versions, the Investigating Commissioner gave credence to that of complainant and concluded that respondent clearly violated the Code, reporting in this wise, to wit: Respondent, through the above mentioned acts, clearly showed that he is wanting in good moral character, putting in doubt his professional reputation as a member of the BAR and renders him unfit and unworthy of the privileges which the law confers to him. From a lawyer, are (sic) expected those qualities of truthspeaking, high sense of honor, full candor, intellectual honesty and the strictest observance of fiduciary responsibility all of which throughout the passage of time have been compendiously described as MORAL CHARACTER. Respondent, unfortunately took advantage and (sic) every opportunity to entice complainant to his lascivious hungerness (sic). On several occasions[,] respondent kept on calling complainant and dropped by her house and gave P2,000.00 as aid while waiting allegedly for the reply of (sic) their demand letter for support. It signals the numerous visits and regular calls all because of [l]ewd design. He took advantage of her seeming financial woes and emotional dependency. xxxx Without doubt, a violation of the high moral standards of the legal profession justifies the impositions (sic) of the appropriate penalty, including suspension and disbarment. x x x15 It was then recommended that respondent be suspended from the practice of law for six (6) months and that he be ordered to return to complainant the amount of P58,000.00 within two months. The IBP Board of Governors adopted and approved the said Report and Recommendation in a Resolution16 dated 17 December 2005, finding the same to be fully supported by the evidence on record and the applicable laws and rules, and "considering Respondent's obviously taking advantage of the lawyer-client relationship and the financial and emotional problem of his client and attempting to mislead the Commission,"17 respondent was meted out the penalty of suspension for one (1) year with a stern warning that a repetition of similar acts will merit severe sanctions. He was likewise ordered to return P58,000.00 to complainant. Respondent filed a Motion for Reconsideration with Motion to Set Case for Clarificatory Questioning18 ("Motion") dated 9 March 2006 with the IBP and a Motion to Reopen/Remand Case for

Clarificatory Questioning dated 22 March 2006 with the Supreme Court. He reiterates his own version of the facts, giving a more detailed account of the events that transpired between him and complainant. Altogether, he portrays complainant as a shrewd and manipulative woman who depends on men for financial support and who would stop at nothing to get what she wants. Arguing that the IBP based its Resolution solely on complainant's bare allegations that she failed to prove by clear and convincing evidence, he posits the case should be re-opened for clarificatory questioning in order to determine who between them is telling the truth. In a Resolution19 dated 27 April 2006, the IBP denied the Motion on the ground that it has no more jurisdiction over the case as the matter had already been endorsed to the Supreme Court. While we find respondent liable, we adjudicate the matter differently from what the IBP has recommended. On the charge of immorality, respondent does not deny that he had an extra-marital affair with complainant, albeit brief and discreet, and which act is not "so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree"20 in order to merit disciplinary sanction. We disagree. One of the conditions prior to admission to the bar is that an applicant must possess good moral character. Said requirement persists as a continuing condition for the enjoyment of the privilege of law practice, otherwise, the loss thereof is a ground for the revocation of such privilege.21 As officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community.22 The Court has held that to justify suspension or disbarment the act complained of must not only be immoral, but grossly immoral.23 A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree.24 It is a willful, flagrant, or shameless act that shows a moral indifference to the opinion of the good and respectable members of the community.25 While it is has been held in disbarment cases that the mere fact of sexual relations between two unmarried adults is not sufficient to warrant administrative sanction for such illicit behavior,26 it is not so with respect to betrayals of the marital vow of fidelity.27 Even if not all forms of extra-marital relations are punishable under penal law, sexual relations outside marriage is considered disgraceful and immoral as it manifests deliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws.28

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By his own admission, respondent is obviously guilty of immorality in violation of Rule 1.01 of the Code which states that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. The next question to consider is whether this act is aggravated by his alleged deceitful conduct in luring complainant who was then in low spirits and in dire financial need in order to satisfy his carnal desires. While the IBP concluded the question in the affirmative, we find otherwise. Complainant's allegations that she succumbed to respondent's sexual advances due to his promises of financial security and because of her need for legal assistance in filing a case against her former lover, are insufficient to conclude that complainant deceived her into having sexual relations with her. Surely, an educated woman like herself who was of sufficient age and discretion, being at that time in her thirties, would not be easily fooled into sexual congress by promises of a job and of free legal assistance, especially when there is no showing that she is suffering from any mental or physical disability as to justify such recklessness and/or helplessness on her part.29 Respondent's numerous visits and regular calls to complainant do not necessarily prove that he took advantage of her. At best, it proves that he courted her despite being a married man, precisely the fact on which the finding of immorality is rooted. Moreover, the circumstance that he gave her P2,000.00 as aid does not induce belief that he fueled her financial dependence as she never denied pleading with, if not badgering, him for financial support. Neither does complainant's allegation that respondent lied to her about his marital status inspire belief. We find credence in respondent's assertion that it was impossible for her not to have known of his subsisting marriage. She herself admitted that they were introduced by her friend and former classmate, Ms. Morales who was a fellow barangay official of respondent. She admitted that she knew his residence phone number and that she had called him there. She also knew that respondent is an active barangay official who even ran as Provincial Board Member in 2001. Curiously, she never refuted respondent's allegations that she had met and talked to his wife on several occasions, that she lived near his residence, that she helped him in his campaign, or that she knew a lot of his friends, so as not to have known of his marital status. Considering that she previously had an affair with Aquino, who was also a married man, it would be unnatural for her to have just plunged into a sexual relationship with respondent whom she had known for only a short time without verifying his background, if it were true that she preferred "to change [her] life for the better,"30 as alleged in her complaint. We believe that her aforementioned allegations of deceit were not established by clear preponderant evidence required in disbarment cases.31 We are left with the most logical conclusion that she freely and wittingly entered into an illicit and immoral

relationship with respondent sans any misrepresentation or deceit on his part. Next, complainant charged respondent of taking advantage of his legal skills and moral control over her to force her to sign the clearly disadvantageous Affidavit without letting her read it and without explaining to her its repercussions. While acting as her counsel, she alleged that he likewise acted as counsel for Aquino. We find complainant's assertions dubious. She was clearly in need of financial support from Aquino especially that her daughter was suffering from a heart ailment. We cannot fathom how she could abandon all cares to respondent who she had met for only a couple of months and thereby risk the welfare of her child by signing without even reading a document she knew was related to the support case she intended to file. The Affidavit consists of four short sentences contained in a single page. It is unlikely she was not able to read it before she signed it. Likewise obscure is her assertion that respondent did not fully explain to her the contents of the Affidavit and the consequences of signing it. She alleged that respondent even urged her "to use her head as Arnulfo Aquino will not give the money for Alexandra's medical and educational support if she will not sign the said Affidavit of Disclaimer."32 If her own allegation is to be believed, it shows that she was aware of the on-going negotiation with Aquino for the settlement of her claim for which the latter demanded the execution of the Affidavit. It also goes to show that she was pondering on whether to sign the same. Furthermore, she does not deny being a college graduate or that she knows and understands English. The Affidavit is written in short and simple sentences that are understandable even to a layman. The inevitable conclusion is that she signed the Affidavit voluntarily and without any coercion whatsoever on the part of respondent. The question remains as to whether his act of preparing and notarizing the Affidavit, a document disadvantageous to his client, is a violation of the Code. We rule in the negative. It was not unlawful for respondent to assist his client in entering into a settlement with Aquino after explaining all available options to her. The law encourages the amicable settlement not only of pending cases but also of disputes which might otherwise be filed in court.33 Moreover, there is no showing that he knew for sure that Aquino is the father of complainant's daughter as paternity remains to be proven. As complainant voluntarily and intelligently agreed to a settlement with Aquino, she cannot later blame her counsel when she experiences a change of heart. Besides, the record is bereft of evidence as to whether respondent also acted as Aquino's counsel in the settlement of the case. Again, we only have complainant's bare allegations

that cannot be considered evidence.34 Suspicion, no matter how strong, is not enough. In the absence of contrary evidence, what will prevail is the presumption that the respondent has regularly performed his duty in accordance with his oath.35 Complainant further charged respondent of misappropriating part of the money given by Aquino to her daughter. Instead of turning over the whole amount, he allegedly issued to her his personal check in the amount of P150,000.00 and pocketed the remaining P58,000.00 in violation of his fiduciary obligation to her as her counsel. The IBP did not make any categorical finding on this matter but simply ordered respondent to return the amount of P58,000.00 to complainant. We feel a discussion is in order. We note that there is no clear evidence as to how much Aquino actually gave in settlement of complainant's claim for support. The parties are in agreement that complainant received the amount of P150,000.00. However, complainant insists that she should have received more as there were two postdated checks amounting to P58,000.00 that respondent never turned over to her. Respondent essentially agrees that the amount is in fact more than P150,000.00 but only P38,000.00 more and complainant said he could have it and he assumed it was for his attorney's fees. We scrutinized the records and found not a single evidence to prove that there existed two postdated checks issued by Aquino in the amount of P58,000.00. On the other hand, respondent admits that there is actually an amount of P38,000.00 but presented no evidence of an agreement for attorney's fees to justify his presumption that he can keep the same. Curiously, there is on record a photocopy of a check issued by respondent in favor of complainant for P150,000.00. It was only in his Motion for Reconsideration where respondent belatedly proffers an explanation. He avers that he cannot recall what the check was for but he supposes that complainant requested for it as she did not want to travel all the way to Olongapo City with a huge sum of money. We find the circumstances rather suspicious but evidence is wanting to sustain a finding in favor of either party in this respect. We cannot and should not rule on mere conjectures. The IBP relied only on the written assertions of the parties, apparently finding no need to subject the veracity of the assertions through the question and answer modality. With the inconclusive state of the evidence, a more in-depth investigation is called for to ascertain in whose favor the substantial evidence level tilts. Hence, we are constrained to remand the case to the IBP for further reception of evidence solely on this aspect.

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We also are unable to grant complainant's prayer for respondent to be made liable for the cost of her child's DNA test absent proof that he misappropriated funds exclusively earmarked for the purpose. Neither shall we entertain complainant's claim for moral damages and attorney's fees. Suffice it to state that an administrative case against a lawyer is sui generis, one that is distinct from a civil or a criminal action.36 It is an investigation by the Court into the fitness of a lawyer to remain in the legal profession and be allowed the privileges as such. Its primary objective is to protect the Court and the public from the misconduct of its officers with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by requiring that those who exercise this important function shall be competent, honorable and reliable men and women in whom courts and clients may repose confidence.37 As such, it involves no private interest and affords no redress for private grievance.38 The complainant or the person who called the attention of the court to the lawyer's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice.39 Respondent's misconduct is of considerable gravity. There is a string of cases where the Court meted out the extreme penalty of disbarment on the ground of gross immorality where the respondent contracted a bigamous marriage,40 abandoned his family to cohabit with his paramour,41 cohabited with a married woman,42 lured an innocent woman into marriage,43 or was found to be a womanizer.44 The instant case can be easily differentiated from the foregoing cases. We, therefore, heed the stern injunction on decreeing disbarment where any lesser penalty, such as temporary suspension, would accomplish the end desired.45 In Zaguirre v. Castillo,46 respondent was found to have sired a child with another woman who knew he was married. He therein sought understanding from the Court pointing out the polygamous nature of men and that the illicit relationship was a product of mutual lust and desire. Appalled at his reprehensible and amoral attitude, the Court suspended him indefinitely. However, in Fr. Sinnott v. Judge Barte,47 where respondent judge consorted with a woman not his wife, but there was no conclusive evidence that he sired a child with her, he was fined P10,000.00 for his conduct unbecoming a magistrate despite his retirement during the pendency of the case. We note that from the very beginning of this case, herein respondent had expressed remorse over his indiscretion and had in fact ended the brief illicit relationship years ago. We take these as signs that his is not a character of such severe depravity and thus should be taken as mitigating circumstances in his favor.48 Considering further that this is his first offense,

we believe that a fine of P15,000.00 would suffice. This, of course, is without prejudice to the outcome of the aspect of this case involving the alleged misappropriation of funds of the client. WHEREFORE, premises considered, we find Atty. Diosdado M. Rongcal GUILTY of immorality and impose on him a FINE of P15,000.00 with a stern warning that a repetition of the same or similar acts in the future will be dealt with more severely. The charge of misappropriation of funds of the client is REMANDED to the IBP for further investigation, report and recommendation within ninety (90) days from receipt of this Decision. Let a copy of this decision be entered in the personal record of respondent as an attorney and as a member of the Bar, and furnished the Bar Confidant, the Integrated Bar of the Philippines and the Court Administrator for circulation to all courts in the country. SO ORDERED. Quisumbing, Chairperson, Carpio, Carpio-Morales, Velasco, Jr., J.J., , concur.

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G.R. No. 73864 May 7, 1992 TEODORO PALMES HERNAEZ, JR., represented by his mother and natural guardian, EVELYN PALMES, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT, TEODORO HERNAEZ, SR., ESTRELLA G. HERNAEZ, FERDINAND R. HERNAEZ, DOUGLAS F. HERNAEZ, ARLENE F. HERNAEZ, WINSTON F. HERNAEZ, NIEL F. HERNAEZ, and MA. ESTRELLITA F. HERNAEZ, respondents. NOCON, J.: This petition seeks the review of the decision dated November 6, 1985 of the Intermediate Appellate Court (now Court of Appeals) 1 in AC-G.R. No. SP-05928, Teodoro G. Hernaez, et al. vs. Hon. Regina G. Ordoez Benitez, et. al., which held as void the decision of the Regional Trial Court of Manila, Branch XLVII, in Civil Case No. E-02786 declaring petitioner Teodoro Palmes Hernaez, Jr. as the recognized natural child of private respondent Teodoro G. Hernaez and entitled to a P400.00 monthly support. It appears from the records that on September 2, 1980, petitioner represented by his mother and natural guardian, Evelyn Palmes, filed a complaint with the then Juvenile and Domestic Court (now Regional Trial Court) against Teodoro Hernaez for acknowledgment and support with support pendente lite. A decision dated March 23, 1984 was rendered by said court, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered: 1. Declaring plaintiff, Teodoro Palmes Hernaez, Jr., the recognized natural child of defendant, Teodoro G. Hernaez; 2. Ordering said defendant to give a monthly support of P400.00 to the minor until he reaches the age of majority or completes his education or training commencing February 10, 1979. The total amount in arrears shall be paid in two equal installments, the first, one (1) month after this Decision shall have become final and executory; and the second, two (2) months after the first installment. The monthly support for June, 1984 shall be paid within the first five (5) days of July, 1984. Thereafter, the monthly support shall be paid within the first five (5) days of the succeeding months, which shall be deposited with the Cashier of the Regional Trial Courts of Manila at City Hall, Manila, from whom plaintiff's mother or her duly authorized representative may withdraw the same; and 3. Ordering the defendant to give plaintiff the amount of P2,000.00 for attorney's fees. 2

As the appeal was filed beyond the reglementary period of 15 days as mandated by Section 39 of Batas Pambansa 129, petitioner moved to dismiss the appeal as the decision of the trial court has become final and executory. Realizing the defect in his notice of appeal, Teodoro Hernaez filed a Motion to Give Due Course to Appeal or Petition for Relief on August 8, 1984 which was denied in the Order of September 12, 1984 on the ground that the motion was filed out of time and the petition did not comply with Section 3 of Rule 38 of the Revised Rules of Court. 3 On September 19, 1984, Teodoro Hernaez thru his new counsel, filed another Petition for Relief from Judgment alleging that he was not aware of the decision of the lower court. On the same date, private respondent's wife, Estrella Hernaez, together with their six children likewise filed a Petition for Relief from Judgment with Motion to Intervene because they were not included as parties in the instant case, which petitions and motion were denied in the order of December 21, 1984 4 for lack of merit and on the ground that the decision had already become final and executory. From said order, private respondents appealed which was granted in an order dated January 25, 1985. Petitioner, on the other hand, filed a motion for reconsideration of the order of January 25, 1985 which was also granted by the trial court on February 20, 1985. Private respondents then filed a motion for clarification inquiring as to whether their appeal which was granted on January 25, 1986 was subsequently denied because of the order of February 20, 1985. The trial court issued an order declaring that there is no need for a clarification. On March 20, 1985, petitioner filed a motion to require private respondent Teodoro Hernaez to deposit support in arrears or to be cited for contempt. During the hearing of the motion for contempt, private respondents' counsel requested for 10 days within which to comply with the questioned decision. However, on April 10, 1986, private respondents, instead of complying with said decision, filed a petition for certiorari, prohibition or mandamus or alternatively, an action for the annulment of judgment with preliminary injunction with the Intermediate Appellate Court, 5 which declared the decision of the trial court null and void for lack of summons by publication being an action in rem. 6 Their motion for reconsideration having been denied on February 21, 1986, petitioner instituted this Petition for Review.

It is petitioner's contention that the requirement of publication is not necessary in an action for compulsory acknowledgment and support of an illegitimate child since said action is not one of the instances enumerated in Section 1 of Rule 72 of the Revised Rules of Court requiring publication of the petition before jurisdiction can be acquired by the Court. Under the "expressio unius est exclussio alterius" principle on statutory construction, this action should be considered a proceeding in personam. We find merit in the petition. An action for compulsory recognition of minor natural children is not among cases of special proceedings mentioned in Section 1, Rule 72 of the Rules of Court. Consequently, such an action should be governed by the rules on ordinary civil actions. The case at bar does not fall under Rule 105 of the Rules of Court since the same applies only to cases falling under Article 281 of the Civil Code where there has been a voluntary recognition of the minor natural child, i.e., prior recognition of the minor natural child in a document other than a record of birth or a will, which is absent in the instant case. Private respondents' claim that notice of an action for compulsory recognition should also be given to the wife and legitimate children of the putative parent, Teodoro Hernaez, Sr., is unmeritorious. First of all, in a case for compulsory recognition, the party in the best position to oppose the same is the putative parent himself. Secondly, implicit in both Articles 283 7 and 285 8 of the Civil Code is the general rule that an action for compulsory recognition should the brought against the putative father, 9 the exceptions being the instances when either the putative parent died during the minority of the child, or when after the death of the parent a document should appear of which nothing had been heard and in which either or both of the parents recognize the child, in which cases the action is brought against the putative parent's heirs. In fine, an action for compulsory recognition is an ordinary civil action. Thus, service of summons on the putative parent shall be as provided for under Rule 14. Said action shall be brought against the putative parent only; his heirs may be made party defendants only under the circumstances mentioned in Article 285. WHEREFORE, the decision of the Court of Appeals is hereby REVERSED and SET ASIDE, and the decision dated March 23, 1984 of the Regional Trial Court of Manila, Branch XLVII in Civil Case No. E-02786 is hereby REINSTATED and AFFIRMED. Costs against private respondents.

On June 29, 1984, Teodoro Hernaez filed a notice of appeal of said decision which he received on May 31,1984.

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SO ORDERED.

41

G. R. No. 166876

March 24, 2006

complaint on the ground, among other things, that the RTC has no jurisdiction over the cause of action of the case. On 21 October 2002, public respondent Judge Guillermo G. Purganan, acting as presiding judge of the RTC, Branch 42, Manila, issued the assailed Omnibus Order denying the Motion to Dismiss of the petitioner and the Motion to Declare Defendant in Default of the private respondent. Pertinent portions of the Omnibus Order and the dispositive portion thereof read: In his opposition to the motion to declare him in default and his Motion to Admit defendant IEGO alleged that he never received the Order dated 12 August 2002. But believing in good faith, without being presumptuous, that his 3rd Motion for additional Time to file or any appropriate [pleading] would be granted, he filed the aforesaid Motion received by the Court on 23 August 2002. The explanation of defendant IEGO has merit. The order dated 12 August 2002 was sent to a wrong address, thus defendant IEGO did not receive it. Since it was not received, he was not aware that the court would grant no further extension. The Motion to Admit Motion to Dismiss has to be granted and the Motion to declare Defendant IEGO [in default] has to be DENIED. The plaintiff opines that this court has exclusive jurisdiction because the cause of action is the claim for damages, which exceeds P400,000.00. The complaint prays for actual damages in the amount of P40,000.00, moral damages in the amount of P300,000.00, and exemplary damages in the amount of P150,000.00. Excluding attorneys fees in the amount of P50,000.00, the total amount of damages being claimed is P490,000.00. Proceeding on the assumption that the cause of action is the claim of (sic) for damages in the total amount of P490,000.00, this court has jurisdiction. But is the main cause of action the claim for damages? This court is of the view that the main cause of action is not the claim for damages but quasi-delict. Damages are being claimed only as a result of the alleged fault or negligence of both defendants under Article 2176 of the Civil Code in the case of defendant Pinion and under Article 2180 also of the Civil Code in the case of defendant Iniego. But since fault or negligence (quasi-delicts) could not be the subject of pecuniary estimation, this court has exclusive jurisdiction. WHEREFORE, in view of all the foregoing, the motion to declare defendant Iniego in default and the said defendants motion to dismiss are denied.3

ARTEMIO INIEGO,1Petitioner, vs. The HONORABLE JUDGE GUILLERMO G. PURGANAN, in his official capacity as Presiding Judge of the Regional Trial Court, Branch 42, City of Manila, and FOKKER C. SANTOS, Respondents. CHICO-NAZARIO, J.: For this Court to grant this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner has to persuade us on two engaging questions of law. First, he has to convince us that actions for damages based on quasi-delict are actions that are capable of pecuniary estimation, and therefore would fall under the jurisdiction of the municipal courts if the claim does not exceed the jurisdictional amount of P400,000.00 in Metro Manila. Second, he has to convince us that the moral and exemplary damages claimed by the private respondent should be excluded from the computation of the above-mentioned jurisdictional amount because they arose from a cause of action other than the negligent act of the defendant. Petitioner urges us to reverse the 28 October 2004 Decision and 26 January 2005 Resolution of the Court of Appeals, Eighth Division, in CA-G.R. SP No. 76206 denying due course to the petition for certiorari filed by petitioner under Rule 65, elevating the 21 October 2002 Omnibus Order and the 21 January 2003 Order of the Regional Trial Court (RTC), Branch 42, City of Manila. The dispositive portion of the 28 October 2004 Decision of the Court of Appeals reads: WHEREFORE, the petition is DISMISSED for lack of merit.2 DENIED DUE COURSE and

On 7 November 2002, petitioner filed a Motion for Reconsideration of the Omnibus Order of 21 October 2002. On 21 January 2003, public respondent issued an Order denying petitioners motion for reconsideration. Pertinent portions of the 21 January 2003 Order are reproduced hereunder: What this court referred to in its Order sought to be reconsidered as not capable of pecuniary estimation is the CAUSE OF ACTION, which is quasi-delict and NOT the amount of damage prayed for. xxxx WHEREFORE, in view of reconsideration is DENIED.4 the foregoing, the motion for

Petitioner elevated the 21 October 2002 and 21 January 2003 Orders of the RTC to the Court of Appeals on petition for certiorari under Rule 65 of the Rules of Court. On 28 October 2004, the Court of Appeals promulgated the assailed Decision, the dispositive portion thereof reads: WHEREFORE, the petition is DENIED DUE COURSE and dismissed for lack of merit.5 On 22 November 2004, petitioner moved for reconsideration, which was denied by the Court of Appeals on 26 January 2005. Hence, this present petition. Petitioner claims that actions for damages based on quasi-delict are actions that are capable of pecuniary estimation; hence, the jurisdiction in such cases falls upon either the municipal courts (the Municipal Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts In Cities, And Municipal Circuit Trial Courts), or the Regional Trial Courts, depending on the value of the damages claimed. Petitioner argues further that should this Court find actions for damages capable of pecuniary estimation, then the total amount of damages claimed by the private respondent must exceed P400,000.00 in order that it may fall under the jurisdiction of the RTC. Petitioner asserts, however, that the moral and exemplary damages claimed by private respondent be excluded from the computation of the total amount of damages for jurisdictional purposes because the said moral and exemplary damages arose, not from the quasi-delict, but from the petitioners refusal to pay the actual damages. I Actions for damages based on quasi-delicts are primarily and effectively actions for the recovery of a sum of money for the damages suffered because of the defendants alleged tortious acts, and are therefore capable of pecuniary estimation.

The factual and procedural antecedents of this case are as follows: On 1 March 2002, private respondent Fokker Santos filed a complaint for quasi-delict and damages against Jimmy T. Pinion, the driver of a truck involved in a traffic accident, and against petitioner Artemio Iniego, as owner of the said truck and employer of Pinion. The complaint stemmed from a vehicular accident that happened on 11 December 1999, when a freight truck allegedly being driven by Pinion hit private respondents jitney which private respondent was driving at the time of the accident. On 24 August 2002, private respondent filed a Motion to Declare defendant in Default allegedly for failure of the latter to file his answer within the final extended period. On 28 August 2002, petitioner filed a Motion to Admit and a Motion to Dismiss the

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In a recent case,6 we did affirm the jurisdiction of a Municipal Circuit Trial Court in actions for damages based on quasi-delict, although the ground used to challenge said jurisdiction was an alleged forum shopping, and not the applicability of Section 19(1) of Batas Pambansa Blg. 129. According to respondent Judge, what he referred to in his assailed Order as not capable of pecuniary estimation is the cause of action, which is a quasi-delict, and not the amount of damage prayed for.7 From this, respondent Judge concluded that since fault or negligence in quasi-delicts cannot be the subject of pecuniary estimation, the RTC has jurisdiction. The Court of Appeals affirmed respondent Judge in this respect.8 Respondent Judges observation is erroneous. It is crystal clear from B.P. Blg. 129, as amended by Republic Act No. 7691, that what must be determined to be capable or incapable of pecuniary estimation is not the cause of action, but the subject matter of the action.9 A cause of action is "the delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff."10 On the other hand, the "subject matter of the action" is "the physical facts, the thing real or personal, the money, lands, chattels, and the like, in relation to which the suit is prosecuted, and not the delict or wrong committed by the defendant."11 The case of Lapitan v. Scandia, Inc., et al.,12 has guided this Court time and again in determining whether the subject matter of the action is capable of pecuniary estimation. In Lapitan, the Court spoke through the eminent Mr. Justice Jose B.L. Reyes: In determining whether an action is one the subject matter of which is not capable of pecuniary estimation this Court has adopted the criterion of first ascertaining the nature of the principal action or remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the courts of first instance [now Regional Trial Courts] would depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought like suits to have the defendant perform his part of the contract (specific performance) and in actions for support, or for annulment of a judgment or to foreclose a mortgage, this court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts of first instance [now Regional Trial Courts]. x x x.13 (Emphasis supplied.) Actions for damages based on quasi-delicts are primarily and effectively actions for the recovery of a sum of money for the

damages suffered because of the defendants alleged tortious acts. The damages claimed in such actions represent the monetary equivalent of the injury caused to the plaintiff by the defendant, which are thus sought to be recovered by the plaintiff. This money claim is the principal relief sought, and is not merely incidental thereto or a consequence thereof. It bears to point out that the complaint filed by private respondent before the RTC actually bears the caption "for DAMAGES." Fault or negligence, which the Court of Appeals claims is not capable of pecuniary estimation, is not actionable by itself. For such fault or negligence to be actionable, there must be a resulting damage to a third person. The relief available to the offended party in such cases is for the reparation, restitution, or payment of such damage, without which any alleged offended party has no cause of action or relief. The fault or negligence of the defendant, therefore, is inextricably intertwined with the claim for damages, and there can be no action based on quasidelict without a claim for damages. We therefore rule that the subject matter of actions for damages based on quasi-delict is capable of pecuniary estimation. II The amount of damages claimed is within the jurisdiction of the RTC, since it is the claim for all kinds of damages that is the basis of determining the jurisdiction of courts, whether the claims for damages arise from the same or from different causes of action. Despite our concurrence in petitioners claim that actions for damages based on quasi-delict are actions that are capable of pecuniary estimation, we find that the total amount of damages claimed by the private respondent nevertheless still exceeds the jurisdictional limit of P400,000.00 and remains under the jurisdiction of the RTC. Petitioner argues that in actions for damages based on quasidelict, claims for damages arising from a different cause of action (i.e., other than the fault or negligence of the defendant) should not be included in the computation of the jurisdictional amount. According to petitioner, the moral and exemplary damages claimed by the respondents in the case at bar are not direct and proximate consequences of the alleged negligent act. Petitioner points out that the complaint itself stated that such moral and exemplary damages arose from the alleged refusal of defendants to honor the demand for damages, and therefore there is no reasonable cause and effect between the fault or negligence of the defendant and the claim for moral and exemplary damages.14 If the claims for moral and exemplary damages are not included in the computation for purposes of determining jurisdiction, only the claim for actual damages in the

amount of P40,000.00 will be considered, and the MeTC will have jurisdiction. We cannot give credence to petitioners arguments. The distinction he made between damages arising directly from injuries in a quasi-delict and those arising from a refusal to admit liability for a quasi-delict is more apparent than real, as the damages sought by respondent originate from the same cause of action: the quasi-delict. The fault or negligence of the employee and the juris tantum presumption of negligence of his employer in his selection and supervision are the seeds of the damages claimed, without distinction. Even assuming, for the sake of argument, that the claims for moral and exemplary damages arose from a cause of action other than the quasi-delict, their inclusion in the computation of damages for jurisdictional purposes is still proper. All claims for damages should be considered in determining the jurisdiction of the court regardless of whether they arose from a single cause of action or several causes of action. Rule 2, Section 5, of the Rules of Court allows a party to assert as many causes of action as he may have against the opposing party. Subsection (d) of said section provides that where the claims in all such joined causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.15 Hence, whether or not the different claims for damages are based on a single cause of action or different causes of action, it is the total amount thereof which shall govern. Jurisdiction in the case at bar remains with the RTC, considering that the total amount claimed, inclusive of the moral and exemplary damages claimed, is P490,000.00. In sum, actions for damages based on quasi-delicts are actions that are capable of pecuniary estimation. As such, they fall within the jurisdiction of either the RTC or the municipal courts, depending on the amount of damages claimed. In this case, the amount of damages claimed is within the jurisdiction of the RTC, since it is the claim for all kinds of damages that is the basis of determining the jurisdiction of courts, whether the claims for damages arise from the same or from different causes of action. WHEREFORE, the petition for review on certiorari is hereby DENIED for lack of merit. The Decision and Resolution of the Court of Appeals dated 28 October 2004 and 26 January 2005, respectively, are AFFIRMED insofar as they held that the Regional Trial Court has jurisdiction. No costs. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice

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[G.R. No. 120506. October 28, 1996] PHILIPPINE AIRLINES, INC. petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, HON. LABOR ARBITER CORNELIO LINSANGAN, UNICORN SECURITY SERVICES, INC., and FRED BAUTISTA, et al., respondents. DECISION DAVIDE, JR., J.: This is a petition for certiorari under Rule 65 of the Rules of Court to annul the decision of the Labor Arbiter dated 12 August 1991 in NLRC Case No. 00-11-06008-90 and the resolutions of public respondent National Labor Relations Commission (NLRC) promulgated on 27 October 1994 and 31 May 1995 dismissing the appeal filed by the petitioner and denying the motion for reconsideration, respectively. The dispute arose from these antecedents: On 23 December 1987, private respondent Unicorn Security Services, Inc. (USSI) and petitioner Philippine Airlines, Inc. (PAL) executed a security service agreement.[1] USSI was designated therein as the CONTRACTOR. Among the pertinent terms and conditions of the agreement are as follows: (4) The CONTRACTOR shall assign to PAL an initial force of EIGHTY ONE (81) bodies which may be decreased or increased by agreement in writing . It is, of course, understood that the CONTRACTOR undertakes to pay the wages or salaries and cost of living allowance of the guards in accordance with the provisions of the Labor Code, as amended, the different Presidential Decrees, Orders and with the rules and regulations promulgated by competent authorities implementing said acts, assuming all responsibilities therefor . xxx (6) Without any expense on the part of PAL, CONTRACTOR shall see to it that the guards assigned to PAL are provided, at the expense of CONTRACTOR, with the necessary firearms, ammunitions and facilities needed for the rendition of the security services as aforesaid; (7) CONTRACTOR shall select, engage and discharge the guards, employees, or agents, and shall otherwise direct and control their services herein provided or heretofore to be set forth or prescribed. The determination of wages, salaries and compensation of the guards or employees of the CONTRACTOR shall be within its full control but shall in no way contravene existing laws on the matter. It is further understood that

CONTRACTOR as the employer of the security guards agrees to comply with all relevant laws and regulations, including compulsory coverage under the Social Security Act, Labor Code, as amended and the Medical Care Act, in its operations. Although it is understood and agreed between parties hereto that CONTRACTOR in the performance of its obligations under this Agreement, is subject to the control and direction of PAL merely as to the result as to be accomplished by the work or services herein specified, and not as to the means and methods for accomplishing such result, CONTRACTOR hereby warrants that it will perform such work or services in such manner as will achieve the result herein desired by PAL. (8) Discipline and administration of the security guards shall be the sole responsibility of the CONTRACTOR to the end that CONTRACTOR shall be able to render the desired security service requirements of PAL. CONTRACTOR, therefore, shall conform to such rules and regulations that may be issued by PAL. For this purpose, Annex A, which forms part of this Agreement, contains such rules and regulations and CONTRACTOR is expected to comply with them. At its discretion, PAL may, however, work out with CONTRACTOR such rules and regulations before their implementation. (9) Should PAL at any time have any justifiable objection to the presence in its premises of any of CONTRACTORs officer, guard or agent under this Agreement, it shall send such objection in writing to CONTRACTOR and the latter shall immediately take proper action. (10) The security guards employed by CONTRACTOR in performing this Agreement shall be paid by the CONTRACTOR and it is distinctly understood that there is no employeeemployer relationship between CONTRACTOR and/or his guards on the one hand, and PAL on the other. CONTRACTOR shall have entire charge, control and supervision of the work and services herein agreed upon, and PAL shall in no manner be answerable or accountable for any accident or injury of any kind which may occur to any guard or guards of the CONTRACTOR in the course of, or as a consequence of, their performance of work and services under this Agreement, or for any injury, loss or damage arising from the negligence of or carelessness of the guards of the CONTRACTOR or of anyone of its employ to any person or persons or to its or their property whether in the premises of PAL or elsewhere; and the CONTRACTOR hereby covenants and agrees to assume, as it does hereby assume, any and all liability or on account of any such injury, loss or damage, and shall indemnify PAL for any liability or expense it may incur by reason thereof and to hold PAL free and harmless from any such liability. xxx

(13) For and in consideration of the services to be rendered by CONTRACTOR under these presents, PAL shall pay CONTRACTOR the amount of PESOS NINE & 40/100 CTVS (P9.40) PER HOUR multiplied by 905 hours equivalent to PESOS TWO HUNDRED SEVENTY FIVE THOUSAND NINE HUNDRED NINE & 58/100 CTVS, Philippine currency, - (P275,909.58) the basis of eight (8) working hours per office/guard a day, Sundays and Holidays included, the same to be payable on or before the 15th of each month for services on the first half of the month and on or before the end of the month for services for the 2nd half of the month. Nothing herein contained shall prevent the parties from meeting for a review of the rates should circumstances warrant. xxx (20) This Agreement shall take effect on 06 December 1987 an shall be in force for a period of SIX (6) MONTHS 05 JUNE 1988 thereafter it shall continue indefinitely unless sooner terminated upon thirty (30) days notice served upon by one party to the other, except as provided for in Articles 16, 17 & 18 hereof. Sometime in August of 1988, PAL requested 16 additional security guards. USSI provided what was requested; however, PAL insisted that what USSI did was merely to pick out 16 guards from the 86 already assigned by it and directed them to render overtime duty. On 16 February 1990, PAL terminated the security service agreement with USSI without giving the latter the 30-day prior notice required in paragraph 20 thereof. Instead, PAL paid each of the security guards actually assigned at the time of the termination of the agreement an amount equivalent to their onemonth salary to compensate for the lack of notice. In November 1990, USSI, allegedly in its capacity as Trustee for Sixteen or so Security Guards, filed with the NLRC Arbitration Branch, National Capital Region, a complaint[2] against PAL for the recovery of P75,600.00 representing termination pay benefit due the alleged 16 additional security guards, which PAL failed and refused to pay despite demands. It further asked for an award of not less than P15,000.00 for each of the 16 guards as damages for the delay in the performance of PALs obligation, and also for attorneys fees in an amount equivalent to 10% of whatever might be recovered. Pertinent portions of the complaint read as follows: 3. By virtue of said contract and upon its effectivity, respondent required eighty-six (86) security guards whom complainant USSI supplied; on or sometime in August 1989, respondent asked for sixteen (16) security guards to render twelve (12) hours each.

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4. In February 1990 and for reasons of its own, respondent caused to terminate not only the contract but also the services of the security guards; in effecting such termination, said respondent caused to pay the equivalent of one (1) months notice unto all the security guards, except the 16 who, as aforementioned were rendering 12 hours each from date of assignment up to and until their termination. 5. As computed, the termination pay benefits due the 16 security guards amount to P75,600.00, more or less, which, despite demands, respondent fails, neglects or refuses to pay, as it continue refusing, failing or neglecting to so do up to the present time. 6. Respondent has not only incurred in delay in the performance of its obligation but also contravened the tenor thereof; hence, complainants are, by law, entitled to be indemnified with damages for no less than P15,000.00 each for all complainants though the correct amount is left solely to the sound discretion of the Honorable Labor Arbiter. 7. Complainants are now compelled to litigate their plainly valid, just or demandable claim on account of which services of counsel have been required and thereby obligated themselves to pay, for and as attorneys fees, the sum equivalent to ten percent (10%) of whatever sums or sum may be recovered in the case. The complaint was docketed as NLRC-NCR Case No. 00-1106008-90 and assigned to Labor Arbiter Cornelio L. Linsangan. PAL filed a motion to dismiss the complaint[3] on the grounds that the Labor Arbiter had no jurisdiction over the subject matter or nature of the complaint and that USSI had no cause of action against PAL. In amplification thereof, PAL argued that the case involved the interpretation of the security service agreement, which is purely civil in character and falls outside of the Labor Arbiters jurisdiction. It is clear from Article 217 of the Labor Code that for claims to be within the jurisdiction of Labor Arbiters, they must arise from an employer-employee relationship. PAL claimed that USSI did not allege the existence of an employer-employee relationship between PAL and USSI or its guards, and that in fact, paragraph 10 of the agreement provides that there is no employer-employee relationship between the CONTRACTOR and/or his guards on the one hand and PAL on the other. In its Opposition,[4] USSI pointed out that PAL forgot or overlooked the fact that insofar as labor standards, benefits, etc. have to be resolved or adjudicated, liability therefor is shifted to, or assumed by respondent [herein petitioners] which, in law, has been constituted as an indirect employer.

PAL filed a supplemental motion to dismiss[5] wherein it cites the following reasons for the dismissal of the complaint: (1) the clear stipulations in the agreement (paragraphs 4 and 10) that there exists no employer-employee relationship between PAL on the one hand and USSI and the guards on the other; (2) there were no 16 additional guards, as the 16 guards who were required to render 12-hour shifts were picked out from the original 86 guards already assigned and were already given a one-month salary in lieu of the 30-day notice of termination of the agreement; (3) USSI had no legal personality to file the case as alleged trustee of the 16 security guards; and (4) the real parties in interest -- the 16 security guards -- never showed any interest in the case either by attending any hearing or conference, or by following up the status of the case. Attached to the supplemental motion dismiss were, among other things, xerox copies of confirmation letter of USSI to PAL to show that no additional guards were in fact provided.[6] Labor Arbiter Linsangan did not resolve the motion to dismiss and the supplemental motion to dismiss. On 12 August 1991, he handed down a decision[7] ordering PAL to pay: (1) the sum of P75,600.00 representing the equivalent of one-months separation pay due the 16 individual security guards, plus, 10% interest from the date of filing of the case until the whole obligations shall have been fully settled; (2) the sum of P5,000.00 by way of exemplary damages due each of the 16 security guards; and (3) another sum equivalent to 10% of the total award for and as attorneys fees. It was in that decision that Labor Arbiter Linsangan mentioned for the first time that the resolution of the motion to dismiss and supplemental motion to dismiss was deferred until [the] case is decided on the merits considering the ground not to be indubitable. In holding that he had jurisdiction over the case, he stated: As heretofore and invariably held in similar cases, the issue of whether or not Labor Arbiters have jurisdiction over money claims affecting security guards assigned by security agencies (like complainant herein) to their client-companies such as PAL is, more or less, settled, especially since, as the law views such as peculiar relationship, such money claims insofar as they have to be paid, are the ultimate responsibility of the client-firms. In effect, the security guards have been constituted as indirect employees of the client just as the client becomes the indirect employer of the guards. Art. 107 and 109 of the Labor Code expressly provide that. To justify the awards, Labor Arbiter Linsangan opined:

Evidence adduced clearly show that sometime in December 1987, aforementioned security service contract was executed, based on which the required number of security guards were assigned to, or posted at, the various premises of respondent -PAL. Said number of security guards may, as the contract provides, be increased or reduced at respondents request, such that the original number of eighty-six (86) guards, an additional sixteen (16) were needed and, accordingly supplied who, pursuant to PALs instructions, were required to render twelve (12) hours each, per day. In February 1990, and for reasons of its own, PAL caused to terminate, as it did, the contract of security service. Unequivocably, it caused to pay the separation pay benefits of the 86-security guards for the equivalent amount of one (1) months pay. As to the additional 16, it failed and refused to grant similar equivalent, without any valid reasons therefor. As earlier stated, respondent opted to rely solely on the ground set forth in its Motion to Dismiss as well as Supplement thereto. It failed to file, despite directive made thereon, its position paper. Neither did it submit, nor adduce, evidence (documentary or otherwise) to rebut or controvert complainants claims especially since the money equivalent of the one month separation pay due the 16 guards has been duly quantified as amounting to Seventy Five Thousand Six Hundred (P75,600.00) Pesos. Thus established, it is clear that there was absolutely no legal/justifiable reason why said 16 guards applied and who rendered 12 hours each per day had to be discriminated against. Following PALs failure or refusal to pay, demands were made by complainant, asking at the same time why that was so. Conceivably, respondent has smarted itself on its mistaken belief that there was, as between the guards and itself, no employeremployee relationship and, hence, there is no legal basis for it to pay. If that was so, why did it pay separation pay unto the 86 regular employed guards. PAL being widely known as a progressively-minded employer, it should be the first to show good example for emulation. In this instant case, it did not; in fact, its actuations were not consistent with good faith. It should, therefore, be held liable for exemplary damages and having required complainant to litigate a plainly valid, just or demandable claim, an award for attorneys fees must perforce be assessed. On 3 September 1991, PAL filed its Appeal[8] wherein it indicated that it received a copy of the decision on 26 August 1991. Attached thereto was a machine copy of the Notice of Judgment/Final Order, with the date of its receipt, i.e., 26 August 1991,[9] having been stamped on the upper right hand corner by PALs Legal Department.

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USSI countered this Appeal with a motion for execution of judgment[10] on the ground that since PAL, received a copy of the decision on the 23rd, not on the 26th, of August 1991 it had until 2 September 1991 to appeal; hence, the appeal interposed on 3 September was late by one day. The decision had then become final and executory. In its opposition[11] to this motion, PAL insisted that it received a copy of the decision on 26 August 1991; thus, it had until 5 September 1991 to file its appeal. On 30 September 1991, Labor Arbiter Linsangan issued a writ of execution.[12] On 1 October 1991, PAL filed a motion to quash[13] the writ of execution. It tried to explain therein why it thought all along that it received a copy of the decision on 26 August 1991, thus: 4. Upon investigation the undersigned counsel learned that on 23 August 1991 (Friday) a server-messenger went to PAL Legal Department to serve said decision. The receiving clerks at that time were all out of the office so that the server persuaded a secretary, Ms. April Rose del Rosario to receive the same, notwithstanding the fact that Ms. Del Rosario told him (server) that she was not authorized to receive documents for an in behalf of PAL. Ms. Del Rosario then stamped the date of receipt on the services copy without stamping (the date of receipt) PALs copy of the decision which was left by the server. Thereafter, Ms. Del Rosario placed PALs copy of the Decision on the incoming documents rack of the receiving clerk. Attached herewith is the affidavit of Ms. Del Rosario and as Annex A hereof. 5. On 26 August 1991 (Monday), the receiving clerk/messenger Mr. Greg Soriano upon finding the Decision among the documents in the incoming documents rack, immediately stamped Received 26 August 1991 thereon, on the honest and sincere belief that the same just arrived that day (26 August 1991). He then forwarded the same to the secretary of the undersigned counsel. Attached herewith is the affidavit of Mr. Greg Soriano marked as Annex B hereof. 6. The undersigned counsel believing that the said decision was received on 26 August 1991 reckoned/counted the ten (10) day period for appeal from said date. 7. Considering the foregoing circumstances, the undersigned counsels innocent reliance on the date of receipt stamped on the copy of the Decision furnished him was clearly due to an innocent mistake and/or excusable neglect. Hence, justice and

equity dictates that respondent PAL should be considered to have filed its Appeal within the reglementary period for Appeal. [14] On 8 October 1991, Labor Arbiter Linsangan issued an order[15] denying the motion to quash. On 10 October 1991, PAL appealed[16] to the NLRC the aforesaid order of 8 October 1991 on the ground that it was issued with grave abuse of discretion. In its resolution of 27 October 1994,[17] the Second Division of the NLRC dismissed PALs appeal for having been filed out if time. It sustained the labor Arbiters finding that PAL had received a copy of the decision on 23 August 1991, and hence the last day to appeal was 2 September 1991. It ruled that whether or not the decision was received by an employee other than the receiving clerk or messenger was of no moment, as the proper performance of employees duties was PALs concern. On 31 May 1995, the NLRC denied the motion for reconsideration[18] for the reason that it cannot accept PALs excuse as it may open the floodgates to abuse; and that the lapse of the period to appeal had already deprived the Commission of jurisdiction over the case.[19] PAL then filed this special civil action for certiorari under Rule 65 of the Rules of Court alleging that (1) public respondents committed serious and patent error in failing to declare that the Labor Arbiter had no jurisdiction over the instant case; (2) The Labor Arbiter gravely abused its discretion in ordering PAL to pay the separation pay of the 16 security guards assigned at PALs premises by USSI; and (3) respondent NLRC committed grave abuse of discretion in declaring PALs appeal to have been filed out of time. PAL argues that since USSIs cause of action was founded on the security service agreement, and that thereunder no employeremployee relationship existed between PAL and the security guards who were USSIs employees, the Labor Arbiter had no jurisdiction over the complaint. Moreover, assuming arguendo that the claims of the security guards were valid, USSI had no personality to file the complaint, for there is nothing whatsoever to show that it was expressly authorized by the security guards to act as their trustee. As to the second assigned error, PAL asserts that it is not liable to pay separation pay because (1) it was not the employer of the security guards; (2) even as an indirect employer, as held by the Labor Arbiter, its liability was limited to violations of labor standards law, and non-payment of the separation pay is not a violation of the said law; (3) the security service agreement with USSI did not provide for payment of separation pay; (4) the

payment made to the 86 security guards upon the termination of the agreement without the prior 30-day notice was not for separation pay but a benefit in lieu of the 30-day notice required under paragraph 20 of the agreement; and (5) since PAL was not the employer of the security guards, in no way could it terminate their services. In its third assigned error, PAL submits that rules of procedure ought not to be applied in a very rigid technical sense, since they are used only to help secure and not override substantial justice, especially in this case where the appeal was meritorious. Moreover, the delay in the perfection of the appeal, reckoned from the finding of the Labor Arbiter, was only one day; but if reckoned from what its counsel innocently believed to be PALs date of receipt of the decision, which was 26 August 1991, the appeal could be said to have been seasonably filed. In its Comment, USSI points out that the grounds relied upon by PAL are based on factual a issue, namely, the discrimination made by PAL in paying the 86 and not the 16 security guards. It argues that the case touched upon the rights of the 16 security guards as employees; thus, the same was within the jurisdiction of the Labor Arbiter. As regards PALs plea for the relaxation of the rule on perfection of appeals, USSI contends that the negligence of PALs counsel should not be deemed compelling reason to warrant relaxation of the rule. In its Manifestation and Motion in Lieu of Comment,[20] the Office of the Solicitor General agrees with PAL that the Labor Arbiter did not have jurisdiction over the complaint because there was no employer-employee relationship between PAL and the 16 security guards; that Articles 107 and 109 of the Labor Code which provide for joint and several liability for payment of wages by the direct and indirect employer find no application in the present case because the 16 security guards employed by USSI were not after unpaid wages; and that in the interest of justice and considering that the appeal was filed only one day late, the rule on perfection of appeals should have been relaxed to prevent a miscarriage of justice. In view of the stand of the Office of the Solicitor General, we advised public respondents to file their own comment if they so desired. In their Comment, the NLRC and Labor Arbiter Linsangan maintain that they had jurisdiction over the case because of Articles 107 and 109 of the Labor Code which constitute PAL as indirect employer of the 16 security guards, there being a question involving separation pay due the latter; that the 16 security guards were entitled to separation pay, because PAL paid the other 86 security guards when the service agreement was terminated; and that for the NLRC to excuse the delay of one day in filing the appeal would open the floodgates of abuse.

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The instant petition is impressed with merit. We agree with petitioner PAL that the Labor Arbiter was without jurisdiction over the subject matter of NLRC-NCR Case No. 0011-06008-90, because no employer-employee relationship existed between PAL and the security guards provided by USSI under the security service agreement, including the alleged 16 additional security guards. We have pronounced in numerous cases[21] that in determining the existence of an employer-employee relationship, the following elements are generally considered: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power to dismiss; and (4) the power to control the employees conduct. In the instant case, the security service agreement between PAL and USSI provides the key to such consideration. A careful perusal thereof, especially the terms and conditions embodied in paragraphs 4, 6, 7, 8, 9, 10, 13 and 20 quoted earlier in this ponencia, demonstrates beyond doubt that USSI-and not PAL was the employer of the security guards. It was USSI which (a) selected, engaged or hired and discharged the security guards; (b) assigned them to PAL according to the number agreed upon; (c) provided, at its own expense, the security guards with firearms and ammunitions; (d) discipline and supervised them or controlled their conduct; and (e) determined their wages, salaries, and compensation; and (f) paid them salaries or wages. Even if we disregard the explicit covenant in said agreement that there exist no employer-employee relationship between CONTRACTOR and/or his guards on the one hand, and PAL on the other all other considerations confirm the fact that PAL was not the security guards employer. Analogous to the instant case is Canlubang Security Agency Corp. vs. NLRC.[22] Considering then that no employer-employee relationship existed between PAL and the security guards, the Labor Arbiter had no jurisdiction over the claim in NLRC-NCR Case No. 00-11-0600890. Article 217 of the Labor Code (P.D. No. 442), as amended, vests upon Labor Arbiter exclusive original jurisdiction only over the following: 1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from employer-employee relations;

5. Cases arising from any violation of Article 264 of this Code, including questions involving legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from employer-employee relations, including those of persons in domestic or house hold service, involving an amount exceeding five thousand pesos(P5,000.00) regardless of whether accompanied with a claim for reinstatement. In all these cases, an employer-employee relationship is an indispensable jurisdictional requisite. The Labor Arbiter cannot avoid the jurisdictional issue or justify his assumption of jurisdiction on the pretext that PAL was the indirect employer of the security guards under Article 107 in relation to Articles 106 and 109 of the Labor Code and, therefore, it is solidarily liable with USSI. We agree with the Solicitor General that these Articles are inapplicable to PAL under the facts of this case. Article 107 provides: ART. 107. Indirect employer. -The provisions of the immediately preceding Article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project. The preceding Article referred to, which is Article 106, partly reads as follows: ART. 106. Contractor or subcontractor. -Whenever an employer enters into a contract with another person for the performance of the formers work, the employees of the contractor and of the latters subcontractor, if any, shall be paid in accordance with the provisions of this Code. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. While USSI is an independent contractor under the security service agreement and PAL may be considered an indirect employer, that status did not make PAL the employer of the security guards in every respect. As correctly posited by the Office of the Solicitor General, PAL may be considered an indirect employer only for purposes of unpaid wages since Article 106, which is applicable to the situation contemplated in Section 107, speaks of wages. The concept of indirect employer only relates or refers to the liability for unpaid wages. Read together,

Articles 106 and 109 simply mean that the party with whom an independent contractor deals is solidarily liable with the latter for unpaid wages, and only to that extent and for that purpose that the latter is considered a direct employer. The term wage is defined in Article 97(f) of the Labor Code as the remuneration of earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other facilities customarily furnished by the employer to the employee. No valid claim for wages or separation pay can arise from the security service agreement in question by reason of its termination at the instance of PAL. The agreement contains no provision for separation pay. A breach thereof could only give rise to damages under the Civil Code, which is cognizable by the appropriate regular court of justice. Besides, there is no substantial proof that USSI in fact provided 16 additional guards. On the contrary, PAL was able to prove in the annexes attached to its supplemental motion to dismiss that the 16 guards were actually picked out from the original group and were just required to render overtime service. The Labor Arbiters lack of jurisdiction was too obvious from the allegations in the complaint and its annex (the security service agreement) in NLRC-NCR Case No. 00-11-06008-90. The Labor Arbiter then should have forthwith resolved the motion to dismiss and the supplemental motion to dismiss. As correctly pointed out by PAL, under Section 15 of Rule V of the New Rules of Procedure of the NLRC, any motion to dismiss on the ground of lack of jurisdiction, improper venue, res judicata, or prescription shall be immediately resolved by the Labor Arbiter by a written order. Yet, the Labor Arbiter did not, and it was only in his decision that he mentioned that the resolution of the motion to dismiss was deferred until this case is decided on the merits because the ground thereof was not indubitable. On this score the Labor Arbiter acted with grave abuse of discretion for disregarding the rules he was bound to observe. We shall now turn to the issue of tardiness of the appeal. The record does indeed show that on the original copy of the Notice of Judgment/Final Order,[23] there is stamped by the PAL Legal Department the date of its receipt of the decision, viz., AUG. 23 1991, It is not also denied by respondents that on the right upper hand corner of PALs copy of the Notice of Judgment/Final Orders,[24] there is stamped the date of receipt thereof by PAL Legal Department, viz., AUG. 26 1991. PAL explained how this discrepancy occurred and how its counsel was misled into

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believing that PAL received a copy of the decision only on 26 August 1991. This belief in good faith rendered excusable any negligence it might have committed. Besides, the delay in the perfection of the appeal was only one day. Considering that the Labor Arbiter had no jurisdiction over the subject matter of NLRC-NCR Case No. 00-11-06008-90 and that the 16 security guards are not in fact entitled to separation pay under the security service agreement, the higher interest of justice favors a relaxation of the rule on perfection of appeals in labor cases. While it is an established rule that the perfection of an appeal in the manner and within the period prescribed by law is not only mandatory but jurisdictional, and failure to perfect an appeal has the effect of rendering the judgment final and executory, it is equally settled that the NLRC may disregard the procedural lapse where there is an acceptable reason to excuse tardiness in the taking of the appeal.[25] Among the acceptable reasons recognized by this Court are (a) counsels reliance on the footnote of the notice of the decision of the Labor Arbiter that the aggrieved party may appeal within ten (10) working days;[26] (b) fundamental consideration of substantial justice; [27] (c) prevention of miscarriage of justice or of unjust enrichment, as where the tardy appeal is from a decision granting separation pay which was already granted in an earlier final decision;[28] and (d) special circumstances of the case combined with its legal merits[29] or the amount and the issue involved.[30] A one-day delay in the perfection of the appeal was excused in Pacific Asia Overseas Shipping Corp. vs. NLRC, [31] Insular life Assurance Co. vs. NLRC,[32] and City Fair Corp vs. NLRC.[33] In the instant case, the Labor Arbiters lack of jurisdiction -- so palpably clear on the face of the complaint -- and the perpetuation of unjust enrichment if the appeal is disallowed are enough combination of reasons that warrant a relaxation of the rules on perfection of appeals in labor cases. WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the Labor Arbiter dated 12 August 1991 and the resolution of the Second Division of the National Labor Relations Commission promulgated on 27 October 1994 and 31 May 1995 are hereby SET ASIDE, and NLRC-NCR Case No. 0011-06008-90 is DISMISSED. SO ORDERED. Narvasa, C.J. (Chairman), Melo, Francisco and Panganiban, JJ., concur.

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