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Trustee

G.R. No. L-16708 October 31, 1962

TRUSTEESHIP OF THE MINORS BENIGNO, ANGELA and ANTONIO all surnamed PEREZ YTUASON, PHILIPPINE NATIONAL BANK, Judicial Guardian of BENIGNO PEREZ, ANTONIO M.PEREZ, judicial guardian-appellant,vs.J. ANTONIO ARANETA, trustee-appellee.

Alfonso Felix, Jr. for judicial guardian-appellant.Araneta and Araneta for trustee-appellee.

CONCEPCION, J.:

This is an appeal by writ of error from an order of the Court of First Instance of Rizal denying amotion of appellant, Antonio M. Perez, as judicial guardian of his children, the minors Benigno,Angela, and Antonio, all surnamed Perez y Tuason.

In pursuance of the provisions of the will of the late Angela S. Tuason which was probated inSpecial Proceedings No. 585 of said Court appellee J. Antonio Araneta was on March 24, 1950,appointed, in Special Proceedings No. Q-73 of the same Court, as trustee of property bequeathedby the deceased to some of her heirs, including her grandchildren, the aforementioned minors. OnOctober 4, 1950, appellee moved for the approval of accounts and the fixing of his compensation assuch trustee. Appellant's wife, Angela I. Tuason, hereafter referred to as Mrs. Perez, as well as themother and guardian at the time, of said minors, objected thereto and urged the court to removeappellee as trustee and appoint the Philippine Trust in his place and to revoke, not only certain salemade by him, but, also, an order of the court dated March 24, 1950, granting him the power to selltrust properties without special judicial authorization therefor. Subsequently, appellant joined his wifein seeking this relief. After appropriate proceedings, said Court issued on December 23, 1950, an

order approving said accounts, deferring action on the compensation of the trustee, modifying in partsaid order of March 24, 1950, and denying the motion of Mrs. Perez. The pertinent part of theaforementioned order of December 23, 1950, reads as follows:

It being established that the trust was expressly created by the deceased, we shall nowexamine whether the trustee comes under the active supervision of the Court and whetherour order of March 24, 1950, granting to said trustee authority to sell the trust res without theneed of judicial authorization erroneous or not. The Court accepts in view urged by thetrustee that only when the testator "has omitted in his will to appoint a trustee" may the Courtappoint one. This is in a accordance with Section 2, Rule 99, of the Rules of Court. When anexpress trust has been created, the powers of the trust shall be determined by the trustinstrument itself. In this particular case, the trustee J. Antonio Araneta was given "ampliospoderes de vender los mismos". The testatrix emphasizes her desire that the trustee shall

have ample powers when in another part of her will she states that the powers of said trusteeshall be "los poderes mas amplios permitidos por la ley". There is nothing against the law fora trustor to grant to the trustee ample powers, and when the deceased Angela S. Tuasongranted said powers to the trustee, she emphasized her intention that in the exercise of saidpowers by the trustee, there should be no court supervision.

"By the terms of trust, it may be left to the discretion of the trustee whether or not toexercise a power, or where he is directed to exercise the power, the time andmanner of its exercise may be left to his discretion. To the extent to which the trustee


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has discretion, the Court will not control his exercise as long as he do not exceed thelimits of the discretion conferred upon him. The court will not substitute its own

judgment for his . . . . The cases are numerous in which it has been held that wherediscretion is conferred upon the trustee with respect to the exercise of a power, thecourt will not interfere with him in his exercise or failure to exercise the power so longas he is not guilty of an abuse of discretion. (Scott on Trusts, Vol. 2, Sec. 187)"

Such being the case, there is no reason for the court to intervene in the execution by thetrustee of the powers granted to him by the trustor. We conclude, therefore, that our order ofMarch 24, 1950 granting authority to the trustee J. Antonio Araneta to sell the trust reswithout judicial authority is correct.

For the purpose, however, of safeguarding the interests of the beneficiaries of this trust, saidorder is hereby amended as follows:

(a) That the bond of the trustee is hereby increased from P10,000.00 to P30,000.00 and thepremium for the bond (P30,000.00) shall be for the account of the trust;

(b) That the Trustee may sell, encumber or otherwise dispose of any of the trust res withoutthe need of judicial authorization; provided, that if the amount involved exceeds P30,000.00,the trustee shall notify the natural guardians or the judicial guardian in case there be oneappointed by the Court of the beneficiaries ten (10) days before the proposed sale orencumbrance is executed, and in case the amount involved be P30,000.00 or less, thetrustee shall advise said guardians within ten (10) days after executing a deed of sale orencumbrance.

WHEREFORE, (1) the accounts filed by the trustee as per Annexes A, B, and C attached tohis motion of October 5, 1950 are hereby approved; (2) the petition of trustee to fix hiscompensation is hereby deferred until such time as he shall present it again; (3) the petitionfiled by the parents of the minors for the removal of the trustee J. Antonio Araneta is herebydenied. Likewise, their petition that the Philippine Trust Co. or Atty. Frank W. Brady be

appointed co-trustee denied; 4) the petition that the sale of the bed in favor of AntonioTuason, Jr. be revoked is hereby denied; and (5) the petition that the order of this court,dated March 24, 1950, giving the trustee power to sell without the need of judicialauthorization be revoked is also hereby denied.

A reconsideration of this order having been denied, & Mrs. Perez filed with the Supreme Court apetition G.R. No. L-6182 thereof for certiorari, with preliminary injunction, to annul said orders ofMarch 24 and December 23, 1950. A writ of preliminary injunction was issued this by Court soonthereafter. In a decision promulgated April 13, 1955, we denied said petition and dissolved said writof preliminary injunction.

In pursuance of the aforementioned orders of March 24 and December 23, 1950, appellee wrote on

June 23, 1959, to appellant, as the then judicial guardian of said minor a letter informing him of aproposed sale to Ortigas & Co., Ltd., of several lots under trusteeship, located in Marikina, Rizal, andaggregating 42.6091 hectares, at the rate of P2.93 a square meter. We quote from saidcommunicable petition:

Pursuant to the order of the Court of First Instance of Quezon City in trusteeship proceedingNo. Q-73, I with to advise you that ten (10) days after your receipt of this letter, I, in mycapacity as trustee in said proceedings, shall execute deed of sale with mortgage in favor of


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Ortigas & Company Limited Partnership, the following lots located at Marikina which formpart of the trust estate:

T.C.T. No.(Rizal)

Lote No. Psd.Area

(Sq m.)

22395 49-C-3-A-3-C-1-A-2 29965 249

" 49-C-3-A-3-C-2-A-2-B " 138,682

" 49-C-3-A-3-C-1-A-1 " 273

" 49-C-3-A-3-C-2-A-2-A " 159,054

" 49-C-3-A-3-C-2-A-7 18247 21,089

22396 49-C-3-A-3-C-3-A-3-1-4 29965 24,040

" 49-C-3-A-3-C-3-A-3-A-4-A-

1

" 7,968

" 49-C-3-A-3-C-3-A-3-A-4-A-3

" 74,736

The price is P1,250,000.00 payable under the following conditions:

1. Upon acceptance of the proposal, the sum of P20,000.00.

2. Upon signing the deed of sale with mortgage, the sum of P300,000.00.

3. The balance shall be paid within a period of one and a half-years, with interest at 6% per

annum.

4. The property must be sold from all liens and encumbrances, particularly a guarantee thatthere are no squatters.

5. Broker's commission shall be for buyer's account.

Three (3) days later, appellant informed appellee by letter (Exhibit C) of his (appellant's) objectionsto the proposed sale. Moreover, on July 1, 1959 appellant filed, in the trusteeship proceedings, amotion praying for a writ of preliminary injunction to restrain appellee from proceeding with the sale.Subsequently, the Philippine National Bank, as guardian of the estate of Benigno Perez y Tuason,one of the heirs of Angela I. Tuason, deceased, adopted said motion of appellant herein as its own.

At the instance of appellant, a notice of lis pendenswas, on July 29, 1959, annotated on the originalcertificates of title to the property in question.

After due hearing, the lower court issued an order, dated October 15, 1959, denying appellant'smotion and petition for a writ of preliminary injunction. Hence, this appeal by Antonio M. Perez. ThePhilippine National Bank has not joined him in the appeal. Subsequently, appellee effected the saleaforementioned to Ortigas & Co., Ltd.


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The main issues are: (1) whether or not the sum of P2.93 per square meter agreed upon withOrtigas & Co., Ltd., is the fair market value of the property aforementioned; and (2) whether the salethereof would be injurious to the interest of the beneficiaries or cestui que trust.

With respect to the first issue, appellant maintains that the fair market value of the property abovereferred to is P5.00 a square meter, as stated in the report (Exhibit E) of his realty estate expert, Mr.

A. Varias. It appears from this report that the conclusion therein reached by Mr. A. Varias is basedupon (a) some offers to sell properties located in the vicinity of the one involved in this case; and (b)certain sales of real estate specified in the report.

However, offers to sell are not competent evidence of the fair market value of a property. Said offersto sell are no better than offers to buy, which have been held be inadmissible as proof of said value.(City of Manila Estrada, 25 Phil. 208; Manila Railroad Co. vs. Aguila 35 Phil. 118; City of Davao vs.Dacudao L-3741, May 2, 1952.) Indeed,

. . . To imagine a sale without a buyer would be absurd, for if there is no buyer thecommodity would bring nothing . . . .

In discussing the term "market value" the author of a well-known treaties on the subject ofdamages observes that to make a market there must be both buying and selling; and the"market value" says he, is that reasonable sum which the property would bring on a fair saleby a man willing but not obliged to sell to a man willing but not obliged to buy. (Sedgewick onDamages, sec. 245; cited in Compagnie Franco-Indo Chinoise vs. Deutsch-Australiache, 39Phil. 474.)

The aforementioned report relies, also, upon the sale a lot of 9,679 square meters at P5.70 a squaremeter and two (2) sales each of lot of 20,000 square meters and a sale of a lot of 281,452 squaremeters, at P4.00 square meter. These transactions can not serve as basis for the determination ofthe value of the property in dispute for the lands involved in the former are much smaller than thelatter, the area of which is 426,091 square meters, and it is a matter of common knowledge that theprice becomes lesser as the size of the property sold becomes bigger. Moreover, the lands covered

by said transactions do not appear to be in the vicinity of the property in litigation. What is more, noeffort has been made to prove that the nature and condition of the former are analogous, or at least,comparable to those of the latter. In Manila Railroad Co. vs. Mitchell(49 Phil. 801), this Court held:

. . . The exhibits were clearly inadmissible in evidence and properly rejected by the (lower)court. In order that such evidence may be admitted, it is necessary that the properties soldbe in the immediate neighborhoodor within the zone of the commercial activity with whichthe condemned property is identified. (Emphasis supplied.)

Upon the other hand, it appears that in 1955 the Universal Textile Mills bought a lot of 110,004square meters near the trust properties in question at P2.50 a square meter, whereas a land of213,458 square meters, situated in the same neighborhood, was, in 1956, acquired by the Manila

Bay Spinning Mill, at P1.50 a square meter. Again, prior to the sale of said trust properties to Ortigas& Co., Ltd. offers to purchase the same neighborhood were made by United Laboratories, Inc. andone Mr. Philipps at P2.50 and P2.70, respectively, a square meter. It would thus appear that theprice of P2.93 a square meter agreed upon with Ortigas & Co., Ltd. is fairly representative of themarket value of said land, and this is borne out by the testimony of Arturo Ruis and Lauro Marquez,the real estate brokers who took the witness stand for herein appellee.

It is next urged that the sale of the property in question is not only unnecessary, but also injurious tothe minors represented by appellant herein, by reason of possible devaluation, and high income


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taxes. This pretense is predicated, however, upon sheer speculation. Furthermore, the last will andtestament of Angela S. Tuason, in pursuance of which the trust was established, provides that:

Cuarta. Instituyo como mis unicos herederos a mis mencionados tres hijos a razon deuna novena parte del caudal hereditario que dejare para cada uno de rellos. Lego a mi hijoAntonio otra porcion equivalente a dos novenas partes del caudal hereditario. Lego asi

mismo a mis nietos que fueren hijos de mi hija Nieves, otra porcion equivalents a dosnovenas partes del caudal hereditario. Y finalmeinte lego a mis nietos que fueren hijos de mihija Angela otra porcion equivalente a dos novenas partes del caudal hereditario. Dichos treslegados, sin embargo, estansuietos a la manda que se menciona en el parrafo siguiente Losdos legados a favor de mis mencionados nietos seran administrados por mi Albacea J.Antonio Araneta (y en defecto de este, su hermano, Salvador Araneta), con amplios poderesde Nender los mismos, y con su producto adquirir otros bienes, y con derecho a cobrar porsu administracion, honorarios razonables Los poderes de dicho administrador seran los deun trustee con los poderes mas amplias permitidos por la ley Debera sin embargo, rendirtrimestral mente cuenta de su administracion a los legatarios que fueren mayores de edad ya los tutores de los que fueren menores de edad Y asimismo debera hacerles entrega de laparticipacion que a cada legatario corresponda en las rentas netas de la administracion. Laadministracion sobre un grupo cesara cuando todos mis nietos de dicho grupo llegaren a sumayoria de edad, y una mayoria de los mismos acordaren la terminacion de laadministracion. Por nietos debe entenderse so nolamente a los nietos varones sino tambiena los nietos mujeres.

Referring to this provision of said will, we had occasion to say in G.R. No. L-6182:

. . . throughout clause 4 of the will, one can see that the testatrix placed implicit confidenceand trust in Araneta whom she designated as trustee, and for him to continue for a long time,not only until the minor children of Angela S. Tuason including those yet unborn, attained theage of majority but only when a majority of them decided to end the trust.

In short, the trustor had such faith and confidence appellee that she relied fully upon his judgment

and discretion. The exercise thereof by appellees should not be disturbed, therefore, except uponclear proof of fraud or bad faith, or unless the transaction in question is manifestly prejudicial to theinterest of the minors aforementioned petitioned. Such is not the situation obtaining in the presentcase.

WHEREFORE, the orders appealed from are hereby affirmed, with costs against the appellant. It isso ordered.


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Adoption

1.

IN RE: PETITION FOR G.R. Nos. 168992-93

ADOPTION OF MICHELLE P.LIM, Present:

MONINA P. LIM, PUNO, C.J., Chairperson,

Petitioner. CARPIO,

x - - - - - - - - - - - - - - - - - - - - - - - x CORONA,

LEONARDO-DE CASTRO, and

IN RE: PETITION FOR BERSAMIN, JJ.

ADOPTION OF MICHAEL JUDE

P. LIM,

Promulgated:MONINA P. LIM,

Petitioner. May 21, 2009

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

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for review on certiorari filed by Monina P. Lim (petitioner)

seeking to set aside the Decision[1]

dated 15 September 2004 of the Regional Trial

Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos.

1258 and 1259, which dismissed without prejudice the consolidated petitions foradoption of Michelle P. Lim and Michael Jude P. Lim.

The Facts
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The following facts are undisputed. Petitioner is an optometrist by profession.

On 23 June 1974, she married Primo Lim (Lim). They were childless. Minor

children, whose parents were unknown, were entrusted to them by a certain Lucia

Ayuban (Ayuban). Being so eager to have a child of their own, petitioner and Lim

registered the children to make it appear that they were the childrens parents. Thechildren

[2]were named Michelle P. Lim (Michelle) and Michael Jude P. Lim

(Michael). Michelle was barely eleven days old when brought to the clinic of

petitioner. She was born on 15 March 1977.[3]

Michael was 11 days old when

Ayuban brought him to petitioners clinic. His date of birth is 1 August 1983.[4]

The spouses reared and cared for the children as if they were their own. They

sent the children to exclusive schools. They used the surname Lim in all their

school records and documents. Unfortunately, on 28 November 1998, Lim died.On 27 December 2000, petitioner married Angel Olario (Olario), an American

citizen.

Thereafter, petitioner decided to adopt the children by availing of the

amnesty[5]

given under Republic Act No. 8552[6]

(RA 8552) to those individuals

who simulated the birth of a child. Thus, on 24 April 2002, petitioner

filed separate petitions for the adoption of Michelle and Michael before the trial

court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time

of the filing of the petitions for adoption, Michelle was 25 years old and alreadymarried, while Michael was 18 years and seven months old.

Michelle and her husband gave their consent to the adoption as evidenced by

their Affidavits of Consent.[7]

Michael also gave his consent to his adoption as

shown in his Affidavit of Consent.[8]

Petitioners husband Olario likewise

executed an Affidavit of Consent[9]

for the adoption of Michelle and Michael.

In the Certification issued by the Department of Social Welfare andDevelopment (DSWD), Michelle was considered as an abandoned child and the

whereabouts of her natural parents were unknown.[10]

The DSWD issued a similar

Certification for Michael.[11]

The Ruling of the Trial Court
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On 15 September 2004, the trial court rendered judgment dismissing the

petitions. The trial court ruled that since petitioner had remarried, petitioner should

have filed the petition jointly with her new husband. The trial court ruled that joint

adoption by the husband and the wife is mandatory citing Section 7(c), Article IIIof RA 8552 and Article 185 of the Family Code.

Petitioner filed a Motion for Reconsideration of the decision but the motion

was denied in the Order dated 16 June 2005. In denying the motion, the trial court

ruled that petitioner did not fall under any of the exceptions under Section 7(c),

Article III of RA 8552. Petitioners argument that mere consent of her husband

would suffice was untenable because, under the law, there are additional

requirements, such as residency and certification of his qualification, which thehusband, who was not even made a party in this case, must comply.

As to the argument that the adoptees are already emancipated and joint

adoption is merely for the joint exercise of parental authority, the trial court ruled

that joint adoption is not only for the purpose of exercising parental authority

because an emancipated child acquires certain rights from his parents and assumes

certain obligations and responsibilities.

Hence, the present petition.

Issue

Petitioner appealed directly to this Court raising the sole issue of whether or

not petitioner, who has remarried, can singly adopt.

The Courts Ruling

Petitioner contends that the rule on joint adoption must be relaxed because it

is the duty of the court and the State to protect the paramount interest and welfare

of the child to be adopted. Petitioner argues that the legal maxim dura lex sed lex

is not applicable to adoption cases. She argues that joint parental authority is not


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necessary in this case since, at the time the petitions were filed, Michelle was 25

years old and already married, while Michael was already 18 years of age. Parental

authority is not anymore necessary since they have been emancipated having

attained the age of majority.

We deny the petition.

Joint Adoption by Husband and Wife

It is undisputed that, at the time the petitions for adoption were filed,

petitioner had already remarried. She filed the petitions by herself, without being

joined by her husband Olario. We have no other recourse but to affirm the trial

courts decision denying the petitions for adoption.Dura lex sed lex. The law isexplicit. Section 7, Article III of RA 8552 reads:

SEC. 7. Who May Adopt. - The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil

capacity and legal rights, of good moral character, has not been

convicted of any crime involving moral turpitude, emotionally and

psychologically capable of caring for children, at least sixteen (16) years

older than the adoptee, and who is in a position to support and care for

his/her children in keeping with the means of the family. Therequirement of sixteen (16) year difference between the age of the

adopter and adoptee may be waived when the adopter is the biological

parent of the adoptee, or is the spouse of the adoptees parent;

(b) Any alien possessing the same qualifications as above stated

for Filipino nationals: Provided, That his/her country has diplomatic

relations with the Republic of the Philippines, that he/she has been living

in the Philippines for at least three (3) continuous years prior to the filing

of the application for adoption and maintains such residence until the

adoption decree is entered, that he/she has been certified by his/herdiplomatic or consular office or any appropriate government agency that

he/she has the legal capacity to adopt in his/her country, and that his/her

government allows the adoptee to enter his/her country as his/her

adopted son/daughter: Provided, further, That the requirements on

residency and certification of the aliens qualification to adopt in his/her

country may be waived for the following:


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(i) a former Filipino citizen who seeks to adopt a relative

within the fourth (4th) degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of

his/her Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to

adopt jointly with his/her spouse a relative within the fourth (4 th)

degree of consanguinity or affinity of the Filipino spouses; or

(c) The guardian with respect to the ward after the termination of

the guardianship and clearance of his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following

cases:

(i) if one spouse seeks to adopt the legitimate son/daughter

of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate

son/daughter: Provided, however, That the other spouse has

signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the

illegitimate son/daughter of the other, joint parental authority shall be

exercised by the spouses. (Emphasis supplied)

The use of the word shall in the above-quoted provision means that joint

adoption by the husband and the wife is mandatory. This is in consonance with the

concept of joint parental authority over the child which is the ideal situation. As thechild to be adopted is elevated to the level of a legitimate child, it is but natural to

require the spouses to adopt jointly. The rule also insures harmony between the

spouses.[12]
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The law is clear. There is no room for ambiguity. Petitioner, having

remarried at the time the petitions for adoption were filed, must jointly adopt.

Since the petitions for adoption were filed only by petitioner herself, without

joining her husband, Olario, the trial court was correct in denying the petitions for

adoption on this ground.Neither does petitioner fall under any of the three exceptions enumerated in

Section 7. First, the children to be adopted are not the legitimate children of

petitioner or of her husband Olario. Second, the children are not the illegitimate

children of petitioner. And third, petitioner and Olario are not legally separated

from each other.

The fact that Olario gave his consent to the adoption as shown in his

Affidavit of Consent does not suffice. There are certain requirements that Olariomust comply being an American citizen. He must meet the qualifications set forth

in Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic

relations with the Republic of the Philippines; (2) he must have been living in the

Philippines for at least three continuous years prior to the filing of the application

for adoption; (3) he must maintain such residency until the adoption decree is

entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee

is allowed to enter the adopters country as the latters adopted child. None of these

qualifications were shown and proved during the trial.

These requirements on residency and certification of the aliens qualification

to adopt cannot likewise be waived pursuant to Section 7. The children or adoptees

are not relatives within the fourth degree of consanguinity or affinity of petitioner

or of Olario. Neither are the adoptees the legitimate children of petitioner.

Effects of Adoption

Petitioner contends that joint parental authority is not anymore necessary

since the children have been emancipated having reached the age of

majority. This is untenable.

Parental authority includes caring for and rearing the children for civic

consciousness and efficiency and the development of their moral, mental and


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physical character and well-being.[13]

The father and the mother shall jointly

exercise parental authority over the persons of their common children.[14]

Even the

remarriage of the surviving parent shall not affect the parental authority over the

children, unless the court appoints another person to be the guardian of the person

or property of the children.[15]

It is true that when the child reaches the age of emancipation that is, when

he attains the age of majority or 18 years of age[16]

emancipation terminates

parental authority over the person and property of the child, who shall then be

qualified and responsible for all acts of civil life.[17]

However, parental authority

is merely just one of the effects of legal adoption. Article V of RA 8552

enumerates the effects of adoption, thus:

ARTICLE V

EFFECTS OF ADOPTION

SEC. 16. Parental Authority. - Except in cases where the

biological parent is the spouse of the adopter, all legal ties between the

biological parent(s) and the adoptee shall be severed and the same shall

then be vested on the adopter(s).

SEC. 17.Legitimacy. - The adoptee shall be considered thelegitimate son/daughter of the adopter(s) for all intents and purposes and

as such is entitled to all the rights and obligations provided by law to

legitimate sons/daughters born to them without discrimination of any

kind. To this end, the adoptee is entitled to love, guidance, and support in

keeping with the means of the family.

SEC. 18. Succession. - In legal and intestate succession, the

adopter(s) and the adoptee shall have reciprocal rights of succession

without distinction from legitimate filiation. However, if the adoptee and

his/her biological parent(s) had left a will, the law on testamentarysuccession shall govern.

Adoption has, thus, the following effects: (1) sever all legal ties between the

biological parent(s) and the adoptee, except when the biological parent is the

spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter;

and (3) give adopter and adoptee reciprocal rights and obligations arising from the
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relationship of parent and child, including but not limited to: (i) the right of the

adopter to choose the name the child is to be known; and (ii) the right of the

adopter and adoptee to be legal and compulsory heirs of each other.[18]

Therefore,

even if emancipation terminates parental authority, the adoptee is still considered a

legitimate child of the adopter with all the rights[19]of a legitimate child suchas: (1) to bear the surname of the father and the mother; (2) to receive support

from their parents; and (3) to be entitled to the legitime and other successional

rights. Conversely, the adoptive parents shall, with respect to the adopted child,

enjoy all the benefits to which biological parents are entitled[20]

such as

support[21]

and successional rights.[22]

We are mindful of the fact that adoption statutes, being humane and salutary,

hold the interests and welfare of the child to be of paramount consideration. Theyare designed to provide homes, parental care and education for unfortunate, needy

or orphaned children and give them the protection of society and family, as well as

to allow childless couples or persons to experience the joys of parenthood and give

them legally a child in the person of the adopted for the manifestation of their

natural parental instincts. Every reasonable intendment should be sustained to

promote and fulfill these noble and compassionate objectives of the law.[23]

But,

as we have ruled inRepublic v. Vergara:[24]

We are not unmindful of the main purpose of adoption statutes,

which is the promotion of the welfare of the children. Accordingly, the

law should be construed liberally, in a manner that will sustain rather

than defeat said purpose. The law must also be applied with compassion,

understanding and less severity in view of the fact that it is intended to

provide homes, love, care and education for less fortunate children.

Regrettably, the Court is not in a position to affirm the trial courts

decision favoring adoption in the case at bar, for the law is clear and it

cannot be modified without violating the proscription against

judicial legislation. Until such time however, that the law on the matteris amended, we cannot sustain the respondent-spouses petition for

adoption. (Emphasis supplied)
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Petitioner, being married at the time the petitions for adoption were filed, should

have jointly filed the petitions with her husband. We cannot make our own

legislation to suit petitioner.

Petitioner, in her Memorandum, insists that subsequent events would showthat joint adoption could no longer be possible because Olario has filed a case for

dissolution of his marriage to petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between

petitioner and Olario is of no moment. It is not equivalent to a decree of dissolution

of marriage. Until and unless there is a judicial decree for the dissolution of the

marriage between petitioner and Olario, the marriage still subsists. That being the

case, joint adoption by the husband and the wife is required. We reiterate ourruling above that since, at the time the petitions for adoption were filed, petitioner

was married to Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated

15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 in

SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner.

SO ORDERED.

2. [G.R. No. 143989. July 14, 2003]

ISABELITA S. LAHOM, petitioner, vs. JOSE MELVIN SIBULO(previously referred to as DR. MELVIN S. LAHOM),respondent.

D E C I S I O N

VITUG, J.:


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The bliss of marriage and family would be to most less than completewithout children. The realization could have likely prodded the spouses Dr.Diosdado Lahom and Isabelita Lahom to take into their care Isabelitasnephew Jose Melvin Sibulo and to bring him up as their own. At the tenderage of two, Jose Melvin enjoyed the warmth, love and support of the couplewho treated the child like their own. Indeed, for years, Dr. and Mrs. Lahomfancied on legally adopting Jose Melvin. Finally, in 1971, the couple decidedto file a petition for adoption. On 05 May 1972, an order granting the petitionwas issued that made all the more intense than before the feeling of affectionof the spouses for Melvin. In keeping with the court order, the Civil Registrarof Naga City changed the name Jose Melvin Sibulo to Jose Melvin Lahom.

A sad turn of events came many years later. Eventually, in December of1999, Mrs. Lahom commenced a petition to rescind the decree of adoptionbefore the Regional Trial Court (RTC), Branch 22, of Naga City. In her

petition, she averred -

7. That x x x despite the proddings and pleadings of said spouses, respondent

refused to change his surname from Sibulo to Lahom, to the frustrations of petitioner

particularly her husband until the latter died, and even before his death he had madeknown his desire to revoke respondents adoption, but was prevented by petitioners

supplication, however with his further request upon petitioner to give to charity

whatever properties or interest may pertain to respondent in the future.

x x x x x

x x x x

10. That respondent continued using his surname Sibulo to the utter disregard of the

feelings of herein petitioner, and his records with the Professional Regulation

Commission showed his name as Jose Melvin M. Sibulo originally issued in 1978

until the present, and in all his dealings and activities in connection with his practice

of his profession, he is Jose Melvin M. Sibulo.

x x x x xx x x x

13. That herein petitioner being a widow, and living alone in this city with only her

household helps to attend to her, has yearned for the care and show of concern from a

son, but respondent remained indifferent and would only come to Naga to see her

once a year.


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14. That for the last three or four years, the medical check-up of petitioner in

Manila became more frequent in view of a leg ailment, and those were the times when

petitioner would need most the care and support from a love one, but respondent all

the more remained callous and utterly indifferent towards petitioner which is not

expected of a son.

15. That herein respondent has recently been jealous of petitioners nephews and

nieces whenever they would find time to visit her, respondent alleging that they were

only motivated by their desire for some material benefits from petitioner.

16. That in view of respondents insensible attitude resulting in a strained and

uncomfortable relationship between him and petitioner, the latter has suffered

wounded feelings, knowing that after all respondents only motive to his adoption is

his expectancy of his alleged rights over the properties of herein petitioner and her late

husband, clearly shown by his recent filing of Civil Case No. 99-4463 for partition

against petitioner, thereby totally eroding her love and affection towards respondent,rendering the decree of adoption, considering respondent to be the child of petitioner,

for all legal purposes, has been negated for which reason there is no more basis for its

existence, hence this petition for revocation.[1]

Prior to the institution of the case, specifically on 22 March 1998, RepublicAct (R.A.) No. 8552, also known as the Domestic Adoption Act, went intoeffect. The new statute deleted from the law the right of adopters to rescind adecree of adoption.

Section 19 of Article VI of R.A. No. 8552 now reads:

SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, withthe assistance of the Department if a minor or if over eighteen (18) years of age but is

incapacitated, as guardian/counsel, the adoption may be rescinded on any of the

following grounds committed by the adopter(s): (a) repeated physical and verbal

maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on

the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure

to comply with parental obligations.

Adoption, being in the best interest of the child, shall not be subject to resc issionby the adopter(s). However, the adopter(s) may disinherit the adoptee for causes

provided in Article 919 of the Civil Code.(emphasis supplied)

Jose Melvin moved for the dismissal of the petition, contending principally(a) that the trial court had no jurisdiction over the case and (b) that thepetitioner had no cause of action in view of the aforequoted provisions of R.A.
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No. 8552. Petitioner asseverated, by way of opposition, that the proscriptionin R.A. No. 8552 should not retroactively apply, i.e., to cases where theground for rescission of the adoption vested under the regime of then Article348[2]of the Civil Code and Article 192 [3]of the Family Code.

In an order, dated 28 April 2000, the trial court held thusly:

On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A.

No. 8369 confers jurisdiction to this Court, having been designated Family Court in

A.M. No. 99-11-07 SC.

On the matter of no cause of action, the test on the sufficiency of the facts alleged in

the complaint, is whether or not, admitting the facts alleged, the Court could render a

valid judgment in accordance with the prayer of said complaint (De Jesus, et al. vs.

Belarmino, et al., 95 Phil. 365).

Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter

to rescind an adoption earlier granted under the Family Code. Conformably, on the

face of the petition, indeed there is lack of cause of action.

Petitioner however, insists that her right to rescind long acquired under the

provisions of the Family Code should be respected. Assuming for the sake of

argument, that petitioner is entitled to rescind the adoption of respondent granted on

May 5, 1972, said right should have been exercised within the period allowed by the

Rules. From the averments in the petition, it appears clear that the legal grounds for

the petition have been discovered and known to petitioner for more than five (5)years, prior to the filing of the instant petition on December 1, 1999, hence, the action

if any, had already prescribed. (Sec. 5, Rule 100 Revised Rules of Court)

WHEREFORE, in view of the foregoing consideration, the petition is ordered

dismissed.[4]

Viaa petition for review on certiorariunder Rule 45 of the 1997 Rules ofCourt, petitioner raises the following questions; viz:

1. May the subject adoption, decreed on 05 May 1972, still be revoked or rescinded by

an adopter after the effectivity of R.A. No. 8552?2. In the affirmative, has the adopters action prescribed?

A brief background on the law and its origins could provide some insightson the subject. In ancient times, the Romans undertook adoption to assuremale heirs in the family.[5]The continuity of the adopters family was theprimary purpose of adoption and all matters relating to it basically focused onthe rights of the adopter. There was hardly any mention about the rights of
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the adopted.[6]Countries, like Greece, France, Spain and England, in an effortto preserve inheritance within the family, neither allowed nor recognizedadoption.[7]It was only much later when adoption was given an impetus in lawand still later when the welfare of the child became a paramountconcern.[8]Spain itself which previously disfavored adoption ultimately relentedand accepted the Roman law concept of adoption which, subsequently, wasto find its way to the archipelago. The Americans came and introduced theirown ideas on adoption which, unlike most countries in Europe, made theinterests of the child an overriding consideration.[9]In the early part of thecentury just passed, the rights of children invited universal attention; theGeneva Declaration of Rights of the Child of 1924 and the UniversalDeclaration of Human Rights of 1948,[10]followed by the United NationsDeclarations of the Rights of the Child,[11]were written instruments that wouldalso protect and safeguard the rights of adopted children. The Civil Code ofthe Philippines[12]of 1950 on adoption, later modified by the Child and YouthWelfare Code[13]and then by the Family Code of the Philippines,[14]gaveimmediate statutory acknowledgment to the rights of the adopted. In 1989,the United Nations initiated the Convention of the Rights of the Child. ThePhilippines, a State Party to the Convention, accepted the principle thatadoption was impressed with social and moral responsibility, and that itsunderlying intent was geared to favor the adopted child. R.A. No. 8552secured these rights and privileges for the adopted. Most importantly, itaffirmed the legitimate status of the adopted child, not only in his new familybut also in the society as well. The new law withdrew the right of an adopter

to rescind the adoption decree and gave to the adopted child the sole right tosever the legal ties created by adoption.

Petitioner, however, would insist that R.A. No. 8552 should not adverselyaffect her right to annul the adoption decree, nor deprive the trial court of itsjurisdiction to hear the case, both being vested under the Civil Code and theFamily Code, the laws then in force.

The concept of vested right is a consequence of the constitutionalguaranty of due process[15]that expresses a present fixed interestwhich inright reason and natural justice is protected against arbitrary state action;[16]it

includes not only legal or equitable title to the enforcement of a demand butalso exemptions from new obligations created after the right has becomevested.[17] Rights are considered vested when the right to enjoyment is apresent interest,[18]absolute, unconditional, and perfect[19]or fixed andirrefutable.

In Republic vs. Court of Appeals,[20]a petition to adopt Jason Condat wasfiled by Zenaida C. Bobiles on 02 February 1988 when the Child and Youth
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Welfare Code (Presidential Decree No. 603) allowed an adoption to be soughtby either spouse or both of them. After the trial court had rendered itsdecision and while the case was still pending on appeal, the Family Code ofthe Philippines (Executive Order No. 209),mandating joint adoption by thehusband and wife, took effect. Petitioner Republic argued that the caseshould be dismissed for having been filed by Mrs. Bobiles alone and withoutbeing joined by the husband. The Court concluded that the jurisdiction ofthe court is determined by the statute in forceat the time of thecommencement of the action. The petition to adopt Jason, having beenfiled with the court at the time when P.D. No. 603 was still in effect, theright of Mrs. Bobiles to file the petition, without being joined by her husband,according to the Court had become vested. InRepublic vs. Miller,[21]spousesClaude and Jumrus Miller, both aliens, sought to adopt Michael Madayag. On29 July 1988, the couple filed a petition to formalize Michaels adoption havingtheretofore been taken into their care. At the time the action wascommenced, P.D. No. 603 allowed aliens to adopt. After the decree ofadoption and while on appeal before the Court of Appeals, the Family Codewas enacted into law on 08 August 1988 disqualifying aliens from adoptingFilipino children. The Republic then prayed for the withdrawal of the adoptiondecree. In discarding the argument posed by the Republic, the SupremeCourt ruled that the controversy should be resolved in the light of the lawgoverning at the time the petition was filed.

It was months after the effectivity of R.A. No. 8552 that herein petitionerfiled an action to revoke the decree of adoption granted in 1975. By then, the

new law,[22]had already abrogated and repealed the right of an adopter underthe Civil Code and the Family Code to rescind a decree ofadoption. Consistently with its earlier pronouncements, the Court should nowhold that the action for rescission of the adoption decree, having been initiatedby petitioner after R.A. No. 8552 had come into force, no longer could bepursued.

Interestingly, even before the passage of the statute, an action to set asidethe adoption is subject to the fiveyear bar rule under Rule 100 [23]of the Rulesof Court and that the adopter would lose the right to revoke the adoption

decree after the lapse of that period. The exercise of the right within aprescriptive period is a condition that could not fulfill the requirements of avested right entitled to protection. It must also be acknowledged that a personhas no vested right in statutory privileges.[24]While adoption has often beenreferred to in the context of a right, the privilege to adopt is itself not naturallyinnate or fundamental but rather a right merely created by statute.[25]It is aprivilege that is governed by the states determination on what it may deem to
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be for the best interest and welfare of the child.[26]Matters relating to adoption,including the withdrawal of the right of an adopter to nullify the adoptiondecree, are subject to regulation by the State.[27]Concomitantly, a right ofactiongiven by statute may be taken away at anytime before it has beenexercised.[28]

While R.A. No. 8552 has unqualifiedly withdrawn from an adopter aconsequential right to rescind the adoption decree even in cases where theadoption might clearly turn out to be undesirable, it remains, nevertheless, thebounden duty of the Court to apply the law. Dura lex sed lexwould be thehackneyed truism that those caught in the law have to live with. It is stillnoteworthy, however, that an adopter, while barred from severing the legalties of adoption, can always for valid reasons cause the forfeiture of certainbenefits otherwise accruing to an undeserving child. For instance, upon thegrounds recognized by law, an adopter may deny to an adopted child his

legitime and, by a will and testament, may freely exclude him from having ashare in the disposable portion of his estate.

WHEREFORE, the assailed judgment of the court a quoisAFFIRMED. No costs.

SO ORDERED.

3. G.R. No. 118870. March 29, 1996]

NERISSA Z. PEREZ, petitioner, vs. THE COURT OF APPEALS (NinthDivision) and RAY C. PEREZ,respondents.

D E C I S I O N

ROMERO, J.:

Parties herein would have this Court duplicate the feat of King Solomonwho was hailed in Biblical times for his sagacious, if, at times unorthodox,manner of resolving conflicts, the most celebrated case being that when hisauthority was invoked to determine the identity of the real mother as betweentwo women claiming the same infant. Since there could only be one mother,the daunting task that confronted the king/judge was to choose the true one.
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In the instant case, we are faced with the challenge of deciding, asbetween father and mother, who should have rightful custody of a child whobears in his person both their genes.

While there is a provision of law squarely in point, the two courts whose

authority have been invoked to render a decision have arrived at diametricallyopposite conclusions.

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

On the issue of custody over the minor Ray Perez II, respondent Court ofAppeals ruled in favor of the boys father Ray C. Perez, reversing the trialcourts decision to grant custody to Nerissa Z. Perez, the childs mother.

Ray Perez, private respondent, is a doctor of medicine practicingin Cebu while Nerissa, his wife who is petitioner herein, is a registerednurse. They were married in Cebu on December 6, 1986. After sixmiscarriages, two operations and a high-risk pregnancy, petitioner finally gavebirth to Ray Perez II in New York on July 20, 1992.

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

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

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

When Nerissa came home a few days before Ray IIs first birthday, thecouple was no longer on good terms. That their love for each other wasfading became apparent from their serious quarrels. Petitioner did not want tolive near her in-laws and rely solely on her husbands meager income ofP5,000.00.1She longed to be with her only child but he was being kept awayfrom her by her husband. Thus, she did not want to leave RJ (Ray Junior)
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with her husband and in-laws. She wished for her son to grow up with hismother.

On the other hand, Ray wanted to stay here, where he could raise his soneven as he practiced his profession. He maintained that it would not be

difficult to live here since they have their own home and a car. They could livecomfortably on his P 15,000.00 monthly income2as they were not burdenedwith having to pay any debts.

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

On July 26, 1993, Nerissa Z. Perez filed a petition for habeascorpus3asking respondent Ray C. Perez to surrender the custody of their son,Ray Z. Perez II, to her.

On August 27, 1993, the court a quoissued an Order awarding custody ofthe one-year old child to his mother, Nerissa Perez, citing the secondparagraph of Article 213 of the Family Code which provides that no childunder seven years of age shall be separated from the mother, unless thecourt finds compelling reasons to order otherwise. The dispositive portion ofthe Order reads:

WHEREFORE, foregoing premises considered, Order is hereby issued ordering the

respondent to turn over the custody of their child Ray Cortes Perez II, his passport and

roundtrip ticket to herein petitioner with a warning that if he will escape together with

the child for the purpose of hiding the minor child instead of complying with this

Order, that warrant for his arrest will be issued.

SO ORDERED.4

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

Petitioners motion for reconsideration having been denied,6she filed theinstant petition for review where the sole issue is the custody of Ray Perez II,

now three years old.Respondent court differed in opinion from the trial court and ruled that

there were enough reasons to deny Nerissa Perez custody over Ray II even ifthe child is under seven years old. It held that granting custody to the boysfather would be for the childs best interest and welfare.7
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Before us is the unedifying situation of a husband and wife in maritaldiscord, struggling for custody of their only child. It is sad that petitioner andprivate respondent have not found it in their hearts to understand each otherand live together once again as a family. Separated in fact, they now seek theCourts assistance in the matter of custody or parental authority over the child.

The wisdom and necessity for the exercise of joint parental authority neednot be belabored. The father and the mother complement each other in givingnurture and providing that holistic care which takes into account the physical,emotional, psychological, mental, social and spiritual needs of the child. Byprecept and example, they mold his character during his crucial formativeyears.

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

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

ART. 213. In case ofseparation of the parents, parental authority shall be exercised

by the parent designated by the Court. The Court shall take into account all relevant

considerations, especially the choice of the child over seven years of age, unless the

parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court

finds compelling reasons to order otherwise. (Italics supplied)

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

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

SEC. 6. Proceedings as to child whose parents are separated. Appeal. - Whenhusband and wife are divorced or living separately and apart from each other, and the

questions as to the care, custody, and control of a child or children of their marriage is

brought before a Court of First Instance by petition or as an incident to any other

proceeding, the court, upon hearing the testimony as may be pertinent, shall award the

care, custody, and control of each such child as will be for its best interest, permitting

the child to choose which parent it prefers to live with if it be over ten years of age,
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unless the parent chosen be unfit to take charge of the child by reason of moral

depravity, habitual drunkenness, incapacity, or poverty x x x.No child under seven

years of age shall be separated from its mother, unless the court finds there are

compelling reasons therefor.(Italics supplied)

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

The use of the wordshall in Article 36310of the Civil Code, coupled with the

observations made by the Code Commission in respect to the said legal provision,

underscores its mandatory character. It prohibits in no uncertain terms the separation

of a mother and her child below seven years, unless such separation is grounded uponcompelling reasons as determined by a court.11

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

The general rule is recommended in order to avoid many a tragedy where a mother

has seen her baby torn away from her. No man can sound the deep sorrows of a

mother who is deprived of her child of tender age. The exception allowed by the rulehas to be for compelling reasons for the good of the child; those cases must indeed

be rare, if the mothers heart is not to be unduly hurt. If she has erred, as in cases ofadultery, the penalty of imprisonment and the divorce decree (relative divorce) will

ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have

any effect upon the baby who is as yet unable to understand her situation. (Report of

the Code Commission, p. 12)12

The Family Code, in reverting to the provision of the Civil Code that a childbelow seven years old should not be separated from the mother (Article 363),has expressly repealed the earlier Article 17, paragraph three of the Child andYouth Welfare Code (Presidential Decree No. 603) which reduced the childs

age to five years.13

The general rule that a child under seven years of age shall not beseparated from his mother finds its raison detrein the basic need of a childfor his mothers loving care.14Only the most compelling of reasons shall justifythe courts awarding the custody of such a child to someone other than hismother, such as her unfitness to exercise sole parental authority. In the past
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the following grounds have been considered ample justification to deprive amother of custody and parental authority: neglect,abandonment,15unemployment and immorality,16habitual drunkenness,17drugaddiction, maltreatment of the child, insanity and being sick with acommunicable disease.18

It has long been settled that in custody cases,19the foremost considerationis always the Welfare and best interest of the child. In fact, no less than aninternational instrument, the Convention on the Rights of the Child provides:In all actions concerning children, whether undertaken by public or privatesocial welfare institutions, courts of law, administrative authorities orlegislative bodies, the best interests of the child shall be a primaryconsideration.20

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

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

Respondent court stated that petitioner has no permanent place of work inthe U.S.A. and has taken this point against her. The records, however, showthat she is employed in a New York hospital22and was, at the time the petitionwas filed, still abroad.23She testified that she intends to apply for a jobelsewhere, presumably to improve her work environment and augment herincome, as well as for convenience.24The Court takes judicial notice of the factthat a registered nurse, such as petitioner, is still very much in demand inthe United States. Unlike private respondent, a doctor who by his ownadmission could not find employment there, petitioner immediately got a jobin New York. Considering her skill and experience, petitioner should find nodifficulty in obtaining work elsewhere, should she desire to do so.

The decision under review casts doubt on petitioners capability to takecare of the child, particularly since she works on twelve-hour shifts thriceweekly, at times, even at night. There being no one to help her look after thechild, it is alleged that she cannot properly attend to him. This conclusion is asunwarranted as it is unreasonable. First, her present work schedule is not so

unmanageable as to deprive her of quality time for Ray II. Quite a number ofworking mothers who are away from home for longer periods of time are stillable to raise a family well, applying time management principlesjudiciously. Second, many a mother, finding herself in such a position, hasinvited her own mother or relative to join her abroad, providing the latter withplane tickets and liberal allowances, to look after the child until he is able totake care of himself. Others go on leave from work until such time as the child
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can be entrusted to day-care centers. Delegating child care temporarily toqualified persons who run day-care centers does not detract from being agood mother, as long as the latter exercises supervision, for even in ourculture, children are often brought up by housemaids or yayas under theeagle eyes of the mother. Third, private respondents work schedule was notpresented in evidence at the trial. Although he is a general practitioner, therecords merely show that he maintains a clinic, works for several companieson retainer basis and teaches part-time.25Hence, respondent courtsconclusion that his work schedule is flexible (and h)e can always find time forhis son26is not well-founded. Fourth, the fact that private respondent livesnear his parents and sister is not crucial in this case. Fifth, petitioners workschedule cited in the respondent courts decision is not necessarilypermanent. Hospitals work in shifts and, given a mothers instinctive desire tolavish upon her child the utmost care, petitioner may be expected to arrangeher schedule in such a way as to allocate time for him. Finally, it does notfollow that petitioner values her career more than her family simply becauseshe wants to work in the United States. There are any number of reasons fora persons seeking a job outside the country, e.g. to augment her income forthe familys benefit and welfare, and for psychological fulfillment, to name afew. In the instant case, it has been shown that petitioner earned enough fromher job to be able to construct a house for the family in Mandaue City. Therecord describes sketchily the relations between Ray and Nerissa Perez. Thetranscripts of the three hearings are inadequate to show that petitioner did notexert earnest efforts and make sacrifices to save her marriage.

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

WHEREFORE, the petition for review is GRANTED. The decision of theCourt of Appeals dated September 27, 1994 as well as its Resolution

dated January 24, 1995 are hereby REVERSED and SET ASIDE. The Orderof the trial court dated August 27, 1993 is hereby REINSTATED. Custodyover the minor Ray Z. Perez II is awarded to his mother, herein petitionerNerissa Z. Perez. This decision is immediately executory.

SO ORDERED.
http://sc.judiciary.gov.ph/jurisprudence/1996/mar1996/118870.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/1996/mar1996/118870.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/1996/mar1996/118870.htm#_edn25http://sc.judiciary.gov.ph/jurisprudence/1996/mar1996/118870.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/1996/mar1996/118870.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/1996/mar1996/118870.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/1996/mar1996/118870.htm#_edn26http://sc.judiciary.gov.ph/jurisprudence/1996/mar1996/118870.htm#_edn25


27/117

Habeas Corpus

DAVID VS. COURT OF APPEALS

250 SCRA 82

PONENTE: JUSTICE MENDOZA

FACTS:

1. Petitioner Daisie David worked as secretary of private respondent Ramon Villar, a businessman.

2. Private respondent is a married man and the father of four children, all grown-up.

3. The relationship between Daisie and Ramon developed into an intimate one, as a result Christopher

J was born to them followed by two more children, both girls.

4. Private respondents wife knew of the relationship when Daisie took Christopher J to Ramons

house.

5. After this, the children of Daisie were freely brought by Ramon to his house as they were eventually

accepted by his legal family.

6. In summer 1991, Ramon asked Daisie to allow Christopher J, then 6 years old to go with his family

to Boracay.

7. Daisie agreed, but after the trip Ramon refused to give back the child.8. Daisie filed a petitioner for Habeas Corpus on behalf of Christopher J.

9. The RTC rendered judgment in favor of Daisie, granting rightful custody to the natural mother.

10. The CA reversed on appeal holding that Habeas Corpus was not proper; the question of custody of

a minor child may be decided in a Habeas Corpus case contemplates a situation where the parents are

married to each other but are separated.

11. Hence this petition.

ISSUE:

Is the remedy of Habeas Corpus proper?

HELD:

It is indeed true, as the CA observed that the determination of the right to the custody of minorchildren is relevant in cases where the parents, who are married to each other, are for some reason

separated from each other. It does not follow, however, that it cannot arise in any other situation. For

example, in the case of SALVANA VS. GAELA (55 PHIL 680), it was held that the writ of habeas corpus

is the proper remedy to enable parents to regain the custody of a minor daughter even though the

latter be in the custody of a third person of her free will because the parents were compelling her to

marry a man against her will.

In the case at bar, Christopher J is an illegitimate child since at the time of his conception, his father,

private r

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