De Ocampo vs FlorencianoDOCTRINE: Florenciano’s admission to the investigating fiscal that she committed adultery, in the existence of evi-dence of adultery other than such confession, is not the confession of judgment disallowed by Article 48 of the Family Code.  What is prohibited is a confession of judgment, a confession done in court or through a pleading.  Where there is evidence of the adultery independent of the defendant’s statement agreeing to the legal separation, the decree of separa-tion should be granted since it would not be based on the confession but upon the evidence presented by the plaintiff.  What the law prohibits is a judgment based exclusively on defendant’s confession.  The petition should be granted based on the second adultery, which has not yet prescribed.FACTS:Jose de Ocampo (Petitioner) and Serafina Florenciano (Respondent) got married on April 5, 1938 and as a result of such union, they begot several children. Sometime in March 1951, Ocampo discovered that his wife was maintaining illicit relations with Jose Arcalas. He sent his wife to Manila to study beauty culture. Again, Ocampo discovered that aside from Jose Arcalas, Serafina was going out with several other men. Serafina left Ocampo after she finished her study and since then the two lived separately.

After Ocampo caught his wife in the act of having illicit relations with Nelsom Orzame on June 18, 1955, he signified his intention of filing a petition for legal separation. Serafina conformed to his intention pro-vided that she will not be charged with adultery in a criminal action.

Ocampo filed a petition for legal separation but the Court of First Instance of Nueva Ecija dismissed it holding there was confession of judgment, plus condonation or consent to the adultery and prescription which was AFFIRMED by the Court of Appeals.

CA’s decision: With regard to the defendant’s adultery with Jose Arcalas, the husband’s right to legal separation had pre-scribed because his action was not filed within one year from March 1951 when plaintiff discovered her in -fidelity (art.102,NCC).

As to the adultery with Nelson Orzame, after discovery of such, the husband expressed his wish to file a petition for legal separation which the defendant had readily agreed to. Before the fiscal, the defendant even reiterated her conformity to the legal separation and admitted having sexual relations with Nelson Orzame. The Appellate Court had interpreted such facts as a confession of judgment under Art.101 and thus, legal separation could not be decreed.ISSUE: Whether or not a decree for legal separation should be granted

HELD:Yes. As the Court understand the article, it does not exclude, as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff’s demand.

Supposing the statement of defendant constitutes a confession of judgment, inasmuch as there is evi -dence of the adultery independent of such statement, the decree may and should be granted, since it would not be based on her confession, but upon evidence presented by the plaintiff. What the law pro -hibits is a judgment based exclusively or mainly on defendant’s confession. If a confession defeats the ac-tion ipso facto, any defendant who opposes the separation will immediately confess judgment for the pur-pose of preventing it.

The fact that the defendant “like also” to be legally separated from her husband, is not an obstacle to the successful prosecution of the action. When the court is informed that defendant equally desires the sepa-ration and admitted the commission of the offense, it should be doubly careful lest a collusion exists. However, the Court of Appeals did not find collusion.

There would be collusion if the parties had arranged by making it appear that a matrimonial offense had been committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of grounds therefor.

According to the evidence presented in the instant case, the offense of adultery had really took place. The defendant could not have falsely told the adulterous acts to the Fiscal, because her story might send her to jail the moment her husband request the Fiscal to prosecute. She could not have practiced deception at such a personal risk.

In connection to this, collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it (Williams vs. Williams, Rosenweig vs. Rosenweig). And proof that defendant desires the divorce and makes no defense, it not by itself collusion (Pohlman vs. Pohlman).

The plaintiff’s failure to actively search for the defendant and take her home (after the latter left him in 1952) does not constitute condonation or consent to her adulterous relations with Orzame. It was not his duty to search for her to bring her home. Hers was the obligation to return.

Finding no obstacles to the aggrieved husband’s petition, the Supreme Court hereby REVERSED the deci-sion being appealed and decree a legal separation between the spouses. Cost against Serafina Floren-ciano.

Cotoner vs RevillaDOCTRINEFACTSISSUEHELD

Laperal vs KatigbakDOCTRINE: All properties acquired during the marriage are presumed conjugal.  It is however not conclusive but merely rebuttable, unless it be proved that the property belong exclusively to the husband and wife.  In the case at bar, the deed of the land is under the name of the wife.  At the time it was purchased, the property was of substantial value and as admitted, the husband by himself could not have afforded to buy considering the singu-lar source of income.FACTS:

CFI Manila declared the property covered by TCT No.57626 as separate or paraphernal property of Evelina Kalaw-Katigbak.  The spouses Laperal disagree with this finding reiterating that its improvements and income are conjugal assets of the Spouses Katigbak.

When the spouses Katigbak got married, neither of them brought properties unto the marriage.  Ramon’s occupation ren-dered him a monthly income of P200.00.  The property in ques-tion was registered in the name of “Evelina Kalaw-Katigbak married to Ramon Katigbak”.  The latter declared that her mother was the one who bought the property for her and had placed it only in her name as the practice of her mother in buy-ing properties and placing them directly in the names of her children.  The husband having no interest with the property only signed the document for the purpose of assisting his wife.

 In August 1950, the Laperals filed a case and was granted by the trial court against the Katigbaks in recovery of P14,000 and jewelry amounting to P97,500 or in lieu thereof, to pay such amount.  A month after the decision was rendered, Evelina filed a complaint against her husband for judicial separation of prop-erty and separate administration which was granted by the court and was sought for annulment by the Laperals. ISSUE: Whether or not the property in question constitutes the paraphernal property of Evelina.

HELD:YES. All properties acquired during the marriage are presumed conjugal.  It is however not conclusive but merely rebuttable, unless it be proved that the property belong exclusively to the husband and wife.  In the case at bar, the deed of the land is under the name of the wife.  At the time it was purchased, the property was of substantial value and as admitted, the husband by himself could not have afforded to buy considering the singular source of income.

Hence, the property covered by TCT 57626 is considered a paraphernal property of the wife.

Ching vs CADOCTRINE: The shares of stocks are, thus, presumed to be the conjugal partnership property of the petitioners. The private respondent failed to adduce evidence that the petitioner-husband acquired the stocks with his exclusive money.

In this case, the private respondent failed to prove that the conjugal partnership of the petitioners was benefited by the petitioner-husband’s act of executing a continuing guaranty and suretyship agreement with the private respondent for and in behalf of PBMCI. The contract of loan was between the private respondent and the PBMCI, solely for the benefit of the latter. No presumption can be inferred from the fact that when the petitioner-husband entered into an accommodation agreement or a contract of surety, the conjugal partnership would thereby be benefited. The private respondent was burdened to establish that such benefit redounded to the conjugal partnership.

FACTS:Philippine Blooming Mills Company, Inc. (PBMCI) obtained two loans from the Al-lied Banking Corporation (ABC). (PBMCI) Executive Vice-President Alfredo Ching executed a continuing guaranty with the ABC for the payment of the said loan. The PBMCI defaulted in the payment of all its loans so ABC filed a complaint for sum of money against the PBMCI. Trial court issued a writ of preliminary attachment against Alfredo Ching requiring the sheriff of to attach all the properties of said Al-fredo Ching to answer for the payment of the loans. Encarnacion T. Ching, wife of Alfredo Ching, filed a Motion to Set Aside the levy on attachment allegeing inter alia that the 100,000 shares of stocks levied on by the sheriff were acquired by her and her husband during their marriage out of conjugal funds. Petitioner spouses aver that the source of funds in the acquisition of the levied shares of stocks is not the controlling factor when invoking the presumption of the conjugal nature of stocks under Art. !21 and that such presumption subsists even if the property is registered only in the name of one of the spouses, in this case, petitioner Alfredo Ching. Ac-cording to the petitioners, the suretyship obligation was not contracted in the pursuit of the petitioner-husband’s profession or business.ISSUE: Whether or not 100,000 shares of stocks may be levied on by the sheriff to answer for the loans guaranteed by petitioner Alfredo ChingHELD:NO. The CA erred in holding that by executing a continuing guaranty and suretyship agree-ment with the private respondent for the payment of the PBMCI loans, the petitioner-hus-band was in the exercise of his profession, pursuing a legitimate business.

The shares of stocks are, thus, presumed to be the conjugal partnership property of the petitioners. The private respondent failed to adduce evidence that the peti-tioner-husband acquired the stocks with his exclusive money.

The appellate court erred in concluding that the conjugal partnership is liable for the said account of PBMCI.Article 121 provides: The conjugal partnership shall be liable for: (1) All debts and obligations contracted by the husband for the benefit of the conjugal partnership, and those contracted by the wife, also for the same purpose, in the cases where she may legally bind the partnership.

For the conjugal partnership to be liable for a liability that should appertain to the husband alone, there must be a showing that some advantages accrued to the spouses.

In this case, the private respondent failed to prove that the conjugal partnership of the petitioners was benefited by the petitioner-husband’s act of executing a continu-ing guaranty and suretyship agreement with the private respondent for and in be-half of PBMCI. The contract of loan was between the private respondent and the PBMCI, solely for the benefit of the latter. No presumption can be inferred from the fact that when the petitioner-husband entered into an accommodation agreement or a contract of surety, the conjugal partnership would thereby be benefited. The pri-vate respondent was burdened to establish that such benefit redounded to the con-jugal partnership.

Aguete vs PNBDOCTRINE: It is enough that the benefit to the family is apparent at the signing of the contract. From the very nature of the contract of loan or services, the family stands to benefit from the loan fa-cility or services to be rendered to the business or profession of the husband. It is immaterial, if in the end, his business or profession fails or does not succeed. Simply stated, where the husband contracts obligations on behalf of the family business, the law presumes, and rightly so, that such obligation will redound to the benefit of the conjugal partnership.

Ros’ loan from PNB redounded to the benefit of the conjugal partnership. Hence, the debt is chargeable to the conjugal partnership.

FACTS:Spouses Jose Ros and Estrella Aguete filed a complaint for the annulment of the Real Estate Mortgage and all legal proceedings taken thereunder against PNB, Laoag Branch before the CFI of Ilocos Norte.

The information disclosed that Jose Ros (petitioner) obtained a loan of P115,000 from ONB and executed a real estate mortgage involving a parcel of land as secu-rity thereof. Upon maturity, the loan remained unpaid and as a result, PNB initiated extrajudicial foreclosure proceedings on the said property. After which, the lot was sold to PNB as the highest bidder.  Petitioner claims that she had no knowledge of the loan incurred by her husband nor did she consent to the mortgage instituted on their conjugal property. She then filed a complaint to annul the proceedings pertain-ing to the mortgage, sale and consolidation of the property (after the lapse of 1 year). The trial court rendered its decision in favor of petitioners but was later re-versed by the appellate court upon appeal.

ISSUE: Whether or not the property is considered as redounded to the benefit of the conjugal part-nership.HELD:YES. The husband cannot alienate or encumber any conjugal real property without the con-sent, express or implied, of the wife. Should the husband do so, then the contract is void-able.17 Article 173 of the Civil Code allows Aguete to question Ros’ encumbrance of the subject property. However, the same article does not guarantee that the courts will declare the annulment of the contract. Annulment will be declared only upon a finding that the wife did not give her consent.

It is enough that the benefit to the family is apparent at the signing of the contract. From the very nature of the contract of loan or services, the family stands to benefit from the loan facility or services to be rendered to the business or profession of the husband. It is immaterial, if in the end, his business or profession fails or does not succeed. Simply stated, where the husband contracts obligations on behalf of the family business, the law presumes, and rightly so, that such obligation will redound to the benefit of the conjugal partnership.

Ros’ loan from PNB redounded to the benefit of the conjugal partner-ship. Hence, the debt is chargeable to the conjugal partnership. 

DIÑO vs DIÑODOCTRINE:For Article 147 of the Family Code to apply, the following elements must be present:1. The man and the woman must be capacitated to marry each other;2. They live exclusively with each other as husband and wife; and3. Their union is without the benefit of marriage, or their marriage is voidAll these elements are present in this case and there is no question that Article 147 of the Family Code applies to the property relations between petitioner and respondent.FACTS:January 1998 petitioner and respondent got married. On May 2001, petitioner filed an action for Declaration of Niullity of Marriagw against respondent citing psychological incapacity under article 36. Petitioner alleged that respondent failed in her marital obligation to give love and support to him, and had aban-doned her responsibility to the family, choosing instead to go on shopping sprees and gallivanting with her friends that depleted the family assets. Peti-tioner further alleged that respondent was not faithful, and would at times be-come violent and hurt him. The trial court declared their marriage void ab ini-tio.The court ruled that A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall only be issued upon compliance with Article[s] 50 and 51 of the Family Code. It later altered it to” A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall be issued af-ter liquidation, partition and distribution of the parties’ properties under Article 147 of the Family Code”ISSUE: Whether or not the trial court erred when it ordered that a decree of absolute nullity of marriage shall only be issued after liquidation, partition, and distribution of the parties’ properties under Article 147 of the Family CodeHELD:YES. The Court has ruled in Valdes v. RTC, Branch 102, Quezon City that in a void marriage, regardless of its cause, the property relations of the parties dur-

ing the period of cohabitation is governed either by Article 147 or Article 148 of the Family Code.7 Article 147 of the Family Code applies to union of parties who are legally capacitated and not barred by any impediment to contract mar-riage, but whose marriage is nonetheless void, such as petitioner and respon-dent in the case before the Court.For Article 147 of the Family Code to apply, the following elements must be present:1. The man and the woman must be capacitated to marry each other;2. They live exclusively with each other as husband and wife; and3. Their union is without the benefit of marriage, or their marriage is voidAll these elements are present in this case and there is no question that Article 147 of the Family Code applies to the property relations between petitioner and respondent.It is clear from Article 50 of the Family Code that Section 19(1) of the Rule ap-plies only to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45 of the Family Code. In short, Article 50 of the Family Code does not apply to marriages which are declared void ab initio under Article 36 of the Family Code, which should be declared void without waiting for the liquidation of the properties of the parties.Since the property relations of the parties in art 40 and 45 are governed by ab-solute community of property or conjugal partnership of gains, there is a need to liquidate, partition and distribute the properties before a decree of annul-ment could be issued. That is not the case for annulment of marriage under Ar-ticle 36 of the Family Code because the marriage is governed by the ordinary rules on co-ownership.In this case, petitioner’s marriage to respondent was declared void under Arti-cle 3615 of the Family Code and not under Article 40 or 45. Thus, what governs the liquidation of properties owned in common by petitioner and respondent are the rules on co-ownership. In Valdes, the Court ruled that the property rela-tions of parties in a void marriage during the period of cohabitation is governed either by Article 147 or Article 148 of the Family Code. The rules on co-owner-ship apply and the properties of the spouses should be liquidated in accor-dance with the Civil Code provisions on co-ownership. Under Article 496 of the Civil Code, “[p]artition may be made by agreement between the parties or by judicial proceedings. x x x.” It is not necessary to liquidate the properties of the spouses in the same proceeding for declaration of nullity of marriage.

MODEQUILLO vs BREVADOCTRINE: All existing family residences at the time of the effectivity of the Family Code, are considered family homes and are prospec-tively entitled to the benefits accorded to a family home under the Family CodeFACTS:The sheriff levied on a parcel of residential land located at Poblacion Malalag, Davao del Sur on July 1988, registered in the name of Jose Mondequillo and a parcel of agricultural land located at Dalagbong Bulacan, Malalag, Davao de Sur also registered in the latter’s name.  A motion to quash was filed by the pe-titioner alleging that the residential land is where the family home is built since 1969 prior the commencement of this case and as such is exempt from execu-tion, forced sale or attachment under Article 152 and 153 except for liabilities

mentioned in Article 155 thereof, and that the judgment sought to be enforced against the family home is not one of those enumerated.  With regard to the agricultural land, it is alleged that it is still part of the public land and the trans-fer in his favor by the original possessor and applicant who was a member of a cultural minority.  The residential house in the present case became a family home by operation of law under Article 153.ISSUE: Whether or not the subject property is deemed to be a family home.HELD:NO. The petitioner’s contention that it should be considered a family home from the time it was occupied by petitioner and his family in 1969 is not well-taken.  Under Article 162 of the Family Code, it pro-vides that the provisions of this Chapter shall govern existing family residences insofar as said provisions are applicable.  It does not mean that Article 152 and 153 shall have a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and are exempt from the execution for payment of obligations incurred before the effectivity of the Code.  The said arti-cle simply means that all existing family residences at the time of the effectivity of the Family Code, are considered family homes and are prospectively entitled to the benefits accorded to a family home under the FC.  The debt and liability which was the basis of the judgment was incurred prior the effectivity of the Family Code.  This does not fall under the exemptions from execution provided in the FC.

As to the agricultural land, trial court correctly ruled that the levy to be made shall be on whatever rights the petitioner may have on the land.  Petition was dismissed.

LUCAS vs LUCASDOCTRINE: Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches and seizures is still applicable, and a proper showing of sufficient justification under the particular factual circum-stances of the case must be made before a court may order a compulsory blood test.FACTS:Jesse U. Lucas (Jesse), filed a Petition to Establish Filiation with a Motion for the Submission of Parties to DNA Testing before the Regional Trial Court (RTC). Jesse narrated his mother’s account of her history with Jesus S. Lucas (Jesus) and attached several copies of his personal documents.

Though Jesus was not summoned and was not served a copy of the petition, he nevertheless learned of it and obtained for himself a copy. He then filed a Spe-cial Appearance and Comment manifesting among others that the petition was adversarial in nature and therefore summons should be served on him as respon-dent.

Unbeknownst to Jesus on the day before he filed his Comment, Jesse filed a Very Urgent Motion to Try and Hear the Case which the RTC found to be suffi-cient in form and hence set the case for hearing.

After learning of the RTC’s order, Jesus filed a Motion for Reconsideration arguing that DNA testing cannot be had on the basis of a mere allegation pointing to him as Jesse’s father.

Acting on Jesus’ Motion for Reconsideration, the RTC dismissed the case and held that Jesse failed to establish compliance with the four procedural as-pects for a paternity action enumerated in the case of Herrera v. Alba.

This prompted Jesse to file a Motion for Reconsideration of his own which the RTC granted. A new hearing was scheduled where the RTC held that ruling on the grounds relied upon by Jesse for filing the instant petition is premature considering that a full-blown trial has not yet taken place.

Jesus filed a Motion for Reconsideration which was denied by the RTC. He then filed a petition for certiorari with the Court of Appeals (CA). The CA ruled in favor of Jesus, it noted that Jesse failed to show that the four significant aspects of a traditional paternity action had been met and held that DNA testing should not be allowed when the petitioner has failed to establish a prima facie case.

ISSUE:Whether or not a prima facie showing is necessary before a court can issue a DNA testing order.

HELD:Petition GRANTED.

Misapplication of Herrera v. Alba by the Regional Trial Court and the Court of Appeals.

The statement in Herrera v. Alba that there are four significant procedural aspects in a traditional paternity case which parties have to face has been widely misunderstood and misapplied in this case. A party is confronted by these so-called procedural aspects during trial, when the parties have presented their re-spective evidence. They are matters of evidence that cannot be determined at this initial stage of the proceedings, when only the petition to establish filiation has been filed. The CA’s observation that petitioner failed to establish a prima facie case—the first procedural aspect in a paternity case—is therefore misplaced. A prima facie case is built by a party’s evidence and not by mere allegations in the initiatory pleading.

Section 4 of the Rule on DNA evidence.

The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA evidence in the judicial system. It provides the “prescribed parameters on the requisite elements for reliability and validity (i.e., the proper procedures, protocols, necessary laboratory reports, etc.), the possible sources of error, the available objections to the admission of DNA test results as evidence as well as the probative value of DNA evidence.” It seeks “to ensure that the evidence gathered, using various methods of DNA analysis, is utilized effec-tively and properly, [and] shall not be misused and/or abused and, more impor-

tantly, shall continue to ensure that DNA analysis serves justice and protects, rather than prejudice the public.”

Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard the accuracy and integrity of the DNA testing. Section 4 states: The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and no-tice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case;(b) The biological sample: (i) was not previously sub-jected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper reso-lution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or pro-ceeding is commenced.

This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the said conditions are established.

Court order for blood testing equivalent to “search” under the Constitu-tion.

In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing wherein the applicant must first present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or “good cause” for the holding of the test. In these states, a court order for blood testing is considered a “search,” which, under their Constitutions (as in ours), must be preceded by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable cause.

The Supreme Court of Louisiana eloquently explained; “Although a pater-nity action is civil, not criminal, the constitutional prohibition against unreason-able searches and seizures is still applicable, and a proper showing of sufficient justification under the particular factual circumstances of the case must be made before a court may order a compulsory blood test. Courts in various jurisdictions have differed regarding the kind of procedures which are required, but those ju-risdictions have almost universally found that a preliminary showing must be made before a court can constitutionally order compulsory blood testing in pater-nity cases. We agree, and find that, as a preliminary matter, before the court may issue an order for compulsory blood testing, the moving party must show that there is a reasonable possibility of paternity. As explained hereafter, in cases in which paternity is contested and a party to the action refuses to voluntarily un-dergo a blood test, a show cause hearing must be held in which the court can de-termine whether there is sufficient evidence to establish a prima facie case which warrants issuance of a court order for blood testing.”

The same condition precedent should be applied in our jurisdiction to pro-tect the putative father from mere harassment suits. Thus, during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity.

ABADILLA vs TABILIRAN

DOCTRINE: Under Article 177 of the Family Code, only children con-ceived and born outside of wedlock of parents who, at the time of the con-ception of the former, were not disqualified by any impediment to marry each other may be legitimated.

FACTS:

Ma. Blyth Abadilla, a Clerk of Court, filed a complaint against Judge Tabiliran on the grounds of gross immorality, deceitful conduct, and corruption unbecoming of a judge.  With respect to the charge on gross immorality, she contended that the judge scandalously and publicly cohabited with Priscilla Baybayan during subsis-tence of his marriage with Teresita Banzuela.  Tabiliran and Priscilla got married in May 1986.  On the other hand, with respect to the charge on deceitful conduct, petitioner claims that the judge caused his 3 illegitimate children with Priscilla be registered as “legitimate” by falsely executing separate affidavits stating the de-layed registration was due to inadvertence, excusable negligence or oversight when in fact, he knew these children cannot be legally registered as legitimate.  The judge averred that 25 years had already elapsed since the disappearance of her wife in 1966 when he married Priscilla hence the cohabitation was neither bigamous nor immoral.  However, as early as 1970, based on the record, Priscilla had begotten her 3 children (1970, 1971 and 1975).

ISSUE: Whether or not the 3 children can be considered legitimate.

HELD:

NO. The 3 children cannot be legitimated nor in any way be considered legitimate since the time they were born, there was an existing valid marriage between Tabiliran and Teresita. Only natural children can be legitimated. Children born outside of wedlock of parents who, at the time of the concep-tion of the former, were not disqualified by any impediment to marry each other, are natural.

Under Article 177 of the Family Code, only children conceived and born out-side of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legiti-mated.  Reasons for this limitation:1) The rationale of legitimation would be destroyed;2) It would be unfair to the legitimate children in terms of successional rights;3) There will be the problem of public scandal, unless social mores change;4) It is too violent to grant the privilege of legitimation to adulterous children as it will destroy the sanctity of marriage;5) It will be very scandalous, especially if the parents marry many years after the birth of the child. 

CALDERON vs ROXAS

DOCTRINE: Provisional remedies are writs and processes available during the pendency of the ac -tion which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending ren-dition, and for purposes of the ultimate effects, of a final judgment in the case. They are provisional because they constitute temporary measures availed of during the pendency of the action, and they are ancillary because they are mere incidents in and are dependent upon the result of the main action.20 The subject orders on the matter of support pendente lite are but an incident to the main action for declaration of nullity of marriage.

FACTS:

Petitioner Ma. Carminia C. Calderon and private respondent Jose Antonio F. Roxas, were married on December 4, 1985 and their union produced four children. On January 16, 1998, petitioner filed an Amended Complaint for the declaration of nullity of their marriage on the ground of psychological incapacity under Art. 36 of the Family Code of the Philippines.

The trial court issued an Order granting petitioner’s application for support pen-dente lite. respondent filed a Motion to Reduce Support. The trial court rendered its Decision declaring null and void the marriage, awarding the custody of the parties ’ mi-nor children to their mother, ordering the respondent Jose Antonio Roxas to provide support to the children, and dissolving the community property or conjugal partner-ship property of the parties. Petitioner through counsel filed a Notice of Appeal from the Orders.

ISSUE: Whether or not it was a proper petition to assail the order of support pendent lite

HELD:

The assailed orders relative to the incident of support pendente lite and support in arrears, as the term suggests, were issued pending the rendition of the decision on the main action for declaration of nullity of marriage, and are therefore interlocutory. They did not finally dispose of the case nor did they consist of a final adjudication of the merits of petitioner’s claims as to the ground of psychological incapacity and other incidents as child custody, support and conjugal assets.

The Rules of Court provide for the provisional remedy of support pendente lite which may be availed of at the commencement of the proper action or proceeding, or at any time prior to the judgment or final order. On March 4, 2003, this Court promul-gated the Rule on Provisional Orders which shall govern the issuance of provisional or-ders during the pendency of cases for the declaration of nullity of marriage, annul-ment of voidable marriage and legal separation. These include orders for spousal sup-port, child support, child custody, visitation rights, hold departure, protection and ad-ministration of common property.

Petitioner contends that the CA failed to recognize that the interlocutory aspect of the assailed orders pertains only to private respondent’s motion to reduce support which was granted, and to her own motion to increase support, which was denied.

Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case. They are provisional because they constitute temporary measures availed of during the pendency of the action, and they are ancillary because they are mere incidents in and are dependent upon the result of the main action.  The subject orders on the matter of support pendente lite are but an incident to the main action for declaration of nullity of marriage.

GRANDE vs ANTONIO

DOCTRINE: Art. 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It is not the father (herein respondent) or the mother (herein petitioner) who is granted by law the right to dictate the surname of their illegitimate children.

FACTS:

Petitioner Grace Grande (Grande) and respondent Patricio Antonio (Antonio) for a period of time lived together as husband and wife, although Antonio was at that time already married to someone else.Out of this illicit relationship, two sons were born: Andre Lewis and Jerard Patrick, both minors. The children were not expressly recognized by respondent as his own in the Record of Births of the chil-dren in the Civil Registry. The parties relationship, however, eventually turned sour, and Grande left for the United States with her two children. This prompted respondent Antonio to file a Petition for Judicial Approval of Recognition with Prayer to take Parental Authority, Parental Physical Custody, Correction/Change of Surname of Minors and for the Issuance of Writ of Preliminary Injunction, ap-pending a notarized Deed of Voluntary Recognition of Paternity of the children.

The RTC held in favor of Antonio, ordering the Office of the City Registrar to cause the entry of the name of Antonio as the father of the aforementioned mi-nors in their respective Certificate of Live Birth and causing the correction/change and/or annotation of the surnames of said minors in their Certificate of Live Birth from Grande to Antonio; granting the right of parental authority over the minors; granting the primary right and immediate custody over the minors; and ordering Grande to immediately surrender the persons and custody of the mi-nors to Antonio.

Aggrieved, petitioner Grande moved for reconsideration. However, her motion was denied by the trial court.

Petitioner Grande then filed an appeal with the CA attributing grave error on the part of the RTC for allegedly ruling contrary to the law and jurisprudence re-specting the grant of sole custody to the mother over her illegitimate children.

The CA modified in part the Decision of the RTC, directing the Offices of the Civil Registrar General and the City Civil Registrar of Makati City to enter the surname Antonio as the surname of the minors in their respective certificates of live birth, and record the same in the Register of Births; ordering Antonio to deliver the cus-tody to their mother; Antonio shall have visitorial rights upon Grandes consent; parties are directed to give and share in support of the minor children.

The appellate court, however, maintained that the legal consequence of the recognition made by respondent Antonio that he is the father of the minors, taken in conjunction with the universally protected "best-interest-of-the-child" clause, compels the use by the children of the surname "ANTONIO."

Not satisfied with the CAs Decision, petitioner Grande interposed a partial motion for reconsideration, particularly assailing the order of the CA insofar as it de-

creed the change of the minors surname to "Antonio." When her motion was de-nied, petitioner came to this Court via the present petition.

ISSUE:

Whether or not the father has the right to compel the use of his surname by his il-legitimate children upon his recognition of their filiation.

HELD:

The petition is partially granted

CIVIL LAW Filation

Art. 176 of the Family Code, originally phrased as follows:

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in con-formity with this Code. The legitime of each illegitimate child shall con-sist of one-half of the legitime of a legitimate child. Except for this modifi-cation, all other provisions in the Civil Code governing successional rights shall remain in force.

This provision was later amended on March 19, 2004 by RA 9255 which now reads:

Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by their father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instru-ment is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his life-time. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.

The general rule is that an illegitimate child shall use the surname of his or her mother. The exception provided by RA 9255 is, in case his or her filiation is expressly recognized by the father through the record of birth appearing in the civil register or when an admission in a public docu-ment or private handwritten instrument is made by the father. In such a situation, the illegitimate child may use the surname of the father.

In the case at bar, respondent filed a petition for judicial approval of recognition of the filiation of the two children with the prayer for the cor-rection or change of the surname of the minors from Grande to Antonio when a public document acknowledged before a notary public under Sec. 19, Rule 132 of the Rules of Court is enough to establish the pater-nity of his children. But he wanted more: a judicial conferment of parental authority, parental custody, and an official declaration of his children's surname as Antonio.

Art. 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It is not the father (herein respondent) or the mother (herein petitioner) who is granted by law the right to dic-tate the surname of their illegitimate children.

Nothing is more settled than that when the law is clear and free from ambiguity, it must be taken to mean what it says and it must be given its literal meaning free from any interpretation.Respondents position that the court can order the minors to use his surname, therefore, has no le-gal basis.

On its face, Art. 176, as amended, is free from ambiguity. And where there is no ambiguity, one must abide by its words. The use of the word "may" in the provision readily shows that an acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate fa-ther. The word "may" is permissive and operates to confer discretion upon the illegitimate children.