Professional Documents
Culture Documents
COURT
OF APPEALS (Twentieth Division), HON. PRESIDING JUDGE
FORTUNITO L. MADRONA, RTC-BR. 35 and APOLINARIA
MALINAO JOMOC, respondents.
DECISION
CARPIO-MORALES, J.:
In In the Matter of Declaration of Presumptive Death of Absentee
Spouse Clemente P. Jomoc, Apolinaria Malinao Jomoc, petitioner, the
Ormoc City, Regional Trial Court, Branch 35, by Order of September 29,
1999,[1] granted the petition on the basis of the Commissioners
Report[2] and accordingly declared the absentee spouse, who had left
his petitioner-wife nine years earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L. Madrona,
cited Article 41, par. 2 of the Family Code. Said article provides that for
the purpose of contracting a valid subsequent marriage during the
subsistence of a previous marriage where the prior spouse had been
absent for four consecutive years, the spouse present must institute
summary proceedings for the declaration of presumptive death of the
absentee spouse, without prejudice to the effect of the reappearance
of the absent spouse.
The Republic, through the Office of the Solicitor General, sought to
appeal the trial courts order by filing a Notice of Appeal.[3]
By Order of November 22, 1999s,[4] the trial court, noting that no
record of appeal was filed and served as required by and pursuant to
Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure, the present
case being a special proceeding, disapproved the Notice of Appeal.
The Republics Motion for Reconsideration of the trial courts order of
disapproval having been denied by Order of January 13, 2000,[5] it
filed a Petition for Certiorari[6] before the Court of Appeals, it
contending that the declaration of presumptive death of a person
under Article 41 of the Family Code is not a special proceeding or a
case of multiple or separate appeals requiring a record on appeal.
By Decision of May 5, 2004,[7] the Court of Appeals denied the
Republics petition on procedural and substantive grounds in this wise:
At the outset, it must be stressed that the petition is not sufficient in
form. It failed to attach to its petition a certified true copy of the
assailed Order dated January 13, 2000 [denying its Motion for
Reconsideration of the November 22, 1999 Order disapproving its
Notice of Appeal]. Moreover, the petition questioned the [trial courts]
cases, the record on appeal shall be filed and served in like manner.
(Emphasis and underscoring supplied)
xxx
By the trial courts citation of Article 41 of the Family Code, it is
gathered that the petition of Apolinaria Jomoc to have her absent
spouse declared presumptively dead had for its purpose her desire to
contract a valid subsequent marriage. Ergo, the petition for that
purpose is a summary proceeding, following above-quoted Art. 41,
paragraph 2 of the Family Code.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL
PROCEEDING IN THE FAMILY LAW, contains the following provision, inter
alia:
xxx
Art. 238. Unless modified by the Supreme Court, the procedural rules
in this Title shall apply in all cases provided for in this Codes requiring
summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules. (Emphasis and
underscoring supplied)
x x x,
there is no doubt that the petition of Apolinaria Jomoc required, and is,
therefore, a summary proceeding under the Family Code, not a special
proceeding under the Revised Rules of Court appeal for which calls for
the filing of a Record on Appeal. It being a summary ordinary
proceeding, the filing of a Notice of Appeal from the trial courts order
sufficed.
That the Family Code provision on repeal, Art. 254, provides as follows:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic
Act No. 386, otherwise known as the Civil Code of the Philippines, as
amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42
of Presidential Decree No. 603, otherwise known as the Child and Youth
Welfare Code, as amended, and all laws, decrees, executive orders,
proclamations rules and regulations, or parts thereof, inconsistent
therewith are hereby repealed, (Emphasis and underscoring supplied),
seals the case in petitioners favor.
had the propensity to go out with friends to the extent of being unable
to engage in any gainful work.
Because of her husbands violent character, Gloria found it safer to
leave him behind and decided to go back to her parents together with
her three (3) children. In order to support the children, Gloria was
compelled to work abroad.
From the time of her physical separation from her husband in 1991,
Gloria has not heard of him at all. She had absolutely no
communications with him, or with any of his relatives.
On August 14, 2000, nine (9) years after she left her husband, Gloria
filed a verified petition with the Regional Trial Court (RTC) at San
Mateo, Rizal under the rules on Summary Judicial Proceedings in the
Family Law provided for in the Family Code, which petition was
docketed in the same court as Special Proceeding No. 325-00 SM.
On August 28, 2000, the RTC issued an order directing, inter alia, the
publication of the petition in a newspaper of general circulation, thus:
A verified petition was filed by herein petitioner through counsel
alleging that she married Francisco Lorino, Jr. on June 12, 1987 but
because of the violent character of his husband, she decided to go
back to her parents and lived separately from her husband. After nine
(9) years, there was absolutely no news about him and she believes
that he is already dead and is now seeking through this petition for a
Court declaration that her husband is judicially presumed dead for the
purpose of remarriage.
Finding the said petition to be sufficient in form and substance, the
same is hereby set for hearing before this Court on September 18,
2000 at 8:30 oclock in the morning at which place, date and time, any
or all persons who may claim any interest thereto may appear and
show cause why the same should not be granted.
Let a copy of this Order be published in a newspaper of general
circulation in this province once a week for three (3) consecutive weeks
and be posted in the bulletin boards of the Hall of Justice and the
Municipal Hall, San Mateo, Rizal, all at the expense of the petitioner.
Furnish the Office of the Solicitor General a copy of this Order together
with a copy of the petition. Further, send a copy of this Order to the
last known address of Francisco Lorino, Jr. at 719 Burgos St., Sta. Elena,
Marikina City.
SO ORDERED[1]
The evidence in support of the summary judicial proceeding are: the
order of publication dated August 28, 2000 (Exhibit A); affidavit of
publication dated September 16, 2000 (Exhibit B)[2]; copies of the
newspapers where the order appeared (Exhibits C to E-1)[3]; a
deposition dated September 4, 2000 of Gloria taken in Hong Kong
(Exhibit G)[4]; Glorias affidavit dated October 21, 1999, also executed
in Hong Kong (Exhibit G-1)[5]; and a certification by Department of
Foreign Affairs Authentication Officer, Catalina C. Gonzalez, dated
November 3, 1999, therein certifying that the signature of Vice Consul
Adriane Bernie C. Candolada, appearing below the jurat in Glorias
affidavit of October 21, 1999, is authentic (Exhibit G-2)[6].
In a decision dated November 7, 2001, the RTC, finding merit in the
summary petition, rendered judgment granting the same, to wit:
WHEREFORE, this Court in view of the facts and circumstances
obtaining, finds the petition with merit and hereby grants its
imprimatur to the petition. Judgment is hereby rendered declaring the
presumptive death/absence of Francisco Lorino, Jr. pursuant to Art. 41
of the New Family Code but subject to all restrictions and conditions
provided therein.
SO ORDERED.[7]
Despite the judgment being immediately final and executory under the
provisions of Article 247 of the Family Code, thus:
Art. 247. The judgment of the court shall be immediately final and
executory,
the Office of the Solicitor General, for the Republic of the Philippines,
nevertheless filed a Notice of Appeal.[8] Acting thereon, the RTC had
the records elevated to the Court of Appeals which docketed the case
as CA-G.R. CV No. 73884.
In a decision dated September 23, 2003, the Court of Appeals, treating
the case as an ordinary appealed case under Rule 41 of the Revised
Rules on Civil Procedure, denied the Republics appeal and accordingly
affirmed the appealed RTC decision:
WHEREFORE, based on the foregoing premises, the instant appeal is
DENIED. Accordingly, the appealed November 7, 2001 Decision of the
Regional Trial Court of San Mateo, Rizal in Spec. Proc. No. 325-00 SM is
hereby AFFIRMED.
SO ORDERED.[9]
Without filing any motion for reconsideration, petitioner Republic
directly went to this Court via the instant recourse under Rule 45,
maintaining that the petition raises a pure question of law that does
not require prior filing of a motion for reconsideration.
The foregoing factual antecedents present to this Court the following
issues:
WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED
JURISDICTION OVER THE APPEAL ON A FINAL AND EXECUTORY
JUDGMENT OF THE REGIONAL TRIAL COURT; and
WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL
DECLARATION OF PRESUMPTIVE DEATH UNDER ARTICLE 41 OF THE
FAMILY CODE WERE DULY ESTABLISHED IN THIS CASE.
The Court rules against petitioner Republic.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
PROCEEDINGS IN THE FAMILY LAW, sets the tenor for cases covered by
these rules, to wit:
Art. 238. Until modified by the Supreme Court, the procedural rules in
this Title shall apply in all cases provided for in this Code requiring
summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules.
Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly
complied with the above-cited provision by expeditiously rendering
judgment within ninety (90) days after the formal offer of evidence by
therein petitioner, Gloria Bermudez-Lorino.
The problem came about when the judge gave due course to the
Republics appeal upon the filing of a Notice of Appeal, and had the
entire records of the case elevated to the Court of Appeals, stating in
her order of December 18, 2001, as follows:
Notice of Appeal having been filed through registered mail on
November 22, 2001 by the Office of the Solicitor General who received
a copy of the Decision in this case on November 14, 2001, within the
reglementary period fixed by the Rules, let the entire records of this
case be transmitted to the Court of Appeals for further proceedings.
SO ORDERED.[10]
In Summary Judicial Proceedings under the Family Code, there is no
reglementary period within which to perfect an appeal, precisely
because judgments rendered thereunder, by express provision of
Section 247, Family Code, supra, are immediately final and executory.
It was erroneous, therefore, on the part of the RTC to give due course
to the Republics appeal and order the transmittal of the entire records
of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment which,
by express provision of law, is immediately final and executory. As we
have said in Veloria vs. Comelec,[11] the right to appeal is not a
natural right nor is it a part of due process, for it is merely a statutory
privilege. Since, by express mandate of Article 247 of the Family Code,
all judgments rendered in summary judicial proceedings in Family Law
are immediately final and executory, the right to appeal was not
granted to any of the parties therein. The Republic of the Philippines,
as oppositor in the petition for declaration of presumptive death,
should not be treated differently. It had no right to appeal the RTC
decision of November 7, 2001.
It was fortunate, though, that the Court of Appeals, acting through its
Special Fourth Division, with Justice Elvi John S. Asuncion as Acting
Chairman and ponente, denied the Republics appeal and affirmed
without modification the final and executory judgment of the lower
court. For, as we have held in Nacuray vs. NLRC:[12]
Nothing is more settled in law than that when a judgment becomes
final and executory it becomes immutable and unalterable. The same
may no longer be modified in any respect, even if the modification is
meant to correct what is perceived to be an erroneous conclusion of
fact or law, and whether made by the highest court of the land (citing
Nunal v. Court of Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA 26).
But, if only to set the records straight and for the future guidance of
the bench and the bar, let it be stated that the RTCs decision dated
November 7, 2001, was immediately final and executory upon notice to
the parties. It was erroneous for the OSG to file a notice of appeal, and
for the RTC to give due course thereto. The Court of Appeals acquired
no jurisdiction over the case, and should have dismissed the appeal
outright on that ground.
This judgment of denial was elevated to this Court via a petition for
review on certiorari under Rule 45. Although the result of the Court of
Appeals denial of the appeal would apparently be the same, there is a
big difference between having the supposed appeal dismissed for lack
of jurisdiction by virtue of the fact that the RTC decision sought to be
appealed is immediately final and executory, and the denial of the
appeal for lack of merit. In the former, the supposed appellee can
immediately ask for the issuance of an Entry of Judgment in the RTC,
whereas, in the latter, the appellant can still raise the matter to this
Court on petition for review and the RTC judgment cannot be executed
until this Court makes the final pronouncement.
The Court, therefore, finds in this case grave error on the part of both
the RTC and the Court of Appeals. To stress, the Court of Appeals
should have dismissed the appeal on ground of lack of jurisdiction, and
reiterated the fact that the RTC decision of November 7, 2001 was
immediately final and executory. As it were, the Court of Appeals
committed grave reversible error when it failed to dismiss the
erroneous appeal of the Republic on ground of lack of jurisdiction
because, by express provision of law, the judgment was not
appealable.
WHEREFORE, the instant petition is hereby DENIED for lack of merit. No
pronouncement as to costs.
SO ORDERED.
REPUBLIC OF THE PHILIPPINES,
Petitioner,
- versus FERVENTINO U. TANGO,
Respondent.
G.R. No. 161062
DECISION
QUISUMBING, J.:
This is a petition for review on certiorari of the Decision[1] dated
November 28, 2003 of the Court of Appeals in CA-G.R. CV No. 76387
which denied the Republics appeal from the Order[2] dated July 23,
2002 of the Regional Trial Court (RTC) of Ligao City, Branch 11 in
Special Proceeding No. 357. The trial court had declared the wife of
respondent Ferventino U. Tango (Ferventino), Maria Jose Villarba
(Maria), presumptively dead under Article 41[3] of the Family Code.
The present controversy arose from the following facts:
On March 9, 1987, Ferventino and Maria were married[4] in civil rites
before then Mayor Ignacio Bunye of Muntinlupa City. None of Marias
relatives witnessed the ceremony as they were opposed to her
relationship with Ferventino. The two had only spent a night together
and had been intimate once when Maria told Ferventino that she and
her family will soon be leaving for the United States of America (USA).
Maria assured Ferventino, however, that she will file a petition so he
can live with her in the USA. In the event that said petition is denied,
she promised to return to the Philippines to live with him. On March 13,
1987, Maria and her family flew to Seattle, USA.
Ferventino alleges that Maria kept in touch for a year before she
stopped responding to his letters. Out of resentment, he burned all the
letters Maria wrote him. He claims to have forgotten her address since.
Ferventino recounts the efforts he made to find Maria. Upon inquiry
from the latters uncle, Antonio Ledesma, in Las Pias, Ferventino
learned that even Marias relatives were unaware of her whereabouts.
He also solicited the assistance of a friend in Texas, Capt. Luis Aris of
the U.S. Air Force, but to no avail. Finally, he sought the aid of his
parents Antonio and Eusebia in Los Angeles, and his aunt Anita CastroMayor in Seattle. Like, Ledesma though, their attempts to find Maria
proved fruitless. The next 14 years went by without any news of Maria.
On the belief that his wife had died, Ferventino filed a verified
petition[5] dated October 1, 2001 before the Ligao City RTC for the
declaration of presumptive death of Maria within the contemplation of
Article 41 of the Family Code.
When the case was called for initial hearing on January 8, 2002,
nobody entered any opposition. On July 22, 2002, Ferventino presented
evidence ex parte and testified in court about the details of his search.
On July 23, 2002, Branch 11 of the Ligao City RTC issued an Order, the
dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered, declaring MARIA JOSE V.
VILLARBA, wife of FERVENTINO U. TANGO, presumptively dead within
the meaning of Article 41 of the Family Code.
SO ORDERED. [6]
This prompted the Office of the Solicitor General (OSG), for the
Republic, to file a Notice of Appeal.[7] Acting thereon, Presiding Judge
Romulo SG. Villanueva of the Ligao City RTC had the records of the
case transmitted to the Court of Appeals.
The Court of Appeals, treating the case as an ordinary appealed case
under Rule 41 of the Rules of Court, affirmed the RTCs Order. It held
that Marias absence for 14 years without information about her
location despite diligent search by Ferventino was sufficient to support
a well-founded belief of her death. The appellate court observed that
neither the OSG nor the Assistant Provincial Prosecutor objected to the
evidence which Ferventino presented on trial. It noted, in particular,
that the OSG did not dispute the adequacy of Ferventinos basis to
engender a well-founded belief that Maria is dead. Hence, in a Decision
dated November 28, 2003, the Court of Appeals denied the Republics
appeal in this tenor:
As found by the trial court, hereunder are the facts and circumstances
of the case:
Petitioners evidence is to the effect that she was born on 19 January
1971 at the Capitol Medical Center, Quezon City, to the spouses Pablo
Castro Vicencio and Fe Esperanza de Vega Leabres (Exh. C, also
marked Annex A of Petition); that on 10 January 1972, after a marital
spat, Pablo Vicencio left their conjugal abode then situated at
Meycauayan, Bulacan; that since then Pablo Vicencio never reappeared
nor sent support to his family and it was Ernesto Yu who had come to
the aid of Fe Esperanza Labres (sic) and her children; that on 29 June
1976, Fe Esperanza Leabres filed a petition in the then Juvenile and
Domestic Relations Court of Manila for dissolution of their conjugal
partnership, Civil Case No. E-02009, which was granted in a decision
rendered by the Hon. Regina C. Ordoez Benitez on 11 July 1977 (Exhs.
D, D-1 to D-3); that sometime in 1983, petitioners mother filed another
petition for change of name, Sp. Proc. No. 83-16346, that is to drop the
surname of her husband therefrom, and after hearing a decision was
rendered on 5 July 1983 by the Hon. Emeterio C. Cui of Branch XXV of
this Court approving the petition (Exh. E); that in 1984, petitioners
mother again filed another petition with this Court, Sp. Proc. No. 8422605, for the declaration of Pablo Vicencio as an absentee, and which
petition was granted on 26 April 1984 in a decision rendered by the
Hon. Corona Ibay-Somera (Exh. F & F-1); that on 15 April 1986,
petitioners mother and Ernesto Yu were joined in matrimony in a
ceremony solemnized by Mayor Benjamin S. Abalos of Mandaluyong,
Metro Manila (Exh. G).
It was also established that evern (sic) since her childhood, petitioner
had not known much less remembered her real father Pablo Vicencio,
and her known father had been and still is Ernesto Yu; that despite of
which she had been using the family name Vicencio in her school and
other related activities therein; that in view of such situation, confusion
arose as to her parentage and she had been subjected to inquiries why
she is using Vicencio as her family name, both by her classmates and
their neighbors, causing her extreme embarrassment; that on two (2)
occassions when she ran as a beauty contestant in a Lions Club affair
and in a Manila Red Cross pageant, her name was entered as Cynthia
L. Yu; that her step-father had been priorly consulted about this
petition and had given his consent thereto; that in fact Ernesto Yu
testified for petitioner and confirmed his consent to the petition as he
had always treated petitioner as his own daughter ever since.[3]
At the hearing of the petition for change of name by the trial court, the
OSG manifested that it was opposing the petition. It participated in the
surname in her school records and related documents. But she had
used the surname of her step-father, Yu, when she participated in
public functions, such as entering beauty contests, namely, with the
Lions Club and the Manila Red Cross, and when she celebrated her
debut at the Manila Hotel.[8]
The Solicitor General however argues that there is no proper and
reasonable cause to warrant private respondents change of surname.
Such change might even cause confusion and give rise to legal
complications due to the fact that private respondents step-father has
two (2) children with her mother. In the event of her step-fathers
death, it is possible that private respondent may even claim
inheritance rights as a legitimate daughter. In his memorandum, the
Solicitor General, opines that Ernesto Yu has no intention of making
Cynthia as an heir because despite the suggestion made before the
petition for change of name was heard by the trial court that the
change of family name to Yu could very easily be achieved by
adoption, he has not opted for such a remedy.[9]
We find merit in the Solicitor Generals contention.
The touchstone for the grant of a change of name is that there be
proper and reasonable cause for which the change is sought.[10] The
assailed decision as affirmed by the appellate court does not persuade
us to depart from the applicability of the general rule on the use of
surnames[11], specifically the law which requires that legitimate
children shall principally use the surname of their father[12].
Private respondent Cynthia Vicencio is the legitimate offspring of Fe
Leabres and Pablo Vicencio. As previously stated, a legitimate child
generally bears the surname of his or her father. It must be stressed
that a change of name is a privilege, not a matter of right, addressed
to the sound discretion of the court, which has the duty to consider
carefully the consequences of a change of name and to deny the same
unless weighty reasons are shown.[13]
Confusion indeed might arise with regard to private respondents
parentage because of her surname. But even, more confusion with
grave legal consequences could arise if we allow private respondent to
bear her step-fathers surname, even if she is not legally adopted by
him. While previous decisions have allowed children to bear the
surname of their respective step-fathers even without the benefit of
adoption, these instances should be distinguished from the present
case. In Calderon vs. Republic,[14] and Llaneta vs. Agrava,[15] this
Court allowed the concerned child to adopt the surname of the stepfather, but unlike the situation in the present case where private
asking whether they are brother and sister since they have different
surnames. Carulasan sounds funny in Singapores Mandarin language
since they do not have the letter R but if there is, they pronounce it as
L. It is for these reasons that the name of Julian Lin Carulasan Wang is
requested to be changed to Julian Lin Wang.[1]
On 30 April 2003, the RTC rendered a decision denying the petition.[2]
The trial court found that the reason given for the change of name
sought in the petitionthat is, that petitioner Julian may be
discriminated against when studies in Singapore because of his middle
namedid not fall within the grounds recognized by law. The trial court
ruled that the change sought is merely for the convenience of the
child. Since the State has an interest in the name of a person, names
cannot be changed to suit the convenience of the bearers. Under
Article 174 of the Family Code, legitimate children have the right to
bear the surnames of the father and the mother, and there is no
reason why this right should now be taken from petitioner Julian,
considering that he is still a minor. The trial court added that when
petitioner Julian reaches the age of majority, he could then decide
whether he will change his name by dropping his middle name.[3]
Petitioner filed a motion for reconsideration of the decision but this was
denied in a resolution dated 20 May 2004.[4] The trial court
maintained that the Singaporean practice of not carrying a middle
name does not justify the dropping of the middle name of a legitimate
Filipino child who intends to study there. The dropping of the middle
name would be tantamount to giving due recognition to or application
of the laws of Singapore instead of Philippine law which is controlling.
That the change of name would not prejudice public interest or would
not be for a fraudulent purpose would not suffice to grant the petition if
the reason for the change of name is itself not reasonable.[5]
Petitioner then filed this Petition for Review on Certiorari (Under Rule
45)[6] arguing that the trial court has decided a question of substance
not theretofore determined by the Court, that is: whether or not
dropping the middle name of a minor child is contrary to Article 174[7]
of the Family Code. Petitioner contends that [W]ith globalization and
mixed marriages, there is a need for the Supreme Court to rule on the
matter of dropping of family name for a child to adjust to his new
environment, for consistency and harmony among siblings, taking into
consideration the best interest of the child.[8] It is argued that
convenience of the child is a valid reason for changing the name as
long as it will not prejudice the State and others. Petitioner points out
that the middle name Carulasan will cause him undue embarrassment
and the difficulty in writing or pronouncing it will be an obstacle to his
social acceptance and integration in the Singaporean community.
Petitioner also alleges that it is error for the trial court to have denied
the petition for change of name until he had reached the age of
majority for him to decide the name to use, contrary to previous
cases[9] decided by this Court that allowed a minor to petition for
change of name.[10]
The Court required the Office of the Solicitor General (OSG) to
comment on the petition. The OSG filed its Comment[11] positing that
the trial court correctly denied the petition for change of name. The
OSG argues that under Article 174 of the Family Code, legitimate
children have the right to bear the surnames of their father and
mother, and such right cannot be denied by the mere expedient of
dropping the same. According to the OSG, there is also no showing that
the dropping of the middle name Carulasan is in the best interest of
petitioner, since mere convenience is not sufficient to support a
petition for change of name and/or cancellation of entry.[12] The OSG
also adds that the petitioner has not shown any compelling reason to
justify the change of name or the dropping of the middle name, for that
matter. Petitioners allegation that the continued use of the middle
name may result in confusion and difficulty is allegedly more imaginary
than real. The OSG reiterates its argument raised before the trial court
that the dropping of the childs middle name could only trigger much
deeper inquiries regarding the true parentage of petitioner. Hence,
while petitioner Julian has a sister named Jasmine Wei Wang, there is
no confusion since both use the surname of their father, Wang. Even
assuming that it is customary in Singapore to drop the middle name, it
has also not been shown that the use of such middle name is actually
proscribed by Singaporean law.[13]
We affirm the decision of the trial court. The petition should be denied.
The Court has had occasion to express the view that the State has an
interest in the names borne by individuals and entities for purposes of
identification, and that a change of name is a privilege and not a right,
so that before a person can be authorized to change his name given
him either in his certificate of birth or civil registry, he must show
proper or reasonable cause, or any compelling reason which may
justify such change. Otherwise, the request should be denied.[14]
The touchstone for the grant of a change of name is that there be
proper and reasonable cause for which the change is sought.[15] To
justify a request for change of name, petitioner must show not only
some proper or compelling reason therefore but also that he will be
prejudiced by the use of his true and official name. Among the grounds
for change of name which have been held valid are: (a) when the name
is ridiculous, dishonorable or extremely difficult to write or pronounce;
Petitioner theorizes that it would be for his best interest to drop his
middle name as this would help him to adjust more easily to and
integrate himself into Singaporean society. In support, he cites Oshita
v. Republic[23] and Calderon v. Republic,[24] which, however, are not
apropos both.
In Oshita, the petitioner therein, a legitimate daughter of a Filipino
mother, Buena Bartolome, and a Japanese father, Kishimatsu Oshita,
sought to change her name from Antonina B. Oshita to Antonina
Bartolome. The Court granted her petition based on the following
considerations: she had elected Philippine citizenship upon reaching
the age of majority; her other siblings who had also elected Philippine
citizenship have been using their mothers surname; she was
embarrassed to bear a Japanese surname there still being ill feeling
against the Japanese due to the last World War; and there was no
showing that the change of name was motivated by a fraudulent
purpose or that it will prejudice public interest.
In Calderon, the Court allowed petitioner Gertrudes Josefina del Prado,
an illegitimate minor child acting through her mother who filed the
petition in her behalf, to change her name to Gertudes Josefina
Calderon, taking the surname of her stepfather, Romeo C. Calderon,
her mothers husband. The Court held that a petition for change of
name of an infant should be granted where to do is clearly for the best
interest of the child. The Court took into consideration the opportunity
provided for the minor petitioner to eliminate the stigma of illegitimacy
which she would carry if she continued to use the surname of her
illegitimate father. The Court pronounced that justice dictates that
every person be allowed to avail of any opportunity to improve his
social standing as long as doing so he does not cause prejudice or
injury to the interests of the State or of other people.
Petitioner cites Alfon v. Republic,[25] in arguing that although Article
174 of the Family Code gives the legitimate child the right to use the
surnames of the father and the mother, it is not mandatory such that
the child could use only one family name, even the family name of the
mother. In Alfon, the petitioner therein, the legitimate daughter of
Filomeno Duterte and Estrella Alfon, sought to change her name from
Maria Estrella Veronica Primitiva Duterte (her name as registered in the
Local Civil Registry) to Estrella S. Alfon (the name she had been using
since childhood, in her school records and in her voters registration).
The trial court denied her petition but this Court overturned the denial,
ruling that while Article 364 of the Civil Code states that she, as a
legitimate child, should principally use the surname of her father, there
is no legal obstacle for her to choose to use the surname of herm other
to which she is entitled. In addition, the Court found that there was
ample justification to grant her petition, i.e., to avoid confusion.
Weighing petitioners reason of convenience for the change of his name
against the standards set in the cases he cites to support his
contention would show that his justification is amorphous, to say the
least, and could not warrant favorable action on his petition.
The factual antecedents and unique circumstances of the cited cases
are not at all analogous to the case at bar. The instant case is clearly
distinguishable from the cases of Oshita and Alfon, where the
petitioners were already of age when they filed their petitions for
change of name. Being of age, they are considered to have exercised
their discretion and judgment, fully knowing the effects of their
decision to change their surnames. It can also be unmistakably
observed that the reason for the grant of the petitions for change of
name in these two cases was the presence of reasonable or compelling
grounds therefore. The Court, in Oshita, recognized the tangible
animosity most Filipinos had during that time against the Japanese as a
result of World War II, in addition to the fact of therein petitioners
election of Philippine citizenship. In Alfon, the Court granted the
petition since the petitioner had been known since childhood by a
name different from her registered name and she had not used her
registered name in her school records and voters registration records;
thus, denying the petition would only result to confusion.
Calderon, on the other hand, granted the petition for change of name
filed by a mother in behalf of her illegitimate minor child. Petitioner
cites this case to buttress his argument that he does not have to reach
the age of majority to petition for change of name. However, it is
manifest in Calderon that the Court, in granting the petition for change
of name, gave paramount consideration to the best interests of the
minor petitioner therein.
In the case at bar, the only reason advanced by petitioner for the
dropping his middle name is convenience. However, how such change
of name would make his integration into Singaporean society easier
and convenient is not clearly established. That the continued use of his
middle name would cause confusion and difficulty does not constitute
proper and reasonable cause to drop it from his registered complete
name.
In addition, petitioner is only a minor. Considering the nebulous
foundation on which his petition for change of name is based, it is best
that the matter of change of his name be left to his judgment and
discretion when he reaches the age of majority.[26] As he is of tender
age, he may not yet understand and appreciate the value of the
change of his name and granting of the same at this point may just
prejudice him in his rights under our laws.
WHEREFORE, in view of the foregoing, the Petition for Review on
Certiorari is DENIED.
SO ORDERED.
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
TRINIDAD R.A. CAPOTE, Respondent.
DECISION
CORONA, J.:
This petition for review on certiorari1 seeks to set aside the Court of
Appeals (CA) decision2 dated January 13, 2003 in CA-G.R. CV No.
66128, which affirmed the decision of the Regional Trial Court (RTC),
Branch 23 of San Juan, Southern Leyte dated September 14, 1999
granting a petition for change of name.
Respondent Trinidad R. A. Capote filed a petition for change of name of
her ward from Giovanni N. Gallamaso to Giovanni Nadores on
September 9, 1998. In Special Proceeding No. R-481,3 Capote as
Giovannis guardian ad litem averred:
xxx xxx xxx
1. [Respondent] is a Filipino citizen, of legal age, married, while minor
GIOVANNI N. GALLAMASO, is also a Filipino citizen, sixteen (16) years
old and both are residents of San Juan, Southern Leyte where they can
be served with summons and other court processes;
2. [Respondent] was appointed guardian [ad litem] of minor Giovanni
N. Gallamaso by virtue of a court order in Special [Proc.] No. R-459,
dated [August 18, 1998] xxx xxx authorizing her to file in court a
petition for change of name of said minor in accordance with the desire
of his mother [who is residing and working abroad];
3. Both [respondent] and minor have permanently resided in San Juan,
Southern Leyte, Philippines for more than fifteen (15) years prior to the
filing of this instant petition, the former since 1970 while the latter
since his birth [in 1982];
4. The minor was left under the care of [respondent] since he was yet
nine (9) years old up to the present;
5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of
Corazon P. Nadores and Diosdado Gallamaso. [He] was born on July 9,
1982 [,] prior to the effectivity of the New Family Code and as such, his
mother used the surname of the natural father despite the absence of
marriage between them; and [Giovanni] has been known by that name
since birth [as per his birth certificate registered at the Local Civil
Register of San Juan, Southern Leyte];
6. The father, Diosdado Gallamaso, from the time [Giovanni] was born
and up to the present, failed to take up his responsibilities [to him] on
matters of financial, physical, emotional and spiritual concerns.
[Giovannis pleas] for attention along that line [fell] on deaf ears xxx
xxx xxx;
7. [Giovanni] is now fully aware of how he stands with his father and he
desires to have his surname changed to that of his mothers surname;
8. [Giovannis] mother might eventually petition [him] to join her in the
United States and [his] continued use of the surname Gallamaso, the
surname of his natural father, may complicate [his] status as natural
child; and
9. The change of name [from] GIOVANNI N. GALLAMASO to GIOVANNI
NADORES will be for the benefit of the minor.
xxx xxx xxx4
Respondent prayed for an order directing the local civil registrar to
effect the change of name on Giovannis birth certificate. Having found
respondents petition sufficient in form and substance, the trial court
gave due course to the petition.5 Publication of the petition in a
newspaper of general circulation in the province of Southern Leyte
once a week for three consecutive weeks was likewise ordered.6 The
trial court also directed that the local civil registrar be notified and that
the Office of the Solicitor General (OSG) be sent a copy of the petition
and order.7
Since there was no opposition to the petition, respondent moved for
leave of court to present her evidence ex parte before a courtappointed commissioner. The OSG, acting through the Provincial
Prosecutor, did not object; hence, the lower court granted the motion.
the filing of the petition. The lower court also furnished the OSG a copy
thereof. Despite the notice, no one came forward to oppose the
petition including the OSG. The fact that no one opposed the petition
did not deprive the court of its jurisdiction to hear the same nor does it
make the proceeding less adversarial in nature. The lower court is still
expected to exercise its judgment to determine whether the petition is
meritorious or not and not merely accept as true the arguments
propounded. Considering that the OSG neither opposed the petition
nor the motion to present its evidence ex parte when it had the
opportunity to do so, it cannot now complain that the proceedings in
the lower court were not adversarial enough.23 (emphasis supplied)
A proceeding is adversarial where the party seeking relief has given
legal warning to the other party and afforded the latter an opportunity
to contest it.24 Respondent gave notice of the petition through
publication as required by the rules.25 With this, all interested parties
were deemed notified and the whole world considered bound by the
judgment therein. In addition, the trial court gave due notice to the
OSG by serving a copy of the petition on it. Thus, all the requirements
to make a proceeding adversarial were satisfied when all interested
parties, including petitioner as represented by the OSG, were afforded
the opportunity to contest the petition.
WHEREFORE, the petition is hereby DENIED and the January 13, 2003
decision of the Court of Appeals in CA-G.R. CV No. 66128 AFFIRMED.
SO ORDERED.
MARIA VIRGINIA V. REMO, G.R. No. 169202
Petitioner,
Present:
CARPIO, J., Chairperson,
-versus- BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.
THE HONORABLE SECRETARY
OF FOREIGN AFFAIRS, Promulgated:
Respondent. March 5, 2010
x-----------------------------------------------------------------------------------------x
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review[1] of the 27 May 2005
Decision[2] and 2 August 2005 Resolution[3] of the Court of Appeals in
CA-G.R. SP No. 87710. The Court of Appeals affirmed the decision of
the Office of the President, which in turn affirmed the decision of the
Secretary of Foreign Affairs denying petitioners request to revert to the
use of her maiden name in her replacement passport.
The Facts
Petitioner Maria Virginia V. Remo is a married Filipino citizen whose
Philippine passport was then expiring on 27 October 2000. Petitioner
being married to Francisco R. Rallonza, the following entries appear in
her passport: Rallonza as her surname, Maria Virginia as her given
name, and Remo as her middle name. Prior to the expiry of the validity
of her passport, petitioner, whose marriage still subsists, applied for
the renewal of her passport with the Department of Foreign Affairs
(DFA) office in Chicago, Illinois, U.S.A., with a request to revert to her
maiden name and surname in the replacement passport.
Petitioners request having been denied, Atty. Manuel Joseph R. Bretana
III, representing petitioner, wrote then Secretary of Foreign Affairs
Domingo Siason expressing a similar request.
This has reference to your letter dated 17 August 2000 regarding one
Ms. Maria Virginia V. Remo who is applying for renewal of her passport
using her maiden name.
This Office is cognizant of the provision in the law that it is not
obligatory for a married woman to use her husbands name. Use of
maiden name is allowed in passport application only if the married
name has not been used in previous application. The Implementing
Rules and Regulations for Philippine Passport Act of 1996 clearly
defines the conditions when a woman applicant may revert to her
maiden name, that is, only in cases of annulment of marriage, divorce
and death of the husband. Ms. Remos case does not meet any of these
conditions.[4] (Emphasis supplied)
On 28 October 2004, the Office of the President denied the motion for
reconsideration.[7]
Petitioner filed with the Court of Appeals a petition for review under
Rule 43 of the Rules of Civil Procedure.
In its Decision of 27 May 2005, the Court of Appeals denied the petition
and affirmed the ruling of the Office of the President. The dispositive
portion of the Court of Appeals decision reads:
The Court of Appeals found no conflict between Article 370 of the Civil
Code[9] and Section 5(d) of RA 8239.[10] The Court of Appeals held
that for passport application and issuance purposes, RA 8239 limits the
instances when a married woman applicant may exercise the option to
revert to the use of her maiden name such as in a case of a divorce
decree, annulment or declaration of nullity of marriage. Since there
was no showing that petitioner's marriage to Francisco Rallonza has
been annulled, declared void or a divorce decree has been granted to
them, petitioner cannot simply revert to her maiden name in the
replacement passport after she had adopted her husbands surname in
her old passport. Hence, according to the Court of Appeals, respondent
was justified in refusing the request of petitioner to revert to her
maiden name in the replacement passport.
The Issue
The sole issue in this case is whether petitioner, who originally used
her husbands surname in her expired passport, can revert to the use of
her maiden name in the replacement passport, despite the subsistence
of her marriage.
The Ruling of the Court
The petition lacks merit.
Title XIII of the Civil Code governs the use of surnames. In the case of a
married woman, Article 370 of the Civil Code provides:
ART. 370. A married woman may use:
(1) HER MAIDEN FIRST NAME AND SURNAME AND ADD HER HUSBANDS
SURNAME, OR
(2) HER MAIDEN FIRST NAME AND HER HUSBAND'S SURNAME, OR
(3) HER HUSBANDS FULL NAME, BUT PREFIXING A WORD INDICATING
THAT SHE IS HIS WIFE, SUCH AS MRS.
We agree with petitioner that the use of the word may in the above
provision indicates that the use of the husbands surname by the wife is
permissive rather than obligatory. This has been settled in the case of
Yasin v. Honorable Judge Sharia District Court.[11]
In Yasin,[12] petitioner therein filed with the Sharia District Court a
Petition to resume the use of maiden name in view of the dissolution of
her marriage by divorce under the Code of Muslim Personal Laws of the
Philippines, and after marriage of her former husband to another
woman. In ruling in favor of petitioner therein, the Court explained
that:
When a woman marries a man, she need not apply and/or seek judicial
authority to use her husbands name by prefixing the word Mrs. before
her husbands full name or by adding her husbands surname to her
maiden first name. The law grants her such right (Art. 370, Civil Code).
Similarly, when the marriage ties or vinculum no longer exists as in the
case of death of the husband or divorce as authorized by the Muslim
Code, the widow or divorcee need not seek judicial confirmation of the
change in her civil status in order to revert to her maiden name as use
of her former husbands is optional and not obligatory for her (Tolentino,
Civil Code, p. 725, 1983 ed.; Art. 373, Civil Code). When petitioner
married her husband, she did not change her but only her civil status.
Neither was she required to secure judicial authority to use the
surname of her husband after the marriage as no law requires it.
(Emphasis supplied)
Clearly, a married woman has an option, but not a duty, to use the
surname of the husband in any of the ways provided by Article 370 of
the Civil Code.[13] She is therefore allowed to use not only any of the
three names provided in Article 370, but also her maiden name upon
marriage. She is not prohibited from continuously using her maiden
name once she is married because when a woman marries, she does
not change her name but only her civil status. Further, this
interpretation is in consonance with the principle that surnames
indicate descent.[14]
In the present case, petitioner, whose marriage is still subsisting and
who opted to use her husbands surname in her old passport, requested
to resume her maiden name in the replacement passport arguing that
no law prohibits her from using her maiden name. Petitioner cites Yasin
as the applicable precedent. However, Yasin is not squarely in point
with this case. Unlike in Yasin, which involved a Muslim divorcee whose
former husband is already married to another woman, petitioners
marriage remains subsisting. Another point, Yasin did not involve a
request to resume ones maiden name in a replacement passport, but a
petition to resume ones maiden name in view of the dissolution of ones
marriage.
and consistently use her maiden name from the moment she was
married and from the time she first applied for a Philippine passport.
However, petitioner consciously chose to use her husbands surname
before, in her previous passport application, and now desires to
resume her maiden name. If we allow petitioners present request,
definitely nothing prevents her in the future from requesting to revert
to the use of her husbands surname. Such unjustified changes in one's
name and identity in a passport, which is considered superior to all
other official documents,[22] cannot be countenanced. Otherwise,
undue confusion and inconsistency in the records of passport holders
will arise. Thus, for passport issuance purposes, a married woman,
such as petitioner, whose marriage subsists, may not change her
family name at will.
THE ACQUISITION OF A PHILIPPINE PASSPORT IS A PRIVILEGE. THE LAW
RECOGNIZES THE PASSPORT APPLICANTS CONSTITUTIONAL RIGHT TO
TRAVEL. HOWEVER, THE STATE IS ALSO MANDATED TO PROTECT AND
MAINTAIN THE INTEGRITY AND CREDIBILITY OF THE PASSPORT AND
TRAVEL DOCUMENTS PROCEEDING FROM IT[23] AS A PHILIPPINE
PASSPORT REMAINS AT ALL TIMES THE PROPERTY OF THE
GOVERNMENT. THE HOLDER IS MERELY A POSSESSOR OF THE
PASSPORT AS LONG AS IT IS VALID AND THE SAME MAY NOT BE
SURRENDERED TO ANY PERSON OR ENTITY OTHER THAN THE
GOVERNMENT OR ITS REPRESENTATIVE.[24]
As the OSG correctly pointed out:
[T]he issuance of passports is impressed with public interest. A
passport is an official document of identity and nationality issued to a
person intending to travel or sojourn in foreign countries. It is issued by
the Philippine government to its citizens requesting other governments
to allow its holder to pass safely and freely, and in case of need, to
give him/her aid and protection. x x x
Viewed in the light of the foregoing, it is within respondents
competence to regulate any amendments intended to be made
therein, including the denial of unreasonable and whimsical requests
for amendments such as in the instant case.[25]
WHEREFORE, we DENY the petition. We AFFIRM the 27 May 2005
Decision and 2 August 2005 Resolution of the Court of Appeals in CAG.R. SP No. 87710.
SO ORDERED.
- versus -
JENNIFER B. CAGANDAHAN,
Respondent.
G.R. No. 166676
Present:
QUISUMBING, J., Chairperson,
CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.
Promulgated:
September 12, 2008
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the Rules of Court raising
purely questions of law and seeking a reversal of the Decision[1] dated
January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of
Siniloan, Laguna, which granted the Petition for Correction of Entries in
Birth Certificate filed by Jennifer B. Cagandahan and ordered the
following changes of entries in Cagandahans birth certificate: (1) the
name Jennifer Cagandahan changed to Jeff Cagandahan and (2) gender
from female to male.
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a
Petition for Correction of Entries in Birth Certificate[2] before the RTC,
Branch 33 of Siniloan, Laguna.
In her petition, she alleged that she was born on January 13, 1981 and
was registered as a female in the Certificate of Live Birth but while
growing up, she developed secondary male characteristics and was
diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a
condition where persons thus afflicted possess both male and female
characteristics. She further alleged that she was diagnosed to have
clitoral hyperthropy in her early years and at age six, underwent an
ultrasound where it was discovered that she has small ovaries. At age
thirteen, tests revealed that her ovarian structures had minimized, she
has stopped growing and she has no breast or menstrual development.
She then alleged that for all interests and appearances as well as in
mind and emotion, she has become a male person. Thus, she prayed
that her birth certificate be corrected such that her gender be changed
from female to male and her first name be changed from Jennifer to
Jeff.
The petition was published in a newspaper of general circulation for
three (3) consecutive weeks and was posted in conspicuous places by
the sheriff of the court. The Solicitor General entered his appearance
and authorized the Assistant Provincial Prosecutor to appear in his
behalf.
To prove her claim, respondent testified and presented the testimony
of Dr. Michael Sionzon of the Department of Psychiatry, University of
the Philippines-Philippine General Hospital. Dr. Sionzon issued a
medical certificate stating that respondents condition is known as CAH.
He explained that genetically respondent is female but because her
body secretes male hormones, her female organs did not develop
normally and she has two sex organs female and male. He testified
that this condition is very rare, that respondents uterus is not fully
developed because of lack of female hormones, and that she has no
monthly period. He further testified that respondents condition is
permanent and recommended the change of gender because
respondent has made up her mind, adjusted to her chosen role as
male, and the gender change would be advantageous to her.
The RTC granted respondents petition in a Decision dated January 12,
2005 which reads:
The Court is convinced that petitioner has satisfactorily shown that he
is entitled to the reliefs prayed [for]. Petitioner has adequately
presented to the Court very clear and convincing proofs for the
granting of his petition. It was medically proven that petitioners body
produces male hormones, and first his body as well as his action and
feelings are that of a male. He has chosen to be male. He is a normal
person and wants to be acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is
hereby ordered to make the following corrections in the birth
[c]ertificate of Jennifer Cagandahan upon payment of the prescribed
fees:
a)
By changing the name from Jennifer Cagandahan to JEFF
CAGANDAHAN; and
b)
By changing the gender from female to MALE.
Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his name shall present
the petition to the Regional Trial Court of the province in which he
resides, [or, in the City of Manila, to the Juvenile and Domestic
Relations Court].
SEC. 2. Contents of petition. A petition for change of name shall be
signed and verified by the person desiring his name changed, or some
other person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the province
where the petition is filed for at least three (3) years prior to the date
of such filing;
(b) The cause for which the change of the petitioner's name is sought;
(c) The name asked for.
SEC. 3. Order for hearing. If the petition filed is sufficient in form and
substance, the court, by an order reciting the purpose of the petition,
shall fix a date and place for the hearing thereof, and shall direct that a
copy of the order be published before the hearing at least once a week
for three (3) successive weeks in some newspaper of general
circulation published in the province, as the court shall deem best. The
date set for the hearing shall not be within thirty (30) days prior to an
election nor within four (4) months after the last publication of the
notice.
SEC. 4. Hearing. Any interested person may appear at the hearing and
oppose the petition. The Solicitor General or the proper provincial or
city fiscal shall appear on behalf of the Government of the Republic.
SEC. 5. Judgment. Upon satisfactory proof in open court on the date
fixed in the order that such order has been published as directed and
that the allegations of the petition are true, the court shall, if proper
and reasonable cause appears for changing the name of the petitioner,
adjudge that such name be changed in accordance with the prayer of
the petition.
SEC. 6. Service of judgment. Judgments or orders rendered in
connection with this rule shall be furnished the civil registrar of the
municipality or city where the court issuing the same is situated, who
shall forthwith enter the same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. Any person interested in any act,
event, order or decree concerning the civil status of persons which has
been recorded in the civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto, with the
Regional Trial Court of the province where the corresponding civil
registry is located.
As for respondents change of name under Rule 103, this Court has held
that a change of name is not a matter of right but of judicial discretion,
to be exercised in the light of the reasons adduced and the
consequences that will follow.[28] The trial courts grant of respondents
change of name from Jennifer to Jeff implies a change of a feminine
name to a masculine name. Considering the consequence that
respondents change of name merely recognizes his preferred gender,
we find merit in respondents change of name. Such a change will
conform with the change of the entry in his birth certificate from
female to male.
WHEREFORE, the Republics petition is DENIED. The Decision dated
January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan,
Laguna, is AFFIRMED. No pronouncement as to costs.
SO ORDERED.
GERBERT R. CORPUZ,
Petitioner,
vs
DAISYLYN TIROL STO. TOMAS and The SOLICITOR GENERAL,
Respondents. -- G.R. No. 186571
Present:
CARPIO MORALES, J., Chairperson,
BRION,
BERSAMIN,
*ABAD, and
VILLARAMA, JR., JJ.
Promulgated:
August 11, 2010
x-------------------------------------------------------------------------------------------------------------x
DECISION
BRION, J.:
Before the Court is a direct appeal from the decision[1] of the Regional
Trial Court (RTC) of Laoag City, Branch 11, elevated via a petition for
review on certiorari[2] under Rule 45 of the Rules of Court (present
petition).
to the Filipino spouse.[23] The legislative intent is for the benefit of the
Filipino spouse, by clarifying his or her marital status, settling the
doubts created by the divorce decree. Essentially, the second
paragraph of Article 26 of the Family Code provided the Filipino spouse
a substantive right to have his or her marriage to the alien spouse
considered as dissolved, capacitating him or her to remarry.[24]
Without the second paragraph of Article 26 of the Family Code, the
judicial recognition of the foreign decree of divorce, whether in a
proceeding instituted precisely for that purpose or as a related issue in
another proceeding, would be of no significance to the Filipino spouse
since our laws do not recognize divorce as a mode of severing the
marital bond;[25] Article 17 of the Civil Code provides that the policy
against absolute divorces cannot be subverted by judgments
promulgated in a foreign country. The inclusion of the second
paragraph in Article 26 of the Family Code provides the direct
exception to this rule and serves as basis for recognizing the
dissolution of the marriage between the Filipino spouse and his or her
alien spouse.
Additionally, an action based on the second paragraph of Article 26 of
the Family Code is not limited to the recognition of the foreign divorce
decree. If the court finds that the decree capacitated the alien spouse
to remarry, the courts can declare that the Filipino spouse is likewise
capacitated to contract another marriage. No court in this jurisdiction,
however, can make a similar declaration for the alien spouse (other
than that already established by the decree), whose status and legal
capacity are generally governed by his national law.[26]
Given the rationale and intent behind the enactment, and the purpose
of the second paragraph of Article 26 of the Family Code, the RTC was
correct in limiting the applicability of the provision for the benefit of the
Filipino spouse. In other words, only the Filipino spouse can invoke the
second paragraph of Article 26 of the Family Code; the alien spouse
can claim no right under this provision.
The foreign divorce decree is presumptive evidence of a right that
clothes the party with legal interest to petition for its recognition in this
jurisdiction
We qualify our above conclusion i.e., that the second paragraph of
Article 26 of the Family Code bestows no rights in favor of aliens with
the complementary statement that this conclusion is not sufficient
basis to dismiss Gerberts petition before the RTC. In other words, the
unavailability of the second paragraph of Article 26 of the Family Code
to aliens does not necessarily strip Gerbert of legal interest to petition
the RTC for the recognition of his foreign divorce decree. The foreign
divorce decree itself, after its authenticity and conformity with the
aliens national law have been duly proven according to our rules of
evidence, serves as a presumptive evidence of right in favor of
Gerbert, pursuant to Section 48, Rule 39 of the Rules of Court which
provides for the effect of foreign judgments. This Section states:
SEC. 48. Effect of foreign judgments or final orders.The effect of a
judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows:
(a)
In case of a judgment or final order upon a specific thing,
the judgment or final order is conclusive upon the title of the thing; and
(b)
In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as between
the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence
of a want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact.
To our mind, direct involvement or being the subject of the foreign
judgment is sufficient to clothe a party with the requisite interest to
institute an action before our courts for the recognition of the foreign
judgment. In a divorce situation, we have declared, no less, that the
divorce obtained by an alien abroad may be recognized in the
Philippines, provided the divorce is valid according to his or her
national law.[27]
The starting point in any recognition of a foreign divorce judgment is
the acknowledgment that our courts do not take judicial notice of
foreign judgments and laws. Justice Herrera explained that, as a rule,
no sovereign is bound to give effect within its dominion to a judgment
rendered by a tribunal of another country.[28] This means that the
foreign judgment and its authenticity must be proven as facts under
our rules on evidence, together with the aliens applicable national law
to show the effect of the judgment on the alien himself or herself.[29]
The recognition may be made in an action instituted specifically for the
purpose or in another action where a party invokes the foreign decree
as an integral aspect of his claim or defense.
In Gerberts case, since both the foreign divorce decree and the
national law of the alien, recognizing his or her capacity to obtain a
divorce, purport to be official acts of a sovereign authority, Section 24,
Rule 132 of the Rules of Court comes into play. This Section requires
civil register. The law requires the entry in the civil registry of judicial
decrees that produce legal consequences touching upon a persons
legal capacity and status, i.e., those affecting all his personal qualities
and relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or illegitimate,
or his being married or not.[35]
A judgment of divorce is a judicial decree, although a foreign one,
affecting a persons legal capacity and status that must be recorded. In
fact, Act No. 3753 or the Law on Registry of Civil Status specifically
requires the registration of divorce decrees in the civil registry:
Sec. 1. Civil Register. A civil register is established for recording the
civil status of persons, in which shall be entered:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
births;
deaths;
marriages;
annulments of marriages;
divorces;
legitimations;
adoptions;
acknowledgment of natural children;
naturalization; and
changes of name.
xxxx
Sec. 4. Civil Register Books. The local registrars shall keep and
preserve in their offices the following books, in which they shall,
respectively make the proper entries concerning the civil status of
persons:
(1) Birth and death register;
(2) Marriage register, in which shall be entered not only the marriages
solemnized but also divorces and dissolved marriages.
(3) Legitimation, acknowledgment, adoption, change of name and
naturalization register.
But while the law requires the entry of the divorce decree in the civil
registry, the law and the submission of the decree by themselves do
not ipso facto authorize the decrees registration. The law should be
read in relation with the requirement of a judicial recognition of the
under Rule 108 of the Rules of Court. The recognition of the foreign
divorce decree may be made in a Rule 108 proceeding itself, as the
object of special proceedings (such as that in Rule 108 of the Rules of
Court) is precisely to establish the status or right of a party or a
particular fact. Moreover, Rule 108 of the Rules of Court can serve as
the appropriate adversarial proceeding[41] by which the applicability
of the foreign judgment can be measured and tested in terms of
jurisdictional infirmities, want of notice to the party, collusion, fraud, or
clear mistake of law or fact.
WHEREFORE, we GRANT the petition for review on certiorari, and
REVERSE the October 30, 2008 decision of the Regional Trial Court of
Laoag City, Branch 11, as well as its February 17, 2009 order. We order
the REMAND of the case to the trial court for further proceedings in
accordance with our ruling above. Let a copy of this Decision be
furnished the Civil Registrar General. No costs.
SO ORDERED.
YASUO IWASAWA,
Petitioner,
-versusFELISA
CUSTODIO GANGAN 1
(a.k.a FELISA GANGAN
ARAMBULO, and FELISA
GANGAN IWASAWA) and the
LOCAL CIVIL REGISTRAR OF
PASAY CITY,
Respondents.
G.R. No. 204169
Present:
SERENO, C.J,
Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,
VILLARAMA, JR., and
REYES, JJ.
Promulgated:
SEP 11 2013
X-------------------------------------------------- -X
DECISION
VILLARAMA, JR, J.:
Before us is a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended, assailing the September 4,
20 12
Decision2 and October 16, 2012 Order3 of the Regional Trial Com1
(RTC),
Branch 43, of Manila in Civil Case No. 11-126203. The RTC denied the
petition for declaration of nullity of the marriage of petitioner Yasuo
Iwasawa with private respondent Felisa Custodio Gangan due to
insufficient
evidence.
The antecedents follow:
Petitioner, a Japanese national, met private respondent sometime in
2002 in one of his visits to the Philippines. Private respondent
introduced
Also spelled as "Gafigan" in some paris of the records. 2 Rollo, pp. 3840. Penned by Presiding Judge Roy G. Gironella.
Id. at 41-42.
\'
Decision 2 G.R. No. 204169
herself as single and has never married before. Since then, the two
became close to each other. Later that year, petitioner came back to
the
Philippines and married private respondent on November 28, 2002 in
Pasay
City. After the wedding, the couple resided in Japan.4
In July 2009, petitioner noticed his wife become depressed.
Suspecting that something might have happened in the Philippines, he
confronted his wife about it. To his shock, private respondent confessed
to
him that she received news that her previous husband passed away.5
Petitioner sought to confirm the truth of his wifes confession and
discovered that indeed, she was married to one Raymond Maglonzo
Arambulo and that their marriage took place on June 20, 1994.6
This
prompted petitioner to file a petition7
for the declaration of his marriage to
private respondent as null and void on the ground that their marriage
is a
bigamous one, based on Article 35(4) in relation to Article 41 of the
Family
Code of the Philippines.
During trial, aside from his testimony, petitioner also offered the
following pieces of documentary evidence issued by the National
Statistics
Office (NSO):
(1) Certificate of Marriage8
between petitioner and private respondent
marked as Exhibit A to prove the fact of marriage between the
parties on November 28, 2002;
In an Order dated August 25, 2009, the RTC denied petitioners motion
for reconsideration couched in this wise:
WHEREFORE, the court hereby denies the Motion for Reconsideration
filed by the Republic of the Philippines. Furnish copies of this order to
the Office of the Solicitor General, the petitioners counsel, and all
concerned government agencies.
SO ORDERED.12
Contrary to petitioners stand, the RTC held that it had jurisdiction to
take cognizance of cases for correction of entries even on substantial
errors under Rule 108 of the Rules of Court being the appropriate
adversary proceeding required. Considering that respondents identity
was used by an unknown person to contract marriage with a Korean
national, it would not be feasible for respondent to institute an action
for declaration of nullity of marriage since it is not one of the void
marriages under Articles 35 and 36 of the Family Code.13
Petitioner now comes before the Court in this Petition for Review on
Certiorari under Rule 45 of the Rules of Court seeking the reversal of
the assailed RTC Decision and Order based on the following grounds:
I.
RULE 108 OF THE REVISED RULES OF COURT APPLIES ONLY WHEN
THERE ARE ERRORS IN THE ENTRIES SOUGHT TO BE CANCELLED OR
CORRECTED.
II.
GRANTING THE CANCELLATION OF "ALL THE ENTRIES IN THE WIFE
PORTION OF THE ALLEGED MARRIAGE CONTRACT," IS IN EFFECT
DECLARING THE MARRIAGE VOID AB INITIO.14
Petitioner claims that there are no errors in the entries sought to be
cancelled or corrected, because the entries made in the certificate of
marriage are the ones provided by the person who appeared and
represented herself as Merlinda L. Olaybar and are, in fact, the latters
personal circumstances.15 In directing the cancellation of the entries in
the wife portion of the certificate of marriage, the RTC, in effect,
declared the marriage null and void ab initio.16 Thus, the petition
instituted by respondent is actually a petition for declaration of nullity
of marriage in the guise of a Rule 108 proceeding.17
is sought may, within fifteen (15) days from notice of the petition, or
from the last date of publication of such notice, file his opposition
thereto.
SEC. 6. Expediting proceedings. The court in which the proceedings is
brought may make orders expediting the proceedings, and may also
grant preliminary injunction for the preservation of the rights of the
parties pending such proceedings.
SEC. 7. Order. After hearing, the court may either dismiss the petition
or issue an order granting the cancellation or correction prayed for. In
either case, a certified copy of the judgment shall be served upon the
civil registrar concerned who shall annotate the same in his record.
Rule 108 of the Rules of Court provides the procedure for cancellation
or correction of entries in the civil registry. The proceedings may either
be summary or adversary. If the correction is clerical, then the
procedure to be adopted is summary. If the rectification affects the civil
status, citizenship or nationality of a party, it is deemed substantial,
and the procedure to be adopted is adversary. Since the promulgation
of Republic v. Valencia19 in 1986, the Court has repeatedly ruled that
"even substantial errors in a civil registry may be corrected through a
petition filed under Rule 108, with the true facts established and the
parties aggrieved by the error availing themselves of the appropriate
adversarial proceeding."20 An appropriate adversary suit or
proceeding is one where the trial court has conducted proceedings
where all relevant facts have been fully and properly developed, where
opposing counsel have been given opportunity to demolish the
opposite partys case, and where the evidence has been thoroughly
weighed and considered.21
It is true that in special proceedings, formal pleadings and a hearing
may be dispensed with, and the remedy [is] granted upon mere
application or motion. However, a special proceeding is not always
summary. The procedure laid down in Rule 108 is not a summary
proceeding per se. It requires publication of the petition; it mandates
the inclusion as parties of all persons who may claim interest which
would be affected by the cancellation or correction; it also requires the
civil registrar and any person in interest to file their opposition, if any;
and it states that although the court may make orders expediting the
proceedings, it is after hearing that the court shall either dismiss the
petition or issue an order granting the same. Thus, as long as the
procedural requirements in Rule 108 are followed, it is the appropriate
adversary proceeding to effect substantial corrections and changes in
entries of the civil register.22
In this case, the entries made in the wife portion of the certificate of
marriage are admittedly the personal circumstances of respondent.
The latter, however, claims that her signature was forged and she was
not the one who contracted marriage with the purported husband. In
other words, she claims that no such marriage was entered into or if
there was, she was not the one who entered into such contract. It must
be recalled that when respondent tried to obtain a CENOMAR from the
NSO, it appeared that she was married to a certain Ye Son Sune. She
then sought the cancellation of entries in the wife portion of the
marriage certificate.
In filing the petition for correction of entry under Rule 108, respondent
made the Local Civil Registrar of Cebu City, as well as her alleged
husband Ye Son Sune, as parties-respondents. It is likewise undisputed
that the procedural requirements set forth in Rule 108 were complied
with. The Office of the Solicitor General was likewise notified of the
petition which in turn authorized the Office of the City Prosecutor to
participate in the proceedings. More importantly, trial was conducted
where respondent herself, the stenographer of the court where the
alleged marriage was conducted, as well as a document examiner,
testified. Several documents were also considered as evidence. With
the testimonies and other evidence presented, the trial court found
that the signature appearing in the subject marriage certificate was
different from respondents signature appearing in some of her
government issued identification cards.23 The court thus made a
categorical conclusion that respondents signature in the marriage
certificate was not hers and, therefore, was forged. Clearly, it was
established that, as she claimed in her petition, no such marriage was
celebrated.
Indeed the Court made a pronouncement in the recent case of Minoru
Fujiki v. Maria Paz Galela Marinay, Shinichi Maekara, Local Civil
Registrar of Quezon City, and the Administrator and Civil Registrar
General of the National Statistics Office24 that:
To be sure, a petition for correction or cancellation of an entry in the
civil registry cannot substitute for an action to invalidate a marriage. A
direct action is necessary to prevent circumvention of the substantive
and procedural safeguards of marriage under the Family Code, A.M. No.
02-11-10-SC and other related laws. Among these safeguards are the
requirement of proving the limited grounds for the dissolution of
marriage, support pendente lite of the spouses and children, the
liquidation, partition and distribution of the properties of the spouses
and the investigation of the public prosecutor to determine collusion. A
direct action for declaration of nullity or annulment of marriage is also
necessary to prevent circumvention of the jurisdiction of the Family
Courts under the Family Courts Act of 1997 (Republic Act No. 8369), as
a petition for cancellation or correction of entries in the civil registry
may be filed in the Regional Trial Court where the corresponding civil
registry is located. In other words, a Filipino citizen cannot dissolve his
marriage by the mere expedient of changing his entry of marriage in
the civil registry.
Aside from the certificate of marriage, no such evidence was presented
to show the existence of marriage.1wphi1 Rather, respondent showed
by overwhelming evidence that no marriage was entered into and that
she was not even aware of such existence. The testimonial and
documentary evidence clearly established that the only "evidence" of
marriage which is the marriage certificate was a forgery. While we
maintain that Rule 108 cannot be availed of to determine the validity
of marriage, we cannot nullify the proceedings before the trial court
where all the parties had been given the opportunity to contest the
allegations of respondent; the procedures were followed, and all the
evidence of the parties had already been admitted and examined.
Respondent indeed sought, not the nullification of marriage as there
was no marriage to speak of, but the correction of the record of such
marriage to reflect the truth as set forth by the evidence. Otherwise
stated, in allowing the correction of the subject certificate of marriage
by cancelling the wife portion thereof, the trial court did not, in any
way, declare the marriage void as there was no marriage to speak of.
WHEREFORE, premises considered, the petition is DENIED for lack of
merit. The Regional Trial Court Decision dated May 5, 2009 and Order
dated August 25, 2009 in SP. Proc. No. 16519-CEB, are AFFIRMED.
SO ORDERED.