SECOND
DIVISION
WILSON
SY, G.R.
No. 124518
Petitioner,
Present:
QUISUMBING,
J.,
- versus - Chairperson,
CARPIO,
CARPIO
MORALES,
TINGA,
and
COURT
OF APPEALS, VELASCO,
JR., JJ.
Regional
Trial Court of Manila,
Branch 48, and
MERCEDES
TAN
UY-SY, Promulgated:
Respondents.
December
27, 2007
x
------------------------------------------------------------------------------------x
D E C I S
I O N
Tinga, J.:
In
this Petition for Review on Certiorari[1] under
Rule 45 of the 1997 Rules of Civil Procedure, petitioner Wilson Sy assails the Decision[2] dated
The
following are the antecedents:
On
In
his answer, petitioner prayed that the custody of the minors be awarded to him
instead. Petitioner maintained that respondent was unfit to take custody of the
minors. He adduced the following reasons: firstly, respondent abandoned her
family in 1992; secondly, she is mentally unstable; and thirdly, she cannot
provide proper care to the children.[5]
After
trial, the trial court caused the issuance of a writ of habeas corpus and
awarded custody of the children to respondent, to wit:
WHEREFORE, judgment is
hereby rendered maintaining to the petitioner the custody of the minors Vanessa
and Jeremiah, all surnamed Uy-Sy, without, however,
prejudice to the visitorial rights of the father,
herein respondent, and the temporary arrangement of the custody made by the
parties during pendency of this proceeding is hereby
revoked, and without any further effect. The Court further orders the
respondent to pay by way of monthly support for the minors, the amount of P50,000.00 payable to petitioner from [the] date of judgment
for failure on the part of respondent to show by preponderance of evidence that
the petitioner is unfit to the custody of the minor children who are only 6 and
4 years old.[6]
Petitioner appealed the order of the
trial court to the Court of Appeals. Before the appellate court, he alleged
that the trial court erred: (1) in awarding the custody of the minor children
solely to respondent; and (2) in ordering him to provide respondent support in
the amount of P50,000.00 per month.[7]
The Court of Appeals found no merit in
the appeal and affirmed the decision of the trial court. The Court of Appeals
did not find any reason to disturb the conclusions of the trial court,
particularly petitioner’s failure to prove by preponderance of evidence that
respondent was unfit to take custody over the minor children.
The Court of Appeals held that petitioner
was not able to substantiate his contention that respondent was unfit to have
custody of the children. On respondent’s supposed abandonment of the family,
the appellate court found instead that respondent had been driven away by
petitioner’s family because of religious differences. Respondent’s stay in
As to the second assignment of error,
the Court of Appeals held that questions as to care and custody of children may
be properly raised in a petition for writ of habeas corpus. Moreover,
petitioner was properly heard on the matter relative to the issue of support.
He was questioned about his sources of income for the purpose of determining
his ability to give support. As to the propriety of the amount awarded, the
appellate court was unwilling to alter the trial court’s conclusion for petitioner
did not forthrightly testify on his actual income. Neither did he produce
income tax returns or other competent evidence, although within his power to do
so, to provide a fair indication of his resources. At any rate, the appellate
court declared that a judgment of support is never final and petitioner is not
precluded at any time from seeking a modification of the same and produce
evidence of his claim.[9]
Petitioner filed a motion for
reconsideration of the Court of Appeals’ decision but the same was denied.[10]
Hence, this appeal by certiorari wherein petitioner asserts that: (1) the Court
of Appeals erred in awarding the custody of the minor children solely to
respondent; (2) the Court of Appeals had no jurisdiction to award support in a
habeas corpus case as: (a) support was neither alleged nor prayed for in the
petition; (b) there was no express or implied consent on the part of the
parties to litigate the issue; and (c) Section 6, Rule 99 of the Rules of Court
does not apply because the trial court failed to consider the Civil Code
provisions on support; and (3) the award of P50,000.00 as support is
arbitrary, unjust, unreasonable and tantamount to a clear deprivation of
property without due process of law.[11]
For her part, respondent claims that
petitioner had lost his privilege to raise the first issue, having failed to
raise it before the appellate court. Anent the second issue, respondent takes
refuge in the appellate court’s statement that the questions regarding the care
and custody of children may properly be adjudicated in a habeas corpus case. Regarding
the third issue, respondent maintains that the amount of support awarded is
correct and proper.[12]
There is no merit in the petition
regarding the question of care and custody of the children.
The applicable provision is Section
213 of the Family Code which states that:
Section 213. In case of separation
of the parents, parental authority shall be exercised by the parent designated
by the Court. The Court shall take into account all relevant considerations,
especially the choice of the child over seven years of age, unless the parent
is unfit.
No child under seven years of age shall be separated from
the mother, unless the court finds compelling reasons to order otherwise.
In case of legal separation of the
parents, the custody of the minor children shall be awarded to the innocent
spouse, unless otherwise directed by the court in the interest of the minor
children.[13]
But when the husband and wife are living separately and apart from each other,
without decree of the court, the court shall award the care, custody, and
control of each child as will be for his best interest, permitting the child to
choose which parent he prefers to live with if he is over seven (7) years of
age unless the parent so chosen be unfit to take charge of the child by reason
of moral depravity, habitual drunkenness or poverty.[14]
In all controversies regarding the custody
of minors, the sole and foremost consideration is the physical, educational,
social and moral welfare of the child concerned, taking into account the
respective resources and social and moral situations of the contending parents.[15]
However, the law favors the mother if
she is a fit and proper person to have custody of her children so that they may
not only receive her attention, care, supervision but also have the advantage
and benefit of a mother’s love and devotion for which there is no substitute.[16]
Generally, the love, solicitude and devotion of a mother cannot be replaced by
another and are worth more to a child of tender years than all other things
combined.[17]
The Civil Code Commission, in recommending the preference for the mother,
explained, thus:
The general rule is recommended in order to
avoid many a tragedy where a mother has seen her baby torn away from her. No
man can sound the deep sorrows of a mother who is deprived of her child of tender
age. The exception allowed by the rule has to be for “compelling reasons” for
the good of the child: those cases must indeed be rare, if the mother’s heart
is not to be unduly hurt. If she has erred, as in cases of adultery, the
penalty of imprisonment and the (relative) divorce decree will ordinarily be
sufficient punishment for her. Moreover, her moral dereliction will not have
any effect upon the baby who is as yet unable to understand the situation.[18]
This preference favoring the mother
over the father is even reiterated in Section 6, Rule 99 of the Rules of Court
(the Rule on Adoption and Custody of Minors) underscoring its significance, to
wit:
SEC. 6. Proceedings
as to child whose parents are separated. Appeal.
― When husband and wife are divorced or living separately and apart
from each other, and the question as to the care, custody and control of a
child or children of their marriage is brought before a Regional Trial Court by
petition or as an incident to any other proceeding, the court, upon hearing
the testimony as may be pertinent, shall
award the care, custody and control of each such child as will be for its best
interest, permitting the child to choose which parent it prefers to live with
if it be over ten years of age, unless the parent so chosen be unfit to take
charge of the child by reason of moral depravity, habitual drunkenness,
incapacity, or poverty. If upon such hearing, it appears that both parents are
improper persons to have the care, custody, and control of the child, the court
may either designate the paternal or maternal grandparent of the child, or his
oldest brother or sister, or some reputable and discreet person to take charge
of such child, or commit it to any suitable asylum, children’s home, or
benevolent society. The court may in conformity with the provisions of the
Civil Code order either or both parents to support or help support said child,
irrespective of who may be its custodian, and may make any order that is just
and reasonable permitting the parent who is deprived of its care and custody to
visit the child or have temporary custody thereof. Either parent may appeal
from an order made in accordance with the provisions of this section. No child under seven years of age shall be separated from
its mother, unless the court finds there are compelling reasons therefor. (Emphasis supplied)
The above-quoted provision expressly
acknowledges and authorizes that the matter of care and custody of the children
may be raised and adjudicated as an incident to any proceeding, such as a case
for habeas corpus.
Evidently, absent any compelling
reason to the contrary, the trial court was correct in restoring the custody of
the children to the mother, herein respondent, the children being less than
seven years of age, at least at the time the case was decided. Moreover, petitioner’s contention that
respondent is unfit to have custody over the minor children has not been substantiated
as found by both courts below. Thus, it is already too late for petitioner to reiterate the
assertion for only questions of law may
be raised before this Court. Furthermore, the determination of whether the
mother is fit or unfit to have custody over the children is a matter well within
the sound discretion of the trial court, and unless it is shown that said
discretion has been abused the selection will not be interfered with.[19]
Consequently, the Court affirms the
award of custody in respondent’s favor.
Now, the issue of
support.
Article 203 of the Family Code states
that the obligation to give support is demandable from the time the person who
has a right to receive the same needs it for maintenance, but it shall not be
paid except from the date of judicial or extrajudicial demand. The case of Jocson v. The Empire Ins. Co. and Jocson Lagniton[20]
explains the rationale for this rule:
x x x Support does include what is
necessary for the education and clothing of the person entitled thereto (Art.
290, New Civil Code). But support must be demanded and the
right to it established before it becomes payable (Art. 298, New Civil Code;
Marcelo v. Estacio, 70 Phil. 215). For the
right to support does not arise from the mere fact of relationship, even from
the relationship of parents and children, but “from imperative necessity
without which it cannot be demanded, and the law presumes that such necessity
does not exist unless support is demanded (Civil Code of the
As intimated earlier, the Court agrees
with the courts below that Section 6, Rule 99[22]
of the Rules of Court permits the ventilation of the question regarding the care and custody of
the children as an incident to any proceeding, even a habeas corpus proceeding.
Petitioner would have us believe,
however, that since respondent’s petition did not include a prayer[23]
for support of the children in accordance with the above-quoted Family Code
provision, the trial court was not justified in awarding support in
respondent’s favor. In addition, petitioner claims that he did not give consent
to the trial and the threshing out of the issue as it was not raised in the
pleadings.[24]
He claims that in fact, he testified on
his financial status only to prove that he is financially able to provide for
his children and not for the purpose of determining the amount of support.[25]
Besides, he contends that the trial court did not order the amendment of the
pleadings to conform to the evidence presented pursuant to Section 5[26]
Rule 10 of the 1997 Rules of Civil
Procedure, an aspect that supports his contention that the parties never
consented, expressly or impliedly, to try the issue of support.[27]
The Court is not convinced. Contrary
to petitioner’s assertions, respondent testified during trial, without any
objection on petitioner’s part, regarding the need for support for the
children’s education and other necessities, viz:
ADD’L DIRECT EXAMINATION
OF THE WITNESS
MERCEDES TAN UY-SY
Q: With the kind permission of this
Honorable Court.
Q:
Ms. Sy,
the custody of the two minors[,] of course[,] require
some expenses on your part notwithstanding that you said you have savings
intended for them, is it not?
A: Yes,
sir.
Q: And what is the nature of these expenses
that you expect to disburse for the children?
A: For the medicine or health care.
Q: What else?
A: For education, for emergency expenses,
for basically for food.
Q: In your estimate, how much would these
expenses be per month?
A: Well, I think, perhaps P50,000.00, sir.
Q: Which the respondent should furnish?
A:
Yes, sir.
ATTY.
CORTEZ
That
is all for the witness, Your Honor.[28]
Moreover, based on the transcript of
stenographic notes, petitioner was clearly made aware that the issue of support
was being deliberated upon, to wit:
WITNESS:
WILSON
SY: will be testifying under the same oath.[29]
x x x x
ATTY. ALBON:
Q: In the hearing of P50,000.00 a month
expenses for her children, what can you say about that?
A: That is a dillusion [sic] on her part.[30]
The trial court judge even propounded
questions to petitioner regarding his sources of income for the purpose of
determining the amount of support to be given to the children:
COURT:
I want to find out how much his income now for the
purposes of giving support to the children. Please answer the question.
WITNESS:
A: Shares of stocks.
ATTY. CORTEZ:
Q: A shares [sic] of stock is the
evidence of your investment in the corporation. My question is: What investment
did you put in to enable you to get a share, was it money or property?
A: There is no money but it was given by
my father.
COURT:
Q: Upon the death of your father you just
inherited it?
A: Before.
Q: After the death, did you not acquire
some of the shares of your father?
A: No, your
Honor.
Q: What happened to the shares of your
father?
A: It is with my mother.
x x
x x
COURT:
Never mind the share of
the mother. What is material is his share.
ATTY. CORTEZ:
Q: How many shares do you have in the
corporation?
A: Right now I have only ten (10) shares.
Q: What is the value of that [sic] shares?
A: I [do not] give any importance.
COURT
Q: For purposes of this case, the Court is
asking you how much is your share?
A: I [do not ]
how to appraise.
Q: More or less, how much? Use the word
more or less, is that one million more or less, 2 million, more or less, 10
million, more or less? Anyway, this is not a BIR proceeding, this is a Court
proceeding?
A: I want to speak the truth but I [do not]
know. I did not even see the account.
COURT:
Proceed.
ATTY. CORTEZ
x x
x x
Q: At that time of your father’s death[,] you were [sic]already holding ten (10)
shares or was it less?
A: More.
Q: More than ten (10) shares?
A: Yes, sir.
COURT
Q: What is the par value of that one (1)
share?
A: I [do not] know, your Honor.
x x
x x
COURT:
Let it remain that he owns ten (10) shares.
ATTY. CORTEZ:
x x
x x
A: Yes, 10 shares. The other shares I
already sold it.
Q: How many shares did you sell?
A: I only have 10 shares now. I don’t know
how many shares that I have left. I only know the 20 shares.[31]
Applying Section 5,[32]
Rule 10 of the 1997 Rules of Civil Procedure, since the issue of support was
tried with the implied consent of the parties, it
should be treated in all respects as if it had been raised in the pleadings.
And since there was implied consent, even if no motion had been filed and no amendment
had been ordered, the Court holds that the trial court validly rendered a
judgment on the issue.[33]
Significantly, in the case of Bank of America v. American Realty Corporation,[34]
the Court stated:
There have been instances where the Court has
held that even without the necessary amendment, the amount proved at the trial
may be validly awarded, as in Tuazon v. Bolanos (95 Phil. 106), where we said that if the facts
shown entitled plaintiff to relief other than that asked for, no amendment to
the complaint was necessary, especially where defendant had himself raised the
point on which recovery was based. The appellate court could treat the pleading
as amended to conform to the evidence although the pleadings were actually not
amended. Amendment is also unnecessary when only clerical error or non
substantial matters are involved, as we held in Bank of the Philippine
Islands vs. Laguna (48 Phil. 5). In Co Tiamco
v. Diaz (75 Phil. 672), we stressed that the rule on amendment need not be
applied rigidly, particularly where no surprise or prejudice is caused the
objecting party. And in the recent case of National Power Corporation v.
Court of Appeals (113 SCRA 556), we held that where there is a variance in
the defendant’s pleadings and the evidence adduced by it at the trial, the
Court may treat the pleading as amended to conform with the evidence.[35]
The Court likewise affirms the award
of P50,000.00 as support for the minor children.
As found by both courts, petitioner’s representations regarding his family’s
wealth and his capability to provide for his family more than provided a fair
indication of his financial standing even though he proved to be less than
forthright on the matter.[36] In any event, this award of support is merely
provisional as the amount may be modified or altered in accordance with the
increased or decreased needs of the needy party and with the means of the
giver.[37]
WHEREFORE, the Decision dated
SO ORDERED.
DANTE
O. TINGA
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice
PRESBITERO J. VELASCO,
JR.
Associate Justice
ATTESTATION
I attest that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson,
Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution,
and the Division Chairperson’s Attestation, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
[2]
[6]
[16]Sta. Maria, Jr., Persons and Family Relations,
p. 697, citing Peavey v. Peavey, 85
[22]SEC.
6. Proceedings as to child whose parents are separated.
Appeal. – When husband and wife are divorced or
living separately and apart from each other, and the question as to the care,
custody and control of a child or children of their marriage is brought before
a Regional Trial Court by petition or as an incident to any other proceeding, the court, upon
hearing the testimony as may be pertinent, shall award the care, custody and
control of each such child as will be for its best interest, permitting the
child to choose which parent it prefers to live with if it be over ten years of
age, unless the parent so chosen be unfit to take charge of the child by reason
of moral depravity, habitual drunkenness, incapacity, or poverty. If upon such
hearing, it appears that both parents are improper persons to have the care,
custody, and control of the child, the court may either designate the paternal
or maternal grandparent of the child, or his oldest brother or sister, or some reputable
and discreet person to take charge of such child, or commit it to any suitable
asylum, children’s home, or benevolent society. The court may in conformity
with the provisions of the Civil Code order either or both parents to support
or help support said child, irrespective of who may be its custodian, and may
make any order that is just and reasonable permitting the parent who is
deprived of its care and custody to visit the child or have temporary custody
thereof. Either parent may appeal from an order made in accordance with the
provisions of this section. No child under seven years of age shall be
separated from its mother, unless the court finds there are compelling reasons therefor. (Emphasis supplied)
[23]Records, Vol.
1, p. 3.
WHEREFORE, it is
most respectfully prayed that a [W]rit of Habeas
Corpus be issued by this Honorable Court, commanding Wilson L. Sy to produce the bodies of Vanessa and Jeremiah Uy Sy before this court at the
time and place specified, and to summon the respondent then and there to appear
and to show cause for their detention; and that, after hearing, said minors be
turned over to the care and custody of their mother Mercedes Uy Sy.
[26]SEC. 5. Amendment to conform
to or authorize presentation of evidence. ― When issues not raised by the pleadings are tried with the
express or implied consent of the parties, they shall be treated in all
respects, as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any time, even after
judgment; but failure to amend does not affect the result of the trial of these
issues. If evidence is objected to at the trial on the ground that it is not
within the issues made by the pleadings, the court may allow the pleadings to
be amended and shall do so with liberality if the presentation of the merits of
the action and the ends of substantial justice will be subserved
thereby. The court may grant a continuance to enable the amendment to be made.
[32]SEC. 5. Amendment to
conform to or authorize presentation of evidence. – When
issues not raised by the pleadings are tried with the express or implied
consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the pleadings as may be necessary to
cause them to conform to the evidence and to raise these issues may be made
upon motion of any party at any time, even after judgment; but failure to amend
does not affect the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is not within the issues made by
the pleadings, the court may allow the pleadings to be amended and shall do so
with liberality if the presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The
court may grant a continuance to enable the amendment to be made.