G.R. No.

124518               December 27, 2007

WILSON SY, Petitioner, 
vs.
COURT OF APPEALS, Regional Trial Court of Manila, Branch 48, and MERCEDES TAN UY-
SY, Respondents.

DECISION

TINGA, J.:

In this Petition for Review on Certiorari1 under Rule 45 of the 1997 Rules of Civil Procedure, petitioner
Wilson Sy assails the Decision2 dated 29 February 1996 of the Court of Appeals in C.A. G.R. SP No.
38936 and its Resolution3 dated 15 April 1996 denying his motion for reconsideration.

The following are the antecedents:

On 19 January 1994, respondent Mercedes Tan Uy-Sy filed a petition for habeas corpus against
petitioner Wilson Sy before the Regional Trial Court of Manila, Branch 48, docketed as Special
Proceeding No. 94-69002. Respondent prayed that said writ be issued ordering petitioner to produce their
minor children Vanessa and Jeremiah before the court and that after hearing, their care and custody be
awarded to her as their mother.4

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 ₱50,000.00 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 ₱50,000.00 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 Taiwan likewise could hardly be called abandonment as she had gone
there to earn enough money to reclaim her children. Neither could respondent’s act of praying outdoors in
the rain be considered as evidence of insanity as it may simply be an expression of one’s faith. Regarding
the allegation that respondent was unable to provide for a decent dwelling for the minors, to the contrary,
the appellate court was satisfied with respondent’s proof of her financial ability to provide her children with
the necessities of life.8

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 ₱50,000.00 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.

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 Philippines, Annotated, Tolentino,
Vol. 1, p. 181, citing 8 Manresa 685). In the present case, it does not appear that support for the minors,
be it only for their education and clothing, was ever demanded from their father and the need for it duly
established. The need for support, as already stated, cannot be presumed, and especially must this be
true in the present case where it appears that the minors had means of their own.21

As intimated earlier, the Court agrees with the courts below that Section 6, Rule 9922 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 prayer23 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 526 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?

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

xxxx

ATTY. ALBON:

Q: In the hearing of July 23, 1994 as appearing on page 3, Mercedes Sy testified that she would
be needing ₱50,000.00 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.

xxxx

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

xxxx

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?

COURT

Q: What is the par value of that one (1) share?

A: I [do not] know, your Honor.

xxxx

COURT:

Let it remain that he owns ten (10) shares.

ATTY. CORTEZ:

xxxx

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 ₱50,000.00 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.36In 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 29 February 1996 of the Eleventh Division of the Court of Appeals in
C.A. G.R. SP No. 38936 and its Resolution38 dated 15 April 1996 are AFFIRMED. Costs against
petitioner.

SO ORDERED.

Footnotes

1
 Rollo, pp. 27-52; dated 24 May 1996.

2
 Id. at 7-20; penned by Associate Justice Minerva P. Gonzaga-Reyes with the concurrence of
Associate Justices Buenaventura J. Guerrero and Romeo A. Brawner.

3
 Id. at 70-72.

4
 Id. at 8.

5
 Id. at 9-10, 31.

6
 Id. at 7; dispositive portion of the Decision dated 14 December 1994 penned by Hon. Demetrio
M. Batario, Jr.

7
 Id. at 8

8
 Id. at 15-16.

9
 Id. at 17-19.

10
 Id. at 21-23; in a Resolution dated 15 April 1996.

11
 Id. at 37.

12
 Id. at 88-90; Comment dated 7 October 1996.

13
 Family Code, Art. 63; Tolentino, Civil Code of the Philippines, Vol. 1, p. 609.

14
 Id. at 610.

15
 Unson III v. Navarro, No. 52242, 17 November 1980, 101 SCRA 183, 189.

16
 Sta. Maria, Jr., Persons and Family Relations, p. 697, citing Peavey v. Peavey, 85 Nev. 571,
460 P2d 110.

17
 Id. at 698, citing Horst v. Mclain, 466 Sw2d 187.

18
 Lacson v. San Jose-Lacson, 133 Phil. 884, 894-895 (1968).

19
 Pelayo v. Lavin Aedo, 40 Phil. 501, 504 (1919).
20
 103 Phil. 580 (1958).

21
 Id. at 582-583.

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.

24
 CA rollo, pp. 16-17.

25
 Id. at 19 of Petitioner’s Memorandum.

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.

27
 Rollo, p. 17.

28
 Records, Vol. 1; TSN, dated 25 July 1994, p. 3.

29
 Id. at 547; TSN, dated 4 November 1994, p. 6.

30
 Id. at 552; TSN, 4 November 1994, p. 11.

31
 Id. at 563-566, TSN, 4 November 1994, pp. 22-25.
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.

33
 Herrera, Remedial Law, Vol.1, p. 598.

34
 378 Phil. 1279 (1999).

35
 Id. at 1301-1302.

36
 Rollo, pp. 18-19.

37
 Advincula v. Advincula, 119 Phil. 448, 451 (1964).

38
 Supra note 3.