Alba vs Ca Digest

ROSENDO ALBA VS. CA

GR NO. 164041, JULY 29, 2005

FACTS:

On October 21, 1996 private respondent Rosendo Herrera filed a petition for cancellation of the following entries in the birth certificate of Rosendo Alba Herrera Jr., to wit: (1) the surname Herrera as appended in the name of the child; (2) the reference to private respondent as the father of the minor child; and (3) the alleged marriage of private respondent to the child’s mother, Armi Alba on August 4, 1982 in Mandaluyong City. He claimed that the alleged entries are false and that it was only on September 1996 that he learned of the existence of the said birth certificate.

Private respondent alleged that he married only once on June 28, 1965 with Ezperanza C. Santos and never contracted marriage with Armi nor fathered Rosendo Alba Herrera Jr. in support thereof he presented certifications stating that he have no record of marriage with Armi from the CR of Mandaluyong City and the NSO.

On the scheduled hearing on February 26, 1997, the counsel from the office of the Solicitor General appeared but filed no opposition to the petition. Armi was not present on said date.

The trial court rendered a decision which became final and executor.

Armi and petitioner minor filed a petition for annulment of judgment before the CA which it dismissed holding that petitioner failed to prove that private respondent employed fraud and purposely deprived them of their day in court. Hence the instant petition.

ISSUE:

Whether or not an illegitimate child shall use the surname of their mother.

RULED:

Under Article 176 of the Family Code illegitimate children shall use the surname of the mother, unless their father recognizes their filiation, in which case thay may bear the father’s surname.

In the case at bench it is clear that Armi was never married to private respondent hence the petitioner minor is an illegitimate child. Considering that private respondent strongly asserts that he is not...