G.R. No.

172813 July 20, 2006 ● Petitioner then proceeded to the East Avenue Medical Center to have her
IVY JOAN P. REYES-TABUJARA, petitioner, vs. HON. COURT OF APPEALS and injuries treated and also to Camp Karingal, Sikatuna Village, Quezon City, to
ERNESTO A. TABUJARA III, respondents. report the matter.
● Since the 15 March 2006 incident, petitioner has never seen her son and
DECISION
has been barred by private respondent from going back to their conjugal
CHICO-NAZARIO, J.: home.
● Left with no recourse and prompted by her longing to see her son Carlos
Before Us is a Petition for Certiorari seeking the reversal of the Resolutions dated 2 Iñigo, petitioner filed a Petition for Habeas Corpus with the RTC,
June 2006 and 7 June 2006 rendered by the Court of Appeals in CA-G.R. SP No. Quezon City, to compel private respondent to produce their son before
94699.1 The 2 June 2006 Resolution restrained Judge Fatima Gonzales-Asdala, the court.
Pairing Judge of Quezon City Regional Trial Court (RTC), Branch 86, from enforcing ● The Petition, docketed as Spec. Proc. No. Q-06-57984, was initially raffled
her Order dated 31 May 2006 while the Resolution of 7 June 2006 set aside and off to Branch 102 of RTC, Quezon City, which issued an Order dated 23
nullified the Order she issued on 1 June 2006. May 20064 the pertinent portion of which provides:
● Finding the Petition to be sufficient in form and substance, the same is
● In her Petition, petitioner alleges that Ivy and the private respondent hereby given due course.
Ernesto were married on 26 Nov 2000 at the Basilica of the Immaculate
Conception, Intramuros, Manila. ACCORDINGLY, the respondent Ernesto A. Tabujara III is hereby directed to produce
● They had a son, Carlos Iñigo, who was born on 5 July 2002. the living person of the minor CARLOS IÑIGO R. TABUJARA, before the Court during
● after their wedding, their relationship was already beset by frequent the hearing of this Petition which for that purpose is hereby set on 25 May 2006 at
squabbles which persisted even after the birth of their son. Despite their 10:00 A.M., and to show cause why, as alleged, the subject minor has been allegedly
problems, they lived together with their son, staying at their conjugal home restrained of his liberty and detained by him. Observance of the Order is a way of
in Capitol Homes, Quezon City. effecting the return of this writ, as required by law.5
● Since 11 March 2006, however, IVY had been staying at her sister's house
in Brixton Hills, Quezon City, awaiting the arrival of their mother from On the scheduled hearing, private respondent appeared before the court without
abroad. Carlos Iñigo. According to him, Carlos Iñigo was then vacationing at Tagaytay
● On 14 March 2006, Ernesto picked up Carlos Iñigo, who was with Ivy at that Highlands and that he did not have sufficient time to fetch the child for the hearing
time. The following day, Ivy notified Ernesto that she would fetch the child since he was informed of the court's order only on the evening of 24 March 2006.6
since she and her sister decided to go to San Fernando, Pampanga.
In the same hearing, petitioner's counsel moved for the consolidation of this case
Ernesto allegedly asked her to wait for him at their conjugal abode as he
with that pending before the RTC, Quezon City, Branch 86, docketed as Civil Case
had something to give her. Thinking that Ernesto was going to hand over to
No. Q-06-57760, for violation of Republic Act No. 9262 or the "Anti-Violence Against
her the documents pertaining to their separation, petitioner acceded to his
Women and Their Children Act of 2004." This motion was granted by the court.7
request. While waiting for private respondent, petitioner decided to bring
her and Carlos Iñigo's clothes to the car so they could leave as soon as
On 25 May 2006, petitioner filed with the RTC, Quezon City, Branch 86, an Urgent
private respondent arrived.
Ex-Parte Motion to Hear Writ of Habeas Corpus on 26 May 2006 at 8:30 A.M.8
● Much to Ivy's surprise, however, Ernesto refused to allow her to take their
child. When petitioner complained, private respondent purportedly berated, Subsequently, Presiding Judge Teodoro Bay of the RTC, Quezon City, Branch 86,
insulted, and told her that she could no longer see their son without his issued, in chambers, an Order dated 31 May 2006 resolving, among other things, the
permission. Petitioner also averred that when she tried to wrest Carlos Iñigo issuance of a writ of habeas corpus for the person of Carlos Iñigo –
away from private respondent, the latter hit her several times and started
choking her. Finally, Ernesto boarded his car and sped away with their son After considering the records of the three (3) cases consolidated before this Court,9
in tow. the Court resolves as follows:
1. the child Carlos Iñigo R. Tabujara shall continue to be under the custody of the WHEREFORE, Ernesto A. Tabujara III or any person or persons acting for and in his
respondent Ernesto Tabujara III until the Court shall have resolved the issue of behalf and under his direction is hereby directed to produce the person of minor
custody of said child. This is necessary to protect the child from emotional and Carlos Iñigo R. Tabujara before the Session Hall, Branch 87, located at 114, Hall of
psychological violence due to the misunderstanding now existing between his Justice, Quezon City on June 1, 2006 at 9:00 o'clock in the morning. Failing which,
parents. the more coercive process of a Bench Warrant will be issued against said
respondent, without prejudice to a declaration of contempt which may be due under
2. the Motion to Admit Amended Petition with Prayer for Temporary Protection Order the obtaining circumstances.12
is GRANTED. The Temporary Protection Order dated 19 April 2006 is hereby
extended until the prayer for Permanent Protection is resolved. As it turned out, private respondent failed to appear before Judge Gonzales-Asdala
on 1 June 2006. Consequently, through the Order dated 1 June 2006, he was
3. the respondent Ernesto Tabujara III is hereby ordered to bring the child Carlos declared in contempt of court and a bench warrant for his arrest was issued.13
Iñigo Tabujara to this Court during the hearing of these cases on July 14, 2006 at
8:00 in the morning. Aggrieved by the Order, respondent filed a Petition for Certiorari before the Court of
Appeals praying for the issuance of a temporary restraining order and/or writ of
4. the motion for support pendente lite shall be resolved after sufficient details are preliminary injunction to enjoin Judge Gonzales-Asdala from: issuing a bench
presented to support said motion. warrant against private respondent; implementing her Order of 31 May 2006;
requiring private respondent to turn over custody of Carlos Iñigo to petitioner; and
5. the respondent, as previously ordered, is directed to turn over the possession of taking further action on Civil Cases No. Q-06-57760, No. Q-06-57857,14 and Spec.
one of the family's car to the petitioner.10 Proc. No. Q-06-57984.15

On 31 May 2006, petitioner filed an Urgent Ex-Parte Motion to Order Respondent to On 2 June 2006, the Court of Appeals issued a Resolution restraining the
Comply with the Writ of Habeas Corpus with Urgent Motion for Partial implementation of Judge Gonzales-Asdala's Order of 31 May 2006.
Reconsideration of the Order dated 31 May 2006.11 The Motion for partial
reconsideration pertained to that portion of Judge Bay's Order granting private Later, another Resolution was issued by the Court of Appeals setting aside and
respondent continued custody over Carlos Iñigo in alleged violation of Article 213 of nullifying the 1 June 2006 Order of Judge Gonzales-Asdala.
the Family Code stating:
Hence, this Petition for Certiorari raising the following grounds:
Art. 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 JUDGE FATIMA GONZALES-GONZALES-ASDALA ACTED WITHIN BOUNDS OF
considerations, especially the choice of the child over seven years of age, unless the JURISDICTION IN ISSUING THE ORDER DATED 31 MAY 2006, AS WELL AS THE
parent chosen is unfit. ORDER AND BENCH WARRANTS ISSUED ON JUNE 1, 2006 IN HER CAPACITY AS
PAIRING JUDGE OF BRANCH 86 IN THE ABSENCE OF ITS PRESIDING JUDGE.
No child under seven years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise. THE ORDER OF MAY 31, 2006 HAS ALREADY BEEN IMPLEMENTED BEFORE THE
ISSUANCE OF SUBJECT TRO ON JUNE 2, 2006, THUS, THE TRO IS ALREADY
This motion was referred by the branch clerk of court to Judge Fatima MOOT AND ACADEMIC
Gonzales-Asdala, Pairing Judge of Branch 86, because Judge Bay was to go on
official leave effective 1 June 2006. SIMILARLY, THE ORDER OF JUNE 1, 2006 AND BENCH WARRANT HAVE
ALREADY BEEN ISSUED AND SERVED UPON PRIVATE RESPONDENT ON 1 JUNE
Acting on said Motion, Judge Gonzales-Asdala issued an Order dated 31 May 2006, 2006 OR EVEN BEFORE THE TRO WAS ISSUED BY RESPONDENT COURT.
to wit:
THE MATTER OF THE HABEAS CORPUS HAS BEEN SQUARELY RAISED BEFORE In his Comment, private respondent argues that the Court of Appeals committed no
RESPONDENT COURT IN SUBJECT PETITION, AND RESPONDENT COURT ACTED grave abuse of discretion in issuing the assailed Resolutions. He contends that
WITH GRAVE ABUSE OF DISCRETION AND MANIFEST PARTIALITY IN DENYING Judge Gonzales-Asdala, as the Pairing Judge of Quezon City RTC, Branch 86, has
HEREIN PETITIONER'S MOTION TO PRODUCE THE 4-YEAR OLD MINOR BEFORE the authority "to step into and take action in a case only when the presiding judge is
THE RESPONDENT COURT. on leave, absent, incapacitated, or otherwise unavailable."19 In this case, however,
she exceeded such authority when she issued her 31 May 2006 Order considering
THE WRIT OF HABEAS CORPUS MUST BE IMMEDIATELY EFFECTED SINCE that Judge Bay, the Presiding Judge was yet to go on leave on 1 June 2006. It was
PETITIONER IS ENTITLED TO SOLE CUSTODY OF THE MINOR WHO CANNOT BE therefore improper for her to take over the consolidated cases involving the parties
SEPARATED FROM HER UNDER ART. 213 OF THE FAMILY CODE. herein since Judge Bay was still performing his duty on 31 May 2006.

Petitioner contends that the subject Petition filed before the Court of Appeals shows Private respondent also disputes petitioner's assertion that the acts sought to be
that Judge Gonzales-Asdala was impleaded in her capacity as Presiding Judge of restrained by the Court of Appeals' Resolutions were already fait accompli.
Branch 87 when in fact, she issued the 31 May 2006 and 1 June 2006 Orders when According to him, the fact that Judge Gonzales-Asdala's Orders of 31 May and 1
she was acting as the Pairing Judge of Branch 86. Private respondent's ploy, June 2006 were served upon his counsel does not mean that these were
petitioner argues, has misled the Court of Appeals into believing that Judge successfully implemented. He avers that, in fact, one of the grounds of his Petition
Gonzales-Asdala's Orders violated the rule proscribing the interference by a court for Certiorari before the Court of Appeals was the undue haste with which these
with the processes of another court of co-equal jurisdiction. Orders were successively issued thereby depriving him of substantial and procedural
due process.20 As the party aggrieved, private respondent insists that he has the
Also, petitioner maintains that the temporary restraining order issued by the Court of right to question Judge Gonzales-Asdala's Orders before a higher court.
Appeals had already been rendered moot by the incidents which occurred prior to
their issuance. For one, the hearing on 1 June 2006 took place as scheduled thereby In addition, private respondent asserts that petitioner is guilty of forum shopping. He
rendering useless the 2 June 2006 Resolution of the Court of Appeals. Similarly, the points out that in petitioner's original complaint in Civil Case No. Q-06-57760, she
7 June 2006 Resolution of the Court of Appeals enjoining the issuance of the bench prayed that she be granted the "sole custody and charge" of Carlos Iñigo21 but this
warrant became inutile as the bench warrant for arrest was not only issued by Judge was denied by Judge Bay in his Order dated 19 April 2006.22 Later, petitioner filed a
Gonzales-Asdala but said warrant was actually served upon private respondent on 1 Petition for Habeas Corpus before the Quezon City RTC where she again raised the
June 2006.16 issue relating to the custody of Carlos Iñigo. Private respondent insists that petitioner
is clearly trying to circumvent the rule against forum shopping by seeking to regain
Petitioner also claims that private respondent violated Article 213 of the Family Code custody over Carlos Iñigo in the habeas corpus case – a relief that was already
when he prevented petitioner from having access to their conjugal abode and by denied her by Judge Bay in Civil Case No. Q-06-57760.
forcibly separating her from Carlos Iñigo beginning 15 March 2006.
Private respondent is also of the view that jurisdiction over the petition for habeas
In addition, petitioner takes exception to the ruling of Judge Bay giving private corpus properly lies with the RTC of Quezon City, Branch 86, which has acquired
respondent continued custody over Carlos Iñigo. Petitioner argues that said Order prior jurisdiction over the matter. He points out that Judge Bay had even scheduled
not only contravenes Article 213 of the Family Code but the same is also utterly the hearing of the consolidated cases on 14 July 2006 at which time he is supposed
lacking in any legal and factual bases. to bring Carlos Iñigo to the court.

Lastly, in an attempt to bolster her claim that she should have custody over Carlos Preliminarily, we shall address the procedural infirmity obtaining in this Petition.
Iñigo, petitioner cites the Court of Appeals' Resolution dated 4 July 200317 granting
private respondent a mere visitorial right to their son. This Resolution was issued by Petitioner herself admits that the present Petition was filed without her first seeking
the Court of Appeals in connection with CA-G.R. SP. No. 77707.18 the reconsideration of the two assailed Resolutions of the Court of Appeals. She
contends, however, that there were instances in the past when this Court allowed the
filing of a petition for certiorari sans prior recourse to a motion for reconsideration
citing the cases of Candido v. Camacho23 and Metro Transit Organization, Inc. v. (h) where the proceedings was ex parte or in which the petitioner had no opportunity
Court of Appeals.24 to object; and

In the case of Candido, this Court held that: (i) where the issue raised is one purely of law or where public interest is involved.27

We have ruled that "(a) prior motion for reconsideration is not indispensable for An examination of the records reveals the measures that the parties herein have
commencement of certiorari proceedings if the errors sought to be corrected in such undertaken to have custody of their only child. Thus, while petitioner has
proceedings had been duly heard and passed upon or were similar to the issues continuously pressed on to regain custody of Carlos Iñigo, private respondent has
already resolved by the tribunal or agency below. Accordingly, the Court has been steadfast in ensuring that the minor child stays with him. If only to protect
excused the non-filing of a motion for reconsideration when such motion would be Carlos Iñigo from the ill-effects of this virtual tug-of-war between his parents, and to
basically pro-forma in nature and content, and where x x x the questions raised are allow the Court of Appeals to proceed with the resolution of the Petition for Certiorari
essentially legal in nature." In the case at bar, the parties have argued their positions filed by private respondent, this Court deems it proper to give due course to this
and have been duly heard by the RTC before it issued the assailed injunction order. Petition. We believe that the urgent necessity for the resolution of this Petition is for
Moreover, as the issues involved therein are essentially legal, the filing of motion for the benefit of the minor Carlos Iñigo and not so much to protect the interest of any of
reconsideration assailing the RTC's injunction order may be properly dispensed the parties herein.
with.25
In this case, we do not agree with petitioner's argument that the questioned
In Metro Transit Organization, Inc., we declared the general rule to be "that a motion Resolutions of the Court of Appeals have already become moot. To reiterate, Judge
for reconsideration is indispensable before resort to the special civil action for Gonzales-Asdala was enjoined by said 2 June 2006 Resolution from performing the
certiorari to afford the court or tribunal the opportunity to correct its error, if any."26 following:
The rule however allows the following exceptions:
(1) implementation and/or issuance of a bench warrant of arrest of petitioner;
(a) where the order is a patent of nullity, as where the court a quo has no jurisdiction;
(2) implementation of the Order of respondent Judge dated 31 May 2006;
(b) where the questions raised in the certiorari proceedings have been duly raised
and passed upon by the lower court, or are the same as those raised and passed (3) requiring petitioner to turn over custody of his minor son Carlos Iñigo Tabujara to
upon in the lower court; private respondent (petitioner herein);

(c) where there is an urgent necessity for the resolution of the question and any (4) taking further action and trying Civil Cases Nos. Q-06-57760, Q-06-57857, and
further delay would prejudice the interests of the Government or of the petitioner or Spec. Proc. No. Q-06-57984.28
the subject matter of the action is perishable;
The general rule contemplates that injunction is only proper to restrain acts being
(d) where, under the circumstances, a motion for reconsideration would be useless; committed or about to be committed. Nevertheless, consummated acts which are
continuing in nature may still be enjoined by a temporary restraining order.29
(e) where petitioner was deprived of due process and there is extreme urgency for
relief; In this case, it appears from the sheriff's return dated 5 June 200630 that Judge
Gonzales-Asdala's Order of 1 June 2006 was indeed served upon private
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of respondent at his office in Makati City, as well as at his father's house in UP Diliman,
such relief by the trial court is improbable; Quezon City, and yet it is not shown that his arrest had been implemented. Clearly
then, the Resolutions of the Court of Appeals had not become useless as alleged by
(g) where the proceedings in the lower court are a nullity for lack of due process; petitioner.
Even assuming that, as petitioner insists, the issuance of the bench warrant for the Appeals still retain their jurisdiction over habeas corpus cases despite the passage of
arrest of private respondent and the conduct of the 1 June 2006 hearing may no Republic Act No. 836933 – the law conferring upon family courts the exclusive
longer be restrained still, the remainder of the acts sought to be enjoined remain the jurisdiction over habeas corpus cases, thus:
proper subjects of the temporary restraining order issued on 2 June 2006. Thus, said
Resolution was still able to restrain Judge Gonzales-Asdala from compelling private The Court of Appeals opines that RA 8369 impliedly repealed RA 7902 and BP 129
respondent to turn over custody of Carlos Iñigo to petitioner and from taking any since, by giving family courts exclusive jurisdiction over habeas corpus cases, the
further action with respect to the consolidated cases before the RTC, Quezon City, lawmakers intended it to be the sole court which can issue writs of habeas corpus.
Branch 86. For these, petitioner's contention regarding the mootness of the To the court a quo, the word "exclusive" apparently cannot be construed any other
impugned Resolutions does not deserve merit. way.

As regards the issue of whether the Court of Appeals committed grave abuse of We disagree with the CA's reasoning because it will result in an iniquitous situation,
discretion in issuing the impugned Resolutions, we rule in the negative. leaving individuals like petitioner without legal recourse in obtaining custody of their
children. Individuals who do not know the whereabouts of minors they are looking for
It is settled doctrine that grave abuse of discretion is present "when there is a would be helpless since they cannot seek redress from family courts whose writs are
capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, enforceable only in their respective territorial jurisdictions. Thus, if a minor is being
such as where the power is exercised in an arbitrary or despotic manner by reason of transferred from one place to another, which seems to be the case here, the
passion or personal hostility, and it must be so patent and gross so as to amount to petitioner in a habeas corpus case will be left without legal remedy. This lack of
an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to recourse could not have been the intention of the lawmakers when they passed the
act at all in contemplation of law."31 Family Courts Act of 1997. x x x

In this case, we perceive no grave abuse of discretion on the part of the Court of xxxx
Appeals. The assailed Resolutions were not issued whimsically nor capriciously. As
alleged in the Petition before the Court of Appeals, Judge Gonzales-Asdala was The primordial consideration is the welfare and best interests of the child. We rule
poised to find private respondent in contempt of court and to issue a bench warrant therefore that RA 8369 did not divest the Court of Appeals and the Supreme Court of
for his arrest should he fail to comply with her Order dated 31 May 2006. Bearing in their jurisdiction over habeas corpus cases involving the custody of minors. x x x34
mind that the validity of said Order has yet to be resolved by the Court of Appeals, it (Emphasis supplied.)
was only proper that the temporary restraining order was issued; otherwise, private
respondent would have suffered irreparable injury should the Court of Appeals It is clear from the foregoing that the trial court, the Court of Appeals, and this Court
decide not to sustain the validity of the 31 May 2006 Order. have concurrent jurisdiction over habeas corpus cases. As the Petition for Habeas
Corpus was filed by petitioner before the trial court, the latter has acquired
Petitioner also prays that we direct the Court of Appeals to effect the writ of habeas jurisdiction over the petition to the exclusion of all others. To hold otherwise would
corpus issued by the RTC, Quezon City, Branch 102, by ordering private respondent be to risk instances where courts of concurrent jurisdiction might have conflicting
to immediately produce the minor child Carlos Iñigo either before the Court of orders.35 And, jurisdiction once acquired by a court is not lost upon the instance of
Appeals itself or the RTC, Quezon City, Branch 86. the parties but continues until the case is terminated.36

This, we cannot do. In view of this, we hold that petitioner's motion for the production of the minor Carlos
Iñigo should be resolved by the trial court. We cannot act on said motion without
It is worthy to recall here the rule with regard to jurisdiction over habeas corpus overstepping the boundary laid down by the law with respect to jurisdiction over
cases which this Court had the opportunity to clarify through In the Matter of habeas corpus cases. Parenthetically, Judge Bay had already acted on a similar
Application for the Issuance of a Writ of Habeas Corpus Richard Brian Thornton for motion filed by petitioner37 and had, in fact, set the hearing of the consolidated cases
and in behalf of the minor child Sequeira Jennifer Delle Francisco Thornton v. Adelfa on 14 July 2006 during which time private respondent should present Carlos Iñigo
Francisco Thornton.32 In said case, we declared that both this Court and the Court of before the trial court.38
Anent the alleged violation of Article 213 of the Family Code, suffice it to state here
that this issue is still the subject of a Motion for Reconsideration pending before the
trial court.

WHEREFORE, premises considered, the instant Petition for Certiorari is hereby