AMELITA CONSTANTINO AND MICHAEL CONSTANTINO, THE LATTER REPRESENTED HEREIN BY THE FORMER, HIS MOTHER AND NATURAL GUARDIAN, PETITIONERS, VS. IVAN MENDEZ AND THE HONOR­ABLE COURT …

This is a petition for review on certiorari questioning
the decision* dated April 30, 1981 of the
Court of Appeals in CA-G.R. No. 61552-R which dismissed petitioner’s complaint
and set aside the resolution** dated
October 21, 1976 of the then Court of First Instance of Davao, 16th Judicial
District, amending the dispositive portion of its decision dated June 21, 1976
and ordering private respondent Ivan Mendez: (1) to acknowledge the minor Michael Constantino as his illegitimate
child; (2) to give a monthly support of P300.00 to the minor child; (3) to pay
complainant Amelita Constantino the sum of P8,200.00 as actual and moral
damages; and (4) to pay attorney’s fees in the sum of P5,000 plus costs.

It appears on record that on June 5, 1975, petitioner Amelita Constantino filed an action for acknowledgment, support and
damages against private respondent Ivan Mendez. The case was filed with the then CFI of Davao, 10th Judicial
District and docketed as Civil Case No. 8881. In her complaint, Amelita Constantino alleges, among others, that
sometime in the month of August, 1974, she met Ivan Mendez at Tony’s Restaurant
located at Sta. Cruz, Manila, where she worked as a waitress; that the day following their first meeting, Ivan
invited Amelita to dine with him at Hotel Enrico where he was billeted; that
while dining, Ivan professed his love and courted Amelita; that Amelita asked
for time to think about Ivan’s proposal; that at about 11:00 o’clock in the
evening, Amelita asked Ivan to bring her home to which the latter agreed, that
on the pretext of getting something, Ivan brought Amelita inside his hotel room
and through a promise of marriage succeeded in having sexual intercourse with
the latter; that after the sexual contact, Ivan confessed to Amelita that he is
a married man; that they repeated their sexual contact in the months of
September and November, 1974, whenever Ivan is in Manila, as a result of which
Amelita got pregnant; that her pleas for help and support fell on deaf ears; that Amelita had no sexual
relations with any other man except Ivan who is the father of the child yet to
be born at the time of the filing of the complaint; that because of her
pregnancy, Amelita was forced to
leave her work as a waitress; that Ivan is a prosperous businessman of Davao
City with a monthly income of P5,000 to P8,000. As relief, Amelita prayed for the recognition of the unborn
child, the payment of actual, moral and exem­plary damages, attorney’s fees
plus costs.

In his answer dated August 5, 1975, Ivan admitted that he met
Amelita at Tony’s Cocktail Lounge but denied having sexual knowledge or illicit
relations with her. He prayed for the
dismissal of the complaint for lack of cause of action. By way
of counterclaim, he further prayed for the payment of exemplary damages and
litigation expense including attorney’s fees for the filing of the malicious
complaint.

On September 1, 1975, Amelita Constantino filed a motion for
leave to amend the complaint impleading as co-plaintiff her son Michael
Constantino who was born on August 3, 1975. In its order dated September 4, 1975, the trial court admit­ted the
amended complaint.

On September 11, 1975, Ivan Mendez filed his answer to the
amended complaint reiterating his previous answer denying that Michael
Constantino is his illegitimate son.

After hearing, the trial court rendered a decision dated June 21,
1976, the dispositive portion of which reads, viz:

“WHEREFORE, in view of the foregoing, judgment is hereby rendered
in favor of plaintiff Amelita Constantino and against defendant Ivan Mendez,
ordering the latter to pay Amelita Constan­tino the sum of P8,000.00 by way of
actual and moral damages; and, the sum of P3,000.00, as and by way of
attorney’s fees. The defendant shall
pay the costs of this suit.

SO ORDERED.”

From the above decision, both parties filed their separate motion
for reconsideration. Ivan Mendez
anchored his motion on the ground that
the award of damages was not supported by evidence. Amelita Constantino, on the other hand, sought the recognition and support
of her son Michael Constantino as the illegitimate son of Ivan Mendez.

In its resolution dated October 21, 1976, the trial court granted
Amelita Constantino’s motion for reconsideration,
and amended the dispositive portion of its decision dated June 21, 1976 to read as follows, viz:

“WHEREFORE, in view of the foregoing, judg­ment is hereby rendered
in favor of plaintiff Amelita Constantino and plaintiff-minor Michael
Constantino, and against defendant Ivan Mendez ordering the latter to pay
Amelita Constantino the sum of P8,000.00 by way of actual and moral damages and
the sum of P200.00 as and by way of payment of the hospital and medical bills
incurred during the delivery of plaintiff-minor Michael Constantino; to
recognize as his own illegitimate child the plaintiff-minor Michael Constantino
who shall be entitled to all the rights, privileges and benefits appertaining
to a child of such status; to give a permanent monthly support in favor of
plaintiff Michael Constantino the amount of P300.00; and the sum of P5,000.00,
as and by way of attorney’s fees. The
defendant shall pay the costs of this suit.

Let this Order form part of the decision dated June 21, 1976.

SO ORDERED.”

On appeal to the Court of Appeals, the above amended decision was
set aside and the complaint was dismissed. Hence, this petition for review.

Basically, the issue to be resolved in the case at bar is whether
or not the Court of Appeals committed a reversible error in setting aside the decision of the
trial court and in dismissing the complaint.

Petitioners contend that the Court of Appeals erred in reversing
the factual findings of the trial court and in not affirming the decision of
the trial court. They also pointed out
that the appellate court committed a misapprehen­sion of facts when it
concluded that Ivan did not have sexual access with Amelita during the first or
second week of November, 1976 (should be 1974), the time of the conception of
the child.

It must be stressed at the outset that factual findings of the
trial court have only a persuasive and not a conclu­sive effect on the Court of
Appeals. In the exercise of its
appellate jurisdiction, it is the duty of the Court of Appeals to review the
factual findings of the trial court and rectify the errors it committed as may
have been properly assigned and as could be established by a re-examination of
the evidence on record. It is the
factual findings of the Court of Appeals, not those of the trial court, that as
a rule are considered final and conclusive even on this Court (Hermo v. Hon.
Court of Appeals, et al., 155 SCRA 24 [1987]). This being a petition for certiorari under Rule 45 of the Rules
of Court, this Court will review only errors of law committed by the Court of
Appeals. It is not the function of this
Court to re-examine all over again the oral and documentary evidence submitted
by the parties unless the findings of facts of the Court of Appeals is not sup­ported
by the evidence on record or the
judgment is based on misapprehension of facts (Remalante v. Tibe, et al., 158
SCRA 138 [1988]; Hernandez v. Court of Appeals, et al., 149 SCRA 97 [1987]).

It is the conclusion of the Court of Appeals, based on the
evidence on record, that Amelita Constantino has not proved by clear and
convincing evidence her claim that Ivan Mendez is the father of her son Michael
Constantino. Such conclusion based on
the evaluation of the evidence on record is controlling on this Court as the
same is supported by the evidence on record. Even the trial court initially entertained such posture. It ordered the recognition of Michael as the
illegitimate son of Ivan only when acting on the mo­tions for reconsideration,
it reconsidered, on October 21,1976, its earlier decision dated June 21,
1976. Amelita’s testimony on
cross-examination that she had sexual contact with Ivan in Manila in the first
or second week of November, 1974 (TSN, December 8, 1975, p. 108) is
inconsistent with her response that she could not remember the date of their
last sexual intercourse in November, 1974 (Ibid, p. 106). Sexual contact of Ivan and Amelita in the
first or second week of November, 1974 is the crucial point that was not even
established on direct examination as she merely testi­fied that she had sexual
intercourse with Ivan in the months of September, October and November, 1974.

Michael Constantino is a full-term baby born on August 3, 1975
(Exhibit 6) so that as correctly pointed out by private respondent’s counsel,
citing medical science (Williams Obstetrics, Tenth Ed., p. 198) to the effect
that “the mean duration of actual pregnancy, counting from the day of
conception must be close to 267 days”, the conception of the child (Michael)
must have taken place about 267 days before August 3, 1975 or sometime in the
second week of November, 1974. While Amelita
testified that she had sexual contact with Ivan in November, 1974, nevertheless
said testi­mony is contradicted by her own evidence (Exh. F), the letter dated
February 11, 1975, addressed to Ivan Mendez requesting for a conference,
prepared by her own counsel Atty. Roberto Sarenas to whom she must have
confided the attendant circumstances of her pregnancy while still fresh in her
memory, informing Ivan that Amelita is four (4) months pregnant so that
applying the period of the duration of actual pregnancy, the child was
conceived on or about October 11, 1974.

Petitioner’s assertion that Ivan is her first and only boyfriend (TSN, December 8, 1975, p. 65)
is belied by Exhibit 2, her own letter addressed to Mrs. Mendez where she
revealed the reason for her attachment to Ivan who possessed certain traits not
possessed by her boyfriend. She also
confided that she had a quarrel with her boyfriend because of gossips so she
left her work. An order for recognition
and support may create an unwholesome atmosphere or may be an irritant in the
family or lives of the parties so that it must be issued only if paternity or filiation is established by clear
and convincing evidence. The burden of
proof is on Amelita to establish her affirmative allegations that Ivan is the
father of her son. Consequently, in the
absence of clear and convincing evidence establishing paternity or filiation,
the complaint must be dismissed.

As regards Amelita’s claim for damages which is based on Articles19* & 21** of the
Civil Code on the theory that through Ivan’s promise of marriage, she
surrendered her vir­ginity, we cannot but agree with the Court of Appeals that mere sexual intercourse is not by
itself a basis for re­covery. Damages
could only be awarded if sexual intercourse is not a product of voluntariness
and mutual desire. At the time she met
Ivan at Tony’s Restaurant, Amelita was already 28 years old and she admitted
that she was attracted to Ivan (TSN, December 8, 1975, p.
83). Her attraction to Ivan is the reason
why she surrendered her womanhood. Had
she been induced or deceived because of a promise of marriage, she could have
immediately severed her relation with Ivan when she was informed after their
first sexual contact sometime in August, 1974, that he was a married man. Her declaration that in the months of September, October and November, 1974, they
repeated their sexual intercourse only indicates that passion and not the
alleged promise of mar­riage was the moving
force that made her submit herself to Ivan.

WHEREFORE, the instant petition is Dismissed for lack of
merit.

SO ORDERED.

Gutierrez, Jr., (Chairman), Feliciano, Davide, Jr., and Romero, JJ., concur.

* Penned by Associate Justice Simeon Gopengco and concurred in by Associate Justices Oscar Victoriano
and Jose Melo

** Issued by Judge Antonio M.
Martinez

* Article 19. Every person must, in the exercise of his rights and in the performance
of his duties, act with justice, give everyone his due, and observe honesty and
good faith.

** Article 21. Any person who wilfully causes loss or injury to another in a manner
that is contrary to mo­rals, good customs or public policy shall compensate the
latter for damages.