PEREZ V CA (G.R.No. 118870, March 29, 1996)

Facts:

Ray Perez is a doctor practicing in Cebu while Nerissa, his wife, (petitioner) is a registered nurse.  After six miscarriages, two operations and a high-risk pregnancy, Nerissa finally gave birth to Ray Perez II in New York on July 20, 1992. Ray stayed with her in the U.S. twice and took care of her when she became pregnant.  Unlike his wife, however, he had only a tourist visa and was not employed.

On January 17, 1993, the couple and their baby arrived in Cebu.  After a few weeks, only Nerissa returned to the U.S.  She alleged that they came home only for a five-week vacation and that they all had round-trip tickets.  However, her husband stayed behind to take care of his sick mother and promised to follow her with the baby.  According to Ray, they had agreed to reside permanently in the Philippines but once Nerissa was in New York, she changed her mind and continued working.  She was supposed to come back immediately after winding up her affairs there.

When Nerissa came home a few days before Ray II’s first birthday, the couple was no longer on good terms.  They had quarrels. Nerissa did not want to live near her in-laws and rely solely on her husband’s meager income of P5,000.00. On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced his profession.  He maintained that it would not be difficult to live here since they have their own home and a car. Despite mediation by the priest, the couple failed to reconcile.

Nerissa filed a petition to surrender the custody of their son to her.

The trial court issued an Order awarding custody to Nerissa citing the second paragraph of Article 213 of the Family Code which provides that no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

Upon appeal by Ray Perez, the Court of Appeals reversed the trial court’s order and held that granting custody to the boy’s father would be for the child’s best interest and welfare.

Issue:

Who should have rightful custody of a child?

Held:

Nerissa. Aside from Article 213 of the Family Code, the Revised Rules of Court also contains a similar provision. Rule 99, Section 6 (Adoption and Custody of Minors) provides:

“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 questions as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance 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 chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty x x x. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor.” (Italics supplied)

The provisions of law quoted above clearly mandate that a child under seven years of age shall not be separated from his mother unless the court finds compelling reasons to order otherwise.  The use of the word “shall” in Article 213 of the Family Code and Rule 99, Section 6 of the Revised Rules of Court connotes a mandatory character.

The general rule that a child under seven years of age shall not be separated from his mother finds its reason in the basic need of a child for his mother’s loving care. Only the most compelling of reasons shall justify the court’s awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental authority. In the past the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity and being sick with a communicable disease.

It has long been settled that in custody cases, the foremost consideration is always the welfare and best interest of the child. In fact, no less than an international instrument, the Convention on the Rights of the Child provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

In the case, financial capacity is not a determinative factor inasmuch as both parties have demonstrated that they have ample means. Nerissa’s present work schedule is not so unmanageable as to deprive her of quality time with her son.  Quite a number of working mothers who are away from home for longer periods of time are still able to raise a family well, applying time management principles judiciously. Also, delegating child care temporarily to qualified persons who run day-care centers does not detract from being a good mother, as long as the latter exercises supervision, for even in our culture, children are often brought up by housemaids under the eagle eyes of the mother. 

Although Ray’s is a general practitioner, the records show that he maintains a clinic, works for several companies on retainer basis and teaches part-time. He cannot possibly give the love and care that a mother gives to his child.

Brotherhood Labor Unity Movement of the Phil. v. Zamora

Facts:

The petitioners are workers who have been employed at the San Miguel Parola Glass Factory as “pahinantes” or “kargadors” for almost seven years. They worked exclusively at the SMC plant, never having been assigned to other companies or departments of San Miguel Corp, even when the volume of work was at its minimum. Their work was neither regular nor continuous, depending on the volume of bottles to be loaded and unloaded, as well as the business activity of the company. However, work exceeded the eight-hour day and sometimes, necessitated work on Sundays and holidays. -for this, they were neither paid overtime nor compensation.

Sometime in 1969, the workers organized and affiliated themselves with Brotherhood Labor Unity Movement (BLUM). They wanted to be paid to overtime and holiday pay. They pressed the SMC management to hear their grievances. BLUM filed a notice of strike with the Bureau of Labor Relations in connection with the dismissal of some of its members. San Miguel refused to bargain with the union alleging that the workers are not their employees but the employees of an independent labor contracting firm, Guaranteed Labor Contractor.

The workers were then dismissed from their jobs and denied entrance to the glass factory despite their regularly reporting for work. A complaint was filed for illegal dismissal and unfair labor practices.

Issue:

Whether or not there was employer-employee (ER-EE)relationship between the workers and San Miguel Corp.

Held:

YES. In determining if there is an existence of the (ER-EE) relationship, the four-fold test was used by the Supreme Court.  These are:

·         The selection and engagement of the employee

·         Payment of wages

·         Power of dismissal

·         Control Test- the employer’s power to control the employee with respect to the means and methods by which work is to be accomplished

In the case, the records fail to show that San Miguel entered into mere oral agreements of employment with the workers. Considering the length of time that the petitioners have worked with the company, there is justification to conclude that they were engaged to perform activities necessary in the usual business or trade. Despite past shutdowns of the glass plant, the workers promptly returned to their jobs. The term of the petitioner’s employment appears indefinite and the continuity and habituality of the petitioner’s work bolsters the claim of an employee status.

As for the payment of the workers’ wages, the contention that the independent contractors were paid a lump sum representing only the salaries the workers where entitled to have no merit. The amount paid by San Miguel to the contracting firm is no business expense or capital outlay of the latter. What the contractor receives is a percentage from the total earnings of all the workers plus an additional amount from the earnings of each individual worker.

The power of dismissal by the employer was evident when the petitioners had already been refused entry to the premises. It is apparent that the closure of the warehouse was a ploy to get rid of the petitioners, who were then agitating the company for reforms and benefits.

The inter-office memoranda submitted in evidence prove the company’s control over the workers. That San Miguel has the power to recommend penalties or dismissal is the strongest indication of the company’s right of control over the workers as direct employer.

*SC ordered San Miguel to reinstate the petitioners with 3 years backwages.

BIR Ruling 145-98

Facts:

A lot was registered in the name of the Posadas spouses (jointly titled in their names). Juan Posadas (husband) died in an aircraft accident and an agreement was executed by Maria Elena Posadas (wife) that the designated lots shall be exclusively registered in the name of one party only in exchange for the exclusive co-ownership of other lots by the other co-owner. Maria Elena, who was assigned the property, sold the lot to Noel Espina where title to the property should be transferred in his name upon payment of the appropriate taxes.

Issue:

Whether the transaction of Elena and Noel is exempt from capital gains tax.

Held:

The agreement executed by Elena and the administratrix of Juan Posadas in effect partitioned the properties transferring the co-ownership by designating the said properties to each of the said owners. Also, the transfer of title from the co-owners is not a barter, exchange or disposition of realty that would warrant the imposition of capital gains tax.

The dissolution of the co-ownership is not subject to capital gains tax however, that portion of the properties belonging to the deceased owner (in this case Juan) shall be subject to estate tax.

Dison v Posadas

Facts:

Don Felix Dison, before his death, made a gift inter vivos in favor of plaintiff Luis Dison. Luis was the legitimate and only child of Felix. The Collector of Internal Revenue, Juan Posadas Jr. taxed him. Luis filed for the recovery of an inheritance tax in the sum of P2,808.73 paid under protest. He alleged in his complaint that the tax is illegal because he received the property from his father before his death by a deed of gift inter vivos which was duly accepted and registered before the death of his father. He contends that he received and held the property by a consummated gift and that Act No. 2601 being the inheritance tax statute, does not tax gifts.

Issue:

Whether or not Dison should pay inheritance tax.

Held:

Yes. Dison should pay tax. Section 1540 of the Administrative Code is applicable. It states that:

‘Addition of Gifts and Advances- After the aforementioned deductions have been made, there shall be added to the resulting amount the value of all gifts/advances made by the predecessor to any of those, who, after his death, shall prove to be his heirs, devisees, legatees or donees mortis causa.’

That Dison occupies the status of heir to his deceased father cannot be questioned. The conveyance is deemed to be an advancement upon the inheritance which the donee, as the sole and forced heir of the donor, would be entitled to receive upon the death of the donor. The tax has been properly assessed by the CIR.

As regards Act 2601, it is not applicable since the Act does not make any reference to a tax on gifts.