Armáiz v. Santamaría Otero

75 P.R. 544

• Court: Supreme Court of Puerto Rico
• Decided: December 30, 1953
• Docket: No. 10945
• Status: Published

Opinions

Per curiam:

In an action of filiation based on concubinage and possession of status, the Superior Court, Bayamón Part, announced the following

“Findings of Fact and Conclusions of Law and Judgment:

“This is a special filiation case for the purpose of bearing the surname, on the authority of Act No. 243, approved May 12, 1945 (Sess. Laws, p. 814):

“This court already held in 1945, in case R-1517, for support, that the minor Liliana Armáiz was the daughter of Severo Santamaría Otero, with the right to support. This judgment rendered in case R-1517 was affirmed by our Supreme Court.

“The court is of the opinion that the judgment rendered in case R-1517, claiming support, has established the status and adjudged that Liliana Armáiz is the daughter of Severo San-tamaría Otero.

“The court is further of the opinion that, according to Act No. 243 of 1945, it is only necessary to prove that minor Liliana Armáiz is defendant’s daughter in order that, by that fact alone, it may be adjudged that she has the right to bear the father’s surname.

“Defendant’s contention is that it is not enough for the courts to have declared that the minor is defendant’s daughter, since that ruling was only for the purpose of support, and it should now be proven again that she is defendant’s daughter for the purpose of bearing his surname. According to Act No. 243 of 1945, even though the daughter is begotten in adultery, she should be considered as a natural daughter for the purpose of bearing the surname. The court has already ruled that she is defendant’s daughter and, whether or not she is the offspring of the father’s adultery, the Act gives her at least the right to carry the surname of the latter, who now questions this as he did previously in the action for support.

“And it being an uncontrovertible fact that Severo Santa-maría Otero is the minor’s father, that it was so adjudged by this Court in the judgment referred to above, Liliana Armáiz, for the purposes of the filiation suit at bar, continues to be Severo Santamaría Otero’s daughter and is entitled as such, under the law, to bear Severo Santamaría Otero’s surname.

“Wherefore, it is ordered that a marginal note be made in the Vital Statistics Register stating that the minor Liliana Ar-máiz shall bear her father’s surname, which is Santamaría.

“Defendant shall pay the costs, plus $150 for attorney’s fees.”

In his appeal, defendant assigns five errors to the trial court. The third and fourth errors are to the effect that the court erred “in holding that it is sufficient to prove the paternity of Liliana Armáiz in order that she may have the right to bear Severo Santamaria’s surname,” and “in rendering a judgment for plaintiff and against defendant which is not supported by the evidence.”

Plaintiff’s sole purpose in the action of filiation instituted in the instant case was to bear her father’s surname, pursuant to Act No. 229 of 1942 (Sess. Laws, p. 1296), as amended by Act No. 243 of 1945.¹

The only evidence offered by plaintiff and admitted by the court, with defendant’s acquiescence, was the record of the action for support instituted previously by her against the same defendant in the former District Court of Baya-món. In that action the court rendered judgment declaring the plaintiff to be defendant’s daughter and ordering him to pay her the sum of $10 a week for her support. The judgment thus rendered was affirmed by this Court on appeal in a per curiam decision of March 13, 1946.

The errors assigned were committed. An action for support merely determines the paternity of claimant, his needs and the capacity of defendant to meet them, a reasonable sum being fixed for the latter purpose. In an action of filiation, on the contrary, it is not sufficient to determine those particulars only — among which is paternity — but it is necessary to establish also any of the requirements provided by § 125 of the Civil Code.² In Vargas v. Jusino, 71 P.R.R. , which was also instituted under the authority of Act No. 229 of 1942, as amended in 1945, and in which the presumptive father was also married we stated at page 366:

“Said Act only operates prospectively and the acknowledgment authorized under- it, whether voluntary or involuntary, should conform to the provisions of § 125, supra. Elicier v. Heirs of Cautiño, 70 P.R.R. 407; Correa v. Heirs of Pizá, 64 P.R.R. 938. The lawmaker failed to make any distinction betiveen the evidence required in ordinary actions of filiation and in actions of filiation brought by the child for the sole purpose of bearing the surname of his father. Since no distinction luas made, toe must assume that his intention toas that in both kinds of actions the evidence should be the same. . . (Italics ours.)

As far as the filiation was concerned, the evidence offered established the paternity alone but not the concubinage or the possession of status alleged in the complaint. On that evidence alone, the action of filiation should not have prospered.

The judgment appealed from is reversed and the petition dismissed.

Mr. Justice Ortiz did not participate herein.

1 Section 2 of Act No. 229 of 1942, as amended by Act No. 243 of 1945, provides:

“Children born out of wedlock prior to the date this Act takes effect, and who lack the qualifications of natural children according to previous legislation, may be recognized for all legal purposes by the voluntary action of their parents, and in their default, by that of the persons having the right to inherit therefrom. These children will be legitimized by the subsequent marriage of the parents, to each other.

“In case the children referred to in this Section are not recognized by the voluntary action of their parents, and in default of the latter, by that of the persons having the right to inherit therefrom, said children shall be considered as natural children for the sole purpose of bearing the surname of their parents. The action for this recognition shall be prosecuted in accordance with the procedure fixed by the Civil Code of Puerto Rico for the recognition of natural children; It being understood, however, That such a recognition shall only have the scope herein expressed.”

2 Section 125 of the Civil Code, 1930 ed., reads as follows:

“Natural children are those born out of wedlock, from parents who, at the moment when such children were conceived or were born, could have intermarried with or without dispensation.

“The natural child may be recognized by the father and mother conjointly or by one of them only either in the record of birth or in the testament or in any other public instrument.

“The father is obliged to recognize the natural child:

“1. When there exists an indubitable statement in writing of the father wherein he expressly acknowledges his paternity.

“2. Where the child has uninterruptedly enjoyed the condition as of a natural child of the defendant father justified by acts of the same father or of his family.

“3. When the mother was known to have lived in concubinage with the father, both during her pregnancy and at the time of the birth of the child.

“4. When the child may present any authentic evidence of his paternity.

“The mother shall likewise be obliged to recognize a natural child in the same cases as .the father, and further where the act of the confinement and the identity of the child are fully established.

“The child, if of age, cannot be recognized without his consent.

“When the recognition of the minor is not made at the time of recording the birth or in the testament, the approval of the judge of the district court of the district where the child resides,, with the eon? currence of the fiscal, shall be necessary.”