Negrense businessman-lawyer Magdaleno Peña yesterday said he will appeal a recent ruling of the Court of Appeals on a complaint filed against him by his former live-in partner, Marie Roxanne "Plinky" Recto, before the Supreme Court.

Meanwhile, he said, their son will stay with him until the Supreme Court decides on the matter by writ of execution. The CA in Cebu has denied a motion for reconsideration filed by Peña to its decision annulling the temporary protection order granted to him and ordering him to return his 2-year-old son to his mother, Recto, her lead counsel Rowena Guanzon said Wednesday.

Peña said he will file an appeal to the CA ruling by way of certiorari under Rule 45 of the 1997 Rules of Civil procedure before the SC and the decision of the CA will "necessarily be stayed."

"Appeal by certiorari stays the judgment, award or order appealed from," he said.

The main issue he will bring to the SC, he said, will be: Can the CA disobey a direct mandate of the SC Administrative Matters 10-11-04 where it states that a TPO cannot be a subject matter in a certiorari case?"

In short can the CA disobey the SC? he asked.

He said while his appeal is pending his son will stay with him, "Of course the mother is free to visit, everyday if she wants, at my expense."

Peña, in an urgent manifestation filed before the CA in response to its denial to his motion for reconsideration to a Sept. 15 CA decision, said it appears that it never considered his three supplements.

The issue on the custody of the child should be resolved by the Mandaluyong RTC as its proper forum, the CA had ruled. However, in view of the nullity of the Dec. 23 TPO the child should be returned to the temporary custody of his mother pending the resolution by the Mandaluyong RTC of the issue as to who between the disputing parents will have permanent custody, the CA had also ruled.

The Mantaluyong RTC judge had already ruled that the issue of custody of his son was never raised in the case filed by Recto before it thus it will not be resolved in the said civil case, Peña said, pointing out that this was among the maters he raised before the CA.

If the CA had read and evaluated his supplements to the motion for reconsideration it could have taken note of valid grounds that would warrant modification if not total reversal of its decision dated Sept. 15, 2006, he said. Meanwhile, Peña, in a manifestation filed before the Mandaluyong RTC, said Recto's lawyers Viriato and Gauttier Dupaya are intentionally delaying the case she filed against him.*CPG

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