The former lover of fitness expert Marie Roxanne "Plinky" Recto is asking the Court of Appeals to deny her motion for the immediate execution of its Sept. 15 decision for lack of merit and to allow a Regional Trial Court of Bacolod judge to proceed with the trial of a case he filed for child custody and damages.

Negrense businessman-lawyer Magdaleno Peña and Recto have been battling for the custody of their two-year old son since their separation last year, and he currently has the child.

The CA had annulled on Sept. 15 the temporary protection order granted Peña and ordered him to return the boy to Recto.

The CA ruling penned by Justice Marlene Gonzales-Sison said the issue on the custody of the child should be resolved by the Mandaluyong RTC as its proper forum.

The CA ruling also said the settled rule is "that the mother of an illegitimate child has the sole parental authority over such child, she is thus entitled to have custody of him, and it is only for the most compelling of reasons that the mother can be deprived of such parental authority and the award of custody to someone else."

However, Peña, in his Jan. 2 comment to Recto's motion for early resolution and for immediate execution of the CA decision, cited the Dec. 27 ruling of Mandaluyong City RTC Judge Edwin Sorongon denying Recto's motion to consider custody in the case she filed that was pending before his court.

"There is no clear, definite and categorical statement in the preliminary conference order which states that custody is one of the issues to be resolved," Sorongon said.

The only matter up for consideration, the judge said, is Recto's petition for a Temporary Protection Order.

Peña told the CA that Sorongon, in his Dec. 27 order, confirmed his position that the issue of custody was never raised and tried before the Mandaluyong court.

For this reason, Peña said the CA ruling that the case for custody must be threshed out before the Mandaluyong RTC, is rendered moot and academic.

He also pointed out that the Supreme Court ordered that his case for child custody, originally filed before the Bago City RTC, should be tried by a pairing judge of the Bacolod RTC.

Peña, in his comment, also refuted Recto's stand that, under prevailing law the rightful custody of an illegitimate child belongs to the mother only, citing provisions of the new Family Code.

In his comment before the CA, Pena also claimed that Recto has become bankrupt due to financial and business reverses, especially in her fitness gym business.

He also claimed that she is selling her house in Quezon City and is leaving for the United States.

With these developments, it has become more apparent that she is not in a financial situation to have custody of their son, he told the CA.

Recto's lawyer could not be reached for comment as of press time yesterday.*CPG

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