Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 116607 April 10, 1996 EMILIO R. TUASON, petitioner, vs. COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents.

PUNO, J.:p This petition for review on certiorari seeks to annul and set aside the decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying petitioner's appeal from an order of the Regional Trial Court, Branch 149, Makati in Civil Case No. 3769. This case arose from the following facts: In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional Trial Court, Branch 149, Makati a petition for annulment or declaration of nullity of her marriage to petitioner Emilio R. Tuason. In her complaint, private respondent alleged that she and petitioner were married on June 3, 1972 and from this union, begot two children; that at the time of the marriage, petitioner was already psychologically incapacitated to comply with his essential marital obligations which became manifest afterward and resulted in violent fights between husband and wife; that in one of their fights, petitioner inflicted physical injuries on private respondent which impelled her to file a criminal case for physical injuries against him; that petitioner used prohibited drugs, was apprehended by the authorities and sentenced to a one-year suspended penalty and has not been rehabilitated; that petitioner was a womanizer, and in 1984, he left the conjugal home and cohabited with three women in succession, one of whom he presented to the public as his wife; that after he left the conjugal dwelling, petitioner gave minimal support to the family and even refused to pay for the tuition fees of their children compelling private respondent to accept donations and dole-outs from her family and friends; that petitioner likewise became a spendthrift and abused his administration of the conjugal partnership by alienating some of their assets and incurring large obligations with banks, credit card companies and other financial institutions, without private respondent's consent; that attempts at reconciliation were made but they all failed because of petitioner's refusal to reform. In addition to her prayer for annulment of marriage, private respondent prayed for powers of administration to save the conjugal properties from further dissipation. 1

Petitioner answered denying the imputations against him. As affirmative defense, he claimed that he and private respondent were a normal married couple during the first ten years of their marriage and actually begot two children during this period; that it was only in 1982 that they began to have serious personal differences when his wife did not accord the respect and dignity due him as a husband but treated him like a persona non grata; that due to the "extreme animosities " between them, he temporarily left the conjugal home for a "cooling-off period" in 1984; that it is private respondent who had been taking prohibited drugs and had a serious affair with another man; that petitioner's work as owner and operator of a radio and television station exposed him to malicious gossip linking him to various women in media and the entertainment world; and that since 1984, he experienced financial reverses in his business and was compelled, with the knowledge of his wife, to dispose of some of the conjugal shares in exclusive golf and country clubs. Petitioner petitioned the court to allow him to return to the conjugal home and continue his administration of the conjugal partnership. After the issues were joined, trial commenced on March 30, 1990. Private respondent presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law expert and marriage counselor of both private respondent and petitioner; Ms. Adelita Prieto, a close friend of the spouses, and Atty. Jose F. Racela IV, private respondent's counsel. Private respondent likewise submitted documentary evidence consisting of newspaper articles of her husband's relationship with other women, his apprehension by the authorities for illegal possession of drugs; and copies of a prior a church annulment decree. 2 The parties' marriage was clerically annulled by the Tribunal Metropolitanum Matrimonial which was affirmed by the National Appellate Matrimonial Tribunal in 1986. 3 During presentation of private respondent's evidence, petitioner, on April 18, 1990, filed his Opposition to private respondent's petition for appointment as administratrix of the conjugal partnership of gains. After private respondent rested her case, the trial court scheduled the reception of petitioner's evidence on May 11, 1990. On May 8, 1990, two days before the scheduled hearing , a counsel for petitioner moved for a postponement on the ground that the principal counsel was out of the country and due to return on the first week of June. 4 The court granted the motion and reset the hearing to June 8, 1990. 5 On June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the court declared petitioner to have waived his right to present evidence and deemed the case submitted for decision on the basis of the evidence presented. On June 29, 1990, the trial court rendered judgment declaring the nullity of private respondent's marriage to petitioner and awarding custody of the children to private respondent. The court ruled:
WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L. Tuason and Emilio R. Tuason on June 3, 1972 is declared null and void ab initio on the

ground of psychological incapacity on the part of the defendant under Sec. 36 of the Family Code. Let herein judgment of annulment be recorded in the registry of Mandaluyong, Metro Manila where the marriage was contracted and in the registry of Makati, Metro Manila where the marriage is annulled. The custody of the two (2) legitimate children of the plaintiff and the defendant is hereby awarded to the plaintiff. The foregoing judgment is without prejudice to the application of the other effects of annulment as provided for under Arts . 50 and 51 of the Family Code of the Philippines. 6

Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal was taken from the decision. On September 24, 1990, private respondent filed a "Motion for Dissolution of Conjugal Partnership of Gains and Adjudication to Plaintiff of the Conjugal Properties." 7 Petitioner opposed the motion on October 17, 1990. 8 Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the trial court a petition for relief from judgment of the June 29, 1990 decision. The trial court denied the petition on August 8, 1991. 9 Petitioner appealed before the Court of Appeals the order of the trial court denying his petition for relief from judgment. On July 29, 1994, the Court of Appeals dismissed the appeal and affirmed the order of the trial court. 10 Hence this petition. The threshold issue is whether a petition for relief from judgment is warranted under the circumstances of the case. We rule in the negative. A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court which provides:
Sec. 2. Petition to Court of First Instance for relief from judgment or other proceeding thereof. When a judgment or order is entered, or any other proceeding is taken, against a party in a Court of First Instance through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same cause praying that the judgment, order or proceeding be set aside.

Under the rules, a final and executory judgment or order of the Regional Trial Court may be set aside on the ground of fraud, accident, mistake or excusable negligence. In addition, the petitioner must assert facts showing that he has a good, substantial and meritorious defense or cause of action. 11 If the petition is granted, the court shall

proceed to hear and determine the case as if a timely motion for new trial had been granted therein. 12 In the case at bar, the decision annulling petitioner's marriage to private respondent had already become final and executory when petitioner failed to appeal during the reglementary period. Petitioner however claims that the decision of the trial court was null and void for violation of his right to due process. He contends he was denied due process when, after failing to appear on two scheduled hearings, the trial court deemed him to have waived his right to present evidence and rendered judgment on the basis of the evidence for private respondent. Petitioner justifies his absence at the hearings on the ground that he was then "confined for medical and/or rehabilitation reason." 13 In his affidavit of merit before the trial court, he attached a certification by Lt. Col. Plaridel F. Vidal, Director of the Narcotics Command, Drug Rehabilitation Center which states that on March 27, 1990 petitioner was admitted for treatment of drug dependency at the Drug Rehabilitation Center at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of the Philippine Constabulary-Integrated National Police. 14 The records, however, show that the former counsel of petitioner did not inform the trial court of this confinement. And when the court rendered its decision, the same counsel was out of the country for which reason the decision became final and executory as no appeal was taken therefrom. 15 The failure of petitioner's counsel to notify him on time of the adverse judgment to enable him to appeal therefrom is negligence which is not excusable. Notice sent to counsel of record is binding upon the client and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of his right to appeal is not a ground for setting aside a judgment valid and regular on its face. 16 Similarly inexcusable was the failure of his former counsel to inform the trial court of petitioner's confinement and medical treatment as the reason for his non-appearance at the scheduled hearings. Petitioner has not given any reason why his former counsel, intentionally or unintentionally, did not inform the court of this fact. This led the trial court to order the case deemed submitted for decision on the basis of the evidence presented by the private respondent alone. To compound the negligence of petitioner's counsel, the order of the trial court was never assailed via a motion for reconsideration. Clearly, petitioner cannot now claim that he was deprived of due process. He may have lost his right to present evidence but he was not denied his day in court. As the record show, petitioner, through counsel, actively participated in the proceedings below. He filed his answer to the petition, cross-examined private respondent's witnesses and even submitted his opposition to private respondent's motion for dissolution of the conjugal partnership of gains. 17 A petition for relief from judgment is an equitable remedy; it is allowed only in exception cases where there is no other available or adequate remedy. When a party has another remedy available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial or appeal from an adverse decision of the trial court, and he was not prevented

by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition. 18 Indeed, relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to appeal which had been lost thru inexcusable negligence. 19 Petitioner also insists that he has a valid and meritorious defense. He cites the Family Code which provides that in actions for annulment of marriage or legal separation, the prosecuting officer should intervene for the state because the law "looks with disfavor upon the haphazard declaration of annulment of marriages by default." He contends that when he failed to appear at the scheduled hearings, the trial court should have ordered the prosecuting officer to intervene for the state and inquire as to the reason for his non-appearance. 20 Articles 48 and 60 of the Family Code read as follows:
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecution attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. xxx xxx xxx Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. 21

A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion. 22 Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the state for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties. 23 The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated. 24 Our Constitution is committed to the policy of strengthening the family as a basic social institution. 25 Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the state is vitally interested. The state can find no stronger anchor than on good, solid and happy families. The break up of families weakens our social and moral fabric and, hence, their preservation is not the concern alone of the family members.

The facts in the case at bar do not call for the strict application of Articles 48 and 60 of the Family Code. For one, petitioner was not declared in default by the trial court for failure to answer. Petitioner filed his answer to the complaint and contested the cause of action alleged by private respondent. He actively participated in the proceedings below by filing several pleadings and cross-examining the witnesses of private respondent. It is crystal clear that every stage of the litigation was characterized by a no-holds barred contest and not by collusion. The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation proceedings is to determine whether collusion exists between the parties and to take care that the evidence is not suppressed or fabricated. Petitioner's vehement opposition to the annulment proceedings negates the conclusion that collusion existed between the parties. There is no allegation by the petitioner that evidence was suppressed or fabricated by any of the parties. Under these circumstances, we are convinced that the non-intervention of a prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in the trial court. Petitioner also refutes the testimonies of private respondent's witnesses, particularly Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and hearsay. Petitioner alleges that if he were able to present his evidence, he could have testified that he was not psychologically incapacitated at the time of the marriage as indicated by the fact that during their first ten years, he and private respondent lived together with their children as one normal and happy family, that he continued supporting his family even after he left the conjugal dwelling and that his work as owner and operator of a radio and television corporation places him in the public eye and makes him a good subject for malicious gossip linking him with various women. These facts, according to petitioner, should disprove the ground for annulment of his marriage to petitioner. Suffice it to state that the finding of the trial court as to the existence or non-existence of petitioner's psychological incapacity at the time of the marriage is final and binding on us. 26 Petitioner has not sufficiently shown that the trial court's factual findings and evaluation of the testimonies of private respondent's witnesses vis-a-vis petitioner's defenses are clearly and manifestly erroneous. 27 IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 is affirmed. Regalado, Romero and Mendoza, JJ., concur. Torres, Jr., J., is on leave.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 161793 February 13, 2009

EDWARD KENNETH NGO TE, Petitioner, vs. ROWENA ONG GUTIERREZ YU-TE, Respondent, REPUBLIC OF THE PHILIPPINES, Oppositor. DECISION NACHURA, J.: Far from novel is the issue involved in this petition. Psychological incapacity, since its incorporation in our laws, has become a clichd subject of discussion in our jurisprudence. The Court treats this case, however, with much ado, it having realized that current jurisprudential doctrine has unnecessarily imposed a perspective by which psychological incapacity should be viewed, totally inconsistent with the way the concept was formulatedfree in form and devoid of any definition. For the resolution of the Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the August 5, 2003 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 71867. The petition further assails the January 19, 2004 Resolution2 denying the motion for the reconsideration of the challenged decision. The relevant facts and proceedings follow. Petitioner Edward Kenneth Ngo Te first got a glimpse of respondent Rowena Ong Gutierrez YuTe in a gathering organized by the Filipino-Chinese association in their college. Edward was then initially attracted to Rowenas close friend; but, as the latter already had a boyfriend, the young man decided to court Rowena. That was in January 1996, when petitioner was a sophomore student and respondent, a freshman.3 Sharing similar angst towards their families, the two understood one another and developed a certain degree of closeness towards each other. In March 1996, or around three months after their first meeting, Rowena asked Edward that they elope. At first, he refused, bickering that he was young and jobless. Her persistence, however, made him relent. Thus, they left Manila and sailed to Cebu that month; he, providing their travel money and she, purchasing the boat ticket.4

However, Edwards P80,000.00 lasted for only a month. Their pension house accommodation and daily sustenance fast depleted it. And they could not find a job. In April 1996, they decided to go back to Manila. Rowena proceeded to her uncles house and Edward to his parents home. As his family was abroad, and Rowena kept on telephoning him, threatening him that she would commit suicide, Edward agreed to stay with Rowena at her uncles place.5 On April 23, 1996, Rowenas uncle brought the two to a court to get married. He was then 25 years old, and she, 20.6 The two then continued to stay at her uncles place where Edward was treated like a prisonerhe was not allowed to go out unaccompanied. Her uncle also showed Edward his guns and warned the latter not to leave Rowena.7 At one point, Edward was able to call home and talk to his brother who suggested that they should stay at their parents home and live with them. Edward relayed this to Rowena who, however, suggested that he should get his inheritance so that they could live on their own. Edward talked to his father about this, but the patriarch got mad, told Edward that he would be disinherited, and insisted that Edward must go home.8 After a month, Edward escaped from the house of Rowenas uncle, and stayed with his parents. His family then hid him from Rowena and her family whenever they telephoned to ask for him.9 In June 1996, Edward was able to talk to Rowena. Unmoved by his persistence that they should live with his parents, she said that it was better for them to live separate lives. They then parted ways.10 After almost four years, or on January 18, 2000, Edward filed a petition before the Regional Trial Court (RTC) of Quezon City, Branch 106, for the annulment of his marriage to Rowena on the basis of the latters psychological incapacity. This was docketed as Civil Case No. Q-0039720.11 As Rowena did not file an answer, the trial court, on July 11, 2000, ordered the Office of the City Prosecutor (OCP) of Quezon City to investigate whether there was collusion between the parties.12 In the meantime, on July 27, 2000, the Office of the Solicitor General (OSG) entered its appearance and deputized the OCP to appear on its behalf and assist it in the scheduled hearings.13 On August 23, 2000, the OCP submitted an investigation report stating that it could not determine if there was collusion between the parties; thus, it recommended trial on the merits.14 The clinical psychologist who examined petitioner found both parties psychologically incapacitated, and made the following findings and conclusions: BACKGROUND DATA & BRIEF MARITAL HISTORY: EDWARD KENNETH NGO TE is a [29-year-old] Filipino male adult born and baptized Born Again Christian at Manila. He finished two years in college at AMA Computer College last 1994 and is currently unemployed. He is married to and separated from ROWENA GUTIERREZ YUTE. He presented himself at my office for a psychological evaluation in relation to his petition

for Nullification of Marriage against the latter by the grounds of psychological incapacity. He is now residing at 181 P. Tuazon Street, Quezon City. Petitioner got himself three siblings who are now in business and one deceased sister. Both his parents are also in the business world by whom he [considers] as generous, hospitable, and patient. This said virtues are said to be handed to each of the family member. He generally considers himself to be quiet and simple. He clearly remembers himself to be afraid of meeting people. After 1994, he tried his luck in being a Sales Executive of Mansfield International Incorporated. And because of job incompetence, as well as being quiet and loner, he did not stay long in the job until 1996. His interest lie[s] on becoming a full servant of God by being a priest or a pastor. He [is] said to isolate himself from his friends even during his childhood days as he only loves to read the Bible and hear its message. Respondent is said to come from a fine family despite having a lazy father and a disobedient wife. She is said to have not finish[ed] her collegiate degree and shared intimate sexual moments with her boyfriend prior to that with petitioner. In January of 1996, respondent showed her kindness to petitioner and this became the foundation of their intimate relationship. After a month of dating, petitioner mentioned to respondent that he is having problems with his family. Respondent surprisingly retorted that she also hates her family and that she actually wanted to get out of their lives. From that [time on], respondent had insisted to petitioner that they should elope and live together. Petitioner hesitated because he is not prepared as they are both young and inexperienced, but she insisted that they would somehow manage because petitioner is rich. In the last week of March 1996, respondent seriously brought the idea of eloping and she already bought tickets for the boat going to Cebu. Petitioner reluctantly agreed to the idea and so they eloped to Cebu. The parties are supposed to stay at the house of a friend of respondent, but they were not able to locate her, so petitioner was compelled to rent an apartment. The parties tried to look for a job but could not find any so it was suggested by respondent that they should go back and seek help from petitioners parents. When the parties arrived at the house of petitioner, all of his whole family was all out of the country so respondent decided to go back to her home for the meantime while petitioner stayed behind at their home. After a few days of separation, respondent called petitioner by phone and said she wanted to talk to him. Petitioner responded immediately and when he arrived at their house, respondent confronted petitioner as to why he appeared to be cold, respondent acted irrationally and even threatened to commit suicide. Petitioner got scared so he went home again. Respondent would call by phone every now and then and became angry as petitioner does not know what to do. Respondent went to the extent of threatening to file a case against petitioner and scandalize his family in the newspaper. Petitioner asked her how he would be able to make amends and at this point in time[,] respondent brought the idea of marriage. Petitioner[,] out of frustration in life[,] agreed to her to pacify her. And so on April 23, 1996, respondents uncle brought the parties to Valenzuela[,] and on that very same day[,] petitioner was made to sign the Marriage Contract before the Judge. Petitioner actually never applied for any Marriage License. Respondent decided that they should stay first at their house until after arrival of the parents of petitioner. But when the parents of petitioner arrived, respondent refused to allow petitioner to go home. Petitioner was threatened in so many ways with her uncle showing to him many guns.

Respondent even threatened that if he should persist in going home, they will commission their military friends to harm his family. Respondent even made petitioner sign a declaration that if he should perish, the authorities should look for him at his parents[ and relatives[ houses. ] ] Sometime in June of 1996, petitioner was able to escape and he went home. He told his parents about his predicament and they forgave him and supported him by giving him military escort. Petitioner, however, did not inform them that he signed a marriage contract with respondent. When they knew about it[,] petitioner was referred for counseling. Petitioner[,] after the counseling[,] tried to contact respondent. Petitioner offered her to live instead to[sic] the home of petitioners parents while they are still studying. Respondent refused the idea and claimed that she would only live with him if they will have a separate home of their own and be away from his parents. She also intimated to petitioner that he should already get his share of whatever he would inherit from his parents so they can start a new life. Respondent demanded these not knowing [that] the petitioner already settled his differences with his own family. When respondent refused to live with petitioner where he chose for them to stay, petitioner decided to tell her to stop harassing the home of his parents. He told her already that he was disinherited and since he also does not have a job, he would not be able to support her. After knowing that petitioner does not have any money anymore, respondent stopped tormenting petitioner and informed petitioner that they should live separate lives. The said relationship between Edward and Rowena is said to be undoubtedly in the wreck and weakly-founded. The break-up was caused by both parties[] unreadiness to commitment and their young age. He was still in the state of finding his fate and fighting boredom, while she was still egocentrically involved with herself. TESTS ADMINISTERED: Revised Beta Examination Bender Visual Motor Gestalt Test Draw A Person Test Rorschach Psychodiagnostic Test Sachs Sentence Completion Test MMPI TEST RESULTS & EVALUATION: Both petitioner and respondent are dubbed to be emotionally immature and recklessly impulsive upon swearing to their marital vows as each of them was motivated by different notions on marriage. Edward Kenneth Ngo Te, the petitioner in this case[,] is said to be still unsure and unready so as to commit himself to marriage. He is still founded to be on the search of what he wants in life.

He is absconded as an introvert as he is not really sociable and displays a lack of interest in social interactions and mingling with other individuals. He is seen too akin to this kind of lifestyle that he finds it boring and uninteresting to commit himself to a relationship especially to that of respondent, as aggravated by her dangerously aggressive moves. As he is more of the reserved and timid type of person, as he prefer to be religiously attached and spend a solemn time alone. ROWENA GUTIERREZ YU-TE, the respondent, is said to be of the aggressive-rebellious type of woman. She is seen to be somewhat exploitative in her [plight] for a life of wealth and glamour. She is seen to take move on marriage as she thought that her marriage with petitioner will bring her good fortune because he is part of a rich family. In order to have her dreams realized, she used force and threats knowing that [her] husband is somehow weak-willed. Upon the realization that there is really no chance for wealth, she gladly finds her way out of the relationship. REMARKS: Before going to marriage, one should really get to know himself and marry himself before submitting to marital vows. Marriage should not be taken out of intuition as it is profoundly a serious institution solemnized by religious and law. In the case presented by petitioner and respondent[,] (sic) it is evidently clear that both parties have impulsively taken marriage for granted as they are still unaware of their own selves. He is extremely introvert to the point of weakening their relationship by his weak behavioral disposition. She, on the other hand[,] is extremely exploitative and aggressive so as to be unlawful, insincere and undoubtedly uncaring in her strides toward convenience. It is apparent that she is suffering the grave, severe, and incurable presence of Narcissistic and Antisocial Personality Disorder that started since childhood and only manifested during marriage. Both parties display psychological incapacities that made marriage a big mistake for them to take.15 The trial court, on July 30, 2001, rendered its Decision16 declaring the marriage of the parties null and void on the ground that both parties were psychologically incapacitated to comply with the essential marital obligations.17 The Republic, represented by the OSG, timely filed its notice of appeal.18 On review, the appellate court, in the assailed August 5, 2003 Decision19 in CA-G.R. CV No. 71867, reversed and set aside the trial courts ruling.20 It ruled that petitioner failed to prove the psychological incapacity of respondent. The clinical psychologist did not personally examine respondent, and relied only on the information provided by petitioner. Further, the psychological incapacity was not shown to be attended by gravity, juridical antecedence and incurability. In sum, the evidence adduced fell short of the requirements stated in Republic v. Court of Appeals and Molina21 needed for the declaration of nullity of the marriage under Article 36 of the Family Code.22 The CA faulted the lower court for rendering the decision without the required certification of the OSG briefly stating therein the OSGs reasons for its agreement with or opposition to, as the case may be, the petition.23 The CA later denied petitioners motion for reconsideration in the likewise assailed January 19, 2004 Resolution.24

Dissatisfied, petitioner filed before this Court the instant petition for review on certiorari. On June 15, 2005, the Court gave due course to the petition and required the parties to submit their respective memoranda.25 In his memorandum,26 petitioner argues that the CA erred in substituting its own judgment for that of the trial court. He posits that the RTC declared the marriage void, not only because of respondents psychological incapacity, but rather due to both parties psychological incapacity. Petitioner also points out that there is no requirement for the psychologist to personally examine respondent. Further, he avers that the OSG is bound by the actions of the OCP because the latter represented it during the trial; and it had been furnished copies of all the pleadings, the trial court orders and notices.27 For its part, the OSG contends in its memorandum,28 that the annulment petition filed before the RTC contains no statement of the essential marital obligations that the parties failed to comply with. The root cause of the psychological incapacity was likewise not alleged in the petition; neither was it medically or clinically identified. The purported incapacity of both parties was not shown to be medically or clinically permanent or incurable. And the clinical psychologist did not personally examine the respondent. Thus, the OSG concludes that the requirements in Molina29 were not satisfied.30 The Court now resolves the singular issue of whether, based on Article 36 of the Family Code, the marriage between the parties is null and void.31 I. We begin by examining the provision, tracing its origin and charting the development of jurisprudence interpreting it. Article 36 of the Family Code32 provides: Article 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. As borne out by the deliberations of the Civil Code Revision Committee that drafted the Family Code, Article 36 was based on grounds available in the Canon Law. Thus, Justice Flerida Ruth P. Romero elucidated in her separate opinion in Santos v. Court of Appeals:33 However, as a member of both the Family Law Revision Committee of the Integrated Bar of the Philippines and the Civil Code Revision Commission of the UP Law Center, I wish to add some observations. The letter dated April 15, 1985 of then Judge Alicia V. Sempio-Diy written in behalf of the Family Law and Civil Code Revision Committee to then Assemblywoman Mercedes Cojuangco-Teodoro traced the background of the inclusion of the present Article 36 in the Family Code.

"During its early meetings, the Family Law Committee had thought of including a chapter on absolute divorce in the draft of a new Family Code (Book I of the Civil Code) that it had been tasked by the IBP and the UP Law Center to prepare. In fact, some members of the Committee were in favor of a no-fault divorce between the spouses after a number of years of separation, legal or de facto. Justice J.B.L. Reyes was then requested to prepare a proposal for an action for dissolution of marriage and the effects thereof based on two grounds: (a) five continuous years of separation between the spouses, with or without a judicial decree of legal separation, and (b) whenever a married person would have obtained a decree of absolute divorce in another country. Actually, such a proposal is one for absolute divorce but called by another name. Later, even the Civil Code Revision Committee took time to discuss the proposal of Justice Reyes on this matter. Subsequently, however, when the Civil Code Revision Committee and Family Law Committee started holding joint meetings on the preparation of the draft of the New Family Code, they agreed and formulated the definition of marriage as a special contract of permanent partnership between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by law. With the above definition, and considering the Christian traditional concept of marriage of the Filipino people as a permanent, inviolable, indissoluble social institution upon which the family and society are founded, and also realizing the strong opposition that any provision on absolute divorce would encounter from the Catholic Church and the Catholic sector of our citizenry to whom the great majority of our people belong, the two Committees in their joint meetings did not pursue the idea of absolute divorce and, instead, opted for an action for judicial declaration of invalidity of marriage based on grounds available in the Canon Law. It was thought that such an action would not only be an acceptable alternative to divorce but would also solve the nagging problem of church annulments of marriages on grounds not recognized by the civil law of the State. Justice Reyes was, thus, requested to again prepare a draft of provisions on such action for celebration of invalidity of marriage. Still later, to avoid the overlapping of provisions on void marriages as found in the present Civil Code and those proposed by Justice Reyes on judicial declaration of invalidity of marriage on grounds similar to the Canon Law, the two Committees now working as a Joint Committee in the preparation of a New Family Code decided to consolidate the present provisions on void marriages with the proposals of Justice Reyes. The result was the inclusion of an additional kind of void marriage in the enumeration of void marriages in the present Civil Code, to wit: (7) those marriages contracted by any party who, at the time of the celebration, was wanting in the sufficient use of reason or judgment to understand the essential nature of marriage or was psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack or incapacity is made manifest after the celebration. as well as the following implementing provisions:

Art. 32. The absolute nullity of a marriage may be invoked or pleaded only on the basis of a final judgment declaring the marriage void, without prejudice to the provision of Article 34. Art. 33. The action or defense for the declaration of the absolute nullity of a marriage shall not prescribe. xxxxxxxxx It is believed that many hopelessly broken marriages in our country today may already be dissolved or annulled on the grounds proposed by the Joint Committee on declaration of nullity as well as annulment of marriages, thus rendering an absolute divorce law unnecessary. In fact, during a conference with Father Gerald Healy of the Ateneo University, as well as another meeting with Archbishop Oscar Cruz of the Archdiocese of Pampanga, the Joint Committee was informed that since Vatican II, the Catholic Church has been declaring marriages null and void on the ground of "lack of due discretion" for causes that, in other jurisdictions, would be clear grounds for divorce, like teen-age or premature marriages; marriage to a man who, because of some personality disorder or disturbance, cannot support a family; the foolish or ridiculous choice of a spouse by an otherwise perfectly normal person; marriage to a woman who refuses to cohabit with her husband or who refuses to have children. Bishop Cruz also informed the Committee that they have found out in tribunal work that a lot of machismo among husbands are manifestations of their sociopathic personality anomaly, like inflicting physical violence upon their wives, constitutional indolence or laziness, drug dependence or addiction, and psychosexual anomaly.34 In her separate opinion in Molina,35 she expounded: At the Committee meeting of July 26, 1986, the draft provision read: "(7) Those marriages contracted by any party who, at the time of the celebration, was wanting in the sufficient use of reason or judgment to understand the essential nature of marriage or was psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration." The twists and turns which the ensuing discussion took finally produced the following revised provision even before the session was over: "(7) That contracted by any party who, at the time of the celebration, was psychologically incapacitated to discharge the essential marital obligations, even if such lack or incapacity becomes manifest after the celebration." Noticeably, the immediately preceding formulation above has dropped any reference to "wanting in the sufficient use of reason or judgment to understand the essential nature of marriage" and to "mentally incapacitated." It was explained that these phrases refer to "defects in the mental faculties vitiating consent, which is not the idea . . . but lack of appreciation of one's marital obligation." There being a defect in consent, "it is clear that it should be a ground for voidable marriage because there is the appearance of consent and it is capable of convalidation for the

simple reason that there are lucid intervals and there are cases when the insanity is curable . . . Psychological incapacity does not refer to mental faculties and has nothing to do with consent; it refers to obligations attendant to marriage." My own position as a member of the Committee then was that psychological incapacity is, in a sense, insanity of a lesser degree. As to the proposal of Justice Caguioa to use the term "psychological or mental impotence," Archbishop Oscar Cruz opined in the earlier February 9, 1984 session that this term "is an invention of some churchmen who are moralists but not canonists, that is why it is considered a weak phrase." He said that the Code of Canon Law would rather express it as "psychological or mental incapacity to discharge . . ." Justice Ricardo C. Puno opined that sometimes a person may be psychologically impotent with one but not with another. One of the guidelines enumerated in the majority opinion for the interpretation and application of Art. 36 is: "Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex." The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase "and is incurable" but Prof. Esteban B. Bautista commented that this would give rise to the question of how they will determine curability and Justice Caguioa agreed that it would be more problematic. Yet, the possibility that one may be cured after the psychological incapacity becomes manifest after the marriage was not ruled out by Justice Puno and Justice Alice SempioDiy. Justice Caguioa suggested that the remedy was to allow the afflicted spouse to remarry. For clarity, the Committee classified the bases for determining void marriages, viz.: 1. lack of one or more of the essential requisites of marriage as contract; 2. reasons of public policy; 3. special cases and special situations. The ground of psychological incapacity was subsumed under "special cases and special situations," hence, its special treatment in Art. 36 in the Family Code as finally enacted. Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling marriages that even comes close to being psychological in nature. Where consent is vitiated due to circumstances existing at the time of the marriage, such marriage which stands valid until annulled is capable of ratification or convalidation. On the other hand, for reasons of public policy or lack of essential requisites, some marriages are void from the beginning.

With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters, now open to fresh winds of change in keeping with the more permissive mores and practices of the time, took a leaf from the relatively liberal provisions of Canon Law. Canon 1095 which states, inter alia, that the following persons are incapable of contracting marriage: "3. (those) who, because of causes of a psychological nature, are unable to assume the essential obligations of marriage" provided the model for what is now Art. 36 of the Family Code: "A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization." It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with respect to their validity: valid and void. Civil Law, however, recognizes an intermediate state, the voidable or annullable marriages. When the Ecclesiastical Tribunal "annuls" a marriage, it actually declares the marriage null and void, i.e., it never really existed in the first place, for a valid sacramental marriage can never be dissolved. Hence, a properly performed and consummated marriage between two living Roman Catholics can only be nullified by the formal annulment process which entails a full tribunal procedure with a Court selection and a formal hearing. Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil marriage, not being congruent with those laid down by Canon Law, the former being more strict, quite a number of married couples have found themselves in limbofreed from the marriage bonds in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under state laws. Heedless of civil law sanctions, some persons contract new marriages or enter into live-in relationships. It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law Revision Committee decided to engraft the Canon Law concept of psychological incapacity into the Family Codeand classified the same as a ground for declaring marriages void ab initio or totally inexistent from the beginning. A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide directly for psychological incapacity, in effect, recognized the same indirectly from a combination of three old canons: "Canon #1081 required persons to be capable according to law in order to give valid consent; Canon #1082 required that persons be at least not ignorant of the major elements required in marriage; and Canon #1087 (the force and fear category) required that internal and external freedom be present in order for consent to be valid. This line of interpretation produced two distinct but related grounds for annulment called lack of due discretion and lack of due competence. Lack of due discretion means that the person did not have the ability to give valid consent at the time of the wedding and, therefore, the union is invalid. Lack of due competence means that the person was incapable of carrying out the obligations of the promise he or she made during the wedding ceremony."

Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual disorders such as homosexuality and nymphomania laid the foundation for a broader approach to the kind of proof necessary for psychological grounds for annulment. The Rota had reasoned for the first time in several cases that the capacity to give valid consent at the time of marriage was probably not present in persons who had displayed such problems shortly after the marriage. The nature of this change was nothing short of revolutionary. Once the Rota itself had demonstrated a cautious willingness to use this kind of hindsight, the way was paved for what came after 1970. Diocesan Tribunals began to accept proof of serious psychological problems that manifested themselves shortly after the ceremony as proof of an inability to give valid consent at the time of the ceremony.36 Interestingly, the Committee did not give any examples of psychological incapacity for fear that by so doing, it might limit the applicability of the provision under the principle of ejusdem generis. The Committee desired that the courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provision itself was taken from the Canon Law.37 The law is then so designed as to allow some resiliency in its application.38 Yet, as held in Santos,39 the phrase "psychological incapacity" is not meant to comprehend all possible cases of psychoses. It refers to no less than a mental (not physical) incapacity that causes a party to be truly noncognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as expressed by Article 6840 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity; and render help and support. The intendment of the law has been to confine it to the most serious of cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.41 This interpretation is, in fact, consistent with that in Canon Law, thus: 3.5.3.1. The Meaning of Incapacity to Assume. A sharp conceptual distinction must be made between the second and third paragraphs of C.1095, namely between the grave lack of discretionary judgment and the incapacity to assume the essential obligation. Mario Pompedda, a rotal judge, explains the difference by an ordinary, if somewhat banal, example. Jose wishes to sell a house to Carmela, and on the assumption that they are capable according to positive law to enter such contract, there remains the object of the contract, viz, the house. The house is located in a different locality, and prior to the conclusion of the contract, the house was gutted down by fire unbeknown to both of them. This is the hypothesis contemplated by the third paragraph of the canon. The third paragraph does not deal with the psychological process of giving consent because it has been established a priori that both have such a capacity to give consent, and they both know well the object of their consent [the house and its particulars]. Rather, C.1095.3 deals with the object of the consent/contract which does not exist. The contract is invalid because it lacks its formal object. The consent as a psychological act is both valid and sufficient. The psychological act, however, is directed towards an object which is not available. Urbano Navarrete summarizes this distinction: the third paragraph deals not with the positing of consent but with positing the object of consent. The person may be capable of positing a free act of

consent, but he is not capable of fulfilling the responsibilities he assumes as a result of the consent he elicits. Since the address of Pius XII to the auditors of the Roman Rota in 1941 regarding psychic incapacity with respect to marriage arising from pathological conditions, there has been an increasing trend to understand as ground of nullity different from others, the incapacity to assume the essential obligations of marriage, especially the incapacity which arises from sexual anomalies. Nymphomania is a sample which ecclesiastical jurisprudence has studied under this rubric. The problem as treated can be summarized, thus: do sexual anomalies always and in every case imply a grave psychopathological condition which affects the higher faculties of intellect, discernment, and freedom; or are there sexual anomalies that are purely so that is to say, they arise from certain physiological dysfunction of the hormonal system, and they affect the sexual condition, leaving intact the higher faculties however, so that these persons are still capable of free human acts. The evidence from the empirical sciences is abundant that there are certain anomalies of a sexual nature which may impel a person towards sexual activities which are not normal, either with respect to its frequency [nymphomania, satyriasis] or to the nature of the activity itself [sadism, masochism, homosexuality]. However, these anomalies notwithstanding, it is altogether possible that the higher faculties remain intact such that a person so afflicted continues to have an adequate understanding of what marriage is and of the gravity of its responsibilities. In fact, he can choose marriage freely. The question though is whether such a person can assume those responsibilities which he cannot fulfill, although he may be able to understand them. In this latter hypothesis, the incapacity to assume the essential obligations of marriage issues from the incapacity to posit the object of consent, rather than the incapacity to posit consent itself. Ecclesiastical jurisprudence has been hesitant, if not actually confused, in this regard. The initial steps taken by church courts were not too clear whether this incapacity is incapacity to posit consent or incapacity to posit the object of consent. A case c. Pinna, for example, arrives at the conclusion that the intellect, under such an irresistible impulse, is prevented from properly deliberating and its judgment lacks freedom. This line of reasoning supposes that the intellect, at the moment of consent, is under the influence of this irresistible compulsion, with the inevitable conclusion that such a decision, made as it was under these circumstances, lacks the necessary freedom. It would be incontrovertible that a decision made under duress, such as this irresistible impulse, would not be a free act. But this is precisely the question: is it, as a matter of fact, true that the intellect is always and continuously under such an irresistible compulsion? It would seem entirely possible, and certainly more reasonable, to think that there are certain cases in which one who is sexually hyperaesthetic can understand perfectly and evaluate quite maturely what marriage is and what it implies; his consent would be juridically ineffective for this one reason that he cannot posit the object of consent, the exclusive jus in corpus to be exercised in a normal way and with usually regularity. It would seem more correct to say that the consent may indeed be free, but is juridically ineffective because the party is consenting to an object that he cannot deliver. The house he is selling was gutted down by fire.

3.5.3.2. Incapacity as an Autonomous Ground. Sabattani seems to have seen his way more clearly through this tangled mess, proposing as he did a clear conceptual distinction between the inability to give consent on the one hand, and the inability to fulfill the object of consent, on the other. It is his opinion that nymphomaniacs usually understand the meaning of marriage, and they are usually able to evaluate its implications. They would have no difficulty with positing a free and intelligent consent. However, such persons, capable as they are of eliciting an intelligent and free consent, experience difficulty in another sphere: delivering the object of the consent. Anne, another rotal judge, had likewise treated the difference between the act of consenting and the act of positing the object of consent from the point of view of a person afflicted with nymphomania. According to him, such an affliction usually leaves the process of knowing and understanding and evaluating intact. What it affects is the object of consent: the delivering of the goods. 3.5.3.3 Incapacity as Incapacity to Posit the Object of Consent. From the selected rotal jurisprudence cited, supra, it is possible to see a certain progress towards a consensus doctrine that the incapacity to assume the essential obligations of marriage (that is to say, the formal object of consent) can coexist in the same person with the ability to make a free decision, an intelligent judgment, and a mature evaluation and weighing of things. The decision coram Sabattani concerning a nymphomaniac affirmed that such a spouse can have difficulty not only with regard to the moment of consent but also, and especially, with regard to the matrimonium in facto esse. The decision concludes that a person in such a condition is incapable of assuming the conjugal obligation of fidelity, although she may have no difficulty in understanding what the obligations of marriage are, nor in the weighing and evaluating of those same obligations. Prior to the promulgation of the Code of Canon Law in 1983, it was not unusual to refer to this ground as moral impotence or psychic impotence, or similar expressions to express a specific incapacity rooted in some anomalies and disorders in the personality. These anomalies leave intact the faculties of the will and the intellect. It is qualified as moral or psychic, obviously to distinguish it from the impotence that constitutes the impediment dealt with by C.1084. Nonetheless, the anomalies render the subject incapable of binding himself in a valid matrimonial pact, to the extent that the anomaly renders that person incapable of fulfilling the essential obligations. According to the principle affirmed by the long tradition of moral theology: nemo ad impossibile tenetur. xxxx 3.5.3.5 Indications of Incapacity. There is incapacity when either or both of the contractants are not capable of initiating or maintaining this consortium. One immediately thinks of those cases where one of the parties is so self-centered [e.g., a narcissistic personality] that he does not even know how to begin a union with the other, let alone how to maintain and sustain such a relationship. A second incapacity could be due to the fact that the spouses are incapable of beginning or maintaining a heterosexual consortium, which goes to the very substance of matrimony. Another incapacity could arise when a spouse is unable to concretize the good of himself or of the other party. The canon speaks, not of the bonum partium, but of the bonum conjugum. A spouse who is capable only of realizing or contributing to the good of the other party qua persona rather than qua conjunx would be deemed incapable of contracting marriage.

Such would be the case of a person who may be quite capable of procuring the economic good and the financial security of the other, but not capable of realizing the bonum conjugale of the other. These are general strokes and this is not the place for detained and individual description. A rotal decision c. Pinto resolved a petition where the concrete circumstances of the case concerns a person diagnosed to be suffering from serious sociopathy. He concluded that while the respondent may have understood, on the level of the intellect, the essential obligations of marriage, he was not capable of assuming them because of his "constitutional immorality." Stankiewicz clarifies that the maturity and capacity of the person as regards the fulfillment of responsibilities is determined not only at the moment of decision but also and especially during the moment of execution of decision. And when this is applied to constitution of the marital consent, it means that the actual fulfillment of the essential obligations of marriage is a pertinent consideration that must be factored into the question of whether a person was in a position to assume the obligations of marriage in the first place. When one speaks of the inability of the party to assume and fulfill the obligations, one is not looking at matrimonium in fieri, but also and especially at matrimonium in facto esse. In [the] decision of 19 Dec. 1985, Stankiewicz collocated the incapacity of the respondent to assume the essential obligations of marriage in the psychic constitution of the person, precisely on the basis of his irresponsibility as regards money and his apathy as regards the rights of others that he had violated. Interpersonal relationships are invariably disturbed in the presence of this personality disorder. A lack of empathy (inability to recognize and experience how others feel) is common. A sense of entitlement, unreasonable expectation, especially favorable treatment, is usually present. Likewise common is interpersonal exploitativeness, in which others are taken advantage of in order to achieve ones ends. Authors have made listings of obligations considered as essential matrimonial obligations. One of them is the right to the communio vitae. This and their corresponding obligations are basically centered around the good of the spouses and of the children. Serious psychic anomalies, which do not have to be necessarily incurable, may give rise to the incapacity to assume any, or several, or even all of these rights. There are some cases in which interpersonal relationship is impossible. Some characteristic features of inability for interpersonal relationships in marriage include affective immaturity, narcissism, and antisocial traits. Marriage and Homosexuality. Until 1967, it was not very clear under what rubric homosexuality was understood to be invalidating of marriage that is to say, is homosexuality invalidating because of the inability to evaluate the responsibilities of marriage, or because of the inability to fulfill its obligations. Progressively, however, rotal jurisprudence began to understand it as incapacity to assume the obligations of marriage so that by 1978, Parisella was able to consider, with charity, homosexuality as an autonomous ground of nullity. This is to say that a person so afflicted is said to be unable to assume the essential obligations of marriage. In this same rotal decision, the object of matrimonial consent is understood to refer not only to the jus in corpus but also the consortium totius vitae. The third paragraph of C.1095 [incapacity to assume the essential obligations of marriage] certainly seems to be the more adequate juridical structure to account for the complex phenomenon that homosexuality is. The homosexual is not necessarily impotent because, except in very few exceptional cases, such a person is usually capable of full sexual relations with the spouse. Neither is it a mental infirmity, and a person so afflicted does

not necessarily suffer from a grave lack of due discretion because this sexual anomaly does not by itself affect the critical, volitive, and intellectual faculties. Rather, the homosexual person is unable to assume the responsibilities of marriage because he is unable to fulfill this object of the matrimonial contract. In other words, the invalidity lies, not so much in the defect of consent, as in the defect of the object of consent. 3.5.3.6 Causes of Incapacity. A last point that needs to be addressed is the source of incapacity specified by the canon: causes of a psychological nature. Pompedda proffers the opinion that the clause is a reference to the personality of the contractant. In other words, there must be a reference to the psychic part of the person. It is only when there is something in the psyche or in the psychic constitution of the person which impedes his capacity that one can then affirm that the person is incapable according to the hypothesis contemplated by C.1095.3. A person is judged incapable in this juridical sense only to the extent that he is found to have something rooted in his psychic constitution which impedes the assumption of these obligations. A bad habit deeply engrained in ones consciousness would not seem to qualify to be a source of this invalidating incapacity. The difference being that there seems to be some freedom, however remote, in the development of the habit, while one accepts as given ones psychic constitution. It would seem then that the law insists that the source of the incapacity must be one which is not the fruit of some degree of freedom.42 Conscious of the laws intention that it is the courts, on a case-to-case basis, that should determine whether a party to a marriage is psychologically incapacitated, the Court, in sustaining the lower courts judgment of annulment in Tuason v. Court of Appeals,43 ruled that the findings of the trial court are final and binding on the appellate courts.44 Again, upholding the trial courts findings and declaring that its decision was not a judgment on the pleadings, the Court, in Tsoi v. Court of Appeals,45 explained that when private respondent testified under oath before the lower court and was cross-examined by the adverse party, she thereby presented evidence in the form of testimony. Importantly, the Court, aware of parallel decisions of Catholic marriage tribunals, ruled that the senseless and protracted refusal of one of the parties to fulfill the marital obligation of procreating children is equivalent to psychological incapacity. The resiliency with which the concept should be applied and the case-to-case basis by which the provision should be interpreted, as so intended by its framers, had, somehow, been rendered ineffectual by the imposition of a set of strict standards in Molina,46 thus: From their submissions and the Court's own deliberations, the following guidelines in the interpretation and application of Art. 36 of the Family Code are hereby handed down for the guidance of the bench and the bar: (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the nation."

It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. (2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychologicalnot physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. (3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characterological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital

obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides: "The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature." Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal. Ideally subject to our law on evidencewhat is decreed as canonically invalid should also be decreed civilly void. This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Churchwhile remaining independent, separate and apart from each othershall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation. (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.47 Noteworthy is that in Molina, while the majority of the Courts membership concurred in the ponencia of then Associate Justice (later Chief Justice) Artemio V. Panganiban, three justices concurred "in the result" and another threeincluding, as aforesaid, Justice Romerotook pains to compose their individual separate opinions. Then Justice Teodoro R. Padilla even emphasized that "each case must be judged, not on the basis of a priori assumptions, predelictions or generalizations, but according to its own facts. In the field of psychological incapacity as a ground for annulment of marriage, it is trite to say that no case is on all fours with another case. The trial judge must take pains in examining the factual milieu and the appellate court must, as much as possible, avoid substituting its own judgment for that of the trial court."48 Predictably, however, in resolving subsequent cases,49 the Court has applied the aforesaid standards, without too much regard for the laws clear intention that each case is to be treated differently, as "courts should interpret the provision on a case-to-case basis; guided by

experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals." In hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of psychological incapacity. Understandably, the Court was then alarmed by the deluge of petitions for the dissolution of marital bonds, and was sensitive to the OSGs exaggeration of Article 36 as the "most liberal divorce procedure in the world."50 The unintended consequences of Molina, however, has taken its toll on people who have to live with deviant behavior, moral insanity and sociopathic personality anomaly, which, like termites, consume little by little the very foundation of their families, our basic social institutions. Far from what was intended by the Court, Molina has become a strait-jacket, forcing all sizes to fit into and be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage. Ironically, the Roman Rota has annulled marriages on account of the personality disorders of the said individuals.51 The Court need not worry about the possible abuse of the remedy provided by Article 36, for there are ample safeguards against this contingency, among which is the intervention by the State, through the public prosecutor, to guard against collusion between the parties and/or fabrication of evidence.52 The Court should rather be alarmed by the rising number of cases involving marital abuse, child abuse, domestic violence and incestuous rape. In dissolving marital bonds on account of either partys psychological incapacity, the Court is not demolishing the foundation of families, but it is actually protecting the sanctity of marriage, because it refuses to allow a person afflicted with a psychological disorder, who cannot comply with or assume the essential marital obligations, from remaining in that sacred bond. It may be stressed that the infliction of physical violence, constitutional indolence or laziness, drug dependence or addiction, and psychosexual anomaly are manifestations of a sociopathic personality anomaly.53 Let it be noted that in Article 36, there is no marriage to speak of in the first place, as the same is void from the very beginning.54 To indulge in imagery, the declaration of nullity under Article 36 will simply provide a decent burial to a stillborn marriage. The prospect of a possible remarriage by the freed spouses should not pose too much of a concern for the Court. First and foremost, because it is none of its business. And second, because the judicial declaration of psychological incapacity operates as a warning or a lesson learned. On one hand, the normal spouse would have become vigilant, and never again marry a person with a personality disorder. On the other hand, a would-be spouse of the psychologically incapacitated runs the risk of the latters disorder recurring in their marriage. Lest it be misunderstood, we are not suggesting the abandonment of Molina in this case. We simply declare that, as aptly stated by Justice Dante O. Tinga in Antonio v. Reyes,55 there is need to emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity under Article 36. At the risk of being redundant, we reiterate once more the principle that each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts. And, to repeat for emphasis, courts should

interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals. II. We now examine the instant case. The parties whirlwind relationship lasted more or less six (6) months. They met in January 1996, eloped in March, exchanged marital vows in May, and parted ways in June. The psychologist who provided expert testimony found both parties psychologically incapacitated. Petitioners behavioral pattern falls under the classification of dependent personality disorder, and respondents, that of the narcissistic and antisocial personality disorder.56 By the very nature of Article 36, courts, despite having the primary task and burden of decisionmaking, must not discount but, instead, must consider as decisive evidence the expert opinion on the psychological and mental temperaments of the parties.57 Justice Romero explained this in Molina, as follows: Furthermore, and equally significant, the professional opinion of a psychological expert became increasingly important in such cases. Data about the person's entire life, both before and after the ceremony, were presented to these experts and they were asked to give professional opinions about a party's mental capacity at the time of the wedding. These opinions were rarely challenged and tended to be accepted as decisive evidence of lack of valid consent. The Church took pains to point out that its new openness in this area did not amount to the addition of new grounds for annulment, but rather was an accommodation by the Church to the advances made in psychology during the past decades. There was now the expertise to provide the all-important connecting link between a marriage breakdown and premarital causes. During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to that of a covenant. The result of this was that it could no longer be assumed in annulment cases that a person who could intellectually understand the concept of marriage could necessarily give valid consent to marry. The ability to both grasp and assume the real obligations of a mature, lifelong commitment are now considered a necessary prerequisite to valid matrimonial consent. Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both spouses from assuming or carrying out the essential obligations of marriage. For marriage . . . is not merely cohabitation or the right of the spouses to each other's body for heterosexual acts, but is, in its totality the right to the community of the whole of life; i.e., the right to a developing lifelong relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic capacity for marriage as presupposing the development of an adult personality; as meaning the capacity of the spouses to give themselves to each other and to accept the other as a distinct person; that the spouses must be other oriented since the obligations of marriage are

rooted in a self-giving love; and that the spouses must have the capacity for interpersonal relationship because marriage is more than just a physical reality but involves a true intertwining of personalities. The fulfillment of the obligations of marriage depends, according to Church decisions, on the strength of this interpersonal relationship. A serious incapacity for interpersonal sharing and support is held to impair the relationship and consequently, the ability to fulfill the essential marital obligations. The marital capacity of one spouse is not considered in isolation but in reference to the fundamental relationship to the other spouse. Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital relationship: "The courts consider the following elements crucial to the marital commitment: (1) a permanent and faithful commitment to the marriage partner; (2) openness to children and partner; (3) stability; (4) emotional maturity; (5) financial responsibility; (6) an ability to cope with the ordinary stresses and strains of marriage, etc." Fr. Green goes on to speak about some of the psychological conditions that might lead to the failure of a marriage: "At stake is a type of constitutional impairment precluding conjugal communion even with the best intentions of the parties. Among the psychic factors possibly giving rise to his or her inability to fulfill marital obligations are the following: (1) antisocial personality with its fundamental lack of loyalty to persons or sense of moral values; (2) hyperesthesia, where the individual has no real freedom of sexual choice; (3) the inadequate personality where personal responses consistently fall short of reasonable expectations. xxxx The psychological grounds are the best approach for anyone who doubts whether he or she has a case for an annulment on any other terms. A situation that does not fit into any of the more traditional categories often fits very easily into the psychological category. As new as the psychological grounds are, experts are already detecting a shift in their use. Whereas originally the emphasis was on the parties' inability to exercise proper judgment at the time of the marriage (lack of due discretion), recent cases seem to be concentrating on the parties' incapacity to assume or carry out their responsibilities and obligations as promised (lack of due competence). An advantage to using the ground of lack of due competence is that at the time the marriage was entered into civil divorce and breakup of the family almost always is proof of someone's failure to carry out marital responsibilities as promised at the time the marriage was entered into."581avvphi1 Hernandez v. Court of Appeals59 emphasizes the importance of presenting expert testimony to establish the precise cause of a partys psychological incapacity, and to show that it existed at the inception of the marriage. And as Marcos v. Marcos60 asserts, there is no requirement that the person to be declared psychologically incapacitated be personally examined by a physician, if the totality of evidence presented is enough to sustain a finding of psychological incapacity.61 Verily,

the evidence must show a link, medical or the like, between the acts that manifest psychological incapacity and the psychological disorder itself. This is not to mention, but we mention nevertheless for emphasis, that the presentation of expert proof presupposes a thorough and in-depth assessment of the parties by the psychologist or expert, for a conclusive diagnosis of a grave, severe and incurable presence of psychological incapacity.62 Parenthetically, the Court, at this point, finds it fitting to suggest the inclusion in the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages,63 an option for the trial judge to refer the case to a court-appointed psychologist/expert for an independent assessment and evaluation of the psychological state of the parties. This will assist the courts, who are no experts in the field of psychology, to arrive at an intelligent and judicious determination of the case. The rule, however, does not dispense with the parties prerogative to present their own expert witnesses. Going back, in the case at bench, the psychological assessment, which we consider as adequate, produced the findings that both parties are afflicted with personality disordersto repeat, dependent personality disorder for petitioner, and narcissistic and antisocial personality disorder for respondent. We note that The Encyclopedia of Mental Health discusses personality disorders as follows A group of disorders involving behaviors or traits that are characteristic of a persons recent and long-term functioning. Patterns of perceiving and thinking are not usually limited to isolated episodes but are deeply ingrained, inflexible, maladaptive and severe enough to cause the individual mental stress or anxieties or to interfere with interpersonal relationships and normal functioning. Personality disorders are often recognizable by adolescence or earlier, continue through adulthood and become less obvious in middle or old age. An individual may have more than one personality disorder at a time. The common factor among individuals who have personality disorders, despite a variety of character traits, is the way in which the disorder leads to pervasive problems in social and occupational adjustment. Some individuals with personality disorders are perceived by others as overdramatic, paranoid, obnoxious or even criminal, without an awareness of their behaviors. Such qualities may lead to trouble getting along with other people, as well as difficulties in other areas of life and often a tendency to blame others for their problems. Other individuals with personality disorders are not unpleasant or difficult to work with but tend to be lonely, isolated or dependent. Such traits can lead to interpersonal difficulties, reduced self-esteem and dissatisfaction with life. Causes of Personality Disorders Different mental health viewpoints propose a variety of causes of personality disorders. These include Freudian, genetic factors, neurobiologic theories and brain wave activity. Freudian Sigmund Freud believed that fixation at certain stages of development led to certain personality types. Thus, some disorders as described in the Diagnostic and Statistical Manual of Mental Disorders (3d ed., rev.) are derived from his oral, anal and phallic character types. Demanding and dependent behavior (dependent and passive-aggressive) was thought to derive

from fixation at the oral stage. Characteristics of obsessionality, rigidity and emotional aloofness were thought to derive from fixation at the anal stage; fixation at the phallic stage was thought to lead to shallowness and an inability to engage in intimate relationships.lawphil.net However, later researchers have found little evidence that early childhood events or fixation at certain stages of development lead to specific personality patterns. Genetic Factors Researchers have found that there may be a genetic factor involved in the etiology of antisocial and borderline personality disorders; there is less evidence of inheritance of other personality disorders. Some family, adoption and twin studies suggest that schizotypal personality may be related to genetic factors. Neurobiologic Theories In individuals who have borderline personality, researchers have found that low cerebrospinal fluid 5-hydroxyindoleacetic acid (5-HIAA) negatively correlated with measures of aggression and a past history of suicide attempts. Schizotypal personality has been associated with low platelet monoamine oxidase (MAO) activity and impaired smooth pursuit eye movement. Brain Wave Activity Abnormalities in electroencephalograph (EEG) have been reported in antisocial personality for many years; slow wave is the most widely reported abnormality. A study of borderline patients reported that 38 percent had at least marginal EEG abnormalities, compared with 19 percent in a control group. Types of Disorders According to the American Psychiatric Associations Diagnostic and Statistical Manual of Mental Disorders (3d ed., rev., 1987), or DSM-III-R, personality disorders are categorized into three major clusters: Cluster A: Paranoid, schizoid and schizotypal personality disorders. Individuals who have these disorders often appear to have odd or eccentric habits and traits. Cluster B: Antisocial, borderline, histrionic and narcissistic personality disorders. Individuals who have these disorders often appear overly emotional, erratic and dramatic. Cluster C: Avoidant, dependent, obsessive-compulsive and passive-aggressive personality disorders. Individuals who have these disorders often appear anxious or fearful. The DSM-III-R also lists another category, "personality disorder not otherwise specified," that can be used for other specific personality disorders or for mixed conditions that do not qualify as any of the specific personality disorders. Individuals with diagnosable personality disorders usually have long-term concerns, and thus therapy may be long-term.64 Dependent personality disorder is characterized in the following manner A personality disorder characterized by a pattern of dependent and submissive behavior. Such individuals usually lack self-esteem and frequently belittle their capabilities; they fear criticism

and are easily hurt by others comments. At times they actually bring about dominance by others through a quest for overprotection. Dependent personality disorder usually begins in early adulthood. Individuals who have this disorder may be unable to make everyday decisions without advice or reassurance from others, may allow others to make most of their important decisions (such as where to live), tend to agree with people even when they believe they are wrong, have difficulty starting projects or doing things on their own, volunteer to do things that are demeaning in order to get approval from other people, feel uncomfortable or helpless when alone and are often preoccupied with fears of being abandoned.65 and antisocial personality disorder described, as follows Characteristics include a consistent pattern of behavior that is intolerant of the conventional behavioral limitations imposed by a society, an inability to sustain a job over a period of years, disregard for the rights of others (either through exploitiveness or criminal behavior), frequent physical fights and, quite commonly, child or spouse abuse without remorse and a tendency to blame others. There is often a faade of charm and even sophistication that masks disregard, lack of remorse for mistreatment of others and the need to control others. Although characteristics of this disorder describe criminals, they also may befit some individuals who are prominent in business or politics whose habits of self-centeredness and disregard for the rights of others may be hidden prior to a public scandal. During the 19th century, this type of personality disorder was referred to as moral insanity. The term described immoral, guiltless behavior that was not accompanied by impairments in reasoning.lawphil.net According to the classification system used in the Diagnostic and Statistical Manual of Mental Disorders (3d ed., rev. 1987), anti-social personality disorder is one of the four "dramatic" personality disorders, the others being borderline, histrionic and narcissistic.66 The seriousness of the diagnosis and the gravity of the disorders considered, the Court, in this case, finds as decisive the psychological evaluation made by the expert witness; and, thus, rules that the marriage of the parties is null and void on ground of both parties psychological incapacity. We further consider that the trial court, which had a first-hand view of the witnesses deportment, arrived at the same conclusion. Indeed, petitioner, who is afflicted with dependent personality disorder, cannot assume the essential marital obligations of living together, observing love, respect and fidelity and rendering help and support, for he is unable to make everyday decisions without advice from others, allows others to make most of his important decisions (such as where to live), tends to agree with people even when he believes they are wrong, has difficulty doing things on his own, volunteers to do things that are demeaning in order to get approval from other people, feels uncomfortable or helpless when alone and is often preoccupied with fears of being abandoned.67 As clearly shown in this case, petitioner followed everything dictated to him by the persons around him. He is insecure, weak and gullible, has no sense of his identity as a person, has no cohesive self to speak of, and has no goals and clear direction in life.

Although on a different plane, the same may also be said of the respondent. Her being afflicted with antisocial personality disorder makes her unable to assume the essential marital obligations. This finding takes into account her disregard for the rights of others, her abuse, mistreatment and control of others without remorse, her tendency to blame others, and her intolerance of the conventional behavioral limitations imposed by society.68 Moreover, as shown in this case, respondent is impulsive and domineering; she had no qualms in manipulating petitioner with her threats of blackmail and of committing suicide. Both parties being afflicted with grave, severe and incurable psychological incapacity, the precipitous marriage which they contracted on April 23, 1996 is thus, declared null and void. WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The August 5, 2003 Decision and the January 19, 2004 Resolution of the Court of Appeals in CAG.R. CV No. 71867 are REVERSED and SET ASIDE, and the Decision, dated July 30, 2001, REINSTATED. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice WE CONCUR: CONSUELO YNARES-SANTIAGO Associate Justice Chairperson MA. ALICIA AUSTRIA-MARTINEZ Associate Justice MINITA V. CHICO-NAZARIO Associate Justice

DIOSDADO M. PERALTA Associate Justice ATTESTATION I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairperson's Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

THIRD DIVISION
[G.R. No. 136467. April 6, 2000]

ANTONIA ARMAS Y CALISTERIO, petitioner, vs. MARIETTA CALISTERIO, respondent. DECISION

VITUG, J.: On 24 April 1992, Teodorico Calisterio died intestate, leaving several parcels of land with an estimated value of P604,750.00. Teodorico was survived by his wife, herein respondent Marietta Calisterio. Esm Teodorico was the second husband of Marietta who had previously been married to James William Bounds on 13 January 1946 at Caloocan City. James Bounds disappeared without a trace on 11 February 1947. Teodorico and Marietta were married eleven years later, or on 08 May 1958, without Marietta having priorly secured a court declaration that James was presumptively dead. Esmsc On 09 October 1992, herein petitioner Antonia Armas y Calisterio, a surviving sister of Teodorico, filed with the Regional Trial Court ("RTC") of Quezon City, Branch 104, a petition entitled, "In the Matter of Intestate Estate of the Deceased Teodorico Calisterio y Cacabelos, Antonia Armas, Petitioner," claiming to be inter alia, the sole surviving heir of Teodorico Calisterio, the marriage between the latter and respondent Marietta Espinosa Calisterio being allegedly bigamous and thereby null and void. She prayed that her son Sinfroniano C. Armas, Jr., be appointed administrator, without bond, of the estate of the deceased and that the inheritance be adjudicated to her after all the obligations of the estate would have been settled. Respondent Marietta opposed the petition. Marietta stated that her first marriage with James Bounds had been dissolved due to the latter's absence, his whereabouts being unknown, for more than eleven years before she contracted her second marriage with Teodorico. Contending to be the surviving spouse of Teodorico, she sought priority in the administration of the estate of the decedent. Esmmis On 05 February 1993, the trial court issued an order appointing jointly Sinfroniano C. Armas, Jr., and respondent Marietta administrator and administratrix, respectively, of the intestate estate of Teodorico. On 17 January 1996, the lower court handed down its decision in favor of petitioner Antonia; it adjudged:

"WHEREFORE, judgment is hereby rendered finding for the petitioner and against the oppositor whereby herein petitioner, Antonia Armas y Calisterio, is declared as the sole heir of the estate of Teodorico Calisterio y Cacabelos." Respondent Marietta appealed the decision of the trial court to the Court of Appeals, formulating that"1. The trial court erred in applying the provisions of the Family Code in the instant case despite the fact that the controversy arose when the New Civil Code was the law in force. "2. The trial court erred in holding that the marriage between oppositorappellant and the deceased Teodorico Calisterio is bigamous for failure of the former to secure a decree of the presumptive death of her first spouse. "3. The trial court erred in not holding that the property situated at No. 32 Batangas Street, San Francisco del Monte, Quezon City, is the conjugal property of the oppositor-appellant and the deceased Teodorico Calisterio.
Esmso

"4. The trial court erred in holding that oppositor-appellant is not a legal heir of deceased Teodorico Calisterio. "5. The trial court erred in not holding that letters of administration should be granted solely in favor of oppositor-appellant." On 31 August 1998, the appellate court, through Mr. Justice Conrado M. Vasquez, Jr., promulgated its now assailed decision, thus: "IN VIEW OF ALL THE FOREGOING, the Decision appealed from is REVERSED AND SET ASIDE, and a new one entered declaring as follows: "(a) Marietta Calisterio's marriage to Teodorico remains valid; "(b) The house and lot situated at #32 Batangas Street, San Francisco del Monte, Quezon City, belong to the conjugal partnership property with the concomitant obligation of the partnership to pay the value of the land to Teodorico's estate as of the time of the taking; "(c) Marietta Calisterio, being Teodorico's compulsory heir, is entitled to one half of her husband's estate, and Teodorico's sister, herein petitioner Antonia Armas and her children, to the other half; Msesm

"(d) The trial court is ordered to determine the competence of Marietta E. Calisterio to act as administrator of Teodorico's estate, and if so found competent and willing, that she be appointed as such; otherwise, to determine who among the deceased's next of kin is competent and willing to become the administrator of the estate." On 23 November 1998, the Court of Appeals denied petitioner's motion for reconsideration, prompting her to interpose the present appeal. Petitioner asseverates: "It is respectfully submitted that the decision of the Court of Appeals reversing and setting aside the decision of the trial court is not in accord with the law or with the applicable decisions of this Honorable Court." It is evident that the basic issue focuses on the validity of the marriage between the deceased Teodorico and respondent Marietta, that, in turn, would be determinative of her right as a surviving spouse. Exsm The marriage between the deceased Teodorico and respondent Marietta was solemnized on 08 May 1958. The law in force at that time was the Civil Code, not the Family Code which took effect only on 03 August 1988. Article 256 of the Family Code itself limited its retroactive governance only to cases where it thereby would not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. Verily, the applicable specific provision in the instant controversy is Article 83 of the New Civil Code which provides: Kyle "Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: "(1) The first marriage was annulled or dissolved; or "(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court." Under the foregoing provisions, a subsequent marriage contracted during the lifetime of the first spouse is illegal and void ab initio unless the prior marriage is first annulled or dissolved. Paragraph (2) of the law gives exceptions from the above rule. For the subsequent marriage referred to in the three exceptional cases therein provided, to be

held valid, the spouse present (not the absentee spouse) so contracting the later marriage must have done so in good faith. Bad faith imports a dishonest purpose or some moral obliquity and conscious doing of wrong - it partakes of the nature of fraud, a breach of a known duty through some motive of interest or ill will. The Court does not find these circumstances to be here extant. Kycalr A judicial declaration of absence of the absentee spouse is not necessary as long as the prescribed period of absence is met. It is equally noteworthy that the marriage in these exceptional cases are, by the explicit mandate of Article 83, to be deemed valid "until declared null and void by a competent court." It follows that the burden of proof would be, in these cases, on the party assailing the second marriage. Calrky In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may exceptionally be considered valid, the following conditions must concur; viz.: (a) The prior spouse of the contracting party must have been absent for four consecutive years, or two years where there is danger of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding in court to ask for that declaration. The last condition is consistent and in consonance with the requirement of judicial intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the Family Code. Mesm In the case at bar, it remained undisputed that respondent Marietta's first husband, James William Bounds, had been absent or had disappeared for more than eleven years before she entered into a second marriage in 1958 with the deceased Teodorico Calisterio. This second marriage, having been contracted during the regime of the Civil Code, should thus be deemed valid notwithstanding the absence of a judicial declaration of presumptive death of James Bounds. The conjugal property of Teodorico and Marietta, no evidence having been adduced to indicate another property regime between the spouses, pertains to them in common. Upon its dissolution with the death of Teodorico, the property should rightly be divided in two equal portions -- one portion going to the surviving spouse and the other portion to the estate of the deceased spouse. The successional right in intestacy of a surviving spouse over the net estate of the deceased, concurring with legitimate brothers and sisters or nephews and nieces (the latter by right of representation), is one-half of the inheritance, the brothers and sisters or nephews and nieces, being entitled to the other half. Nephews and nieces, however, can only succeed by right of representation in the presence of uncles and aunts; alone, upon the other hand, nephews and nieces can succeed in their own right which is to say that brothers or sisters exclude nephews and nieces except only in representation by the latter of their parents who predecease or are incapacitated to succeed. The appellate court has thus erred in granting, in paragraph (c) of the dispositive portion of its judgment, successional rights, to petitioner's children,

along with their own mother Antonia who herself is invoking successional rights over the estate of her deceased brother. Slx WHEREFORE, the assailed judgment of the Coin of Appeals in CA G.R. CV No. 51574 is AFFIRMED except insofar only as it decreed in paragraph (c) of the dispositive portion thereof that the children of petitioner are likewise entitled, along with her, to the other half of the inheritance, in lieu of which, it is hereby DECLARED that said one-half share of the decedent's estate pertains solely to petitioner to the exclusion of her own children. No costs. SO ORDERED. Melo, (Chairman), Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.

SECOND DIVISION

REPUBLIC OF THE PHILIPPINES, Petitioner,

G.R. No. 159614

Present:

- versus -

PUNO, J., Chairman, AUSTRIA-MARTINEZ, CALLEJO, SR.,

THE HONORABLE COURT OF APPEALS (TENTH DIVISION) and ALAN B. ALEGRO, Respondents.

TINGA, and CHICO-NAZARIO, JJ.

Promulgated:

December 9, 2005 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CALLEJO, SR., J.:

On March 29, 2001, Alan B. Alegro filed a petition in the Regional Trial Court (RTC) of Catbalogan, Samar, Branch 27, for the declaration of presumptive death of his wife, Rosalia (Lea) A. Julaton.

In an Order[1] dated April 16, 2001, the court set the petition for hearing on May 30, 2001 at 8:30 a.m. and directed that a copy of the said order be published once a week for three (3) consecutive weeks in the Samar Reporter, a newspaper of general circulation in the Province of Samar, and

that a copy be posted in the courts bulletin board for at least three weeks before the next scheduled hearing. The court also directed that copies of the order be served on the Solicitor General, the Provincial Prosecutor of Samar, and Alan, through counsel, and that copies be sent to Lea by registered mail. Alan complied with all the foregoing jurisdictional requirements.[2]

On May 28, 2001, the Republic of the Philippines, through the Office of the Solicitor General (OSG), filed a Motion to Dismiss[3] the petition, which was, however, denied by the court for failure to comply with Rule 15 of the Rules of Court.[4]

At the hearing, Alan adduced evidence that he and Lea were married on January 20, 1995 in Catbalogan, Samar.[5] He testified that, on February 6, 1995, Lea arrived home late in the evening and he berated her for being always out of their house. He told her that if she enjoyed the life of a single person, it would be better for her to go back to her parents.[6] Lea did not reply. Alan narrated that, when he reported for work the following day, Lea was still in the house, but when he arrived home later in the day, Lea was nowhere to be found.[7] Alan thought

that Lea merely went to her parents house in Bliss, Sto. Nio, Catbalogan, Samar. [8] However, Lea did not return to their house anymore.

Alan further testified that, on February 14, 1995, after his work, he went to the house of Leas parents to see if she was there, but he was told that she was not there. He also went to the house of Leas friend, Janeth Bautista, at Barangay Canlapwas, but he was informed by Janettes brother-in-law, Nelson Abaenza, that Janeth had left for Manila.[9] When Alan went back to the house of his parents-inlaw, he learned from his father-in-law that Lea had been to their house but that she left without notice.[10] Alan sought the help of Barangay Captain Juan Magat, who promised to help him locate his wife. He also inquired from his friends of Leas whereabouts but to no avail.[11]

Sometime in June 1995, he decided to go to Manila to look for Lea, but his mother asked him to leave after the town fiesta of Catbalogan, hoping that Lea may come home for the fiesta. Alan agreed.[12] However, Lea did not show up. Alan then left for Manila on August 27, 1995. He went to a house in Navotas where Janeth, Leas friend, was staying. When asked where Lea was, Janeth told him that she had not seen her.[13] He failed to find out Leas whereabouts despite his

repeated talks with Janeth. Alan decided to work as a part-time taxi driver. On his free time, he would look for Lea in the malls but still to no avail. He returned to Catbalogan in 1997 and again looked for his wife but failed.[14]

On June 20, 2001, Alan reported Leas disappearance to the local police station.[15] The police authorities issued an Alarm Notice on July 4, 2001.[16] Alan also reported Leas disappearance to the National Bureau of Investigation (NBI) on July 9, 2001.[17]

Barangay Captain Juan Magat corroborated the testimony of Alan. He declared that on February 14, 1995, at 2:00 p.m., Alan inquired from him if Lea passed by his house and he told Alan that she did not. Alan also told him that Lea had disappeared. He had not seen Lea in the barangay ever since.[18] Leas father, who was his compadre and the owner of Radio DYMS, told him that he did not know where Lea was.[19]

After Alan rested his case, neither the Office of the Provincial Prosecutor nor the Solicitor General adduced evidence in opposition to the petition.

On January 8, 2002, the court rendered judgment granting the petition. The fallo of the decision reads:

WHEREFORE, and in view of all the foregoing, petitioners absent spouse ROSALIA JULATON is hereby declared PRESUMPTIVELY DEAD for the purpose of the petitioners subsequent marriage under Article 41 of the Family Code of the Philippines, without prejudice to the effect of reappearance of the said absent spouse. SO ORDERED.[20]

The OSG appealed the decision to the Court of Appeals (CA) which rendered judgment on August 4, 2003, affirming the decision of the RTC.[21] The CA cited the ruling of this Court in Republic v. Nolasco.[22]

The OSG filed a petition for review on certiorari of the CAs decision alleging that respondent Alan B. Alegro failed to prove that he had a well-founded belief that Lea was already dead.[23] It averred that the respondent failed to exercise reasonable and diligent efforts to locate his wife. The respondent even admitted that Leas father told him on February 14, 1995 that Lea had been to their house but left without notice. The OSG pointed out that the respondent reported his wifes disappearance to the local police and also to the NBI only after the

petitioner filed a motion to dismiss the petition. The petitioner avers that, as gleaned from the evidence, the respondent did not really want to find and locate Lea. Finally, the petitioner averred:
In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration of presumptive death of ones spouse, the degree of due diligence set by this Honorable Court in the above-mentioned cases in locating the whereabouts of a missing spouse must be strictly complied with. There have been times when Article 41 of the Family Code had been resorted to by parties wishing to remarry knowing fully well that their alleged missing spouses are alive and well. It is even possible that those who cannot have their marriages x x x declared null and void under Article 36 of the Family Code resort to Article 41 of the Family Code for relief because of the x x x summary nature of its proceedings. It is the policy of the State to protect and strengthen the family as a basic social institution. Marriage is the foundation of the family. Since marriage is an inviolable social institution that the 1987 Constitution seeks to protect from dissolution at the whim of the parties. For respondents failure to prove that he had a well-founded belief that his wife is already

dead and that he exerted the required amount of diligence in searching for his missing wife, the petition for declaration of presumptive death should have been denied by the trial court and the Honorable Court of Appeals.[24]

The petition is meritorious.

Article 41 of the Family Code of the Philippines reads:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.[25]

The spouse present is, thus, burdened to prove that his spouse has been absent and that he has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent marriage. The law does not define what is meant by a well-grounded belief. Cuello Callon writes that es menester que su creencia sea firme se funde en motivos racionales.[26]

Belief is a state of the mind or condition prompting the doing of an overt act. It may be proved by direct evidence or circumstantial evidence which may

tend, even in a slight degree, to elucidate the inquiry or assist to a determination probably founded in truth. Any fact or circumstance relating to the character, habits, conditions, attachments, prosperity and objects of life which usually control the conduct of men, and are the motives of their actions, was, so far as it tends to explain or characterize their disappearance or throw light on their intentions,[27] competence evidence on the ultimate question of his death.

The belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still alive or is already dead. Whether or not the spouse present acted on a well-founded belief of death of the absent spouse depends upon the inquiries to be drawn from a great many circumstances occurring before and after the disappearance of the absent spouse and the nature and extent of the inquiries made by present spouse.[28]

Although testimonial evidence may suffice to prove the well-founded belief of the present spouse that the absent spouse is already dead, in Republic v. Nolasco,[29] the Court warned against collusion between the parties when they find it impossible to dissolve the marital bonds through existing legal means. It is also the maxim that men readily believe what they wish to be true.

In this case, the respondent failed to present a witness other than Barangay Captain Juan Magat. The respondent even failed to present Janeth Bautista or Nelson Abaenza or any other person from whom he allegedly made inquiries about Lea to corroborate his testimony. On the other hand, the respondent admitted that when he returned to the house of his parents-in-law on February 14, 1995, his father-in-law told him that Lea had just been there but that she left without notice. The respondent declared that Lea left their abode on February 7, 1995 after he chided her for coming home late and for being always out of their house, and told her that it would be better for her to go home to her parents if she enjoyed the life of a single person. Lea, thus, left their conjugal abode and never returned. Neither did she communicate with the respondent after leaving the conjugal abode because of her resentment to the chastisement she received from him barely a month after their marriage. What is so worrisome is that, the respondent failed to make inquiries from his parents-in-law regarding Leas whereabouts before filing his petition in the RTC. It could have enhanced the credibility of the respondent had he made inquiries from his parents-in-law about Leas whereabouts considering that Leas father was the owner of Radio DYMS.

The respondent did report and seek the help of the local police authorities and the NBI to locate Lea, but it was only an afterthought. He did so only after the OSG filed its notice to dismiss his petition in the RTC.

In sum, the Court finds and so holds that the respondent failed to prove that he had a well-founded belief, before he filed his petition in the RTC, that his spouse Rosalia (Lea) Julaton was already dead.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 73749 is REVERSED and SET ASIDE. Consequently, the Regional Trial Court of Catbalogan, Samar, Branch 27, is ORDERED to DISMISS the respondents petition.

SO ORDERED. ROMEO J. CALLEJO, SR. Associate Justice WE CONCUR: REYNATO S. PUNO Associate Justice Chairman

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

ATTESTATION I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Associate Justice Chairman, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairmans Attestation, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

HILARIO G. DAVIDE, JR. Chief Justice

THIRD DIVISION
SOCIAL SECURITY SYSTEM, Petitioner, G.R. No. 165545

Present:

QUISUMBING, Chairperson,* -versusCARPIO, Acting Chairperson, CARPIO MORALES, and TINGA, JJ.

TERESITA JARQUE VDA. DE BAILON, Respondent.

Promulgated:

March 24, 2006

x----------------------------------------------x

DECISION

CARPIO MORALES, J.:

The Court of Appeals Decision dated June 23, 2004 and Resolution dated September 28, 2004 reversing the Resolution dated April 2, 2003 and Order dated June 4, 2003 of the Social Security Commission (SSC) in SSC Case No. 4-1514901 are challenged in the present petition for review on certiorari.

On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted marriage in Barcelona, Sorsogon.

More than 15 years later or on October 9, 1970, Bailon filed before the then Court of First Instance (CFI) of Sorsogon a petition to declare Alice presumptively dead.

By Order of December 10, 1970, the CFI granted the petition, disposing as follows:

WHEREFORE, there being no opposition filed against the petition notwithstanding the publication of the Notice of Hearing in a newspaper of general circulation in the country, Alice Diaz is hereby declared to [sic] all legal intents and purposes, except for those of succession, presumptively dead. SO ORDERED. (Underscoring supplied)

Close to 13 years after his wife Alice was declared presumptively dead or on August 8, 1983, Bailon contracted marriage with Teresita Jarque (respondent) in Casiguran, Sorsogon.

On January 30, 1998, Bailon, who was a member of the Social Security System (SSS) since 1960 and a retiree pensioner thereof effective July 1994, died.

Respondent thereupon filed a claim for funeral benefits, and was granted P12,000 by the SSS.

Respondent filed on March 11, 1998 an additional claim for death benefits which was also granted by the SSS on April 6, 1998.

Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one Elisa Jayona (Elisa) contested before the SSS the release to respondent of the death and funeral benefits. She claimed that Bailon contracted three marriages in his lifetime, the first with Alice, the second with her mother Elisa, and the third with respondent, all of whom are still alive; she, together with her siblings, paid for Bailons medical and funeral expenses; and all the documents submitted by respondent to the SSS in support of her claims are spurious.

In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma) submitted an Affidavit dated February 13, 1999 averring that they are two of nine children of Bailon and Elisa who cohabited as husband and wife as early as 1958; and they were reserving their right to file the necessary court action to contest the marriage between Bailon and respondent as they personally know that Alice is still very much alive.

In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the brother and guardian of Aliz P. Diaz, filed before the SSS a claim for death benefits accruing from Bailons death, he further attesting in a sworn statement that it was Norma who defrayed Bailons funeral expenses.

Elisa and seven of her children subsequently filed claims for death benefits as Bailons beneficiaries before the SSS.

Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga City recommended the cancellation of payment of death pension benefits to respondent and the issuance of an order for the refund of the amount paid to her from February 1998 to May 1999 representing such benefits; the denial of the claim of Alice on the ground that she was not dependent upon Bailon for support during his lifetime; and the payment of the balance of the five-year guaranteed pension to Bailons beneficiaries according to the order of preference provided

under the law, after the amount erroneously paid to respondent has been collected. The pertinent portions of the Memorandum read:

1. Aliz [sic] Diaz never disappeared. The court must have been misled by misrepresentation in declaring the first wife, Aliz [sic] Diaz, as presumptively dead. xxxx x x x the Order of the court in the Petition to Declare Alice Diaz Presumptively Dead, did not become final. The presence of Aliz [sic] Diaz, is contrary proof that rendered it invalid. xxxx 3. It was the deceased member who abandoned his wife, Aliz [sic] Diaz. He, being in bad faith, and is the deserting spouse, his remarriage is void, being bigamous. xxxx In this case, it is the deceased member who was the deserting spouse and who remarried, thus his marriage to Teresita Jarque, for the second time was void as it was bigamous. To require affidavit of reappearance to terminate the second marriage is not necessary as there is no disappearance of Aliz [sic] Diaz, the first wife, and a voidable marriage [sic], to speak of. (Underscoring supplied)

In the meantime, the SSS Sorsogon Branch, by letter of August 16, 2000, advised respondent that as Cecilia and Norma were the ones who defrayed Bailons funeral expenses, she should return the P12,000 paid to her.

In a separate letter dated September 7, 1999, the SSS advised respondent of the cancellation of her monthly pension for death benefits in view of the opinion rendered by its legal department that her marriage with Bailon was void as it was contracted while the latters marriage with Alice was still subsisting; and the December 10, 1970 CFI Order declaring Alice presumptively dead did not become final, her presence being contrary proof against the validity of the order. It thus requested respondent to return the amount of P24,000 representing the total amount of monthly pension she had received from the SSS from February 1998 to May 1999.

Respondent protested the cancellation of her monthly pension for death benefits by letter to the SSS dated October 12, 1999. In a subsequent letter dated November 27, 1999 to the SSC, she reiterated her request for the release of her monthly pension, asserting that her marriage with Bailon was not declared before any court of justice as bigamous or unlawful, hence, it remained valid and subsisting for all legal intents and purposes as in fact Bailon designated her as his beneficiary.

The SSS, however, by letter to respondent dated January 21, 2000, maintained the denial of her claim for and the discontinuance of payment of monthly pension. It advised her, however, that she was not deprived of her right to file a petition with the SSC.

Respondent thus filed a petition against the SSS before the SSC for the restoration to her of her entitlement to monthly pension.

In the meantime, respondent informed the SSS that she was returning, under protest, the amount of P12,000 representing the funeral benefits she received, she alleging that Norma and her siblings forcibly and coercively prevented her from spending any amount during Bailons wake.

After the SSS filed its Answer to respondents petition, and the parties filed their respective Position Papers, one Alicia P. Diaz filed an Affidavit dated August 14, 2002 with the SSS Naga Branch attesting that she is the widow of Bailon; she had only recently come to know of the petition filed by Bailon to declare her presumptively dead; it is not true that she disappeared as Bailon could have easily located her, she having stayed at her parents residence in Barcelona, Sorsogon after she found out that Bailon was having an extramarital affair; and Bailon used to visit her even after their separation.

By Resolution of April 2, 2003, the SSC found that the marriage of respondent to Bailon was void and, therefore, she was just a common-law-wife. Accordingly it disposed as follows, quoted verbatim:

WHEREFORE, this Commission finds, and so holds, that petitioner Teresita Jarque-Bailon is not the legitimate spouse and primary beneficiary of SSS member Clemente Bailon. Accordingly, the petitioner is hereby ordered to refund to the SSS the amount of P24,000.00 representing the death benefit she received therefrom for the period February 1998 until May 1999 as well as P12,000.00 representing the funeral benefit. The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the appropriate death benefit arising from the demise of SSS member Clemente Bailon in accordance with Section 8(e) and (k) as well as Section 13 of the SS Law, as amended, and its prevailing rules and regulations and to inform this Commission of its compliance herewith. SO ORDERED. (Underscoring supplied)

In so ruling against respondent, the SSC ratiocinated.

After a thorough examination of the evidence at hand, this Commission comes to the inevitable conclusion that the petitioner is not the legitimate wife of the deceased member. xxxx There is x x x ample evidence pointing to the fact that, contrary to the declaration of the then CFI of Sorsogon (10th Judicial District), the first wife never disappeared as the deceased member represented in bad faith. This Commission accords credence to the findings of the SSS contained in its Memorandum dated August 9, 1999, revealing that Alice (a.k.a. Aliz) Diaz never left Barcelona, Sorsogon, after her separation from Clemente Bailon x x x. As the declaration of presumptive death was extracted by the deceased member using artifice and by exerting fraud upon the unsuspecting court of law, x x x it never had the effect of giving the deceased member the right to marry anew. x x x [I]t is clear that the marriage to the petitioner is void, considering that the first marriage on April 25, 1955 to Alice Diaz was not previously annulled, invalidated or otherwise dissolved during the lifetime of the parties

thereto. x x x as determined through the investigation conducted by the SSS, Clemente Bailon was the abandoning spouse, not Alice Diaz Bailon. xxxx It having been established, by substantial evidence, that the petitioner was just a common-law wife of the deceased member, it necessarily follows that she is not entitled as a primary beneficiary, to the latters death benefit. x x x xxxx It having been determined that Teresita Jarque was not the legitimate surviving spouse and primary beneficiary of Clemente Bailon, it behooves her to refund the total amount of death benefit she received from the SSS for the period from February 1998 until May 1999 pursuant to the principle of solutio indebiti xxx Likewise, it appearing that she was not the one who actually defrayed the cost of the wake and burial of Clemente Bailon, she must return the amount of P12,000.00 which was earlier given to her by the SSS as funeral benefit. (Underscoring supplied)

Respondents Motion for Reconsideration having been denied by Order of June 4, 2003, she filed a petition for review before the Court of Appeals (CA).

By Decision of June 23, 2004, the CA reversed and set aside the April 2, 2003 Resolution and June 4, 2003 Order of the SSC and thus ordered the SSS to pay respondent all the pension benefits due her. Held the CA:

x x x [T]he paramount concern in this case transcends the issue of whether or not the decision of the then CFI, now RTC, declaring Alice Diaz presumptively dead has attained finality but, more importantly, whether or not the respondents SSS and Commission can validly re-evaluate the findings of the

RTC, and on its own, declare the latters decision to be bereft of any basis. On similar import, can respondents SSS and Commission validly declare the first marriage subsisting and the second marriage null and void? xxxx x x x while it is true that a judgment declaring a person presumptively dead never attains finality as the finding that the person is unheard of in seven years is merely a presumption juris tantum, the second marriage contracted by a person with an absent spouse endures until annulled. It is only the competent court that can nullify the second marriage pursuant to Article 87 of the Civil Code and upon the reappearance of the missing spouse, which action for annulment may be filed. Nowhere does the law contemplates [sic] the possibility that respondent SSS may validly declare the second marriage null and void on the basis alone of its own investigation and declare that the decision of the RTC declaring one to be presumptively dead is without basis. Respondent SSS cannot arrogate upon itself the authority to review the decision of the regular courts under the pretext of determining the actual and lawful beneficiaries of its members. Notwithstanding its opinion as to the soundness of the findings of the RTC, it should extend due credence to the decision of the RTC absent of [sic] any judicial pronouncement to the contrary. x xx x x x [A]ssuming arguendo that respondent SSS actually possesses the authority to declare the decision of the RTC to be without basis, the procedure it followed was offensive to the principle of fair play and thus its findings are of doubtful quality considering that petitioner Teresita was not given ample opportunity to present evidence for and her behalf. xxxx Respondent SSS is correct in stating that the filing of an Affidavit of Reappearance with the Civil Registry is no longer practical under the premises. Indeed, there is no more first marriage to restore as the marital bond between Alice Diaz and Clemente Bailon was already terminated upon the latters death. Neither is there a second marriage to terminate because the second marriage was likewise dissolved by the death of Clemente Bailon. However, it is not correct to conclude that simply because the filing of the Affidavit of Reappearance with the Civil Registry where parties to the subsequent marriage reside is already inutile, the respondent SSS has now the authority to review the decision of the RTC and consequently declare the second marriage null and void. (Emphasis and underscoring supplied)

The SSC and the SSS separately filed their Motions for Reconsideration which were both denied for lack of merit.

Hence, the SSS present petition for review on certiorari anchored on the following grounds:

I THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW. II THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION.

The SSS faults the CA for failing to give due consideration to the findings of facts of the SSC on the prior and subsisting marriage between Bailon and Alice; in disregarding the authority of the SSC to determine to whom, between Alice and respondent, the death benefits should be awarded pursuant to Section 5 of the Social Security Law; and in declaring that the SSS did not give respondent due process or ample opportunity to present evidence in her behalf. The SSS submits that the observations and findings relative to the CFI proceedings are of no moment to the present controversy, as the same may be considered only as obiter dicta in view of the SSCs finding of the existence of a prior and subsisting marriage between Bailon and Alice by virtue of which Alice has a better right to the death benefits. The petition fails.

That the SSC is empowered to settle any dispute with respect to SSS coverage, benefits and contributions, there is no doubt. In so exercising such power, however, it cannot review, much less reverse, decisions rendered by courts of law as it did in the case at bar when it declared that the December 10, 1970 CFI Order was obtained through fraud and subsequently disregarded the same, making its own findings with respect to the validity of Bailon and Alices marriage on the one hand and the invalidity of Bailon and respondents marriage on the other. In interfering with and passing upon the CFI Order, the SSC virtually acted as an appellate court. The law does not give the SSC unfettered discretion to trifle with orders of regular courts in the exercise of its authority to determine the beneficiaries of the SSS. The two marriages involved herein having been solemnized prior to the effectivity on August 3, 1988 of the Family Code, the applicable law to determine their validity is the Civil Code which was the law in effect at the time of their celebration. Article 83 of the Civil Code provides: Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (1) The first marriage was annulled or dissolved; or (2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court. (Emphasis and underscoring supplied)

Under the foregoing provision of the Civil Code, a subsequent marriage contracted during the lifetime of the first spouse is illegal and void ab initio unless the prior marriage is

first annulled or dissolved or contracted under any of the three exceptional circumstances. It bears noting that the marriage under any of these exceptional cases is deemed valid until declared null and void by a competent court. It follows that the onus probandi in these cases rests on the party assailing the second marriage. In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive years when Bailon sought the declaration of her presumptive death, which judicial declaration was not even a requirement then for purposes of remarriage. Eminent jurist Arturo M. Tolentino (now deceased) commented: Where a person has entered into two successive marriages, a presumption arises in favor of the validity of the second marriage, and the burden is on the party attacking the validity of the second marriage to prove that the first marriage had not been dissolved; it is not enough to prove the first marriage, for it must also be shown that it had not ended when the second marriage was contracted. The presumption in favor of the innocence of the defendant from crime or wrong and of the legality of his second marriage, will prevail over the presumption of the continuance of life of the first spouse or of the continuance of the marital relation with such first spouse. (Underscoring supplied)

Under the Civil Code, a subsequent marriage being voidable, it is terminated by final judgment of annulment in a case instituted by the absent spouse who reappears or by either of the spouses in the subsequent marriage. Under the Family Code, no judicial proceeding to annul a subsequent marriage is necessary. Thus Article 42 thereof provides: Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses

of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (Emphasis and underscoring supplied)

The termination of the subsequent marriage by affidavit provided by the above-quoted provision of the Family Code does not preclude the filing of an action in court to prove the reappearance of the absentee and obtain a declaration of dissolution or termination of the subsequent marriage.

If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or by court action, such absentees mere reappearance, even if made known to the spouses in the subsequent marriage, will not terminate such marriage. Since the second marriage has been contracted because of a presumption that the former spouse is dead, such presumption continues inspite of the spouses physical reappearance, and by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is terminated as provided by law. If the subsequent marriage is not terminated by registration of an affidavit of reappearance or by judicial declaration but by death of either spouse as in the case at bar, Tolentino submits: x x x [G]enerally if a subsequent marriage is dissolved by the death of either spouse, the effects of dissolution of valid marriages shall arise. The good or bad faith of either spouse can no longer be raised, because, as in annullable or voidable marriages, the marriage cannot be questioned except in a direct action for annulment. (Underscoring supplied) Similarly, Lapuz v. Eufemio instructs: In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons

involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried out in the testate or intestate proceedings of the deceased spouse, as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding. (Emphasis and underscoring supplied)

It bears reiterating that a voidable marriage cannot be assailed collaterally except in a direct proceeding. Consequently, such marriages can be assailed only during the lifetime of the parties and not after the death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. Upon the death of either, the marriage cannot be impeached, and is made good ab initio. In the case at bar, as no step was taken to nullify, in accordance with law, Bailons and respondents marriage prior to the formers death in 1998, respondent is rightfully the dependent spouse-beneficiary of Bailon. In light of the foregoing discussions, consideration of the other issues raised has been rendered unnecessary. WHEREFORE, the petition is DENIED. No costs. SO ORDERED.

CONCHITA CARPIO MORALES Associate Justice

WE CONCUR:

(ON OFFICIAL LEAVE) LEONARDO A. QUISUMBING Associate Justice Chairperson

ANTONIO T. CARPIO Associate Justice Acting Chairperson

DANTE O. TINGA Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO CARPIO Associate Justice Acting Chairperson

T.

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Acting Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN Chief Justice

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 180863 September 8, 2009

ANGELITA VALDEZ, Petitioner, vs. REPUBLIC OF THE PHILIPPINES, Respondent. DECISION NACHURA, J.: Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision of the Regional Trial Court (RTC) of Camiling, Tarlac dated November 12, 2007 dismissing petitioner Angelita Valdezs petition for the declaration of presumptive death of her husband, Sofio Polborosa (Sofio). The facts of the case are as follows: Petitioner married Sofio on January 11, 1971 in Pateros, Rizal. On December 13, 1971, petitioner gave birth to the spouses only child, Nancy. According to petitioner, she and Sofio argued constantly because the latter was unemployed and did not bring home any money. In March 1972, Sofio left their conjugal dwelling. Petitioner and their child waited for him to return but, finally, in May 1972, petitioner decided to go back to her parents home in Bancay 1st, Camiling, Tarlac. Three years passed without any word from Sofio. In October 1975, Sofio showed up at Bancay 1st. He and petitioner talked for several hours and they agreed to separate. They executed a document to that effect.1 That was the last time petitioner saw him. After that, petitioner didnt hear any news of Sofio, his whereabouts or even if he was alive or not.2 Believing that Sofio was already dead, petitioner married Virgilio Reyes on June 20, 1985.3 Subsequently, however, Virgilios application for naturalization filed with the United States Department of Homeland Security was denied because petitioners marriage to Sofio was subsisting.4 Hence, on March 29, 2007, petitioner filed a Petition before the RTC of Camiling, Tarlac seeking the declaration of presumptive death of Sofio. The RTC rendered its Decision5 on November 12, 2007, dismissing the Petition for lack of merit. The RTC held that Angelita "was not able to prove the well-grounded belief that her husband Sofio Polborosa was already dead." It said that under Article 41 of the Family Code, the present spouse is burdened to prove that her spouse has been absent and that she has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent

marriage. This belief, the RTC said, must be the result of proper and honest-to-goodness inquiries and efforts to ascertain the whereabouts of the absent spouse. The RTC found that, by petitioners own admission, she did not try to find her husband anymore in light of their mutual agreement to live separately. Likewise, petitioners daughter testified that her mother prevented her from looking for her father. The RTC also said there is a strong possibility that Sofio is still alive, considering that he would have been only 61 years old by then, and people who have reached their 60s have not become increasingly low in health and spirits, and, even assuming as true petitioners testimony that Sofio was a chain smoker and a drunkard, there is no evidence that he continues to drink and smoke until now. Petitioner filed a motion for reconsideration.6 She argued that it is the Civil Code that applies in this case and not the Family Code since petitioners marriage to Sofio was celebrated on January 11, 1971, long before the Family Code took effect. Petitioner further argued that she had acquired a vested right under the provisions of the Civil Code and the stricter provisions of the Family Code should not be applied against her because Title XIV of the Civil Code, where Articles 384 and 390 on declaration of absence and presumption of death, respectively, can be found, was not expressly repealed by the Family Code. To apply the stricter provisions of the Family Code will impair the rights petitioner had acquired under the Civil Code. The RTC denied the Motion for Reconsideration in a Resolution dated December 10, 2007.7 Petitioner now comes before this Court seeking the reversal of the RTC Decision and Motion for Reconsideration. In its Manifestation and Motion,8 the Office of the Solicitor General (OSG) recommended that the Court set aside the assailed RTC Decision and grant the Petition to declare Sofio presumptively dead. The OSG argues that the requirement of "well-founded belief" under Article 41 of the Family Code is not applicable to the instant case. It said that petitioner could not be expected to comply with this requirement because it was not yet in existence during her marriage to Virgilio Reyes in 1985. The OSG further argues that before the effectivity of the Family Code, petitioner already acquired a vested right as to the validity of her marriage to Virgilio Reyes based on the presumed death of Sofio under the Civil Code. This vested right and the presumption of Sofios death, the OSG posits, could not be affected by the obligations created under the Family Code.9 Next, the OSG contends that Article 390 of the Civil Code was not repealed by Article 41 of the Family Code.10 Title XIV of the Civil Code, the OSG said, was not one of those expressly repealed by the Family Code. Moreover, Article 256 of the Family Code provides that its provisions shall not be retroactively applied if they will prejudice or impair vested or acquired rights.11 The RTC Decision, insofar as it dismissed the Petition, is affirmed. However, we must state that we are denying the Petition on grounds different from those cited in the RTC Decision.

Initially, we discuss a procedural issue. Under the Rules of Court, a party may directly appeal to this Court from a decision of the trial court only on pure questions of law. A question of law lies, on one hand, when the doubt or difference arises as to what the law is on a certain set of facts; on the other hand, a question of fact exists when the doubt or difference arises as to the truth or falsehood of the alleged facts. Here, the facts are not disputed; the controversy merely relates to the correct application of the law or jurisprudence to the undisputed facts.12 The RTC erred in applying the provisions of the Family Code and holding that petitioner needed to prove a "well-founded belief" that Sofio was already dead. The RTC applied Article 41 of the Family Code, to wit: Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting a subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. It is readily apparent, however, that the marriages of petitioner to Sofio and Virgilio on January 11, 1971 and June 20, 1985, respectively, were both celebrated under the auspices of the Civil Code. The pertinent provision of the Civil Code is Article 83: Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (1) The first marriage was annulled or dissolved; or (2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, of if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court. Article 390 of the Civil Code states:

Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. The Court, on several occasions, had interpreted the above-quoted provision in this wise: For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.13 Further, the Court explained that presumption of death cannot be the subject of court proceedings independent of the settlement of the absentees estate. In re Szatraw14 is instructive. In that case, petitioner contracted marriage with a Polish national in 1937. They lived together as husband and wife for three years. Sometime in 1940, the husband, on the pretext of visiting some friends, left the conjugal abode with their child and never returned. After inquiring from friends, petitioner found that her husband went to Shanghai, China. However, friends who came from Shanghai told her that the husband was not seen there. In 1948, petitioner filed a petition for the declaration of presumptive death of her husband arguing that since the latter had been absent for more than seven years and she had not heard any news from him and about her child, she believes that he is dead. In deciding the case, the Court said: The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not appear that he possessed property brought to the marriage and because he had acquired no property during his married life with the petitioner. The rule invoked by the latter is merely one of evidence which permits the court to presume that a person is dead after the fact that such person had been unheard from in seven years had been established. This presumption may arise and be invoked and made in a case, either in an action or in a special proceeding, which is tried or heard by, and submitted for decision to, a competent court. Independently of such an action or special proceeding, the presumption of death cannot be invoked, nor can it be made the subject of an action or special proceeding. In this case, there is no right to be enforced nor is there a remedy prayed for by the petitioner against her absent husband. Neither is there a prayer for the final determination of his right or status or for the ascertainment of a particular fact (Hagans v. Wislizenus, 42 Phil. 880), for the petition does not pray for a declaration that the petitioner's husband is dead, but merely asks for a declaration that he be presumed dead because he had been unheard from in seven years. If there is any pretense at securing a declaration that the petitioner's husband is dead, such a pretension cannot be granted because it is unauthorized. The petition is

for a declaration that the petitioner's husband is presumptively dead. But this declaration, even if judicially made, would not improve the petitioner's situation, because such a presumption is already established by law. A judicial pronouncement to that effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a competent court has to pass. The latter must decide finally the controversy between the parties, or determine finally the right or status of a party or establish finally a particular fact, out of which certain rights and obligations arise or may arise; and once such controversy is decided by a final judgment, or such right or status determined, or such particular fact established, by a final decree, then the judgment on the subject of the controversy, or the decree upon the right or status of a party or upon the existence of a particular fact, becomes res judicata, subject to no collateral attack, except in a few rare instances especially provided by law. It is, therefore, clear that a judicial declaration that a person is presumptively dead, because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final. Proof of actual death of the person presumed dead because he had been unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined.1avvphi1 If a judicial decree declaring a person presumptively dead, because he had not been heard from in seven years, cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner.15 In Lukban v. Republic,16 petitioner Lourdes G. Lukban contracted marriage with Francisco Chuidian on December 10, 1933. A few days later, on December 27, Francisco left Lourdes after a violent quarrel. She did not hear from him after that day. Her diligent search, inquiries from his parents and friends, and search in his last known address, proved futile. Believing her husband was already dead since he had been absent for more than twenty years, petitioner filed a petition in 1956 for a declaration that she is a widow of her husband who is presumed to be dead and has no legal impediment to contract a subsequent marriage. On the other hand, the antecedents in Gue v. Republic17 are similar to Szatraw. On January 5, 1946, Angelina Gues husband left Manila where they were residing and went to Shanghai, China. From that day on, he had not been heard of, had not written to her, nor in anyway communicated with her as to his whereabouts. Despite her efforts and diligence, she failed to locate him. After 11 years, she asked the court for a declaration of the presumption of death of Willian Gue, pursuant to the provisions of Article 390 of the Civil Code of the Philippines. In both cases, the Court reiterated its ruling in Szatraw. It held that a petition for judicial declaration that petitioner's husband is presumed to be dead cannot be entertained because it is not authorized by law.18 From the foregoing, it can be gleaned that, under the Civil Code, the presumption of death is established by law19 and no court declaration is needed for the presumption to arise. Since death is presumed to have taken place by the seventh year of absence,20 Sofio is to be presumed dead starting October 1982.

Consequently, at the time of petitioners marriage to Virgilio, there existed no impediment to petitioners capacity to marry, and the marriage is valid under paragraph 2 of Article 83 of the Civil Code. Further, considering that it is the Civil Code that applies, proof of "well-founded belief" is not required. Petitioner could not have been expected to comply with this requirement since the Family Code was not yet in effect at the time of her marriage to Virgilio. The enactment of the Family Code in 1988 does not change this conclusion. The Family Code itself states: Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. To retroactively apply the provisions of the Family Code requiring petitioner to exhibit "wellfounded belief" will, ultimately, result in the invalidation of her second marriage, which was valid at the time it was celebrated. Such a situation would be untenable and would go against the objectives that the Family Code wishes to achieve. In sum, we hold that the Petition must be dismissed since no decree on the presumption of Sofios death can be granted under the Civil Code, the same presumption having arisen by operation of law. However, we declare that petitioner was capacitated to marry Virgilio at the time their marriage was celebrated in 1985 and, therefore, the said marriage is legal and valid. WHEREFORE, the foregoing premises considered, the Petition is DENIED. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice WE CONCUR: CONSUELO YNARES-SANTIAGO Associate Justice Chairperson MINITA V. CHICO-NAZARIO Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice

DIOSDADO M. PERALTA Associate Justice ATTESTATION I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12790 August 31, 1960

JOEL JIMENEZ, plaintiff-appellee, vs. REMEDIOS CAIZARES, defendant. Republic of the Philippines, intervenor-appellant. Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for appellant. Climaco, Ascarraga and Silang for appellee. PADILLA, J.: In a complaint filed on 7 June 1955 in the Court of First Instance of Zamboanga the plaintiff Joel Jimenez prays for a decree annulling his marriage to the defendant Remedios Caizares contracted on 3 August 1950 before a judge of the municipal court of Zamboanga City, upon the ground that the office of her genitals or vagina was to small to allow the penetration of a male organ or penis for copulation; that the condition of her genitals as described above existed at the time of marriage and continues to exist; and that for that reason he left the conjugal home two nights and one day after they had been married. On 14 June 1955 the wife was summoned and served a copy of the complaint. She did not file an answer. On 29 September 1956, pursuant to the provisions of article 88 of the Civil Code, the Court directed the city attorney of Zamboanga to inquire whether there was a collusion, to intervene for the State to see that the evidence for the plaintiff is not a frame-up, concocted or fabricated. On 17 December 1956 the Court entered an order requiring the defendant to submit to a physical examination by a competent lady physician to determine her physical capacity for copulation and to submit, within ten days from receipt of the order, a medical certificate on the result thereof. On 14 March 1957 the defendant was granted additional five days from notice to comply with the order of 17 December 1956 with warning that her failure to undergo medical examination and submit the required doctor's certificate would be deemed lack of interest on her part in the case and that judgment upon the evidence presented by her husband would be rendered. After hearing, at which the defendant was not present, on 11 April 1957 the Court entered a decree annulling the marriage between the plaintiff and the defendant. On 26 April 1957 the city attorney filed a motion for reconsideration of the decree thus entered, upon the ground, among others, that the defendant's impotency has not been satisfactorily established as required by law; that she had not been physically examined because she had refused to be examined; that instead of annulling the marriage the Court should have punished her for contempt of court and compelled her to undergo a physical examination and submit a medical certificate; and that the

decree sought to be reconsidered would open the door to married couples, who want to end their marriage to collude or connive with each other by just alleging impotency of one of them. He prayed that the complaint be dismissed or that the wife be subjected to a physical examination. Pending resolution of his motion, the city attorney timely appealed from the decree. On 13 May 1957 the motion for reconsideration was denied. The question to determine is whether the marriage in question may be annulled on the strength only of the lone testimony of the husband who claimed and testified that his wife was and is impotent. The latter did not answer the complaint, was absent during the hearing, and refused to submit to a medical examination. Marriage in this country is an institution in which the community is deeply interested. The state has surrounded it with safeguards to maintain its purity, continuity and permanence. The security and stability of the state are largely dependent upon it. It is the interest of each and every member of the community to prevent the bringing about of a condition that would shake its foundation and ultimately lead to its destruction. The incidents of the status are governed by law, not by will of the parties. The law specifically enumerates the legal grounds, that must be proved to exist by indubitable evidence, to annul a marriage. In the case at bar, the annulment of the marriage in question was decreed upon the sole testimony of the husband who was expected to give testimony tending or aiming at securing the annulment of his marriage he sought and seeks. Whether the wife is really impotent cannot be deemed to have been satisfactorily established, becase from the commencement of the proceedings until the entry of the decree she had abstained from taking part therein. Although her refusal to be examined or failure to appear in court show indifference on her part, yet from such attitude the presumption arising out of the suppression of evidence could not arise or be inferred because women of this country are by nature coy, bashful and shy and would not submit to a physical examination unless compelled to by competent authority. This the Court may do without doing violence to and infringing in this case is not self-incrimination. She is not charged with any offense. She is not being compelled to be a witness against herself.1 "Impotency being an abnormal condition should not be presumed. The presumption is in favor of potency."2 The lone testimony of the husband that his wife is physically incapable of sexual intercourse is insufficient to tear asunder the ties that have bound them together as husband and wife. The decree appealed from is set aside and the case remanded to the lower court for further proceedings in accordance with this decision, without pronouncement as to costs. Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David, and Dizon, JJ. concur.

Republic of the Philippines SUPREME COURT Manila

Republic of the Philippines

Manila

THIRD DIVISION

MANUEL G. ALMELOR, cralawG.R. No. 179620 Petitioner, Present: YNARES-SANTIAGO, J., - versus - Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and THE HON. REGIONAL TRIAL REYES, JJ. COURT OF LAS PIAS CITY, BRANCH 254, andcralaw Promulgated: LEONIDA T. ALMELOR, Respondent. cralawAugust 26, 2008 x--------------------------------------------------x DECISION REYES, R.T., J.:

MARRIAGE, in its totality, involves the spouses right to the community of their whole lives. It likewise involves a true intertwining of personalities.[1]

This is a petition for review on certiorari of the Decision[2] of the Court of Appeals (CA) denying the petition for annulment of judgment and affirming in toto the decision of the Regional Trial Court (RTC), Las Pias, Branch 254. The CA dismissed outright the Rule 47 petition for being the wrong remedy.

The Facts

Petitioner Manuel G. Almelor (Manuel) and respondent Leonida Trinidad (Leonida) were married on January 29, 1989 at the Manila Cathedral.[3] Their union bore three children: (1) Maria Paulina Corinne, born on October 20, 1989; (2) Napoleon Manuel, born on August 9, 1991; and (3) Manuel Homer, born on July 4, 1994.[4] Manuel and Leonida are both medical practitioners, an anesthesiologist and a pediatrician, respectively.[5]

After eleven (11) years of marriage, Leonida filed a petition with the RTC in Las Pias City to annul their marriage on the ground that Manuel was psychologically incapacitated to perform his marital obligations. The case, docketed as LP-00-0132 was raffled off to Branch 254.

During the trial, Leonida testified that she first met Manuel in 1981 at the San Lazaro Hospital where they worked as medical student clerks. At that time, she regarded Manuel as a very thoughtful person who got along well with other people. They soon became sweethearts. Three years after, they got married.[6]

Leonida averred that Manuels kind and gentle demeanor did not last long. In the public eye, Manuel was the picture of a perfect husband and father. This was not the case in his private life. At home, Leonida described Manuel as a harsh disciplinarian, unreasonably meticulous, easily angered. Manuels unreasonable way of imposing discipline on their children was the cause of their frequent fights as a couple.[7] Leonida complained that this was in stark contrast to the alleged lavish affection Manuel has for his mother. Manuels deep attachment to his mother and his dependence on her decision-making were incomprehensible to Leonida.[8]

Further adding to her woes was his concealment to her of his homosexuality. Her suspicions were first aroused when she noticed Manuels peculiar closeness to his male companions. For instance, she caught him in an indiscreet telephone conversation manifesting his affection for a male caller.[9] She also found several pornographic homosexual materials in his possession.[10] Her worse fears were confirmed when she saw Manuel kissed another man on the lips. The man was a certain Dr. Nogales. [11] When she confronted Manuel, he denied everything. At this point, Leonida took her children and left their conjugal abode. Since then, Manuel stopped giving support to their children.[12]

Dr. Valentina del Fonso Garcia, a clinical psychologist, was presented to prove Leonidas claim. Dr. del Fonso Garcia testified that she conducted evaluative interviews and a battery of psychiatric tests on Leonida. She also had a one-time interview with Manuel and face-to-face interviews with Ma. Paulina Corrinne (the eldest child).[13] She concluded that Manuel is psychologically incapacitated.[14] Such incapacity is marked by antecedence; it existed even before the marriage and appeared to be incurable.

Manuel, for his part, admitted that he and Leonida had some petty arguments here and there. He, however, maintained that their marital relationship was generally harmonious. The petition for annulment filed by Leonida came as a surprise to him.

Manuel countered that the true cause of Leonidas hostility against him was their professional rivalry. It began when he refused to heed the memorandum[15] released by Christ the King Hospital. The

memorandum ordered him to desist from converting his own lying-in clinic to a primary or secondary hospital.[16] Leonidas family owns Christ the King Hospital which is situated in the same subdivision as Manuels clinic and residence.[17] In other words, he and her family have competing or rival hospitals in the same vicinity.

Manuel belied her allegation that he was a cruel father to their children. He denied maltreating them. At most, he only imposed the necessary discipline on the children.

He also defended his show of affection for his mother. He said there was nothing wrong for him to return the love and affection of the person who reared and looked after him and his siblings. This is especially apt now that his mother is in her twilight years.[18] Manuel pointed out that Leonida found fault in this otherwise healthy relationship because of her very jealous and possessive nature.[19]

This same overly jealous behavior of Leonida drove Manuel to avoid the company of female friends. He wanted to avoid any further misunderstanding with his wife. But, Leonida instead conjured up stories about his sexual preference. She also fabricated tales about pornographic materials found in his possession to cast doubt on his masculinity.[20]

To corroborate his version, he presented his brother, Jesus G. Almelor. Jesus narrated that he usually stayed at Manuels house during his weekly trips to Manila from Iriga City. He was a witness to the generally harmonious relationship between his brother Manuel and sister-in-law, Leonida. True, they had some quarrels typical of a husband and wife relationship. But there was nothing similar to what Leonida described in her testimony.[21]

Jesus further testified that he was with his brother on the day Leonida allegedly saw Manuel kissed another man. He denied that such an incident occurred. On that particular date, [22] he and Manuel went straight home from a trip to Bicol. There was no other person with them at that time, except their driver.
[23]

Manuel expressed his intention to refute Dr. del Fonso Garcias findings by presenting his own expert witness. However, no psychiatrist was presented.

RTC Disposition

By decision dated November 25, 2005, the RTC granted the petition for annulment, with the following disposition:

WHEREFORE, premised on the foregoing, judgment is hereby rendered: 1.cralawDeclaring the marriage contracted by herein parties on 29 January 1989 and all its effects under the law null and void from the beginning; 2.cralawDissolving the regime of community property between the same parties with forfeiture of defendants share thereon in favor of the same parties children whose

legal custody is awarded to plaintiff with visitorial right afforded to defendant; 3.cralawOrdering the defendant to give monthly financial support to all the children; and 4.cralawPursuant to the provisions of A.M. No. 02-11-10-SC: a.cralawDirecting the Branch Clerk of this Court to enter this Judgment upon its finality in the Book of Entry of Judgment and to issue an Entry of Judgment in accordance thereto; and b.cralawDirecting the Local Civil Registrars of Las Pias City and Manila City to cause the registration of the said Entry of Judgment in their respective Books of Marriages. Upon compliance, a decree of nullity of marriage shall be issued. SO ORDERED.[24] (Emphasis supplied)

The trial court nullified the marriage, not on the ground of Article 36, but Article 45 of the Family Code. It ratiocinated:

x x x a careful evaluation and in-depth analysis of the surrounding circumstances of the allegations in the complaint and of the evidence presented in support thereof (sic) reveals that in this case (sic) there is more than meets the eyes (sic). Both legally and biologically, homosexuality x x x is, indeed, generally incompatible with hetero sexual marriage. This is reason enough that in this jurisdiction (sic) the law recognizes marriage as a special contract exclusively only between a man and a woman x x x and thus when homosexuality has trespassed into marriage, the same law provides ample remedies to correct the situation [Article 45(3) in relation to Article 46(4) or Article 55, par. 6, Family Code]. This is of course in recognition of the biological fact that no matter how a man cheats himself that he is not a homosexual and forces himself to live a normal heterosexual life, there will surely come a time when his true sexual preference as a homosexual shall prevail in haunting him and thus jeopardizing the solidity, honor, and welfare of his own family.[25]

Manuel filed a notice of appeal which was, however, denied due course. Undaunted, he filed a petition for annulment of judgment with the CA.[26]

Manuel contended that the assailed decision was issued in excess of the lower courts jurisdiction; that it had no jurisdiction to dissolve the absolute community of property and forfeit his conjugal share in favor of his children.

CA Disposition

On July 31, 2007, the CA denied the petition, disposing as follows:

WHEREFORE, the present Petition for Annulment of Judgment is hereby DENIED. The Court AFFIRMS in toto the Decision (dated November 25, 2005) of the Regional Trial Court (Branch 254), in Las Pias City, in Civil Case No. LP00-0132. No costs.[27]

The CA stated that petitioner pursued the wrong remedy by filing the extraordinary remedy of petition for annulment of judgment. Said the appellate court:

It is obvious that the petitioner is questioning the propriety of the decision rendered by the lower Court. But the remedy assuming there was a mistake is not a Petition for Annulment of Judgment but an ordinary appeal. An error of judgment may be reversed or corrected only by appeal. What petitioner is ascribing is an error of judgment, not of jurisdiction, which is properly the subject of an ordinary appeal.

In short, petitioner admits the jurisdiction of the lower court but he claims excess in the exercise thereof. Excess assuming there was is not covered by Rule 47 of the 1997 Rules of Civil Procedure. The Rule refers the lack of jurisdiction and not the exercise thereof.[28]

Issues

Petitioner Manuel takes the present recourse via Rule 45, assigning to the CA the following errors:

I THE HONORABLE COURT OF APPEALS ERRED IN NOT TREATING THE PETITION FOR ANNULMENT OF JUDGMENT AS A PETITION FOR REVIEW IN VIEW OF THE IMPORTANCE OF THE ISSUES INVOLVED AND IN THE INTEREST OF JUSTICE; II THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION OF THE TRIAL COURT AS REGARDS THE ORDER DECLARING THE MARRIAGE AS NULL AND VOID ON THE GROUND OF PETITIONERS PSYCHOLOGICAL INCAPACITY; III THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION OF THE TRIAL COURT AS REGARDS THE ORDER TO FORFEIT THE SHARE OF PETITIONER IN HIS SHARE OF THE CONJUGAL ASSETS.[29]

Our Ruling

I.cralawThe stringent rules of procedures may be relaxed to serve the demands of substantial justice and in the Courts exercise of equity jurisdiction.

Generally, an appeal taken either to the Supreme Court or the CA by the wrong or inappropriate mode shall be dismissed.[30] This is to prevent the party from benefiting from ones neglect and mistakes. However, like most rules, it carries certain exceptions. After all, the ultimate purpose of all rules of procedures is to achieve substantial justice as expeditiously as possible.[31]

Annulment of judgment under Rule 47 is a last remedy. It can not be resorted to if the ordinary remedies are available or no longer available through no fault of petitioner.[32] However, in Buenaflor v. Court of Appeals,[33] this Court clarified the proper appreciation for technical rules of procedure, in this wise:

Rules of procedures are intended to promote, not to defeat, substantial justice and, therefore, they should not be applied in a very rigid and technical sense. The exception is that while the Rules are liberally construed, the provisions with respect to the rules on the manner and periods for perfecting appeals are strictly applied. As an exception to the exception, these rules have sometimes been relaxed on equitable considerations. Also, in some cases the Supreme Court has given due course to an appeal perfected out of time where a stringent application of the rules would have denied it, but only when to do so would serve the demands of substantial justice and in the exercise of equity jurisdiction of the Supreme Court.[34] (Emphasis and underscoring supplied)

cralawFor

reasons of justice and equity, this Court has allowed exceptions to the stringent rules governing

appeals.[35] It has, in the past, refused to sacrifice justice for technicality.[36]

cralawAfter

discovering the palpable error of his petition, Manuel seeks the indulgence of this Court to

consider his petition before the CA instead as a petition for certiorari under Rule 65.

A perusal of the said petition reveals that Manuel imputed grave abuse of discretion to the lower court for annulling his marriage on account of his alleged homosexuality. This is not the first time that this Court is faced with a similar situation. In Nerves v. Civil Service Commission,[37] petitioner Delia R. Nerves elevated to the CA a Civil Service Commission (CSC) decision suspending her for six (6) months. The CSC ruled Nerves, a public school teacher, is deemed to have already served her six-month suspension during the pendency of the case. Nevertheless, she is ordered reinstated without back wages. On appeal, Nerves stated in her petition, inter alia:

1. 2.

This is a petition for certiorari filed pursuant to Article IX-A, Section 7 of the Constitution of the Philippines and under Rule 65 of the Rules of Court. But per Supreme Court Revised Administrative Circular No. 1-95 (Revised Circular No. 1-91) petitioner is filing the instant petition with this Honorable Court instead of the Supreme Court.[38] (Underscoring supplied)

cralawThe

CA dismissed Nerves petition for certiorari for being the wrong remedy or the inappropriate

mode of appeal.[39] The CA opined that under the Supreme Court Revised Administrative Circular No. 195 x x x appeals from judgments or final orders or resolutions of CSC is by a petition for review.[40]

cralawThis

Court granted Nerves petition and held that she had substantially complied with the

Administrative Circular. The Court stated:

That it was erroneously labeled as a petition for certiorari under Rule 65 of the Rules of Court is only a minor procedural lapse, not fatal to the appeal. x x x
cralaw

More importantly, the appeal on its face appears to be impressed with merit. Hence, the Court of Appeals should have overlooked the insubstantial defects of the petition x x x in order to do justice to the parties concerned. There is, indeed, nothing sacrosanct about procedural rules, which should be liberally construed in order to promote their object and assist the parties in obtaining just, speedy, and inexpensive determination of every action or proceeding. As it has been said, where the rigid application of the rules would frustrate substantial justice, or bar
cralaw

the vindication of a legitimate grievance, the courts are justified in exempting a particular case from the operation of the rules.[41] (Underscoring supplied)

cralawSimilarly,

in the more recent case of Tan v. Dumarpa,[42] petitioner Joy G. Tan availed of a wrong

remedy by filing a petition for review on certiorari instead of a motion for new trial or an ordinary appeal. In the interest of justice, this Court considered the petition, pro hac vice, as a petition for certiorari under Rule 65.

This Court found that based on Tans allegations, the trial court prima facie committed grave abuse of discretion in rendering a judgment by default. If uncorrected, it will cause petitioner great injustice. The Court elucidated in this wise:

Indeed, where as here, there is a strong showing that grave miscarriage of justice would result from the strict application of the Rules, we will not hesitate to relax the same in the interest of substantial justice.[43] (Underscoring supplied)

cralawMeasured

by the foregoing yardstick, justice will be better served by giving due course to the present

petition and treating petitioners CA petition as one for certiorari under Rule 65, considering that what is at stake is the validity or non-validity of a marriage.

cralawIn

Salazar v. Court of Appeals,[44] citing Labad v. University of Southeastern Philippines, this Court

reiterated:

x x x The dismissal of appeals on purely technical grounds is frowned upon. While the right to appeal is a statutory, not a natural right, nonetheless it is an essential part of our judicial system and courts should proceed with caution so as not to deprive a party of the right to appeal, but rather, ensure that every party-

litigant has the amplest opportunity for the proper and just disposition of his cause, free from the constraints of technicalities.[45]

cralawIndeed,

it is far better and more prudent for a court to excuse a technical lapse and afford the parties a

review of the case on the merits to attain the ends of justice.[46]

cralawFurthermore,

it was the negligence and incompetence of Manuels counsel that prejudiced his right to

appeal. His counsel, Atty. Christine Dugenio, repeatedly availed of inappropriate remedies. After the denial of her notice of appeal, she failed to move for reconsideration or new trial at the first instance. She also erroneously filed a petition for annulment of judgment rather than pursue an ordinary appeal.

These manifest errors were clearly indicative of counsels incompetence. These gravely worked to the detriment of Manuels appeal. True it is that the negligence of counsel binds the client. Still, this Court has recognized certain exceptions: (1) where reckless or gross negligence of counsel deprives the client of due process of law; (2) when its application will result in outright deprivation of the clients liberty and property; or (3) where the interest of justice so require.[47]

cralawThe

negligence of Manuels counsel falls under the exceptions. Ultimately, the reckless or gross

negligence of petitioners former counsel led to the loss of his right to appeal. He should not be made to suffer for his counsels grave mistakes. Higher interests of justice and equity demand that he be allowed to ventilate his case in a higher court.

cralawIn

Apex Mining, Inc. v. Court of Appeals,[48] this Court explained thus:

It is settled that the negligence of counsel binds the client. This is based on the rule that any act performed by a counsel within the scope of his general or implied authority is regarded as an act of his client. However, where counsel is guilty of gross ignorance, negligence and dereliction of duty, which resulted in the clients being held liable for damages in a damage suit, the client is deprived of his day in court and the judgment may be set aside on such ground. In the instant case, higher interests of justice and equity demand that petitioners be allowed to present evidence on their defense. Petitioners may not be made to suffer for the lawyers mistakes. This Court will always be disposed to grant relief to parties aggrieved by perfidy, fraud, reckless inattention and downright incompetence of lawyers, which has the consequence of depriving their clients, of their day in court.[49] (Emphasis supplied)

Clearly, this Court has the power to except a particular case from the operation of the rule whenever the demands of justice require it. With more conviction should it wield such power in a case involving the sacrosanct institution of marriage. This Court is guided with the thrust of giving a party the fullest opportunity to establish the merits of ones action.[50]

cralawThe

client was likewise spared from counsels negligence in Government Service Insurance System v.

Bengson Commercial Buildings, Inc.[51] and Ancheta v. Guersey-Dalaygon.[52] Said the Court in Bengson:

But if under the circumstances of the case, the rule deserts its proper office as an aid to justice and becomes a great hindrance and chief enemy, its rigors must be relaxed to admit exceptions thereto and to prevent a miscarriage of justice. In other words, the court has the power to except a particular case from the operation of the rule whenever the purposes of justice require it.[53]

II.cralawConcealment of homosexuality is the proper ground to annul a marriage, not homosexuality per se.

cralawManuel

is a desperate man determined to salvage what remains of his marriage. Persistent in his

quest, he fought back all the heavy accusations of incapacity, cruelty, and doubted masculinity thrown at him.

cralawThe

trial court declared that Leonidas petition for nullity had no basis at all because the supporting

grounds relied upon can not legally make a case under Article 36 of the Family Code. It went further by citing Republic v. Molina:[54]

Indeed, mere allegations of conflicting personalities, irreconcilable differences, incessant quarrels and/or beatings, unpredictable mood swings, infidelities, vices, abandonment, and difficulty, neglect, or failure in the performance of some marital obligations do not suffice to establish psychological incapacity.[55]

If so, the lower court should have dismissed outright the petition for not meeting the guidelines set in Molina. What Leonida attempted to demonstrate were Manuels homosexual tendencies by citing overt acts generally predominant among homosexual individuals.[56] She wanted to prove that the perceived homosexuality rendered Manuel incapable of fulfilling the essential marital obligations.

cralawBut

instead of dismissing the petition, the trial court nullified the marriage between Manuel and

Leonida on the ground of vitiated consent by virtue of fraud. In support of its conclusion, the lower court reasoned out:

As insinuated by the State (p. 75, TSN, 15 December 2003), when there is smoke surely there is fire. Although vehemently denied by defendant, there is preponderant evidence enough to establish with certainty that defendant is really a homosexual. This is the fact that can be deduced from the totality of the marriage life scenario of herein parties.

Before his marriage, defendant knew very well that people around him even including his own close friends doubted his true sexual preference (TSN, pp. 3536, 13 December 2000; pp. 73-75, 15 December 2003). After receiving many forewarnings, plaintiff told defendant about the rumor she heard but defendant did not do anything to prove to the whole world once and for all the truth of all his denials. Defendant threatened to sue those people but nothing happened after that. There may have been more important matters to attend to than to waste time and effort filing cases against and be effected by these people and so, putting more premiums on defendants denials, plaintiff just the same married him. Reasons upon reasons may be advanced to either exculpate or nail to the cross defendant for his act of initially concealing his homosexuality to plaintiff, but in the end, only one thing is certain even during his marriage with plaintiff, the smoke of doubt about his real preference continued and even got thicker, reason why obviously defendant failed to establish a happy and solid family; and in so failing, plaintiff and their children became his innocent and unwilling victims.

Yes, there is nothing untoward of a man if, like herein defendant, he is meticulous over even small details in the house (sic) like wrongly folded bed sheets, etc. or if a man is more authoritative in knowing what clothes or jewelry shall fit his wife (pp. 77-81, TSN, 15 December 2003); but these admissions of defendant taken in the light of evidence presented apparently showing that he had extra fondness of his male friends (sic) to the extent that twice on separate occasions (pp. 4-7, TSN, 14 February 2001) he was allegedly seen by plaintiff kissing another man lips-tolips plus the homosexual magazines and tapes likewise allegedly discovered underneath his bed (Exhibits L and M), the doubt as to his real sex identity becomes stronger. The accusation of plaintiff versus thereof of defendant may be the name of the game in this case; but the simple reason of professional rivalry advanced by the defendant is certainly not enough to justify and obscure the question why plaintiff should accuse him of such a very untoward infidelity at the expense and humiliation of their children and family as a whole.[57]

Evidently, no sufficient proof was presented to substantiate the allegations that Manuel is a homosexual and that he concealed this to Leonida at the time of their marriage. The lower court considered the public perception of Manuels sexual preference without the corroboration of witnesses. Also, it took cognizance of Manuels peculiarities and interpreted it against his sexuality.

Even assuming, ex gratia argumenti, that Manuel is a homosexual, the lower court cannot appreciate it as a ground to annul his marriage with Leonida. The law is clear a marriage may be annulled when the consent of either party was obtained by fraud, [58] such as concealment of homosexuality.[59] Nowhere in the said decision was it proven by preponderance of evidence that Manuel was a homosexual at the onset of his marriage and that he deliberately hid such fact to his wife.[60] It is the concealment of homosexuality, and not homosexuality per se, that vitiates the consent of the innocent party. Such concealment presupposes bad faith and intent to defraud the other party in giving consent to the marriage.

cralawConsent

is an essential requisite of a valid marriage. To be valid, it must be freely given by both

parties. An allegation of vitiated consent must be proven by preponderance of evidence. The Family Code has enumerated an exclusive list of circumstances[61] constituting fraud. Homosexuality per se is not among those cited, but its concealment.

cralawThis

distinction becomes more apparent when we go over the deliberations [62] of the Committees on

the Civil Code and Family Law, to wit:

Justice Caguioa remarked that this ground should be eliminated in the provision on the grounds for legal separation. Dean Gupit, however, pointed out that in Article 46, they are talking only of concealment, while in the article on legal separation, there is actuality. Judge Diy added that in legal separation, the ground existed after the marriage, while in Article 46, the ground existed at the time of the marriage. Justice Reyes suggested that, for clarity, they add the phrase existing at the time of the marriage at the end of subparagraph (4). The Committee approved the suggestion.[63]

To reiterate, homosexuality per se is only a ground for legal separation. It is its concealment that serves as a valid ground to annul a marriage.[64] Concealment in this case is not simply a blanket denial, but one that is constitutive of fraud. It is this fundamental element that respondent failed to prove.

In the United States, homosexuality has been considered as a basis for divorce. It indicates that questions of sexual identity strike so deeply at one of the basic elements of marriage, which is the exclusive sexual bond between the spouses.[65] In Crutcher v. Crutcher,[66] the Court held:

Unnatural practices of the kind charged here are an infamous indignity to the wife, and which would make the marriage relation so revolting to her that it would become impossible for her to discharge the duties of a wife, and would defeat the whole purpose of the relation. In the natural course of things, they would cause mental suffering to the extent of affecting her health.[67]

However, although there may be similar sentiments here in the Philippines, the legal overtones are significantly different. Divorce is not recognized in the country. Homosexuality and its alleged incompatibility to a healthy heterosexual life are not sanctioned as grounds to sever the marriage bond in our jurisdiction. At most, it is only a ground to separate from bed and board.

What was proven in the hearings a quo was a relatively blissful marital union for more than eleven (11) years, which produced three (3) children. The burden of proof to show the nullity of the marriage rests on Leonida. Sadly, she failed to discharge this onus.

The same failure to prove fraud which purportedly resulted to a vitiated marital consent was found in Villanueva v. Court of Appeals.[68] In Villanueva, instead of proving vitiation of consent, appellant resorted to baseless portrayals of his wife as a perpetrator of fraudulent schemes. Said the Court:

Factual findings of the Court of Appeals, especially if they coincide with those of the trial court, as in the instant case, are generally binding on this Court. We affirm the findings of the Court of Appeals that petitioner freely and voluntarily married private respondent and that no threats or intimidation, duress or violence compelled him to do so, thus Appellant anchored his prayer for the annulment of his marriage on the ground that he did not freely consent to be married to the appellee. He cited several incidents that created on his mind a reasonable and well-grounded fear of an imminent and grave danger to his life and safety. x x x The Court is not convinced that appellants apprehension of danger to his person is so overwhelming as to deprive him of the will to enter voluntarily to a contract of marriage. It is not disputed that at the time he was allegedly being harassed, appellant worked as a security guard in a bank. Given the rudiments of selfdefense, or, at the very least, the proper way to keep himself out of harms way. x xx Appellant also invoked fraud to annul his marriage, as he was made to believe by appellee that the latter was pregnant with his child when they were married. Appellants excuse that he could not have impregnated the appellee because he did not have an erection during their tryst is flimsy at best, and an outright lie at worst. The complaint is bereft of any reference to his inability to copulate with the appellee. x x x xxxx x x x The failure to cohabit becomes relevant only if it arises as a result of the perpetration of any of the grounds for annulling the marriage, such as lack of parental consent, insanity, fraud, intimidation, or undue influence x x x. Since the appellant failed to justify his failure to cohabit with the appellee on any of these grounds, the validity of his marriage must be upheld.[69]

Verily, the lower court committed grave abuse of discretion, not only by solely taking into account petitioners homosexuality per se and not its concealment, but by declaring the marriage void from its existence.

cralawThis

Court is mindful of the constitutional policy to protect and strengthen the family as the basic

autonomous social institution and marriage as the foundation of the family. [70] The State and the public

have vital interest in the maintenance and preservation of these social institutions against desecration by fabricated evidence.[71] Thus, any doubt should be resolved in favor of the validity of marriage.

III.cralawIn a valid marriage, the husband and wife jointly administer and enjoy their community or conjugal property.

Article 96 of the Family Code, on regimes of absolute community property, provides:

Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the contract implementing such decision.
cralaw

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance without the authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.
cralaw

A similar provision, Article 124[72] prescribes joint administration and enjoyment in a regime of conjugal partnership. In a valid marriage, both spouses exercise administration and enjoyment of the property regime, jointly.

In the case under review, the RTC decreed a dissolution of the community property of Manuel and Leonida. In the same breath, the trial court forfeited Manuels share in favor of the children. Considering that the marriage is upheld valid and subsisting, the dissolution and forfeiture of Manuels share in the property regime is unwarranted. They remain the joint administrators of the community property.

WHEREFORE, the petition is GRANTED. The appealed Decision is REVERSED and SET ASIDE and the petition in the trial court to annul the marriage is DISMISSED.

SO ORDERED.

RUBEN T. REYES Associate Justice WE CONCUR:

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

ATTESTATION

cralawI

attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO Associate Justice

cralaw

Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

cralawREYNATO

S. PUNO
cralawChief

Justice

SECOND DIVISION

ROWENA PADILLA-RUMBAUA, Petitioner,

G.R. No. 166738

Present:

*CARPIO-MORALES, J., Acting Chairperson, - versus **CARPIO, ***CHICO-NAZARIO, ****LEONARDO-DE CASTRO, and BRION, JJ.

Promulgated: EDWARD RUMBAUA, August 14, 2009 Respondent. x --------------------------------------------------------------------------------------- x DECISION BRION, J.:

Petitioner Rowena Padilla-Rumbaua (petitioner) challenges, through her petition for review on certiorari, the decision dated June 25, 2004 and the resolution dated January 18, 2005 of the Court of Appeals (CA) in CA-G.R. CV No. 75095. The challenged decision reversed the decision of the Regional Trial Court (RTC) declaring the marriage of the petitioner and respondent Edward Rumbaua (respondent) null and void on the ground of the latters psychological incapacity. The assailed resolution, on the other hand, denied the petitioners motion for reconsideration.

ANTECEDENT FACTS

The present petition traces its roots to the petitioners complaint for the declaration of nullity of marriage against the respondent before the RTC, docketed as Civil Case No. 767. The petitioner alleged that the respondent was psychologically incapacitated to exercise the essential obligations of marriage as shown by the following circumstances: the respondent reneged on his promise to live with her under one roof after finding work; he failed to extend financial support to her; he blamed her for his mothers death; he represented himself as single in his transactions; and he pretended to be working in Davao, although he was cohabiting with another woman in Novaliches, Quezon City.

Summons was served on the respondent through substituted service, as personal service proved futile. The RTC ordered the provincial prosecutor to investigate if collusion existed between the parties and to ensure that no fabrication or suppression of evidence would take place. Prosecutor Melvin P. Tiongsons report negated the presence of collusion between the parties.

The Republic of the Philippines (Republic), through the office of the Solicitor General (OSG), opposed the petition. The OSG entered its appearance and deputized the Provincial Prosecutor of Nueva Vizcaya to assist in all hearings of the case.

The

petitioner

presented

testimonial

and

documentary

evidence

to

substantiate her charges.

The petitioner related that she and the respondent were childhood neighbors in Dupax del Norte, Nueva Vizcaya. Sometime in 1987, they met again and became sweethearts but the respondents family did not approve of their relationship. After graduation from college in 1991, the respondent promised to marry the petitioner as soon as he found a job. The job came in 1993, when the Philippine Air Lines (PAL) accepted the respondent as a computer engineer. The respondent proposed to the petitioner that they first have a secret marriage in order not to antagonize his parents. The petitioner agreed; they were married in Manila on February 23, 1993. The petitioner and the respondent, however, never lived together; the petitioner stayed with her sister in Fairview, Quezon City, while the respondent lived with his parents in Novaliches.

The petitioner and respondent saw each other every day during the first six months of their marriage. At that point, the respondent refused to live with the petitioner for fear that public knowledge of their marriage would affect his application for a PAL scholarship. Seven months into their marriage, the couples daily meetings became occasional visits to the petitioners house in Fairview; they would have sexual trysts in motels. Later that year, the respondent enrolled at FEATI University after he lost his employment with PAL.

In 1994, the parties respective families discovered their secret marriage. The respondents mother tried to convince him to go to the United States, but he refused. To appease his mother, he continued living separately from the petitioner. The respondent forgot to greet the petitioner during her birthday in 1992 and likewise failed to send her greeting cards on special occasions. The respondent indicated as well in his visa application that he was single.

In April 1995, the respondents mother died. The respondent blamed the petitioner, associating his mothers death to the pain that the discovery of his secret marriage brought. Pained by the respondents action, the petitioner severed her relationship with the respondent. They eventually reconciled through the help of the petitioners father, although they still lived separately.

In 1997, the respondent informed the petitioner that he had found a job in Davao. A year later, the petitioner and her mother went to the respondents house in Novaliches and found him cohabiting with one Cynthia Villanueva (Cynthia). When she confronted the respondent about it, he denied having an affair with Cynthia. The petitioner apparently did not believe the respondents and moved to to Nueva Vizcaya to recover from the pain and anguish that her discovery brought.

The petitioner disclosed during her cross-examination that communication between her and respondent had ceased. Aside from her oral testimony, the petitioner also presented a certified true copy of their marriage contract; and the testimony, curriculum vitae, and psychological report of clinical psychologist Dr. Nedy Lorenzo Tayag (Dr. Tayag).

Dr. Tayag declared on the witness stand that she administered the following tests on the petitioner: a Revised Beta Examination; a Bender Visual Motor Gestalt

Test; a Rorschach Psychodiagnostic Test; a Draw a Person Test; a Sachs Sentence Completion Test; and MMPI. She thereafter prepared a psychological report with the following findings:

TEST RESULTS AND EVALUATION

Psychometric tests data reveal petitioner to operate in an average intellectual level. Logic and reasoning remained intact. She is seen to be the type of woman who adjusts fairly well into most situations especially if it is within her interests. She is pictured to be faithful to her commitments and had reservations from negative criticisms such that she normally adheres to social norms, behavior-wise. Her age speaks of maturity, both intellectually and emotionally. Her one fault lies in her compliant attitude which makes her a subject for manipulation and deception such that of respondent. In all the years of their relationship, she opted to endure his irresponsibility largely because of the mere belief that someday things will be much better for them. But upon the advent of her husbands infidelity, she gradually lost hope as well as the sense of self-respect, that she has finally taken her tool to be assertive to the point of being aggressive and very cautious at times so as to fight with the frustration and insecurity she had especially regarding her failed marriage.

Respondent in this case, is revealed to operate in a very self-centered manner as he believes that the world revolves around him. His egocentrism made it so easy for him to deceitfully use others for his own advancement with an extreme air of confidence and dominance. He would do actions without any remorse or guilt feelings towards others especially to that of petitioner.

REMARKS

Love happens to everyone. It is dubbed to be boundless as it goes beyond the expectations people tagged with it. In love, age does matter. People love in order to be secure that one will share his/her life with another and that he/she will not die alone. Individuals who are in love had the power to let love grow or let love die it is a choice one had to face when love is not the love he/she expected.

In the case presented by petitioner, it is very apparent that love really happened for her towards the young respondent who used love as a disguise or deceptive tactic for exploiting the confidence she extended towards him. He made her believe that he is responsible, true, caring and thoughtful only to reveal himself contrary to what was mentioned. He lacked the commitment, faithfulness, and remorse that he was able to engage himself to promiscuous acts that made petitioner look like an innocent fool. His character traits reveal him to suffer Narcissistic Personality Disorder - declared to be grave, severe and incurable. [Emphasis supplied.]

The RTC Ruling

The RTC nullified the parties marriage in its decision of April 19, 2002. The trial court saw merit in the testimonies of the petitioner and Dr. Tayag, and concluded as follows: xxxx

Respondent was never solicitous of the welfare and wishes of his wife. Respondent imposed limited or block [sic] out communication with his wife, forgetting special occasions, like petitioners birthdays and Valentines Day; going out only on occasions despite their living separately and to go to a motel to have sexual intercourse.

It would appear that the foregoing narration are the attendant facts in this case which show the psychological incapacity of respondent, at the time of the celebration of the marriage of the parties, to enter into lawful marriage and to discharge his marital responsibilities (See Articles 68 to 71, Family Code). This incapacity is declared grave, severe and incurable.

WHEREFORE, in view of the foregoing, the marriage between petitioner Rowena Padilla Rumbaua and respondent Edwin Rumbaua is hereby declared annulled.

SO ORDERED.

The CA Decision

The Republic, through the OSG, appealed the RTC decision to the CA. The CA decision of June 25, 2004 reversed and set aside the RTC decision, and denied the nullification of the parties marriage.

In its ruling, the CA observed that Dr. Tayags psychiatric report did not mention the cause of the respondents so-called narcissistic personality disorder; it did not discuss the respondents childhood and thus failed to give the court an insight into the respondents developmental years. Dr. Tayag likewise failed to explain why she came to the conclusion that the respondents incapacity was deep-seated and incurable.

The CA held that Article 36 of the Family Code requires the incapacity to be psychological, although its manifestations may be physical. Moreover, the evidence presented must show that the incapacitated party was mentally or physically ill so that he or she could not have known the marital obligations assumed, knowing them, could not have assumed them. In other words, the illness must be shown as downright incapacity or inability, not a refusal, neglect, or difficulty to perform the essential obligations of marriage. objection to their marriage. In the present case, the petitioner suffered because the respondent adamantly refused to live with her because of his parents

The petitioner moved to reconsider the decision, but the CA denied her motion in its resolution of January 18, 2005.

The Petition and the Issues

The petitioner argues in the present petition that

1.

the OSG certification requirement under Republic v. Molina (the Molina case) cannot be dispensed with because A.M. No. 02-11-10-SC, which relaxed the requirement, took effect only on March 15, 2003;

2.

vacating the decision of the courts a quo and remanding the case to the RTC to recall her expert witness and cure the defects in her testimony, as well as to present additional evidence, would temper justice with mercy; and

3.

Dr. Tayags testimony in court cured the deficiencies in her psychiatric report.

The petitioner prays that the RTCs and the CAs decisions be reversed and set aside, and the case be remanded to the RTC for further proceedings; in the event we cannot grant this prayer, that the CAs decision be set aside and the RTCs decision be reinstated.

The Republic maintained in its comment that: (a) A.M. No. 02-11-10-SC was applicable although it took effect after the promulgation of Molina; (b) invalidating the trial courts decision and remanding the case for further proceedings were not proper; and (c) the petitioner failed to establish respondents psychological incapacity.

The parties simply reiterated their arguments in the memoranda they filed.

THE COURTS RULING

We resolve to deny the petition for lack of merit.

A.M. No. 02-11-10-SC is applicable

In Molina, the Court emphasized the role of the prosecuting attorney or fiscal and the OSG; they are to appear as counsel for the State in proceedings for annulment and declaration of nullity of marriages:

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. [Emphasis supplied.]

A.M. No. 02-11-10-SC -- which this Court promulgated on March 15, 2003 and duly published -- is geared towards the relaxation of the OSG certification that Molina required. Section 18 of this remedial regulation provides:

SEC. 18. Memoranda. The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda.

The petitioner argues that the RTC decision of April 19, 2002 should be vacated for prematurity, as it was rendered despite the absence of the required

OSG certification specified in Molina. According to the petitioner, A.M. No. 02-11-10SC, which took effect only on March 15, 2003, cannot overturn the requirements of Molina that was promulgated as early as February 13, 1997.

The petitioners argument lacks merit.

The amendment introduced under A.M. No. 02-11-10-SC is procedural or remedial in character; it does not create or remove any vested right, but only operates as a remedy in aid of or confirmation of already existing rights. The settled rule is that procedural laws may be given retroactive effect, as we held in De Los Santos v. Vda. de Mangubat:

Procedural Laws do not come within the legal conception of a retroactive law, or the general rule against the retroactive operation of statues - they may be given retroactive effect on actions pending and undetermined at the time of their passage and this will not violate any right of a person who may feel that he is adversely affected, insomuch as there are no vested rights in rules of procedure.

A.M. No. 02-11-10-SC, as a remedial measure, removed the mandatory nature of an OSG certification and may be applied retroactively to pending matters. In effect, the measure cures in any pending matter any procedural lapse on the certification prior to its promulgation. Our rulings in Antonio v. Reyes and Navales v. Navales have since confirmed and clarified that A.M. No. 02-11-10-SC has dispensed with the Molina guideline on the matter of certification, although Article 48 mandates the appearance of the prosecuting attorney or fiscal to ensure that no collusion between the parties would take place. Thus, what is important is the presence of the prosecutor in the case, not the remedial requirement that he be certified to be present. From this perspective, the petitioners objection regarding the Molina guideline on certification lacks merit.

A Remand of the Case to the RTC is Improper

The petitioner maintains that vacating the lower courts decisions and the remand of the case to the RTC for further reception of evidence are procedurally permissible. She argues that the inadequacy of her evidence during the trial was the fault of her former counsel, Atty. Richard Tabago, and asserts that remanding the case to the RTC would allow her to cure the evidentiary insufficiencies. She posits in this regard that while mistakes of counsel bind a party, the rule should be liberally construed in her favor to serve the ends of justice.

We do not find her arguments convincing.

A remand of the case to the RTC for further proceedings amounts to the grant of a new trial that is not procedurally proper at this stage. Section 1 of Rule 37 provides that an aggrieved party may move the trial court to set aside a judgment or final order already rendered and to grant a new trial within the period for taking an appeal. In addition, a motion for new trial may be filed only on the grounds of (1) fraud, accident, mistake or excusable negligence that could not have been guarded against by ordinary prudence, and by reason of which the aggrieved partys rights have probably been impaired; or (2) newly discovered evidence that, with reasonable diligence, the aggrieved party could not have discovered and produced at the trial, and that would probably alter the result if presented.

In the present case, the petitioner cites the inadequacy of the evidence presented by her former counsel as basis for a remand. She did not, however, specify the inadequacy. That the RTC granted the petition for declaration of nullity prima facie shows that the petitioners counsel had not been negligent in handling

the case. Granting arguendo that the petitioners counsel had been negligent, the negligence that would justify a new trial must be excusable, i.e. one that ordinary diligence and prudence could not have guarded against. The negligence that the petitioner apparently adverts to is that cited in Uy v. First Metro Integrated Steel Corporation where we explained:

Blunders and mistakes in the conduct of the proceedings in the trial court as a result of the ignorance, inexperience or incompetence of counsel do not qualify as a ground for new trial. If such were to be admitted as valid reasons for re-opening cases, there would never be an end to litigation so long as a new counsel could be employed to allege and show that the prior counsel had not been sufficiently diligent, experienced or learned. This will put a premium on the willful and intentional commission of errors by counsel, with a view to securing new trials in the event of conviction, or an adverse decision, as in the instant case.

Thus, we find no justifiable reason to grant the petitioners requested remand.

Petitioner failed to establish the respondents psychological incapacity

A petition for declaration of nullity of marriage is anchored on

Article 36 of the Family Code which provides that a marriage contracted by any party who, at the time of its celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. In Santos v. Court of Appeals, the Court first declared that psychological incapacity must be characterized by (a) gravity; (b) juridical antecedence; and (c) incurability. The defect should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. It must be confined to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.

We laid down more definitive guidelines in the interpretation and application of Article 36 of the Family Code in Republic v. Court of Appeals where we said: (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it as the foundation of the nation. It decrees marriage as legally inviolable, thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be protected by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. (2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations

he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. (3) The incapacity must be proven to be existing at the time of the celebration of the marriage. The evidence must show that the illness was existing when the parties exchanged their I do's. The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. x x x (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, mild characteriological peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a

certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.

These Guidelines incorporate the basic requirements we established in Santos. To reiterate, psychological incapacity must be characterized by: (a) gravity; (b) juridical antecedence; and (c) incurability. These requisites must be strictly complied with, as the grant of a petition for nullity of marriage based on psychological incapacity must be confined only to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. Furthermore, since the Family Code does not define psychological incapacity, fleshing out its terms is left to us to do so on a case-to-case basis through jurisprudence. We emphasized this approach in the recent case of Ting v. Velez-Ting when we explained:

It was for this reason that we found it necessary to emphasize in Ngo Te that each case involving the application of Article 36 must be treated distinctly and judged not on the basis of a priori assumptions, predilections or generalizations but according to its own attendant facts. Courts should interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.

In the present case and using the above standards and approach, we find the totality of the petitioners evidence insufficient to prove that the respondent is psychologically unfit to discharge the duties expected of him as a husband.

a.

Petitioners testimony did not prove the root cause, gravity and incurability of respondents condition

The petitioners evidence merely showed that the respondent:

(a)

reneged on his promise to cohabit with her; (b) visited her occasionally from 1993 to 1997; (c) forgot her birthday in 1992, and did not send her greeting cards during special occasions; (d) represented himself as single in his visa application; (e) blamed her for the death of his mother; and (f) told her he was working in Davao when in fact he was cohabiting with another woman in 1997.

These acts, in our view, do not rise to the level of the psychological incapacity that the law requires, and should be distinguished from the difficulty, if not outright refusal or neglect in the performance of some marital obligations that characterize some marriages. In Bier v. Bier, we ruled that it was not enough that respondent, alleged to be psychologically incapacitated, had difficulty in complying with his marital obligations, or was unwilling to perform these obligations. Proof of a natal or supervening disabling factor an adverse integral element in the respondent's personality structure that effectively incapacitated him from complying with his essential marital obligations had to be shown and was not shown in this cited case.

In the present case, the respondents stubborn refusal to cohabit with the petitioner was doubtlessly irresponsible, but it was never proven to be rooted in some psychological illness. As the petitioners testimony reveals, respondent merely refused to cohabit with her for fear of jeopardizing his application for a scholarship, and later due to his fear of antagonizing his family. The respondents failure to greet the petitioner on her birthday and to send her cards during special occasions, as well as his acts of blaming petitioner for his mothers death and of representing himself as single in his visa application, could only at best amount to forgetfulness, insensitivity or emotional immaturity, not necessarily psychological

incapacity. Likewise, the respondents act of living with another woman four years into the marriage cannot automatically be equated with a psychological disorder, especially when no specific evidence was shown that promiscuity was a trait already existing at the inception of marriage. In fact, petitioner herself admitted that respondent was caring and faithful when they were going steady and for a time after their marriage; their problems only came in later.

To be sure, the respondent was far from perfect and had some character flaws. The presence of these imperfections, however, does not necessarily warrant a conclusion that he had a psychological malady at the time of the marriage that rendered him incapable of fulfilling his duties and obligations. To use the words of Navales v. Navales:

Article 36 contemplates downright incapacity or inability to take cognizance of and to assume basic marital obligations. Mere difficulty, refusal or neglect in the performance of marital obligations or ill will on the part of the spouse is different from incapacity rooted on some debilitating psychological condition or illness. Indeed, irreconcilable differences, sexual infidelity or perversion, emotional immaturity and irresponsibility, and the like, do not by themselves warrant a finding of psychological incapacity under Article 36, as the same may only be due to a person's refusal or unwillingness to assume the essential obligations of marriage and not due to some psychological illness that is contemplated by said rule.

b.

Dr. Tayags psychological report and court testimony

We cannot help but note that Dr. Tayags conclusions about the respondents psychological incapacity were based on the information fed to her by only one side the petitioner whose bias in favor of her cause cannot be doubted. While this

circumstance alone does not disqualify the psychologist for reasons of bias, her report, testimony and conclusions deserve the application of a more rigid and stringent set of standards in the manner we discussed above. For, effectively, Dr. Tayag only diagnosed the respondent from the prism of a third party account; she did not actually hear, see and evaluate the respondent and how he would have reacted and responded to the doctors probes.

Dr. Tayag, in her report, merely summarized the petitioners narrations, and on this basis characterized the respondent to be a self-centered, egocentric, and unremorseful person who believes that the world revolves around him; and who used love as adeceptive tactic for exploiting the confidence [petitioner] extended towards him. Dr. Tayag then incorporated her own idea of love; made a generalization that respondent was a person who lacked commitment, faithfulness, and remorse, and who engaged in promiscuous acts that made the petitioner look like a fool; and finally concluded that the respondents character traits reveal him to suffer Narcissistic Personality Disorder with traces of Antisocial Personality Disorder declared to be grave and incurable.

We find these observations and conclusions insufficiently in-depth and comprehensive to warrant the conclusion that a psychological incapacity existed that prevented the respondent from complying with the essential obligations of marriage. It failed to identify the root cause of the respondent's narcissistic personality disorder and to prove that it existed at the inception of the marriage. Neither did it explain the incapacitating nature of the alleged disorder, nor show that the respondent was really incapable of fulfilling his duties due to some incapacity of a psychological, not physical, nature. Thus, we cannot avoid but conclude that Dr. Tayags conclusion in her Report i.e., that the respondent suffered Narcissistic Personality Disorder with traces of Antisocial Personality Disorder declared to be grave and incurable is an unfounded statement, not a necessary inference from her previous characterization and portrayal of the respondent. While the various tests administered on the petitioner could have been

used as a fair gauge to assess her own psychological condition, this same statement cannot be made with respect to the respondents condition. To make conclusions and generalizations on the respondents psychological condition based on the information fed by only one side is, to our mind, not different from admitting hearsay evidence as proof of the truthfulness of the content of such evidence.

Petitioner nonetheless contends that Dr. Tayags subsequent testimony in court cured whatever deficiencies attended her psychological report.

We do not share this view.

A careful reading of Dr. Tayags testimony reveals that she failed to establish the fact that at the time the parties were married, respondent was already suffering from a psychological defect that deprived him of the ability to assume the essential duties and responsibilities of marriage. Neither did she adequately explain how she came to the conclusion that respondents condition was grave and incurable. To directly quote from the records:

ATTY. RICHARD TABAGO:

Q:

I would like to call your attention to the Report already marked as Exh. E-7, there is a statement to the effect that his character traits begin to suffer narcissistic personality disorder with traces of antisocial personality disorder. What do you mean? Can you please explain in laymans word, Madam Witness?

DR. NEDY LORENZO TAYAG:

A:

Actually, in a laymans term, narcissistic personality disorder cannot accept that there is something wrong with his own behavioral manifestation. [sic] They feel that they can rule the world; they are eccentric; they are exemplary, demanding financial and emotional support, and this is clearly manifested by the fact that respondent abused and used petitioners love. Along the line, a narcissistic person cannot give empathy; cannot give love simply because they love themselves more than anybody else; and thirdly, narcissistic person cannot support his own personal need and gratification without the help of others and this is where the petitioner set in.

Q:

Can you please describe the personal [sic] disorder?

A:

Clinically, considering that label, the respondent behavioral manifestation under personality disorder [sic] this is already considered grave, serious, and treatment will be impossible [sic]. As I say this, a kind of developmental disorder wherein it all started during the early formative years and brought about by one familiar relationship the way he was reared and cared by the family. Environmental exposure is also part and parcel of the child disorder. [sic]

Q:

You mean to say, from the formative [years] up to the present?

A:

Actually, the respondent behavioral manner was [present] long before he entered marriage. [Un]fortunately, on the part of the petitioner, she never realized that such behavioral manifestation of the respondent connotes pathology. [sic]

xxxx

Q:

So in the representation of the petitioner that the respondent is now lying [sic] with somebody else, how will you describe the character of this respondent who is living with somebody else?

A:

This is where the antisocial personality trait of the respondent [sic] because an antisocial person is one who indulge in philandering activities, who do not have any feeling of guilt at the expense of another person, and this [is] again a buy-product of deep seated psychological incapacity.

Q:

And this psychological incapacity based on this particular deep seated [sic], how would you describe the psychological incapacity? [sic]

A:

As I said there is a deep seated psychological dilemma, so I would say incurable in nature and at this time and again [sic] the psychological pathology of the respondent. One plays a major factor of not being able to give meaning to a relationship in terms of sincerity and endurance.

Q:

And if this psychological disorder exists before the marriage of the respondent and the petitioner, Madam Witness?

A:

Clinically, any disorder are usually rooted from the early formative years and so if it takes enough that such psychological incapacity of respondent already existed long before he entered marriage, because if you analyze how he was reared by her parents particularly by the mother, there is already an unhealthy symbiosis developed between the two, and this creates a major emotional havoc when he reached adult age.

Q:

How about the gravity?

A:

This is already grave simply because from the very start respondent never had an inkling that his behavioral manifestation connotes pathology and second ground [sic], respondent will never admit again that such behavior of his connotes again pathology simply because the disorder of the respondent is not detrimental to himself but, more often than not, it is detrimental to other party involved.

xxxx

PROSECUTOR MELVIN TIONGSON:

Q:

You were not able to personally examine the respondent here?

DR. NEDY TAYAG:

A:

Efforts were made by the psychologist but unfortunately, the respondent never appeared at my clinic.

Q:

On the basis of those examinations conducted with the petitioning wife to annul their marriage with her husband in general, what can you say about the respondent?

A:

That from the very start respondent has no emotional intent to give meaning to their relationship. If you analyze their marital relationship they never lived under one

room. From the very start of the [marriage], the respondent to have petitioner to engage in secret marriage until that time their family knew of their marriage [sic]. Respondent completely refused, completely relinquished his marital obligation to the petitioner.

xxxx

COURT:

Q:

Because you have interviewed or you have questioned the petitioner, can you really enumerate the specific traits of the respondent?

DR. NEDY TAYAG:

A:

One is the happy-go-lucky attitude of the respondent and the dependent attitude of the respondent.

Q:

Even if he is already eligible for employment?

A:

He remains to be at the mercy of his mother. He is a happy-go-lucky simply because he never had a set of responsibility. I think that he finished his education but he never had a stable job because he completely relied on the support of his mother.

Q:

You give a more thorough interview so I am asking you something specific?

A:

The happy-go-lucky attitude; the overly dependent attitude on the part of the mother merely because respondent happened to be the only son. I said that there is a unhealthy symbiosis relationship [sic] developed between the son and the mother simply because the mother always pampered completely, pampered to the point that respondent failed to develop his own sense of assertion or responsibility particularly during that stage and there is also presence of the simple lying act particularly his responsibility in terms of handling emotional imbalance and it is clearly manifested by the fact that respondent refused to build a home together with the petitioner when in fact they are legally married. Thirdly, respondent never felt or completely ignored the feelings of the petitioner; he never felt guilty hurting the petitioner because on the part of the petitioner, knowing that respondent indulge with another woman it is very, very traumatic on her part yet respondent never had the guts to feel guilty or to atone said act he committed in their relationship, and clinically this falls under antisocial personality.

In terms of incurability, Dr. Tayags answer was very vague and inconclusive, thus: xxxx

ATTY. RICHARD TABAGO

Q:

Can this personally be cured, madam witness?

DR. NEDY TAYAG

A:

Clinically, if persons suffering from personality disorder curable, up to this very moment, no scientific could be upheld to alleviate their kind of personality disorder;

Secondly, again respondent or other person suffering from any kind of disorder particularly narcissistic personality will never admit that they are suffering from this kind of disorder, and then again curability will always be a question. [sic]

This testimony shows that while Dr. Tayag initially described the general characteristics of a person suffering from a narcissistic personality disorder, she did not really show how and to what extent the respondent exhibited these traits. She mentioned the buzz words that jurisprudence requires for the nullity of a marriage namely, gravity, incurability, existence at the time of the marriage, psychological incapacity relating to marriage and in her own limited way, related these to the medical condition she generally described. The testimony, together with her report, however, suffers from very basic flaws.

First, what she medically described was not related or linked to the respondents exact condition except in a very general way. In short, her testimony and report were rich in generalities but disastrously short on particulars, most notably on how the respondent can be said to be suffering from narcissistic personality disorder; why and to what extent the disorder is grave and incurable; how and why it was already present at the time of the marriage; and the effects of the disorder on the respondents awareness of and his capability to undertake the duties and responsibilities of marriage. All these are critical to the success of the petitioners case.

Second, her testimony was short on factual basis for her diagnosis because it was wholly based on what the petitioner related to her. As the doctor admitted to the prosecutor, she did not at all examine the respondent, only the petitioner. Neither the law nor jurisprudence requires, of course, that the person sought to be

declared psychologically incapacitated should be personally examined by a physician or psychologist as a condition sine qua non to arrive at such declaration. If a psychological disorder can be proven by independent means, no reason exists why such independent proof cannot be admitted and given credit. No such independent evidence, however, appears on record to have been gathered in this case, particularly about the respondents early life and associations, and about events on or about the time of the marriage and immediately thereafter. Thus, the testimony and report appear to us to be no more than a diagnosis that revolves around the one-sided and meager facts that the petitioner related, and were all slanted to support the conclusion that a ground exists to justify the nullification of the marriage. We say this because only the baser qualities of the respondents life were examined and given focus; none of these qualities were weighed and balanced with the better qualities, such as his focus on having a job, his determination to improve himself through studies, his care and attention in the first six months of the marriage, among others. The evidence fails to mention also what character and qualities the petitioner brought into her marriage, for example, why the respondents family opposed the marriage and what events led the respondent to blame the petitioner for the death of his mother, if this allegation is at all correct. To be sure, these are important because not a few marriages have failed, not because of psychological incapacity of either or both of the spouses, but because of basic incompatibilities and marital developments that do not amount to psychological incapacity. The continued separation of the spouses likewise never appeared to have been factored in. Not a few married couples have likewise permanently separated simply because they have fallen out of love, or have outgrown the attraction that drew them together in their younger years.

Thus, on the whole, we do not blame the petitioner for the move to secure a remand of this case to the trial courts for the introduction of additional evidence; the petitioners evidence in its present state is woefully insufficient to support the conclusion that the petitioners marriage to the respondent should be nullified on the ground of the respondents psychological incapacity.

The Court commiserates with the petitioners marital predicament. The respondent may indeed be unwilling to discharge his marital obligations, particularly the obligation to live with ones spouse. Nonetheless, we cannot presume psychological defect from the mere fact that respondent refuses to comply with his marital duties. As we ruled in Molina, it is not enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is essential that he must be shown to be incapable of doing so due to some psychological illness. The psychological illness that must afflict a party at the inception of the marriage should be a malady so grave and permanent as to deprive the party of his or her awareness of the duties and responsibilities of the matrimonial bond he or she was then about to assume.

WHEREFORE, in view of these considerations, we DENY the petition and AFFIRM the decision and resolution of the Court of Appeals dated June 25, 2004 and January 18, 2005, respectively, in CA-G.R. CV No. 75095.

SO ORDERED.

ARTURO D. BRION Associate Justice

WE CONCUR:

CONCHITA CARPIO-MORALES
Associate Justice Acting Chairperson

ANTONIO T. CARPIO Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

CONCHITA CARPIO-MORALES Associate Justice Acting Chairperson CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Acting Division Chairpersons Attestation, it is hereby certified that the that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 139789 July 19, 2001

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO ILUSORIO, ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN DOES and JANE DOES, respondents. x---------------------------------------------------------x G.R. No. 139808 July 19, 2001 POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, petitioners, vs. HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents. RESOLUTION PARDO, J.: Once again we see the sad tale of a prominent family shattered by conflicts on expectancy in fabled fortune. On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so lovingly inseparable from her husband some years ago, filed a petition with the Court of Appeals1 for habeas corpus to have custody of her husband in consortium. On April 5, 1999, the Court of Appeals promulgated its decision dismissing the petition for lack of unlawful restraint or detention of the subject, Potenciano Ilusorio. Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the Supreme Court an appeal via certiorari pursuing her desire to have custody of her husband Potenciano Ilusorio.2 This case was consolidated with another case3 filed by Potenciano Ilusorio and his children, Erlinda I. Bildner and Sylvia K. Ilusorio appealing from the order giving visitation rights to his wife, asserting that he never refused to see her.

On May 12, 2000, we dismissed the petition for habeas corpus4 for lack of merit, and granted the petition5 to nullify the Court of Appeals' ruling6 giving visitation rights to Erlinda K. Ilusorio.7 What is now before the Court is Erlinda's motion to reconsider the decision.8 On September 20, 2000, we set the case for preliminary conference on October 11, 2000, at 10:00 a. m., without requiring the mandatory presence of the parties. In that conference, the Court laid down the issues to be resolved, to wit: (a) To determine the propriety of a physical and medical examination of petitioner Potenciano Ilusorio; (b) Whether the same is relevant; and (c) If relevant, how the Court will conduct the same.9 The parties extensively discussed the issues. The Court, in its resolution, enjoined the parties and their lawyers to initiate steps towards an amicable settlement of the case through mediation and other means. On November 29, 2000, the Court noted the manifestation and compliance of the parties with the resolution of October 11, 2000.10 On January 31, 2001, the Court denied Erlinda Ilusorio's manifestation and motion praying that Potenciano Ilusorio be produced before the Court and be medically examined by a team of medical experts appointed by the Court.11 On March 27, 2001, we denied with finality Erlinda's motion to reconsider the Court's order of January 31 , 2001.12 The issues raised by Erlinda K. Ilusorio in her motion for reconsideration are mere reiterations of her arguments that have been resolved in the decision. Nevertheless, for emphasis, we shall discuss the issues thus: First. Erlinda K. Ilusorio claimed that she was not compelling Potenciano to live with her in consortium and that Potenciano's mental state was not an issue. However, the very root cause of the entire petition is her desire to have her husband's custody.13 Clearly, Erlinda cannot now deny that she wanted Potenciano Ilusorio to live with her. Second. One reason why Erlinda K. Ilusorio sought custody of her husband was that respondents Lin and Sylvia were illegally restraining Potenciano Ilusorio to fraudulently deprive her of property rights out of pure greed.14 She claimed that her two children were using their sick and frail father to sign away Potenciano and Erlinda's property to companies controlled by Lin and Sylvia. She also argued that since Potenciano retired as director and officer of Baguio Country

Club and Philippine Oversees Telecommunications, she would logically assume his position and control. Yet, Lin and Sylvia were the ones controlling the corporations.15 The fact of illegal restraint has not been proved during the hearing at the Court of Appeals on March 23, 1999.16 Potenciano himself declared that he was not prevented by his children from seeing anybody and that he had no objection to seeing his wife and other children whom he loved. Erlinda highlighted that her husband suffered from various ailments. Thus, Potenciano Ilusorio did not have the mental capacity to decide for himself. Hence, Erlinda argued that Potenciano be brought before the Supreme Court so that we could determine his mental state. We were not convinced that Potenciano Ilusorio was mentally incapacitated to choose whether to see his wife or not. Again, this is a question of fact that has been decided in the Court of Appeals. As to whether the children were in fact taking control of the corporation, these are matters that may be threshed out in a separate proceeding, irrelevant in habeas corpus. Third. Petitioner failed to sufficiently convince the Court why we should not rely on the facts found by the Court of Appeals. Erlinda claimed that the facts mentioned in the decision were erroneous and incomplete. We see no reason why the High Court of the land need go to such length. The hornbook doctrine states that findings of fact of the lower courts are conclusive on the Supreme Court.17 We emphasize, it is not for the Court to weigh evidence all over again.18 Although there are exceptions to the rule,19 Erlinda failed to show that this is an exceptional instance. Fourth. Erlinda states that Article XII of the 1987 Constitution and Articles 68 and 69 of the Family Code support her position that as spouses, they (Potenciano and Erlinda) are duty bound to live together and care for each other. We agree. The law provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity.20 The sanction therefor is the "spontaneous, mutual affection between husband and wife and not any legal mandate or court order" to enforce consortium.21 Obviously, there was absence of empathy between spouses Erlinda and Potenciano, having separated from bed and board since 1972. We defined empathy as a shared feeling between husband and wife experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process. Marriage is definitely for two loving adults who view the relationship with "amor gignit amorem" respect, sacrifice and a continuing commitment to togetherness, conscious of its value as a sublime social institution.22

On June 28, 2001, Potenciano Ilusorio gave his soul to the Almighty, his Creator and Supreme Judge. Let his soul rest in peace and his survivors continue the much prolonged fracas ex aequo et bono. IN VIEW WHEREOF, we DENY Erlinda's motion for reconsideration. At any rate, the case has been rendered moot by the death of subject. SO ORDERED. Davide, Jr., C .J ., Puno, Kapunan and Ynares-Santiago, JJ ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-51283 June 7, 1989 LOURDES MARIANO, petitioner, vs. COURT OF APPEALS, and DANIEL SANCHEZ, respondents. Jose V. Natividad & Associates for petitioner . Arturo S. Santos for respondents.

NARVASA, J.: The proceedings at bar concern (1) an attempt by a married man to prevent execution against conjugal property of a judgment rendered against his wife, for obligations incurred by the latter while engaged in a business that had admittedly redounded to the benefit of the family, and (2) the interference by a court with the proceedings on execution of a co-equal or coordinate court. Both acts being proscribed by law, correction is called for and will hereby be effected. The proceedings originated from a suit filed by Esther Sanchez against Lourdes Mariano in the Court of First Instance at Caloocan City, 1 for recovery of the value of ladies' ready made dresses allegedly purchased by and delivered to the latter. 2 A writ of preliminary attachment issued at Esther Sanchez' instance, upon a bond posted by Veritas Insurance Company in the amount of P 11,000.00, and resulted in the seizure of Lourdes Mariano's property worth P 15,000.00 or so. 3 Her motion for the discharge of the attachment having been denied, 4 Lourdes Mariano went up to the Court of Appeals on certiorari. That Court ordered 5 the Trial Court to receive evidence on whether or not the attachment had been improvidently or irregularly issued. 6 The Trial Court did so, came to the conclusion that the attachment had indeed been improperly issued, and consequently dissolved it. 7 Trial then ensued upon the issues arising from the complaint as well as Lourdes Mariano's answer with counterclaim-which included a claim for damages resulting from wrongful attachment. Thereafter judgment was rendered in favor of defendant Lourdes

Mariano and against plaintiff Esther Sanchez containing the following dispositions, to wit: 8 1. On the complaint, defendant is ordered to pay unto the plaintiff for the value of the dishonored check (Exhs. G-1, H and I) in the total amount of P 1,512.00. 2. On the counterclaim, the plaintiff is ordered to pay unto defendant the following, as follows: a) P 7,500.00 for loss of income of the defendant for 75 days; b) P 16,000.00 for the value of attached goods; c) P 25,000.00 for moral and exemplary damages; d) P 5,000.00 as attorney's fees plus costs of suit. The Veritas Insurance Company which issued the attachment bond is ordered to pay unto the defendant the full insurance coverage of P 11,000.00 to answer for the total liability of the plaintiff thereof Esther Sanchez sought to perfect an appeal by filing a notice of appeal, an appeal bond and a record on appeal. 9 Pending approval of the record on appeal, Lourdes Mariano filed a motion for the immediate execution of the judgment which the Court granted. 10 In virtue of the writ of execution which afterwards issued in due course, the sheriff garnished the sum of P 11,000.00 from Veritas Insurance Company, and levied on real and personal property belonging to the conjugal partnership of Esther Sanchez and her husband, Daniel Sanchez. Esther Sanchez then filed a petition for certiorari with the Court of Appeals, praying for the annulment of the execution pending appeal authorized by the Trial Court; but her petition was adjudged to be without merit and was accordingly dismissed. 11 Daniel Sanchez, Esther's husband, now made his move. He filed a complaint for annulment of the execution in the Court of First Instance at Quezon City in his capacity as administrator of the conjugal partnership. 12 He alleged that the conjugal assets could not validly be made to answer for obligations exclusively contracted by his wife, and that, moreover, some of the personal property levied on, such as household appliances and utensils necessarily used in the conjugal dwelling, were exempt from execution. He also applied for a preliminary injunction pending adjudication of the case on the merits.
13

The Quezon City Court issued an order setting the matter of the injunction for hearing, and commanding the sheriff, in the meantime, to desist from proceeding with the auction sale of the property subject of Daniel Sanchez' claim. 14 Lourdes Mariano filed a

motion to dismiss the action; this, the Court denied. 15 She then instituted a special civil action of certiorari in the Court of Appeals 16 where she initially enjoyed some measure of success: her petition was given due course, and the Quezon City Court was restrained by the Appellate Court's Seventh Division 17 from further proceeding with the case. 18 Eventually, however, the Eighth Division 19 came to the conclusion that there was no merit in her cause and dismissed her petition. 20 It ruled that the Quezon City Court had not interfered with the execution process of the Caloocan Court because Daniel Sanchez's action in the former court raised an issue-the validity of the sheriffs levy on the conjugal partnership assets of the Sanchez spouses different from those adjudicated in the Caloocan Court, and Sanchez was not a party to the case tried by the latter. From this verdict Lourdes Mariano has appealed to this Court, contending that the Appellate Court committed reversible error1) in ruling that the conjugal partnership of Daniel and Esther Sanchez could not be made liable for Esther's judgment obligation arising from the spouses' joint business with Lourdes Mariano; 2) in ruling that the Quezon City Court of First Instance had not interfered with the execution process of the Caloocan Court of First Instance; and 3) when its Eighth Division decided the petition of Lourdes Mariano although the case had been raffled to the Seventh Division and the latter had in fact given due course to the petition. 1. There is no dispute about the fact that Esther Sanchez was engaged in business not only without objection on the part of her husband, Daniel, but in truth with his consent and approval. 21 It is also established that, as expressly acknowledged by Esther herself and never denied by Daniel, the profits from the business had been used to meet, in part at least, expenses for the support of her family, i.e., the schooling of the children, food and other household expenses. 22 Under the circumstances, Lourdes Mariano action against Esther Sanchez was justified, the litigation being "incidental to the ... business in which she is engaged 23 and consequently, the conjugal partnership of Daniel and Esther Sanchez was liable for the debts and obligations contracted by Esther in her business since the income derived therefrom, having been used to defray some of the expenses for the maintenance of the family and the education of the children, had redounded to the benefit of the partnership. 24 It was therefore error for the Court of Appeals to have ruled otherwise. 2. It was also error for the Court of Appeals to have held that there was no interference by the Quezon City Court of First Instance with the execution process of the Caloocan Court.

The rule, one of great importance in the administration of justice, is that a Court of First Instance has no power to restrain by means of injunction the execution of a judgment or decree of another judge of concurrent or coordinate jurisdictions. 25 But this is precisely what was done by the Quezon City Court of First Instance: it enjoined the execution of a judgment authorized and directed by a co-equal and coordinate court, the Caloocan City Court of First Instance. It did so on the claim of Daniel Sanchez that the property being levied on belonged to the conjugal partnership and could not be made liable for the wife's obligations. The question that arises is whether such a claim that property levied on in execution of a judgment is not property of the judgment debtor, Daniel Sanchez's wife, but of the conjugal partnership of the Sanchez Spouses is properly cognizable by a Court other than that which rendered judgment adversely to the wife. To be sure, Section 17, Rule 39 of the Rules of Court, authorizes a "third person," i.e., "any other person than the judgment debtor or his agent," to vindicate "his claim to the property by any proper action." The section reads as follows: 26
SEC. 17. Proceedings where property claimed by third person.-If property levied on be claimed by any other person than the judgment debtor or his agent, and such person make an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serve the same upon the officer making the levy, and a copy thereof upon the judgment creditor, the officer shall not be bound to keep the property, unless such judgment creditor or his agent, on demand of the officer, indemnify the officer against such claim by a bond in a sum not greater than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. The officer is not liable for damages, for the taking or keeping of the property, to any third-party claimant, unless a claim is made by the latter and unless an action for damages is brought by him against the officer within one hundred twenty (120) days from the date of the filing of the bond. But nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property by any proper action. xxx xxx xxx

The "proper action" referred to in the section "is and should be an entirely separate and distinct action from that in which execution has issued, if instituted by a stranger to the latter suit:" 27 and in "such separate action, the court may issue a writ of preliminary injunction against the sheriff enjoining him from proceeding with the execution sale." 28 "Upon the other hand, if the claim of impropriety on the part of the sheriff in the execution proceedings is made by a party to the action, not a stranger thereto, any relief therefrom may be applied for with, and obtained from, only the executing court; and this is true even if a new party has been impleaded in the suit." 29 In the case at bar, the husband of the judgment debtor cannot be deemed a "stranger" to the case prosecuted and adjudged against his wife. A strikingly similar situation was presented in a case decided by this Court as early as 1976, Rejuso v. Estipona. 30

There, the sheriff tried to evict petitioner Rejuso and his family from their house and lot which had been sold in execution of a money judgment rendered by the Court of First Instance of Davao against Rejuso. What Rejuso did was to institute, together with his wife, Felisa, a separate suit in the same court against the sheriff and the judgment creditor, Estipona, for the purpose of annulling the levy, execution sale, and writ of possession issued in the first action in respect of their residential house and lot, on the theory that that property was conjugal in character and "hence, not subject to such proceedings considering that Felisa was not a party to the previous case." The action was however dismissed by the court on the ground that it had "no jurisdiction over the subject matter of the action or the nature of the action and of the relief sought." 31 The dismissal was had on motion of Estipona who argued that the court had no jurisdiction to "vacate or annul and/or enjoin the enforcement of the process issued by another branch in another case," and since Rejuso had already raised the same issues in the first case, without success, he should not be allowed to "get from another branch ... what he failed to get ... (from) Branch l." This Court affirmed that judgment of dismissal, 32 holding that Rejuso's action was barred by res adjudicata; and "(a)s regards Felisa Rejuso, who is a new party in Civil Case No. 5102" (the second action) it was ruled that... her remedy, if it has not yet been barred by the statute of limitations or become stale in some other way, is within Civil Case No. 4435 (the first suit). Indeed, it is superfluous to start a new action on a matter which can be more simply and conveniently litigated within a former proceeding of which it is more logically and legally an integral part. (Ipekdjian Merchandising Co., Inc, v. CTA, 8 SCRA 59 [1963]). Actually, the court in which the former proceeding was pending has exclusive jurisdiction thereof (De Leon vs. Salvador, 36 SCRA 567), the fact that the two cases are in the same Branch of the same Court of First Instance and presided over by the same Judge notwithstanding. After all, it is simpler and more convenient to observe such practice, which insures also consistency in the resolutions of related questions because they are to be determined in most if not all instances by the same judge.

In any case, whether by intervention in the court issuing the writ, or by separate action, it is unavailing for either Esther Sanchez or her husband, Daniel, to seek preclusion of the enforcement of the writ of possession against their conjugal assets. For it being established, as aforestated, that Esther had engaged in business with her husband's consent, and the income derived therefrom had been expended, in part at least, for the support of her family, the liability of the conjugal assets to respond for the wife's obligations in the premises cannot be disputed. The petitioner's appeal must therefore be sustained. However, the petitioner's theory that the Eighth Division of the Appellate Court had improperly taken cognizance of the case which had been raffled to the Seventh Division, must be rejected. It is without foundation, and was evidently made without attempt to ascertain the relevant facts and applicable rules. The case had originally been assigned to Mr. Justice Isidro C. Borromeo for study and report while he was still a member of the Seventh Division. The case was brought by him to the Eighth Division when he was subsequently transferred thereto; and he had ultimately written the opinion

for the division after due deliberation with his colleagues. All of this took place in accordance with the Rules of the Court of Appeals. WHEREFORE, the Decision of the Court of Appeals subject of the petition is REVERSED AND SET ASIDE, and the Regional Trial Court (formerly Court of First Instance) at Quezon City is ORDERED to dismiss Civil Case No. 20415 entitled "Daniel P. Sanchez v. Deputy Sheriff Mariano V. Cachero, et al.," with prejudice. Costs against private respondents. SO ORDERED. Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 124642 February 23, 2004

ALFREDO CHING and ENCARNACION CHING, petitioners vs. THE HON. COURT OF APPEALS and ALLIED BANKING CORPORATION, respondents. DECISION CALLEJO, SR., J.: This petition for review, under Rule 45 of the Revised Rules of Court, assails the Decision1 of the Court of Appeals (CA) dated November 27, 1995 in CA-G.R. SP No. 33585, as well as the Resolution2 on April 2, 1996 denying the petitioners motion for reconsideration. The impugned decision granted the private respondents petition for certiorari and set aside the Orders of the trial court dated December 15, 19933 and February 17, 19944 nullifying the attachment of 100,000 shares of stocks of the Citycorp Investment Philippines under the name of petitioner Alfredo Ching. The following facts are undisputed: On September 26, 1978, the Philippine Blooming Mills Company, Inc. (PBMCI) obtained a loan of P9,000,000.00 from the Allied Banking Corporation (ABC). By virtue of this loan, the PBMCI, through its Executive Vice-President Alfredo Ching, executed a promissory note for the said amount promising to pay on December 22, 1978 at an interest rate of 14% per annum.5 As added security for the said loan, on September 28, 1978, Alfredo Ching, together with Emilio Taedo and Chung Kiat Hua, executed a continuing guaranty with the ABC binding themselves to jointly and severally guarantee the payment of all the PBMCI obligations owing the ABC to the extent of P38,000,000.00.6 The loan was subsequently renewed on various dates, the last renewal having been made on December 4, 1980.7 Earlier, on December 28, 1979, the ABC extended another loan to the PBMCI in the amount of P13,000,000.00 payable in eighteen months at 16% interest per annum. As in the previous loan, the PBMCI, through Alfredo Ching, executed a promissory note to evidence the loan maturing on June 29, 1981.8 This was renewed once for a period of one month.9 The PBMCI defaulted in the payment of all its loans. Hence, on August 21, 1981, the ABC filed a complaint for sum of money with prayer for a writ of preliminary attachment against the

PBMCI to collect the P12,612,972.88 exclusive of interests, penalties and other bank charges. Impleaded as co-defendants in the complaint were Alfredo Ching, Emilio Taedo and Chung Kiat Hua in their capacity as sureties of the PBMCI. The case was docketed as Civil Case No. 142729 in the Regional Trial Court of Manila, Branch XVIII.10 In its application for a writ of preliminary attachment, the ABC averred that the "defendants are guilty of fraud in incurring the obligations upon which the present action is brought11 in that they falsely represented themselves to be in a financial position to pay their obligation upon maturity thereof."12 Its supporting affidavit stated, inter alia, that the "[d]efendants have removed or disposed of their properties, or [are] ABOUT to do so, with intent to defraud their creditors."13 On August 26, 1981, after an ex-parte hearing, the trial court issued an Order denying the ABCs application for a writ of preliminary attachment. The trial court decreed that the grounds alleged in the application and that of its supporting affidavit "are all conclusions of fact and of law" which do not warrant the issuance of the writ prayed for.14 On motion for reconsideration, however, the trial court, in an Order dated September 14, 1981, reconsidered its previous order and granted the ABCs application for a writ of preliminary attachment on a bond of P12,700,000. The order, in relevant part, stated: With respect to the second ground relied upon for the grant of the writ of preliminary attachment ex-parte, which is the alleged disposal of properties by the defendants with intent to defraud creditors as provided in Sec. 1(e) of Rule 57 of the Rules of Court, the affidavits can only barely justify the issuance of said writ as against the defendant Alfredo Ching who has allegedly bound himself jointly and severally to pay plaintiff the defendant corporations obligation to the plaintiff as a surety thereof. WHEREFORE, let a writ of preliminary attachment issue as against the defendant Alfredo Ching requiring the sheriff of this Court to attach all the properties of said Alfredo Ching not exceeding P12,612,972.82 in value, which are within the jurisdiction of this Court and not exempt from execution upon, the filing by plaintiff of a bond duly approved by this Court in the sum of Twelve Million Seven Hundred Thousand Pesos (P12,700,000.00) executed in favor of the defendant Alfredo Ching to secure the payment by plaintiff to him of all the costs which may be adjudged in his favor and all damages he may sustain by reason of the attachment if the court shall finally adjudge that the plaintiff was not entitled thereto. SO ORDERED.15 Upon the ABCs posting of the requisite bond, the trial court issued a writ of preliminary attachment. Subsequently, summonses were served on the defendants,16 save Chung Kiat Hua who could not be found. Meanwhile, on April 1, 1982, the PBMCI and Alfredo Ching jointly filed a petition for suspension of payments with the Securities and Exchange Commission (SEC), docketed as SEC Case No. 2250, at the same time seeking the PBMCIs rehabilitation.17

On July 9, 1982, the SEC issued an Order placing the PBMCIs business, including its assets and liabilities, under rehabilitation receivership, and ordered that "all actions for claims listed in Schedule "A" of the petition pending before any court or tribunal are hereby suspended in whatever stage the same may be until further orders from the Commission."18 The ABC was among the PBMCIs creditors named in the said schedule. Subsequently, on January 31, 1983, the PBMCI and Alfredo Ching jointly filed a Motion to Dismiss and/or motion to suspend the proceedings in Civil Case No. 142729 invoking the PBMCIs pending application for suspension of payments (which Ching co-signed) and over which the SEC had already assumed jurisdiction.19 On February 4, 1983, the ABC filed its Opposition thereto.20 In the meantime, on July 26, 1983, the deputy sheriff of the trial court levied on attachment the 100,000 common shares of Citycorp stocks in the name of Alfredo Ching.21 Thereafter, in an Order dated September 16, 1983, the trial court partially granted the aforementioned motion by suspending the proceedings only with respect to the PBMCI. It denied Chings motion to dismiss the complaint/or suspend the proceedings and pointed out that P.D. No. 1758 only concerns the activities of corporations, partnerships and associations and was never intended to regulate and/or control activities of individuals. Thus, it directed the individual defendants to file their answers.22 Instead of filing an answer, Ching filed on January 14, 1984 a Motion to Suspend Proceedings on the same ground of the pendency of SEC Case No. 2250. This motion met the opposition from the ABC.23 On January 20, 1984, Taedo filed his Answer with counterclaim and cross-claim.24 Ching eventually filed his Answer on July 12, 1984.25 On October 25, 1984, long after submitting their answers, Ching filed an Omnibus Motion,26 again praying for the dismissal of the complaint or suspension of the proceedings on the ground of the July 9, 1982 Injunctive Order issued in SEC Case No. 2250. He averred that as a surety of the PBMCI, he must also necessarily benefit from the defenses of his principal. The ABC opposed Chings omnibus motion. Emilio Y. Taedo, thereafter, filed his own Omnibus Motion27 praying for the dismissal of the complaint, arguing that the ABC had "abandoned and waived" its right to proceed against the continuing guaranty by its act of resorting to preliminary attachment. On December 17, 1986, the ABC filed a Motion to Reduce the amount of his preliminary attachment bond from P12,700,000 to P6,350,000.28 Alfredo Ching opposed the motion,29 but on April 2, 1987, the court issued an Order setting the incident for further hearing on May 28, 1987 at 8:30 a.m. for the parties to adduce evidence on the actual value of the properties of Alfredo Ching levied on by the sheriff.30

On March 2, 1988, the trial court issued an Order granting the motion of the ABC and rendered the attachment bond of P6,350,000.31 On November 16, 1993, Encarnacion T. Ching, assisted by her husband Alfredo Ching, filed a Motion to Set Aside the levy on attachment. She alleged inter alia that the 100,000 shares of stocks levied on by the sheriff were acquired by her and her husband during their marriage out of conjugal funds after the Citycorp Investment Philippines was established in 1974. Furthermore, the indebtedness covered by the continuing guaranty/comprehensive suretyship contract executed by petitioner Alfredo Ching for the account of PBMCI did not redound to the benefit of the conjugal partnership. She, likewise, alleged that being the wife of Alfredo Ching, she was a third-party claimant entitled to file a motion for the release of the properties.32 She attached therewith a copy of her marriage contract with Alfredo Ching.33 The ABC filed a comment on the motion to quash preliminary attachment and/or motion to expunge records, contending that: 2.1 The supposed movant, Encarnacion T. Ching, is not a party to this present case; thus, she has no personality to file any motion before this Honorable Court; 2.2 Said supposed movant did not file any Motion for Intervention pursuant to Section 2, Rule 12 of the Rules of Court; 2.3 Said Motion cannot even be construed to be in the nature of a Third-Party Claim conformably with Sec. 14, Rule 57 of the Rules of Court. 3. Furthermore, assuming in gracia argumenti that the supposed movant has the required personality, her Motion cannot be acted upon by this Honorable Court as the above-entitled case is still in the archives and the proceedings thereon still remains suspended. And there is no previous Motion to revive the same.34 The ABC also alleged that the motion was barred by prescription or by laches because the shares of stocks were in custodia legis. During the hearing of the motion, Encarnacion T. Ching adduced in evidence her marriage contract to Alfredo Ching to prove that they were married on January 8, 1960;35 the articles of incorporation of Citycorp Investment Philippines dated May 14, 1979;36 and, the General Information Sheet of the corporation showing that petitioner Alfredo Ching was a member of the Board of Directors of the said corporation and was one of its top twenty stockholders. On December 10, 1993, the Spouses Ching filed their Reply/Opposition to the motion to expunge records. Acting on the aforementioned motion, the trial court issued on December 15, 1993 an Order37 lifting the writ of preliminary attachment on the shares of stocks and ordering the sheriff to return the said stocks to the petitioners. The dispositive portion reads:

WHEREFORE, the instant Motion to Quash Preliminary Attachment, dated November 9, 1993, is hereby granted. Let the writ of preliminary attachment subject matter of said motion, be quashed and lifted with respect to the attached 100,000 common shares of stock of Citycorp Investment Philippines in the name of the defendant Alfredo Ching, the said shares of stock to be returned to him and his movant-spouse by Deputy Sheriff Apolonio A. Golfo who effected the levy thereon on July 26, 1983, or by whoever may be presently in possession thereof. SO ORDERED.38 The plaintiff Allied Banking Corporation filed a motion for the reconsideration of the order but denied the same on February 17, 1994. The petitioner bank forthwith filed a petition for certiorari with the CA, docketed as CA-G.R. SP No. 33585, for the nullification of the said order of the court, contending that: 1. The respondent Judge exceeded his authority thereby acted without jurisdiction in taking cognizance of, and granting a "Motion" filed by a complete stranger to the case. 2. The respondent Judge committed a grave abuse of discretion in lifting the writ of preliminary attachment without any basis in fact and in law, and contrary to established jurisprudence on the matter.39 On November 27, 1995, the CA rendered judgment granting the petition and setting aside the assailed orders of the trial court, thus: WHEREFORE, premises considered, the petition is GRANTED, hereby setting aside the questioned orders (dated December 15, 1993 and February 17, 1994) for being null and void. SO ORDERED.40 The CA sustained the contention of the private respondent and set aside the assailed orders. According to the CA, the RTC deprived the private respondent of its right to file a bond under Section 14, Rule 57 of the Rules of Court. The petitioner Encarnacion T. Ching was not a party in the trial court; hence, she had no right of action to have the levy annulled with a motion for that purpose. Her remedy in such case was to file a separate action against the private respondent to nullify the levy on the 100,000 Citycorp shares of stocks. The court stated that even assuming that Encarnacion T. Ching had the right to file the said motion, the same was barred by laches. Citing Wong v. Intermediate Appellate Court,41 the CA ruled that the presumption in Article 160 of the New Civil Code shall not apply where, as in this case, the petitioner-spouses failed to prove the source of the money used to acquire the shares of stock. It held that the levied shares of stocks belonged to Alfredo Ching, as evidenced by the fact that the said shares were registered in the corporate books of Citycorp solely under his name. Thus, according to the appellate court, the RTC committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the assailed orders. The petitioners motion for reconsideration was denied by the CA in a Resolution dated April 2, 1996.

The petitioner-spouses filed the instant petition for review on certiorari, asserting that the RTC did not commit any grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the assailed orders in their favor; hence, the CA erred in reversing the same. They aver that the source of funds in the acquisition of the levied shares of stocks is not the controlling factor when invoking the presumption of the conjugal nature of stocks under Art. 160,42 and that such presumption subsists even if the property is registered only in the name of one of the spouses, in this case, petitioner Alfredo Ching.43 According to the petitioners, the suretyship obligation was not contracted in the pursuit of the petitioner-husbands profession or business.44 And, contrary to the ruling of the CA, where conjugal assets are attached in a collection suit on an obligation contracted by the husband, the wife should exhaust her motion to quash in the main case and not file a separate suit.45 Furthermore, the petitioners contend that under Art. 125 of the Family Code, the petitioner-husbands gratuitous suretyship is null and void ab initio,46 and that the share of one of the spouses in the conjugal partnership remains inchoate until the dissolution and liquidation of the partnership.47 In its comment on the petition, the private respondent asserts that the CA correctly granted its petition for certiorari nullifying the assailed order. It contends that the CA correctly relied on the ruling of this Court in Wong v. Intermediate Appellate Court. Citing Cobb-Perez v. Lantin and G-Tractors, Inc. v. Court of Appeals, the private respondent alleges that the continuing guaranty and suretyship executed by petitioner Alfredo Ching in pursuit of his profession or business. Furthermore, according to the private respondent, the right of the petitioner-wife to a share in the conjugal partnership property is merely inchoate before the dissolution of the partnership; as such, she had no right to file the said motion to quash the levy on attachment of the shares of stocks. The issues for resolution are as follows: (a) whether the petitioner-wife has the right to file the motion to quash the levy on attachment on the 100,000 shares of stocks in the Citycorp Investment Philippines; (b) whether or not the RTC committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the assailed orders. On the first issue, we agree with the petitioners that the petitioner-wife had the right to file the said motion, although she was not a party in Civil Case No. 142729.48 In Ong v. Tating,49 we held that the sheriff may attach only those properties of the defendant against whom a writ of attachment has been issued by the court. When the sheriff erroneously levies on attachment and seizes the property of a third person in which the said defendant holds no right or interest, the superior authority of the court which has authorized the execution may be invoked by the aggrieved third person in the same case. Upon application of the third person, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment, more specifically if he has indeed levied on attachment and taken hold of property not belonging to the plaintiff. If so, the court may then order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the motion of the third party, the court does not and cannot pass upon the question of the title to the property with any character of finality. It can treat the matter only insofar as may be necessary to decide if the sheriff has acted correctly or not. If the claimants proof does not persuade the court of the

validity of the title, or right of possession thereto, the claim will be denied by the court. The aggrieved third party may also avail himself of the remedy of "terceria" by executing an affidavit of his title or right of possession over the property levied on attachment and serving the same to the office making the levy and the adverse party. Such party may also file an action to nullify the levy with damages resulting from the unlawful levy and seizure, which should be a totally separate and distinct action from the former case. The above-mentioned remedies are cumulative and any one of them may be resorted to by one third-party claimant without availing of the other remedies.50 In this case, the petitioner-wife filed her motion to set aside the levy on attachment of the 100,000 shares of stocks in the name of petitioner-husband claiming that the said shares of stocks were conjugal in nature; hence, not liable for the account of her husband under his continuing guaranty and suretyship agreement with the PBMCI. The petitioner-wife had the right to file the motion for said relief. On the second issue, we find and so hold that the CA erred in setting aside and reversing the orders of the RTC. The private respondent, the petitioner in the CA, was burdened to prove that the RTC committed a grave abuse of its discretion amounting to excess or lack of jurisdiction. The tribunal acts without jurisdiction if it does not have the legal purpose to determine the case; there is excess of jurisdiction where the tribunal, being clothed with the power to determine the case, oversteps its authority as determined by law. There is grave abuse of discretion where the tribunal acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment and is equivalent to lack of jurisdiction.51 It was incumbent upon the private respondent to adduce a sufficiently strong demonstration that the RTC acted whimsically in total disregard of evidence material to, and even decide of, the controversy before certiorari will lie. A special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment. When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of its jurisdiction being exercised when the error is committed.52 After a comprehensive review of the records of the RTC and of the CA, we find and so hold that the RTC did not commit any grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the assailed orders. Article 160 of the New Civil Code provides that all the properties acquired during the marriage are presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband, or to the wife. In Tan v. Court of Appeals,53 we held that it is not even necessary to prove that the properties were acquired with funds of the partnership. As long as the properties were acquired by the parties during the marriage, they are presumed to be conjugal in nature. In fact, even when the manner in which the properties were acquired does not appear, the presumption will still apply, and the properties will still be considered conjugal. The presumption of the conjugal nature of the properties acquired during the marriage subsists in the absence of clear, satisfactory and convincing evidence to overcome the same.54

In this case, the evidence adduced by the petitioners in the RTC is that the 100,000 shares of stocks in the Citycorp Investment Philippines were issued to and registered in its corporate books in the name of the petitioner-husband when the said corporation was incorporated on May 14, 1979. This was done during the subsistence of the marriage of the petitioner-spouses. The shares of stocks are, thus, presumed to be the conjugal partnership property of the petitioners. The private respondent failed to adduce evidence that the petitioner-husband acquired the stocks with his exclusive money.55 The barefaced fact that the shares of stocks were registered in the corporate books of Citycorp Investment Philippines solely in the name of the petitioner-husband does not constitute proof that the petitioner-husband, not the conjugal partnership, owned the same.56 The private respondents reliance on the rulings of this Court in Maramba v. Lozano57 and Associated Insurance & Surety Co., Inc. v. Banzon58 is misplaced. In the Maramba case, we held that where there is no showing as to when the property was acquired, the fact that the title is in the wifes name alone is determinative of the ownership of the property. The principle was reiterated in the Associated Insurance case where the uncontroverted evidence showed that the shares of stocks were acquired during the marriage of the petitioners. Instead of fortifying the contention of the respondents, the ruling of this Court in Wong v. Intermediate Appellate Court59 buttresses the case for the petitioners. In that case, we ruled that he who claims that property acquired by the spouses during their marriage is not conjugal partnership property but belongs to one of them as his personal property is burdened to prove the source of the money utilized to purchase the same. In this case, the private respondent claimed that the petitioner-husband acquired the shares of stocks from the Citycorp Investment Philippines in his own name as the owner thereof. It was, thus, the burden of the private respondent to prove that the source of the money utilized in the acquisition of the shares of stocks was that of the petitioner-husband alone. As held by the trial court, the private respondent failed to adduce evidence to prove this assertion. The CA, likewise, erred in holding that by executing a continuing guaranty and suretyship agreement with the private respondent for the payment of the PBMCI loans, the petitionerhusband was in the exercise of his profession, pursuing a legitimate business. The appellate court erred in concluding that the conjugal partnership is liable for the said account of PBMCI under Article 161(1) of the New Civil Code. Article 161(1) of the New Civil Code (now Article 121[2 and 3]60 of the Family Code of the Philippines) provides: Art. 161. The conjugal partnership shall be liable for: (1) All debts and obligations contracted by the husband for the benefit of the conjugal partnership, and those contracted by the wife, also for the same purpose, in the cases where she may legally bind the partnership. The petitioner-husband signed the continuing guaranty and suretyship agreement as security for the payment of the loan obtained by the PBMCI from the private respondent in the amount of P38,000,000. In Ayala Investment and Development Corp. v. Court of Appeals,61 this Court ruled "that the signing as surety is certainly not an exercise of an industry or profession. It is not

embarking in a business. No matter how often an executive acted on or was persuaded to act as surety for his own employer, this should not be taken to mean that he thereby embarked in the business of suretyship or guaranty." For the conjugal partnership to be liable for a liability that should appertain to the husband alone, there must be a showing that some advantages accrued to the spouses. Certainly, to make a conjugal partnership responsible for a liability that should appertain alone to one of the spouses is to frustrate the objective of the New Civil Code to show the utmost concern for the solidarity and well being of the family as a unit. The husband, therefore, is denied the power to assume unnecessary and unwarranted risks to the financial stability of the conjugal partnership.62 In this case, the private respondent failed to prove that the conjugal partnership of the petitioners was benefited by the petitioner-husbands act of executing a continuing guaranty and suretyship agreement with the private respondent for and in behalf of PBMCI. The contract of loan was between the private respondent and the PBMCI, solely for the benefit of the latter. No presumption can be inferred from the fact that when the petitioner-husband entered into an accommodation agreement or a contract of surety, the conjugal partnership would thereby be benefited. The private respondent was burdened to establish that such benefit redounded to the conjugal partnership.63 It could be argued that the petitioner-husband was a member of the Board of Directors of PBMCI and was one of its top twenty stockholders, and that the shares of stocks of the petitionerhusband and his family would appreciate if the PBMCI could be rehabilitated through the loans obtained; that the petitioner-husbands career would be enhanced should PBMCI survive because of the infusion of fresh capital. However, these are not the benefits contemplated by Article 161 of the New Civil Code. The benefits must be those directly resulting from the loan. They cannot merely be a by-product or a spin-off of the loan itself.64 This is different from the situation where the husband borrows money or receives services to be used for his own business or profession. In the Ayala case, we ruled that it is such a contract that is one within the term "obligation for the benefit of the conjugal partnership." Thus: (A) If the husband himself is the principal obligor in the contract, i.e., he directly received the money and services to be used in or for his own business or his own profession, that contract falls within the term " obligations for the benefit of the conjugal partnership." Here, no actual benefit may be proved. It is enough that the benefit to the family is apparent at the time of the signing of the contract. From the very nature of the contract of loan or services, the family stands to benefit from the loan facility or services to be rendered to the business or profession of the husband. It is immaterial, if in the end, his business or profession fails or does not succeed. Simply stated, where the husband contracts obligations on behalf of the family business, the law presumes, and rightly so, that such obligation will redound to the benefit of the conjugal partnership.65 The Court held in the same case that the rulings of the Court in Cobb-Perez and G-Tractors, Inc. are not controlling because the husband, in those cases, contracted the obligation for his own

business. In this case, the petitioner-husband acted merely as a surety for the loan contracted by the PBMCI from the private respondent. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision and Resolution of the Court of Appeals are SET ASIDE AND REVERSED. The assailed orders of the RTC are AFFIRMED. SO ORDERED. Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 151967 February 16, 2005

JOSEFINA C. FRANCISCO, petitioner, vs. MASTER IRON WORKS & CONSTRUCTION CORPORATION and ROBERTO V. ALEJO, Sheriff IV, Regional Trial Court of Makati City, Branch 142, respondents. DECISION CALLEJO, SR., J.: Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. No. CV No. 59045, which reversed and set aside the Decision2 of the Regional Trial Court (RTC) of Paraaque, Metro Manila, Branch 260, in Civil Case No. 94-2260 and the Resolution of the CA denying the petitioners motion for reconsideration of the said decision. Josefina Castillo was only 24 years old when she and Eduardo G. Francisco were married on January 15, 1983.3 Eduardo was then employed as the vice president in a private corporation. A little more than a year and seven months thereafter, or on August 31, 1984, the Imus Rural Bank, Inc. (Imus Bank) executed a deed of absolute sale for P320,000.00 in favor of Josefina Castillo Francisco, married to Eduardo Francisco, covering two parcels of residential land with a house thereon located at St. Martin de Porres Street, San Antonio Valley I, Sucat, Paraaque, Metro Manila. One of the lots was covered by Transfer Certificate of Title (TCT) No. 36519, with an area of 342 square meters, while the other lot, with an area of 360 square meters, was covered by TCT No. 36518.4 The purchase price of the property was paid to the Bank via Check No. 002334 in the amount of P320,000.00 drawn and issued by the Commercial Bank of Manila, for which the Imus Bank issued Official Receipt No. 121408 on August 31, 1984.5 On the basis of the said deed of sale, TCT Nos. 36518 and 36519 were cancelled and, on September 4, 1984, the Register of Deeds issued TCT Nos. 87976 (60550) and 87977 (60551) in the name of "Josefina Castillo Francisco married to Eduardo G. Francisco."6 On February 15, 1985, the Register of Deeds made of record Entry No. 85-18003 at the dorsal portion of the said titles. This referred to an Affidavit of Waiver executed by Eduardo where he declared that before his marriage to Josefina, the latter purchased two parcels of land, including the house constructed thereon, with her own savings, and that he was waiving whatever claims he had over the property.7 On January 13, 1986, Josefina mortgaged the said property to Leonila Cando for a loan of P157,000.00.8 It appears that Eduardo affixed his marital conformity to the deed.9

On June 11, 1990, Eduardo, who was then the General Manager and President of Reach Out Trading International, bought 7,500 bags of cement worth P768,750.00 from Master Iron Works & Construction Corporation (MIWCC) but failed to pay for the same. On November 27, 1990, MIWCC filed a complaint against him in the RTC of Makati City for the return of the said commodities, or the value thereof in the amount of P768,750.00. The case was docketed as Civil Case No. 90-3251. On January 8, 1992, the trial court rendered judgment in favor of MIWCC and against Eduardo. The fallo of the decision reads: Accordingly, the Court renders judgment in favor of the plaintiff Master Iron Works And Construction Corporation against the defendant [Eduardo] Francisco ordering the latter as follows: 1. To replace to plaintiff 7,500 bags at 50 kilos/bag of Portland cement or, in the alternative, to pay the plaintiff the amount of P768,750.00; 2. In either case, to pay liquidated damages by way of interest at 12% per annum from June 21, 1990 until fully paid; 3. To pay P50,000.00 as actual damages; and 4. To pay attorneys fees of P153,750.00 and litigation expenses of P20,000.00. SO ORDERED.10 The decision in Civil Case No. 90-3251 became final and executory and, on June 7, 1994, the court issued a writ of execution.11 On June 14, 1994, Sheriff Roberto Alejo sold at a public auction one stainless, owner-type jeep for P10,000.00 to MIWCC.12 Sheriff Alejo issued a Notice of Levy on Execution/Attachment over the lots covered by TCT No. 87976 (60550) and 87977 (60551) for the recovery of the balance of the amount due under the decision of the trial court in Civil Case No. 90-3251.13 On June 24, 1994, the sale of the property at a public auction was set to August 5, 1994.14 On July 3, 1994, Josefina executed an Affidavit of Third Party Claim15 over the two parcels of land in which she claimed that they were her paraphernal property, and that her husband Eduardo had no proprietary right or interest over them as evidenced by his affidavit of waiver, a copy of which she attached to her affidavit. She, likewise, requested Sheriff Alejo to cause the cancellation of the notice of levy on execution/attachment earlier issued by him. On July 7, 1994, Josefina filed the said Affidavit of Third Party Claim in the trial court and served a copy thereof to the sheriff. MIWCC then submitted an indemnity bond16 in the amount of P1,361,500.00 issued by the Prudential Guarantee and Assurance, Inc. The sale at public auction proceeded. MIWCC made a bid for the property for the price of P1,350,000.00.17 On July 28, 1994, Josefina filed a Complaint against MIWCC and Sheriff Alejo in the RTC of Paraaque for damages with a prayer for a writ of preliminary injunction or temporary restraining order, docketed as Civil Case No. 94-2260. She alleged then that she was the sole

owner of the property levied on execution by Sheriff Alejo in Civil Case No. 90-3251; hence, the levy on execution of the property was null and void. She reiterated that her husband, the defendant in Civil Case No. 90-3251, had no right or proprietary interest over the said property as evidenced by his affidavit of waiver annotated at the dorsal portion of the said title. Josefina prayed that the court issue a temporary restraining order/writ of preliminary injunction to enjoin MIWCC from causing the sale of the said property at public auction. Considering that no temporary restraining order had as yet been issued by the trial court, the sheriff sold the subject property at public auction to MIWCC for P1,350,000.00 on August 5, 1994.18 However, upon the failure of MIWCC to remit the sheriffs commission on the sale, the latter did not execute a sheriffs certificate of sale over the property. The RTC of Paraaque, thereafter, issued a temporary restraining order19 on August 16, 1994. When Josefina learned of the said sale at public auction, she filed an amended complaint impleading MIWCC, with the following prayer: WHEREFORE, premises considered, it is most respectfully prayed to this Honorable Court that, after hearing, judgment be rendered in favor of the plaintiff and against the defendants and the same be in the following tenor: 1. Ordering the defendants, jointly and severally, to pay the plaintiff the following amounts: A. The sum of P50,000.00 representing as actual damages; B. The sum of P200,000.00 representing as moral damages; C. The sum of P50,000.00 or such amount which this Honorable Court deems just as exemplary damages; D. The sum of P60,000.00 as and for attorneys fees. 2. Declaring the levying and sale at public auction of the plaintiffs properties null and void; 3. To issue writ of preliminary injunction and makes it permanent; 4. Order the cancellation of whatever entries appearing at the titles as a result of the enforcement of the writ of execution issued in Civil Case No. 90-3251. Plaintiff further prays for such other reliefs as may be just under the premises.20 In its answer to the complaint, MIWCC cited Article 116 of the Family Code of the Philippines and averred that the property was the conjugal property of Josefina and her husband Eduardo, who purchased the same on August 31, 1984 after their marriage on January 14, 1983. MIWCC asserted that Eduardo executed the affidavit of waiver to evade the satisfaction of the decision in

Civil Case No. 90-3251 and to place the property beyond the reach of creditors; hence, the said affidavit was null and void. Before she could commence presenting her evidence, Josefina filed a petition to annul her marriage to Eduardo in the RTC of Paraaque, Metro Manila, on the ground that when they were married on January 15, 1983, Eduardo was already married to one Carmelita Carpio. The case was docketed as Civil Case No. 95-0169. Josefina and Carmelita testified in Civil Case No. 95-0169. Josefina declared that during her marriage to Eduardo, she acquired the property covered by TCT Nos. 87976 (60550) and 87977 (60551), through the help of her sisters and brother, and that Eduardo had no participation whatsoever in the said acquisition. She added that Eduardo had five children, namely, Mary Jane, Dianne, Mary Grace Jo, Mark Joseph and Mary Cecille, all surnamed Francisco. On September 9, 1996, the RTC of Paraaque rendered judgment21 in Civil Case No. 95-0169, declaring the marriage between Josefina and Eduardo as null and void for being bigamous. In the meantime, Josefina testified in Civil Case No. 94-2260, declaring, inter alia, that she was able to purchase the property from the Bank when she was still single with her mothers financial assistance; she was then engaged in recruitment when Eduardo executed an affidavit of waiver; she learned that he was previously married when they already had two children; nevertheless, she continued cohabiting with him and had three more children by him; and because of Eduardos first marriage, she decided to have him execute the affidavit of waiver. Eduardo testified that when his wife bought the property in 1984, he was in Davao City and had no knowledge of the said purchases; he came to know of the purchase only when Josefina informed him a week after his arrival from Davao;22 Josefinas sister, Lolita Castillo, told him that she would collect from him the money his wife borrowed from her and their mother to buy the property;23 when he told Lolita that he had no money, she said that she would no longer collect from him, on the condition that he would have no participation over the property,24 which angered Eduardo;25 when Josefina purchased the property, he had a gross monthly income of P10,000.00 and gave P5,000.00 to Josefina for the support of his family;26 Josefina decided that he execute the affidavit of waiver because her mother and sister gave the property to her.27 On December 20, 1997, the trial court rendered judgment finding the levy on the subject property and the sale thereof at public auction to be null and void. The fallo of the decision reads: WHEREFORE, PREMISES CONSIDERED, THIS COURT finds the Levying and sale at public auction of the plaintiffs properties null and void. The court orders the defendants to, jointly and severally, pay plaintiff the following amounts: a. The sum of P50,000.00 as actual damages; b. The sum of P50,000.00 representing as moral damages;

c. The sum of P50,000.00 as exemplary damages; d. The sum of P60,000.00 as and for attorneys fees. The court orders the cancellation of whatever entries appearing at the Titles as a result of the enforcement of the writ of execution issued in Civil Case No. 90-3251. SO ORDERED.28 The trial court held that the property levied by Sheriff Alejo was the sole and exclusive property of Josefina, applying Articles 144, 160, 175 and 485 of the New Civil Code. The trial court also held that MIWCC failed to prove that Eduardo Francisco contributed to the acquisition of the property. MIWCC appealed the decision to the CA in which it alleged that: I. THE TRIAL COURT ERRED IN RULING THAT THE REAL ESTATE PROPERTIES SUBJECT OF THE AUCTION SALE ARE PARAPHERNAL PROPERTIES OWNED BY PLAINTIFF-APPELLEE JOSEFINA FRANCISCO; II. THE TRIAL COURT ERRED IN ALLOWING THE RECEPTION OF REBUTTAL EVIDENCE WITH REGARD TO THE ANNULMENT OF PLAINTIFF-APPELLEES MARRIAGE WITH EDUARDO FRANCISCO; III. THE TRIAL COURT ERRED IN RULING THAT THE LEVY ON EXECUTION OF PLAINTIFF-APPELLEES PROPERTIES SUBJECT OF THE PRESENT CONTROVERSY IS NULL AND VOID; IV. THE TRIAL COURT ERRED IN ORDERING DEFENDANT-APPELLANT TO PAY DAMAGES TO PLAINTIFF-APPELLEE FOR ALLEGED IMPROPER LEVY ON EXECUTION.29 The CA rendered judgment setting aside and reversing the decision of the RTC on September 20, 2001. The fallo of the decision reads: WHEREFORE, premises considered, the Decision, dated 20 December 1997, of the Regional Trial Court of Paraaque, Branch 260, is hereby REVERSED and SETASIDE and a new one entered dismissing Civil Case No. 94-0126. SO ORDERED.30 The CA ruled that the property was presumed to be the conjugal property of Eduardo and Josefina, and that the latter failed to rebut such presumption. It also held that the affidavit of waiver executed by Eduardo was contrary to Article 146 of the New Civil Code and, as such, had no force and effect. Josefina filed a motion for reconsideration of the decision, which was, likewise, denied by the CA.

Josefina, now the petitioner, filed the present petition for review, alleging that: A. THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THERE EXISTS A CONJUGAL PARTNERSHIP BETWEEN PETITIONER AND EDUARDO FRANCISCO; B. THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THE SUBJECT PROPERTIES WERE NOT PARAPHERNAL PROPERTIES OF PETITIONER; C. THE HONORABLE COURT OF APPEALS ERRED IN DISTURBING THE FINDINGS OF FACTS AND CONCLUSION BY THE TRIAL COURT IN ITS DECISION OF DECEMBER 20, 1997, THE SAME BEING IN ACCORDANCE WITH LAW AND JURISPRUDENCE.31 The threshold issues for resolution are as follows: (a) whether or not the subject property is the conjugal property of Josefina Castillo and Eduardo Francisco; and (b) whether or not the subject properties may be held to answer for the personal obligations of Eduardo. We shall deal with the issues simultaneously as they are closely related. The petitioner asserts that inasmuch as her marriage to Eduardo is void ab initio, there is no occasion that would give rise to a regime of conjugal partnership of gains. The petitioner adds that to rule otherwise would render moot and irrelevant the provisions on the regime of special co-ownership under Articles 147 and 148 of the Family Code of the Philippines, in relation to Article 144 of the New Civil Code. The petitioner avers that since Article 148 of the Family Code governs their property relationship, the respondents must adduce evidence to show that Eduardo actually contributed to the acquisition of the subject properties. The petitioner asserts that she purchased the property before her marriage to Eduardo with her own money without any contribution from him; hence, the subject property is her paraphernal property.l^vvphi1.net Consequently, such property is not liable for the debts of Eduardo to private respondent MIWCC. The respondents, on the other hand, contend that the appellate court was correct in ruling that the properties are conjugal in nature because there is nothing in the records to support the petitioners uncorroborated claim that the funds she used to purchase the subject properties were her personal funds or came from her mother and sister. The respondents point out that if, as claimed by the petitioner, the subject properties were, indeed, not conjugal in nature, then, there was no need for her to obtain marital (Eduardos) consent when she mortgaged the properties to two different parties sometime in the first quarter of 1986, or after Eduardo executed the affidavit of waiver. We note that the only questions raised in this case are questions of facts. Under Rule 45 of the Rules of Court, only questions of law may be raised in and resolved by the Court. The Court may, however, determine and resolve questions of facts in cases where the findings of facts of the trial court and those of the CA are inconsistent, where highly meritorious circumstances are present, and where it is necessary to give substantial justice to the parties. In the present action,

the findings of facts and the conclusions of the trial court and those of the CA are opposite. There is thus an imperative need for the Court to delve into and resolve the factual issues, in tandem with the questions of law raised by the parties. The petition has no merit. The petitioner failed to prove that she acquired the property with her personal funds before her cohabitation with Eduardo and that she is the sole owner of the property. The evidence on record shows that the Imus Bank executed a deed of absolute sale over the property to the petitioner on August 31, 1984 and titles over the property were, thereafter, issued to the latter as vendee on September 4, 1984 after her marriage to Eduardo on January 15, 1983.1vvphi1.nt We agree with the petitioner that Article 144 of the New Civil Code does not apply in the present case. This Court in Tumlos v. Fernandez32 held that Article 144 of the New Civil Code applies only to a relationship between a man and a woman who are not incapacitated to marry each other, or to one in which the marriage of the parties is void from the very beginning. It does not apply to a cohabitation that is adulterous or amounts to concubinage, for it would be absurd to create a co-ownership where there exists a prior conjugal partnership or absolute community between the man and his lawful wife. In this case, the petitioner admitted that when she and Eduardo cohabited, the latter was incapacitated to marry her. Article 148 of the Family Code of the Philippines, on which the petitioner anchors her claims, provides as follows: Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall, likewise, apply even if both parties are in bad faith. Indeed, the Family Code has filled the hiatus in Article 144 of the New Civil Code by expressly regulating in Article 148 the property relations of couples living in a state of adultery or concubinage. Under Article 256 of the Family Code, the law can be applied retroactively if it does not prejudice vested or acquired rights. The petitioner failed to prove that she had any vested right over the property in question.33 Since the subject property was acquired during the subsistence of the marriage of Eduardo and Carmelita, under normal circumstances, the same should be presumed to be conjugal property.34

Article 105 of the Family Code of the Philippines provides that the Code shall apply to conjugal partnership established before the code took effect, without prejudice to vested rights already acquired under the New Civil Code or other laws.35 Thus, even if Eduardo and Carmelita were married before the effectivity of the Family Code of the Philippines, the property still cannot be considered conjugal property because there can only be but one valid existing marriage at any given time.36 Article 148 of the Family Code also debilitates against the petitioners claim since, according to the said article, a co-ownership may ensue in case of cohabitation where, for instance, one party has a pre-existing valid marriage provided that the parents prove their actual joint contribution of money, property or industry and only to the extent of their proportionate interest thereon.37 We agree with the findings of the appellate court that the petitioner failed to adduce preponderance of evidence that she contributed money, property or industry in the acquisition of the subject property and, hence, is not a co-owner of the property: First of all, other than plaintiff-appellees bare testimony, there is nothing in the record to support her claim that the funds she used to purchase the subject properties came from her mother and sister. She did not, for instance, present the testimonies of her mother and sister who could have corroborated her claim. Furthermore, in her Affidavit of Third-Party Claim (Exh. "C"), she stated that the subject properties "are my own paraphernal properties, including the improvements thereon, as such are the fruits of my own exclusive efforts ," clearly implying that she used her own money and contradicting her later claim that the funds were provided by her mother and sister. She also stated in her affidavit that she acquired the subject properties before her marriage to Eduardo Francisco on 15 January 1983, a claim later belied by the presentation of the Deed of Absolute Sale clearly indicating that she bought the properties from Imus Rural Bank on 31 August 1984, or one year and seven months after her marriage (Exh. "D"). In the face of all these contradictions, plaintiff-appellees uncorroborated testimony that she acquired the subject properties with funds provided by her mother and sister should not have been given any weight by the lower court. It is to be noted that plaintiff-appellee got married at the age of 23. At that age, it is doubtful if she had enough funds of her own to purchase the subject properties as she claimed in her Affidavit of Third Party Claim. Confronted with this reality, she later claimed that the funds were provided by her mother and sister, clearly an afterthought in a desperate effort to shield the subject properties from appellant Master Iron as judgment creditor.38 Aside from her bare claims, the petitioner offered nothing to prove her allegation that she borrowed the amount of P320,000.00 from her mother and her sister, which she paid to the Imus Bank on August 31, 1984 to purchase the subject property. The petitioner even failed to divulge the name of her mother and the sources of her income, if any, and that of her sister. When she testified in Civil Case No. 95-0169, the petitioner declared that she borrowed part of the purchase price of the property from her brother,39 but failed to divulge the latters name, let alone reveal how much money she borrowed and when. The petitioner even failed to adduce any evidence to prove that her mother and sister had P320,000.00 in 1984, which, considering the times, was then quite a substantial amount. Moreover, the petitioners third-party-claim affidavit

stating that the properties "are the fruits of my own exclusive effort before I married Eduardo Francisco" belies her testimony in the trial court and in Civil Case No. 95-0169.1awphi1.nt We note that, as gleaned from the receipt issued by the Imus Bank, the payment for the subject property was drawn via Check No. 002334 and issued by the Commercial Bank of Manila in the amount of P320,000.00.40 The petitioner failed to testify against whose account the check was drawn and issued, and whether the said account was owned by her and/or Eduardo Francisco or her mother, sister or brother. She even failed to testify whether the check was a managers check and, if so, whose money was used to purchase the same. We also agree with the findings of the CA that the affidavit of waiver executed by Eduardo on February 15, 1985, stating that the property is owned by the petitioner, is barren of probative weight. We are convinced that he executed the said affidavit in anticipation of claims by third parties against him and hold the property liable for the said claims. First, the petitioner failed to prove that she had any savings before her cohabitation with Eduardo. Second, despite Eduardos affidavit of waiver, he nevertheless affixed his marital conformity to the real estate mortgage executed by the petitioner over the property in favor of Leonila on January 13, 1986.41 Third, the petitioner testified that she borrowed the funds for the purchase of the property from her mother and sister.42 Fourth, the petitioner testified that Eduardo executed the affidavit of waiver because she discovered that he had a first marriage.43 Lastly, Eduardo belied the petitioners testimony when he testified that he executed the affidavit of waiver because his mother-in-law and sisterin-law had given the property to the petitioner.44 IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of the Court of Appeals reversing the decision of the Regional Trial Court is AFFIRMED. No pronouncement as to costs. SO ORDERED. Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

SECOND DIVISION

JOHN ABING, Petitioner,

G.R. No. 146294

Present:

PUNO, J., Chairperson, - versus SANDOVAL-GUTIERREZ, CORONA, AZCUNA, and GARCIA, JJ. JULIET WAEYAN, Respondent. Promulgated:

July 31, 2006

x------------------------------------------------------------------------------------x

DECISION

GARCIA, J.:

In this appeal by way of a petition for review under Rule 45 of the Rules of Court, petitioner John Abing (John, hereafter) seeks to set aside the Decision dated October 24, 2000 of the Court of Appeals (CA) in CA-G.R. SP No. 48675, reversing that of the Regional Trial Court (RTC) of Benguet, Branch 64, which affirmed an earlier decision of the Municipal Trial Court (MTC) of Mankayan, Benguet in an ejectment suit thereat commenced by the petitioner against the respondent.

In the main, the controversy is between a man and a woman who, during the good old days, lived together as husband and wife without the benefit of marriage. During their cohabitation, they acquired properties. Later, they parted ways, and with it this litigation between them involving one of their common properties.

The facts:

Sometime in 1986, John and respondent Juliet Waeyan (Juliet, for short) met and fell in love with each other. In time, the duo cohabited as husband and wife without the benefit of marriage. Together, the couple bought a 2-storey residential house from one Benjamin Macua which was erected on a lot owned by a certain Alejandro Dio on Aurora Street, Mankayan, Benguet. Consequent to the purchase, the tax declaration of the 2-storey house was transferred in the name of Juliet.

On December 2, 1991, Juliet left for overseas employment in Korea. She would send money to John who deposited the same in their joint bank account.

In 1992, the original 2-storey residential house underwent renovation. To it was annexed a new structure which housed a sari-sari store. This new structure and the sari-sari store thereat are the properties involved in this case.

In 1994, Juliet returned from Korea and continued to live with John. She managed the sari-sari store while John worked as a mine employee of the Lepanto Consolidated Mining, Inc.

In 1995, the relationship between the two turned from bad to worse. Hence, they decided to partition their properties. For the purpose, they executed on October 7, 1995 a Memorandum of Agreement. Unfortunately, the document was left unsigned by the parties although signed by the witnesses thereto. Under their unsigned agreement, John shall leave the couples dwelling with Juliet paying him

the amount of P428,870.00 representing Johns share in all their properties. On the same date October 7, 1995 Juliet paid John the sum of P232,397.66 by way of partial payment of his share, with the balance of P196,472.34 to be paid by Juliet in twelve monthly installment beginning November 1995.

Juliet, however, failed to make good the balance. On account thereof, John demanded of her to vacate the annex structure housing the sari-sari store. Juliet refused, prompting John to file an ejectment suit against her before the MTC of Mankayan, Benguet.

In his complaint, John alleged that he alone spent for the construction of the annex structure with his own funds and thru money he borrowed from his relatives. In fact, he added that the tax declaration for the structure was under his name. On this premise, John claimed exclusive ownership of the subject structure, which thereby gave him the right to eject Juliet therefrom upon the latters failure to pay the agreed balance due him under the aforementioned Memorandum of Agreement.

In her answer, Juliet countered that their original house was renovated thru their common funds and that the subject structure annexed thereto was merely an attachment or an extension of their original residential house, hence the same pertained to the two of them in common.

In a decision dated March 15, 1997, the MTC, on its finding that the money used in the construction of the structure in question solely came from John, ruled that the same exclusively pertained to the latter, and accordingly ordered Juliets eviction therefrom, including the sari-sari store thereat, and required her to surrender possession thereof to John, thus:

WHEREFORE, judgment is rendered in favor of the plaintiff (John) and against the defendant (Juliet).

Defendant is hereby ordered to vacate the premises of the store in litigation covered by Tax Declaration No. 96-00100445 in the name of the Plaintiff and turn over possession thereof to the latter.

Defendant is hereby further ordered to pay the Plaintiff the sum of P2,500.00 a month from the time she withheld possession of the store in litigation in June 1996 until she vacates the same and turn over possession thereof to the Plaintiff.

Defendant is finally ordered, to pay the sum of P5,000.00 to the Plaintiff by way of Attorneys fees; and to pay the costs.

SO ORDERED.

On Juliets appeal to the RTC, the latter, in its decision of July 29, 1995, affirmed that of the MTC. Undaunted, Juliet then went to the CA in CA-G.R. SP No. 48675.

As stated at the threshold hereof, the CA, in its Decision of October 24, 2000, reversed that of the RTC, to wit:

WHEREFORE, the petition is GRANTED. The assailed decision of the Regional Trial Court is hereby reversed and set aside. Petitioner, Juliet Waeyan is entitled to possess the property and maintain therein her business.

SO ORDERED.

Partly says the CA in its reversal disposition:

It is undisputed that the parties lived together as husband and wife without the benefit of marriage from 1986 to 1995 and that they acquired certain properties which must be divided between them upon the termination of their common law relationship.

xx

xxx

xxx

. . . their property relations cannot be governed by the provision of the Civil Code on conjugal partnership... but by the rule on coownership.

xxx

xxx

xxx

. . . the parties share in respect of the properties they have accumulated during their cohabitation shall be equal unless there is proof to the contrary.

To the CA, Johns evidence failed to establish that he alone spent for the construction of the annex structure. Hence, the same pertained to both, and being a co-owner herself, Juliet cannot be evicted therefrom, adding that if ever, Johns cause of action should have been for a sum of money because he claims that Juliet still owes him the payment for the extension. According to the CA, ejectment cannot lie against Juliet because Juliets possession of the premises in dispute was not by virtue of a contract, express or implied, nor did she obtain such possession thru force, intimidation, threat, strategy or stealth.

Hence, Johns present recourse, submitting that the CA erred in

1. not giving effect to the parties Memorandum of Agreement which should have been binding between them albeit unsigned by both;

2. in holding that the subject premises (annex structure housing the sari-sari store) is owned by the two of them in common;

3. in ruling that the parties should settle their common properties in a separate action for partition even as the community character of the subject premises has not been proven.

We AFFIRM with modification.

Essentially, the issues raised center on the core question of whether or not the property subject of the suit pertains to the exclusive ownership of petitioner, John. Departing from the factual findings of the two courts before it, the CA found that the premises in dispute is owned in common by Juliet and John, the latter having failed to establish by the required quantum of proof that the money spent for the construction thereof solely came from him. Being a co-owner of the same structure, Juliet may not be ejected therefrom.

While the question raised is essentially one of fact, of which the Court normally eschews from, yet, given the conflicting factual findings of the three courts below, the Court shall go by the exception to the general rule and proceed to make its own assessment of the evidence.

First and foremost, it is undisputed that the parties hereto lived together as husband and wife from 1986 to 1995 without the benefit of marriage. Neither is it disputed that sometime in December 1991, Juliet left for Korea and worked thereat, sending money to John which the latter deposited in their joint account. In fact, Juliet was still in Korea when the annex structure was constructed in 1992.

Other than Johns bare allegation that he alone, thru his own funds and money he borrowed from his relatives, spent for the construction of the annex structure, evidence is wanting to support such naked claim. For sure, John even failed to reveal how much he spent therefor. Neither did he divulge the names of the alleged relatives from whom he made his borrowings, let alone the amount of money he borrowed from them. All that petitioner could offer by way of reinforcing his claim of spending his own funds and borrowed money in putting up the subject structure was the affidavit executed by a certain Manuel Macaraeg to the effect that petitioner borrowed P30,000.00 from him. Even then, Macaraeg stated in his affidavit that it was sometime in 1990 when John borrowed said amount from him. With the petitioners own admission that the subject structure was constructed only

in 1992, or two years after he borrowed P30,000.00 from Macaraeg, it is even doubtful whether the amount he allegedly borrowed from the latter went into the construction of the structure in dispute. More, it is noted that while petitioner was able to present in evidence the Macaraeg affidavit, he failed to introduce similar affidavits, if any, of his close relatives from whom he claimed to have made similar borrowings. For sure, not a single relative came forward to confirm petitioners tale. In short, there is a paucity of evidence, testimonial or documentary, to support petitioners self-serving allegation that the annex structure which housed the sarisari store was put up thru his own funds and/or money borrowed by him. Sure, petitioner has in his favor the tax declaration covering the subject structure. We have, however, ruled time and again that tax declarations do not prove ownership but at best an indicia of claims of ownership. Payment of taxes is not proof of ownership, any more than indicating possession in the concept of an owner. Neither tax receipts nor declaration of ownership for taxation purposes are evidence of ownership or of the right to possess realty when not supported by other effective proofs.

In this connection, Article 147 of the Family Code is instructive. It reads:

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property

acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the formers efforts consisted in the care and maintenance of the family and of the household.

The law is clear. In the absence, as here, of proofs to the contrary, any property acquired by common-law spouses during their period of cohabitation is presumed to have been obtained thru their joint efforts and is owned by them in equal shares. Their property relationship is governed by the rules on co-ownership. And under this regime, they owned their properties in common in equal shares. Being herself a co-owner of the structure in question, Juliet, as correctly ruled by the CA, may not be ejected therefrom.

True it is that under Article 487 of the Civil Code, a co-owner may bring an action for ejectment against a co-owner who takes exclusive possession and asserts exclusive ownership of a common property. It bears stressing, however, that in this case, evidence is totally wanting to establish Johns or Juliets exclusive ownership

of the property in question. Neither did Juliet obtain possession thereof by virtue of a contract, express or implied, or thru intimidation, threat, strategy or stealth. As borne by the record, Juliet was in possession of the subject structure and the sarisari store thereat by virtue of her being a co-owner thereof. As such, she is as much entitled to enjoy its possession and ownership as John.

We, however, disagree with the ruling of the CA that the subject Memorandum of Agreement, being unsigned by Juliet and John, has no binding effect between them.

It is a matter of record that pursuant to said Agreement, Juliet did pay John the amount of P232,397.66, as initial payment for Johns share in their common properties, with the balance of P196,472.34 payable in twelve monthly installments beginning November 1995. It is also a matter of record that the Agreement was signed by the witnesses thereto. Hence, the irrelevant circumstances that the Agreement was left unsigned by Juliet and John cannot adversely affect its binding force or effect between them, as evidently, Juliets initial payment of P232,397.66 to John was in fulfillment of what the parties had agreed upon thereunder. However, and as correctly held by the CA, Juliets failure to pay John the balance of the latters share in their common properties could at best give rise to an action for a sum of money against Juliet, or for rescission of the said agreement and not for ejectment.

WHEREFORE, the petition is DENIED and the assailed CA Decision is AFFIRMED, except that portion thereof denying effect to the parties Memorandum of Agreement for being unsigned by both.

Costs against petitioner.

SO ORDERED.

CANCIO C. GARCIA Associate Justice

WE CONCUR:

REYNATO S. PUNO Associate Justice Chairperson

ANGELINA SANDOVALGUTIERREZ Associate Justice

RENATO C. CORONA Associate Justice

ADOLFO S. AZCUNA Associate Justice

ATTESTATION

I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Associate Justice Chairperson, Second Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairperson's Attestation, it is hereby certified that

the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN Chief Justice

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 177703 January 28, 2008

VILMA G. ARRIOLA and ANTHONY RONALD G. ARRIOLA, petitioners, vs. JOHN NABOR C. ARRIOLA, respondent. DECISION AUSTRIA-MARTINEZ, J.: Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the November 30, 2006 Decision1 and April 30, 2007 Resolution2 of the Court of Appeals in CA-G.R. SP No. 93570. The relevant facts are culled from the records. John Nabor C. Arriola (respondent) filed Special Civil Action No. 03-0010 with the Regional Trial Court, Branch 254, Las Pias City (RTC) against Vilma G. Arriola and Anthony Ronald G. Arriola (petitioners) for judicial partition of the properties of decedent Fidel Arriola (the decedent Fidel). Respondent is the son of decedent Fidel with his first wife Victoria C. Calabia, while petitioner Anthony is the son of decedent Fidel with his second wife, petitioner Vilma. On February 16, 2004, the RTC rendered a Decision, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered: 1. Ordering the partition of the parcel of land covered by Transfer Certificate of Title No. 383714 (84191) left by the decedent Fidel S. Arriola by and among his heirs John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola in equal shares of one-third (1/3) each without prejudice to the rights of creditors or mortgagees thereon, if any; 2. Attorney's fees in the amount of TEN THOUSAND (P10,000.00) PESOS is hereby awarded to be reimbursed by the defendants to the plaintiff; 3. Costs against the defendants. SO ORDERED.3

The decision became final on March 15, 2004.4 As the parties failed to agree on how to partition among them the land covered by TCT No. 383714 (subject land), respondent sought its sale through public auction, and petitioners acceded to it.5 Accordingly, the RTC ordered the public auction of the subject land.6 The public auction sale was scheduled on May 31, 2003 but it had to be reset when petitioners refused to include in the auction the house (subject house) standing on the subject land.7 This prompted respondent to file with the RTC an Urgent Manifestation and Motion for Contempt of Court,8 praying that petitioners be declared in contempt. The RTC denied the motion in an Order9 dated August 30, 2005, for the reason that petitioners were justified in refusing to have the subject house included in the auction, thus: The defendants [petitioners] are correct in holding that the house or improvement erected on the property should not be included in the auction sale. A cursory reading of the aforementioned Decision and of the evidence adduced during the ex-parte hearing clearly show that nothing was mentioned about the house existing on the land subject matter of the case. In fact, even plaintiff's [respondent's] initiatory Complaint likewise did not mention anything about the house. Undoubtedly therefore, the Court did not include the house in its adjudication of the subject land because it was plaintiff himself who failed to allege the same. It is a well-settled rule that the court can not give a relief to that which is not alleged and prayed for in the complaint. To hold, as plaintiff argued, that the house is considered accessory to the land on which it is built is in effect to add to plaintiff's [a] right which has never been considered or passed upon during the trial on the merits. In the absence of any other declaration, obvious or otherwise, only the land should be partitioned in accordance to[sic] the aforementioned Decision as the house can not be said to have been necessarily adjudicated therein. Thus, plaintiff can not be declared as a co-owner of the same house without evidence thereof and due hearing thereon. The Decision of the Court having attained its finality, as correctly pointed out, judgment must stand even at the risk that it might be erroneous. WHEREFORE, the Urgent Manifestation and Motion for Contempt of Court filed by plaintiff is hereby DENIED for lack of merit. SO ORDERED.10 The RTC, in its Order dated January 3, 2006, denied respondent's Motion for Reconsideration.11 Respondent filed with the CA a Petition for Certiorari12 where he sought to have the RTC Orders set aside, and prayed that he be allowed to proceed with the auction of the subject land including the subject house.

In its November 30, 2006 Decision, the CA granted the Petition for Certiorari, to wit: WHEREFORE, the petition is GRANTED. The assailed orders dated August 30, 2005 and January 3, 2006 issued by the RTC, in Civil Case No. SCA 03-0010, are REVERSED and SET ASIDE, and the sheriff is ordered to proceed with the public auction sale of the subject lot covered by TCT No. 383714, including the house constructed thereon. SO ORDERED.13 (Emphasis supplied.) Petitioners filed a motion for reconsideration but the CA denied the same in its Resolution14 of April 30, 2007. Hence, the present petition on the sole ground that the CA erred in holding that the RTC committed grave abuse of discretion in denying the motion for contempt of court. The assailed CA Decision and Resolution must be modified for reasons other than those advanced by petitioners. The contempt proceeding initiated by respondent was one for indirect contempt. Section 4, Rule 71 of the Rules of Court prescribes the procedure for the institution of proceedings for indirect contempt, viz: Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. (Emphases supplied.) Under the aforecited second paragraph of the Rules, the requirements for initiating an indirect contempt proceeding are a) that it be initiated by way of a verified petition and b) that it should fully comply with the requirements for filing initiatory pleadings for civil actions. In Regalado v. Go,15 we held: As explained by Justice Florenz Regalado, the filing of a verified petition that has complied with the requirements for the filing of initiatory pleading, is mandatory x x x:

This new provision clarifies with a regularity norm the proper procedure for commencing contempt proceedings. While such proceeding has been classified as special civil action under the former Rules, the heterogenous practice tolerated by the courts, has been for any party to file a motion without paying any docket or lawful fees therefore and without complying with the requirements for initiatory pleadings, which is now required in the second paragraph of this amended section. xxxx Henceforth, except for indirect contempt proceedings initiated motu propio by order of or a formal charge by the offended court, all charges shall be commenced by a verified petition with full compliance with the requirements therefore and shall be disposed in accordance with the second paragraph of this section. xxxx Even if the contempt proceedings stemmed from the main case over which the court already acquired jurisdiction, the rules direct that the petition for contempt be treated independently of the principal action. Consequently, the necessary prerequisites for the filing of initiatory pleadings, such as the filing of a verified petition, attachment of a certification on non-forum shopping, and the payment of the necessary docket fees, must be faithfully observed. xxxx The provisions of the Rules are worded in very clear and categorical language. In case where the indirect contempt charge is not initiated by the courts, the filing of a verified petition which fulfills the requirements on initiatory pleadings is a prerequisite. Beyond question now is the mandatory requirement of a verified petition in initiating an indirect contempt proceeding. Truly, prior to the amendment of the 1997 Rules of Civil Procedure, mere motion without complying with the requirements for initiatory pleadings was tolerated by the courts. At the onset of the 1997 Revised Rules of Civil Procedure, however, such practice can no longer be countenanced.16 (Emphasis ours.) The RTC erred in taking jurisdiction over the indirect contempt proceeding initiated by respondent. The latter did not comply with any of the mandatory requirements of Section 4, Rule 71. He filed a mere Urgent Manifestation and Motion for Contempt of Court, and not a verified petition. He likewise did not conform with the requirements for the filing of initiatory pleadings such as the submission of a certification against forum shopping and the payment of docket fees. Thus, his unverified motion should have been dismissed outright by the RTC. It is noted though that, while at first the RTC overlooked the infirmities in respondent's unverified motion for contempt, in the end, it dismissed the motion, albeit on substantive grounds. The trouble is that, in the CA decision assailed herein, the appellate court committed the same oversight by delving into the merits of respondent's unverified motion and granting the relief sought therein. Thus, strictly speaking, the proper disposition of the present petition ought

to be the reversal of the CA decision and the dismissal of respondent's unverified motion for contempt filed in the RTC for being in contravention of Section 4, Rule 71. However, such simplistic disposition will not put an end to the dispute between the parties. A seed of litigation has already been sown that will likely sprout into another case between them at a later time. We refer to the question of whether the subject house should be included in the public auction of the subject land. Until this question is finally resolved, there will be no end to litigation between the parties. We must therefore deal with it squarely, here and now. The RTC and the CA differed in their views on whether the public auction should include the subject house. The RTC excluded the subject house because respondent never alleged its existence in his complaint for partition or established his co-ownership thereof.17 On the other hand, citing Articles 440,18 44519 and 44620 of the Civil Code, the CA held that as the deceased owned the subject land, he also owned the subject house which is a mere accessory to the land. Both properties form part of the estate of the deceased and are held in co-ownership by his heirs, the parties herein. Hence, the CA concludes that any decision in the action for partition of said estate should cover not just the subject land but also the subject house.21 The CA further pointed out that petitioners themselves implicitly recognized the inclusion of the subject house in the partition of the subject land when they proposed in their letter of August 5, 2004, the following swapping-arrangement: Sir: Thank you very much for accommodating us even if we are only poor and simple people. We are very much pleased with the decision of Presiding Judge Manuel B. Fernandez, Jr., RTC Br. 254, Las Pias, on the sharing of one-third (1/3) each of a land covered by Transfer Certificate of Title No. 383714 (84191) in Las Pias City. However, to preserve the sanctity of our house which is our residence for more than twenty (20) years, we wish to request that the 1/3 share of John Nabor C. Arriola be paid by the defendants depending on the choice of the plaintiff between item (1) or item (2), detailed as follows: (1) Swap with a 500-square meters [sic] lot located at Baras Rizal x x x. (2) Cash of P205,700.00 x x x. x x x x.22 We agree that the subject house is covered by the judgment of partition for reasons postulated by the CA. We qualify, however, that this ruling does not necessarily countenance the immediate and actual partition of the subject house by way of public auction in view of the suspensive proscription imposed under Article 159 of The Family Code which will be discussed forthwith.

It is true that the existence of the subject house was not specifically alleged in the complaint for partition. Such omission notwithstanding, the subject house is deemed part of the judgment of partition for two compelling reasons. First, as correctly held by the CA, under the provisions of the Civil Code, the subject house is deemed part of the subject land. The Court quotes with approval the ruling of the CA, to wit: The RTC, in the assailed Order dated August 30, 2005 ratiocinated that since the house constructed on the subject lot was not alleged in the complaint and its ownership was not passed upon during the trial on the merits, the court cannot include the house in its adjudication of the subject lot. The court further stated that it cannot give a relief to[sic] which is not alleged and prayed for in the complaint. We are not persuaded. To follow the foregoing reasoning of the RTC will in effect render meaningless the pertinent rule on accession. In general, the right to accession is automatic (ipso jure), requiring no prior act on the part of the owner or the principal. So that even if the improvements including the house were not alleged in the complaint for partition, they are deemed included in the lot on which they stand, following the principle of accession. Consequently, the lot subject of judicial partition in this case includes the house which is permanently attached thereto, otherwise, it would be absurd to divide the principal, i.e., the lot, without dividing the house which is permanently attached thereto.23 (Emphasis supplied) Second, respondent has repeatedly claimed that the subject house was built by the deceased.24 Petitioners never controverted such claim. There is then no dispute that the subject house is part of the estate of the deceased; as such, it is owned in common by the latter's heirs, the parties herein,25 any one of whom, under Article 49426 of the Civil Code, may, at any time, demand the partition of the subject house.27 Therefore, respondent's recourse to the partition of the subject house cannot be hindered, least of all by the mere technical omission of said common property from the complaint for partition. That said notwithstanding, we must emphasize that, while we treat the subject house as part of the co-ownership of the parties, we stop short of authorizing its actual partition by public auction at this time. It bears emphasis that an action for partition involves two phases: first, the declaration of the existence of a state of co-ownership; and second, the actual termination of that state of co-ownership through the segregation of the common property.28 What is settled thus far is only the fact that the subject house is under the co-ownership of the parties, and therefore susceptible of partition among them. Whether the subject house should be sold at public auction as ordered by the RTC is an entirely different matter, depending on the exact nature of the subject house. Respondent claims that the subject house was built by decedent Fidel on his exclusive property.29 Petitioners add that said house has been their residence for 20 years.30 Taken together, these

averments on record establish that the subject house is a family home within the contemplation of the provisions of The Family Code, particularly: Article 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. Article 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (Emphasis supplied.) One significant innovation introduced by The Family Code is the automatic constitution of the family home from the time of its occupation as a family residence, without need anymore for the judicial or extrajudicial processes provided under the defunct Articles 224 to 251 of the Civil Code and Rule 106 of the Rules of Court. Furthermore, Articles 152 and 153 specifically extend the scope of the family home not just to the dwelling structure in which the family resides but also to the lot on which it stands. Thus, applying these concepts, the subject house as well as the specific portion of the subject land on which it stands are deemed constituted as a family home by the deceased and petitioner Vilma from the moment they began occupying the same as a family residence 20 years back.31 It being settled that the subject house (and the subject lot on which it stands) is the family home of the deceased and his heirs, the same is shielded from immediate partition under Article 159 of The Family Code, viz: Article 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (Emphasis supplied.) The purpose of Article 159 is to avert the disintegration of the family unit following the death of its head. To this end, it preserves the family home as the physical symbol of family love, security and unity by imposing the following restrictions on its partition: first, that the heirs cannot extrajudicially partition it for a period of 10 years from the death of one or both spouses or of the unmarried head of the family, or for a longer period, if there is still a minor beneficiary residing therein; and second, that the heirs cannot judicially partition it during the aforesaid periods unless the court finds compelling reasons therefor. No compelling reason has been alleged by the parties; nor has the RTC found any compelling reason to order the partition of the family home, either by physical segregation or assignment to any of the heirs or through auction sale as suggested by the parties. More importantly, Article 159 imposes the proscription against the immediate partition of the family home regardless of its ownership. This signifies that even if the family home has passed

by succession to the co-ownership of the heirs, or has been willed to any one of them, this fact alone cannot transform the family home into an ordinary property, much less dispel the protection cast upon it by the law. The rights of the individual co-owner or owner of the family home cannot subjugate the rights granted under Article 159 to the beneficiaries of the family home. Set against the foregoing rules, the family home -- consisting of the subject house and lot on which it stands -- cannot be partitioned at this time, even if it has passed to the co-ownership of his heirs, the parties herein. Decedent Fidel died on March 10, 2003.32 Thus, for 10 years from said date or until March 10, 2013, or for a longer period, if there is still a minor beneficiary residing therein, the family home he constituted cannot be partitioned, much less when no compelling reason exists for the court to otherwise set aside the restriction and order the partition of the property. The Court ruled in Honrado v. Court of Appeals33 that a claim for exception from execution or forced sale under Article 153 should be set up and proved to the Sheriff before the sale of the property at public auction. Herein petitioners timely objected to the inclusion of the subject house although for a different reason. To recapitulate, the evidence of record sustain the CA ruling that the subject house is part of the judgment of co-ownership and partition. The same evidence also establishes that the subject house and the portion of the subject land on which it is standing have been constituted as the family home of decedent Fidel and his heirs. Consequently, its actual and immediate partition cannot be sanctioned until the lapse of a period of 10 years from the death of Fidel Arriola, or until March 10, 2013. It bears emphasis, however, that in the meantime, there is no obstacle to the immediate public auction of the portion of the subject land covered by TCT No. 383714, which falls outside the specific area of the family home. WHEREFORE, the petition is PARTLY GRANTED and the November 30, 2006 Decision and April 30, 2007 Resolution of the Court of Appeals are MODIFIED in that the house standing on the land covered by Transfer Certificate of Title No. 383714 is DECLARED part of the co-ownership of the parties John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola but EXEMPTED from partition by public auction within the period provided for in Article 159 of the Family Code. No costs. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

WE CONCUR: CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

*

RENATO C. CORONA Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice RUBEN T. REYES Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

THIRD DIVISION

BELEN SAGAD ANGELES, Petitioner,

G.R. No. 153798

Present:

PANGANIBAN, J., Chairman SANDOVAL-GUTIERREZ, CORONA, - versus CARPIO-MORALES, and GARCIA, JJ.

Promulgated: ALELI CORAZON ANGELES MAGLAYA, Respondent. September 2, 2005

x----------------------------------------------------------------------------------x

DECISION

GARCIA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Belen Sagad Angeles seeks to set aside the Decision dated May 29, 2002[1] of the Court of Appeals in CA G.R. CV No. 66037, reversing an earlier Order of the Regional Trial Court at Caloocan City which dismissed the petition for the settlement of the intestate estate of Francisco Angeles, thereat commenced by the herein respondent Aleli Corazon Angeles-Maglaya.

The legal dispute between the parties started when, on March 25, 1998, in the Regional Trial Court (RTC) at Caloocan City, respondent filed a petition[2] for letters of administration and her appointment as administratrix of the intestate estate of Francisco M. Angeles (Francisco, hereinafter). In the petition, docketed as Special Proceedings No. C-2140 and raffled to Branch 120 of the court, respondent alleged, among other things, the following: 1. That Francisco, a resident of 71 B. Serrano St., Grace Park, Caloocan, died intestate on January 21, 1998 in the City of Manila, leaving behind four (4) parcels of land and a building, among other valuable properties;

2. That there is a need to appoint an administrator of Franciscos estate; 3. That she (respondent) is the sole legitimate child of the deceased and Genoveva Mercado, and, together with petitioner, Belen S. Angeles, decedents wife by his second marriage, are the surviving heirs of the decedent; and 4. That she has all the qualifications and none of the disqualifications required of an administrator.

Petitioner opposed the basic petition and prayed that she, instead of respondent, be made the administratrix of Franciscos estate.[3] In support of her opposition and plea, petitioner alleged having married Francisco on August 7, 1948 before Judge Lucio M. Tianco of the Municipal Court of Rizal, a union which was ratified two (2) months later in religious rites at the Our Lady of Grace Parish in Caloocan City, and that Francisco represented in their marriage contract that he was single at that time. Petitioner also averred that respondent could not be the daughter of Francisco for, although she was recorded as Franciscos legitimate daughter, the corresponding birth certificate was not signed by him. Pressing on, petitioner further alleged that respondent, despite her claim of being the legitimate child of Francisco and Genoveva Mercado, has not presented the marriage contract between her supposed parents or produced any acceptable document to prove such union. And evidently to debunk respondents claim of being the only child of Francisco, petitioner likewise averred that she and Francisco had, during their marriage, legally adopted Concesa A. Yamat, et al. Petitioner thus urged that she, being the surviving spouse of Francisco, be declared as possessed of the superior right to the administration of his estate.

In her reply to opposition, respondent alleged, inter alia, that per certification of the appropriate offices, the January to December 1938 records of marriages of the Civil Registrar of Bacolor, Pampanga where the alleged 1938 Francisco-Genoveva wedding took place, were destroyed. In the same reply, respondent dismissed as of little consequence the adoption adverted to owing to her having interposed with the Court of Appeals a petition to nullify the decree of adoption entered by the RTC at Caloocan.[4]

Issues having been joined, trial ensued. Respondent, as petitioner a quo, commenced the presentation of her evidence by taking the witness stand. She testified having been born on November 20, 1939 as the legitimate child of Francisco M. Angeles and Genoveva Mercado, who died in January 1988.[5] She also testified having been in open and continuous possession of the status of a legitimate child. Yaya,[7] Four (4) other witnesses testified on her behalf, namely: Tomas Angeles,[6] Francisco Jose O. Carreon[8] and Paulita Angeles de la Cruz.[9] Respondent also offered in evidence her birth certificate which contained an entry stating that she was born at the Mary Johnston Hospital, Tondo, Manila, to Francisco Angeles and Genoveva Mercado and whereon the handwritten word Yes appears on the space below the question Legitimate? (Legitimo?); pictures taken during respondents wedding as bride to Atty. Guillermo T. Maglaya; and a copy of her marriage contract. Likewise offered were her scholastic and government service records.

After respondent rested her case following her formal offer of exhibits, petitioner filed a Motion to Dismiss under Section 1(g), Rule 16 of the Rules of Court. In it, she prayed for the dismissal of the petition for letters of administration on the ground that the petition failed to state or prove a cause of action, it being her stated position that [P]etitioner [Corzaon], by her evidence, failed to establish her filiation vis--vis the decedent, i.e., that she is in fact a legitimate child of Francisco M. Angeles.[10]

To the motion to dismiss, respondent interposed an opposition, followed by petitioners reply, to which respondent countered with a rejoinder.

Eventually, in an Order dated July 12, 1999,[11] the trial court, on its finding that respondent failed to prove her filiation as legitimate child of Francisco, dismissed the petition, thus:

WHEREFORE, the instant petition is hereby ordered DISMISSED for failure of the [respondent] to state a cause of action in accordance with Section 1(g) of Rule 16 of the 1997 Rules of Civil of Procedure. (Word in bracket added]

Respondent then moved for reconsideration, which motion was denied by the trial court in its Order of December 17, 1999. [12] Therefrom, respondent went on appeal to the Court of Appeals where her recourse was docketed as CA-G.R. CV No. 66037.

As stated at the threshold hereof, the Court of Appeals, in its assailed Decision dated May 29, 2002,[13] reversed and set aside the trial courts order of dismissal and directed it to appoint respondent as administratrix of the estate of Francisco, to wit:

WHEREFORE, the appealed order of dismissal is REVERSED. The Trial Court is hereby ordered to appoint petitioner-appellant Aleli Corazon Angeles as administratrix of the intestate estate of Francisco Angeles.

SO ORDERED.

The appellate court predicated its ruling on the interplay of the following main premises: 1. Petitioners Motion to Dismiss filed with the trial court, albeit premised on the alleged failure of the underlying petition for letter of administration to state or prove a cause of action, actually partakes of a demurrer to evidence under Section 1 of Rule 33;[14]

2. Petitioners motion being a demurer, it follows that she thereby waived her right to present opposing evidence to rebut respondents testimonial and documentary evidence; and 3. Respondent has sufficiently established her legitimate filiation with the deceased Francisco.

Hence, petitioners instant petition for review on certiorari, on the submission that the Court of Appeals erred: (1) in reversing the trial courts order of dismissal;[15] (2) in treating her motion to dismiss as a demurrer to evidence; (3) in holding that respondent is a legitimate daughter of Francisco; and (4) in decreeing respondents appointment as administratrix of Franciscos intestate estate.

We resolve to grant the petition.

The principal issue tendered in this case boils down to the question of whether or not respondent is the legitimate child of decedent Francisco M. Angeles and Genoveva Mercado. The Court of Appeals resolved the issue in the affirmative and, on the basis of such determination, ordered the trial court to appoint respondent as administratrix of Franciscos estate.

We are unable to lend concurrence to the appellate courts conclusion on the legitimate status of respondent, or, to be precise, on her legitimate filiation to the decedent. A legitimate

child is a product of, and, therefore, implies a valid and lawful marriage. Remove the element of lawful union and there is strictly no legitimate filiation between parents and child. Article 164 of the Family Code cannot be more emphatic on the matter: Children conceived or born during the marriage of the parents are legitimate.

In finding for respondent, the Court of Appeals, citing and extensibly quoting from Tison vs. Court of Appeals,[16] stated that since petitioner opted not to present any contrary evidence, the presumption on respondents legitimacy stands unrebutted.[17]

Following is an excerpt from Tison:

It seems that both the court a quo and respondent appellate court have regrettably overlooked the universally recognized presumption on legitimacy. There is no presumption of the law more firmly established and founded on sounder morality and more convincing than the presumption that children born in wedlock are legitimate. And well-settled is the rule that the issue of legitimacy cannot be attacked collaterally.

The rationale for this rule has been explained in this wise: The presumption of legitimacy in the Family Code . . .

actually fixes a status for the child born in wedlock, and that civil status cannot be attacked collaterally. xxx

xxx

xxx

xxx

Upon the expiration of the periods provided in Article 170 [of the Family Code], the action to impugn the legitimacy of a child can no longer be bought. The status conferred by the presumption, therefore, becomes fixed, and can no longer be questioned. The obvious intention of the law is to prevent the status of a child born in wedlock from being in a state of uncertainty. It also aims to force early action to settle any doubt as to the paternity of such child so that the evidence material to the matter . . . may still be easily available. xxx xxx xxx

Only the husband can contest the legitimacy of a child born to his wife . . . .(Words in bracket added; Emphasis ours)

Contextually,

the

correct

lesson

of

Tison,

which

the

appellate court evidently misapplied, is that: (a) a

child is

presumed legitimate only if conceived or born in wedlock; and (b) the presumptive legitimacy of such child cannot be attacked collaterally.

A party in whose favor the legal presumption exists may rely on and invoke such legal presumption to establish a fact in issue. He need not introduce evidence to prove that fact.[18] For,

a presumption is prima facie proof of the fact presumed. However, it cannot be over-emphasized, that while a fact thus prima facie established by legal presumption shall, unless overthrown, stand as proved,[19] the presumption of legitimacy under Article 164 of the Family Code[20] may be availed only upon convincing proof of the factual basis therefor, i.e., that the childs parents were legally married and that his/her conception or birth occurred during the subsistence of that marriage. Else, the presumption of law that a child is legitimate does not arise.

In the case at bench, the Court of Appeals, in its decision under review, did not categorically state from what facts But even if perhaps it wanted to, it established during the trial was the presumption of respondents supposed legitimacy arose. could not have possibly done so. For, save for respondents gratuitous assertion and an entry in her certificate of birth, there is absolutely no proof of the decedents marriage to respondents mother, Genoveva Mercado. To stress, no marriage certificate or marriage contract doubtless the best evidence of Franciscos and Genovevas marriage, if one had been solemnized[21] was offered in evidence. No priest, judge, mayor, or other solemnizing authority was called to the witness box to declare that he solemnized the marriage between the two. None of the four (4) witnesses respondent presented could say anything about, let alone affirm, that supposed marriage. At best, their testimonies proved that respondent was Franciscos daughter. For example,

Tomas Angeles and Paulita Angeles de la Cruz testified that they know respondent to be their cousin because his (Tomas) father and her (Paulitas) mother, who are both Franciscos siblings, told them so.[22] And one Jose Carreon would testify seeing respondent in 1948 in Franciscos house in Caloocan, the same Francisco who used to court Genoveva before the war.[23] In all, no evidence whatsoever was presented of the execution of the Francisco Angeles-Genoveva Mercado marriage contract; when and where their marriage was solemnized; the identity of the solemnizing officer; the persons present, and like significant details.

While perhaps not determinative of the issue of the existence of marriage between Francisco and Genoveva, we can even go to the extent of saying that respondent has not even presented a witness to testify that her putative parents really held themselves out to the public as man-and-wife. Clearly, therefore, the Court of Appeals erred in crediting respondent with the legal presumption of legitimacy which, as above explained, should flow from a lawful marriage between Francisco and Genevova. To reiterate, absent such a marriage, as here, there is no presumption of legitimacy and, therefore, there was really nothing for petitioner to rebut.

Parenthetically, for all her unyielding stance that her mother and Francisco Angeles were married in 1938, respondent never, thru the years, even question what would necessarily be a bigamous Francisco-Belen Sagad marriage. Ironical as it may seem, respondent herself undermined her very own case. As it were, she made certain judicial admission negating her own assertion as well as the appellate courts conclusion - that Francisco was legally married to Genoveva. As may be recalled, respondent had declared that her mother Genoveva died in 1988, implying, quite clearly, that when Francisco contracted marriage with petitioner Belen S. Angeles in 1948, Genoveva and Francisco were already spouses. Now, then, if, as respondent maintained despite utter lack of evidence, that Genoveva Mercado and Francisco were married in 1938, it follows that the marriage of Francisco to petitioner Belen Angeles in 1948, or prior to Genovevas death, would necessarily have to be bigamous, hence void,[24] in which case petitioner could not be, as respondent alleged in her petition for letters of administration, a surviving spouse of the decedent. We quote the pertinent allegation:

4. The surviving heirs of decedent are the petitioner [Corazon] herself who is 58 years old, and BELEN S. Angeles, the surviving spouse of deceased Francisco M. Angeles by his second marriage, who is about 77 years old . . . .YEARS OLD . . . (Emphasis and word in bracket added)

We can concede, because Article 172 of the Family Code appears to say so, that the legitimate filiation of a child can be established by any of the modes therein defined even without direct evidence of the marriage of his/her supposed parents. Said article 172 reads:

Art. 172. The filiation of legitimate children is established by any of the following:

1.

The record of birth appearing in the civil register or a final judgments; or

2.

An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

1.

The open and continuous possession of the status of a legitimate child; or

2.

Any other means allowed by the Rules of Court and special laws.

Here, respondent presented, in support of her claim of legitimacy, a copy of her Birth Certificate dated November 23,

1939 issued by the Civil Registrar of the City of Manila (Exh. E). In it, her birth was recorded as the legitimate child of Francisco Angeles and Genoveva Mercado. And the word married is written in the certificate to indicate the union of Francisco and Genoveva.

Petitioner, however, contends, citing jurisprudence,

that

[I]t was error for the Court of Appeals to have ruled . . . that [respondents] Birth Certificate indubitably establishes that she is the legitimate daughter of Francisco and Genoveva who are legally married.

The contention commends itself for concurrence. The reason is as simple as it is elementary: the Birth Certificate presented was not signed by Francisco against whom legitimate filiation is asserted. Not even by Genoveva. It was signed by the attending physician, one Rebecca De Guzman, who certified to having attended the birth of a child. Such certificate, albeit considered a public record of a private document is, under Section 23, Rule 132 of the Rules of Court, evidence only of the fact which gave rise to its execution: the fact of birth of a child.[25] Jurisprudence teaches that a birth certificate, to be considered as validating proof of paternity and as an instrument of recognition, must be signed by the father and mother jointly, or by the mother alone if

the father refuses.[26] Dr. Arturo Tolentino, commenting on the probative value of the entries in a certificate of birth, wrote:

xxx if the alleged father did not intervene in the making of the birth certificate, the putting of his name by the mother or doctor or registrar is void; the signature of the alleged father is necessary.[27]

The conclusion reached by the Court of Appeals that the Birth Certificate of respondent, unsigned as it were by Francisco and Genoveva, establishes and indubitably at that - not only respondents filiation to Francisco but even her being a legitimate daughter of Francisco and Genoveva, taxes credulity to the limit. In a very real sense, the appellate court regarded such certificate as defining proof of filiation, and not just filiation but of legitimate filiation, by inferring from it that Francisco and Genoveva are legally married. In the apt words of petitioner, the appellate court, out of a Birth Certificate signed by a physician who merely certified having attended the birth of a child who was born alive at 3:50 P.M. , created a marriage that of Francisco and Genoveva, and filiation (that said child) is the daughter of Francisco[28]

It cannot be over-emphasized that the legitimate filiation of a child is a matter fixed by law itself.[29] It cannot, as the decision under review seems to suggest, be made dependent on

the declaration of the attending physician or midwife, or that of the mother of the newborn child. For then, an unwed mother, with or without the participation of a doctor or midwife, could veritably invest legitimate status to her offspring through the simple expedient of writing the putative fathers name in the appropriate space in the birth certificate. A long time past, this Court cautioned against according a similar unsigned birth certificate prima facie evidentiary value of filiation:

Give this certificate evidential relevancy, and we thereby pave the way for any scheming unmarried mother to extort money for her child (and herself) from any eligible bachelor or affluent pater familias. How? She simply causes the midwife to state in the birth certificate that the newborn babe is her legitimate offspring with that individual and the certificate will be accepted for registration . . . . And any lawyer with sufficient imagination will realize the exciting possibilities from such mischief of such prima facie evidence when and if the father dies in ignorance of the fraudulent design xxx[30]

Just like her Birth Certificate, respondent can hardly derive comfort from her marriage contract to Atty. Maglaya and from her student and government records which indicated or purported to show that Francisco Angeles is her father. The same holds true for her wedding pictures which showed Francisco giving respondents hands in marriage. These papers or documents, unsigned as they are by Francisco or the execution of which he had no part, are not sufficient evidence of filiation or

recognition.[31] And needless to stress, they cannot support a finding of the legitimate union of Francisco and Genoveva.

The argument may be advanced that the aforesaid wedding pictures, the school and service records and the testimony of respondents witnesses lend support to her claim of enjoying open and continuous possession of the status of a child of Francisco. The Court can even concede that respondent may have been the natural child of Francisco with Genoveva. Unfortunately, however, that angle is not an, or at issue in the case before us. For, respondent peremptorily predicated her petition for letters of administration on her being a legitimate child of Francisco who was legally married to her mother, Genoveva, propositions which we have earlier refuted herein.

If on the foregoing score alone, this Court could very well end this disposition were it not for another compelling consideration which petitioner has raised and which we presently take judicially notice of.

As may be recalled, respondent, during the pendency of the proceedings at the trial court, filed with the Court of Appeals a petition for the annulment of the decision of the RTC Caloocan

granting the petition of spouses Francisco Angeles and petitioner Belen S. Angeles for the adoption of Concesa A. Yamat and two others. In that petition, docketed with the appellate court as CAG.R. SP No. 47832 and captioned Aleli Corazon Angeles Maglaya vs. Hon Jaime T. Hamoy, Consesa A. Yamat, Teodora A. Santos, Franco Angeles and Belen S. Angeles, respondent alleged that as legitimate daughter of Francisco, she should have been notified of the adoption proceedings.

Following a legal skirmish, the Court of Appeals referred the aforementioned annulment case to RTC, Caloocan for reception of evidence. Eventually, in a Decision[32] dated December 17, 2003, the Court of Appeals dismissed CA-G.R. SP No. 47832 on the ground, inter alia, that herein respondent is not, contrary to her claim, a legitimate daughter of Francisco, nor a child of a lawful wedlock between Francisco M. Angeles and Genoveva Y. Mercado. Wrote the appellate court in that case:

Petitioner [Aleli Corazon Maglaya] belabors with repetitious persistence the argument that she is a legitimate child or the only daughter of Francisco M. Angeles and Genoveva Y. Mercado . . . .

In the case at bench, other than the self-serving declaration of the petitioner, there is nothing in the record to support petitioners claim that she is indeed a legitimate child of the late Francisco M. Angeles and Genoveva Y. Mercado. xxx In other words, Francisco M. Angeles was never married before or at anytime prior to his marriage

to Belen Sagad, contrary to the claim of petitioner that Francisco M. Angeles and Genoveva Y. Mercado were married in 1938

While petitioner may have submitted certifications to the effect that the records of marriages during the war years . . . were totally destroyed, no secondary evidence was presented by petitioner to prove the existence of the marriage between Francisco M. Angeles and Genoveva Y. Mercado, even as no witness was presented to confirm the celebration of such marriage . . . .

Petitioner presented pictures. x x x However, it is already settled law that photographs are not sufficient evidence of filiation or acknowledgment.

To be sure, very little comfort is provided by petitioners birth certificate and even her marriage contract.. . . Reason: These documents were not signed by Francisco . . . . Equally inconsequential are petitioners school records . . . . all these lacked the signatures of both Francisco and Genoveva . . . .

xxx

xxx

xxx

Having failed to prove that she is the legitimate daughter or acknowledged natural child of the late Francisco M. Angeles, petitioner cannot be a real party in interest in the adoption proceedings, as her consent thereto is not essential or required. (Emphasis in the original; words in bracket added)

Significantly, the aforesaid December 17, 2003 Decision of the appellate court in CA-G.R. SP No.47832 was effectively affirmed by this Court via its Resolution dated August 9, 2004 in

G.R. No. 163124, denying Aleli Corazon Maglayas petition for Review on Certiorari,[33] and Resolution dated October 20, 2004, [34] denying with FINALITY her motion for reconsideration. Another Resolution dated January 24, 2005 resolved to NOTE WITHOUT ACTION Maglayas second motion for reconsideration.

In the light of the ruling of the Court of Appeals in CA-G.R. SP No. 47832, as affirmed with finality by this Court in G.R. No. 163124, there can be no serious objection to applying in this case the rule on conclusiveness of judgment,[35] one of two (2) concepts embraced in the res judicata principle. Following the rule on conclusiveness of judgment, herein respondent is precluded from claiming that she is the legitimate daughter of Francisco and Genoveva Mercado. In fine, the issue of herein respondents legitimate filiation to Francisco and the latters marriage to Genoveva, having been judicially determined in a final judgment by a court of competent jurisdiction, has thereby become res judicata and may not again be resurrected or litigated between herein petitioner and respondent or their privies in a subsequent action, regardless of the form of the latter.[36]

Lest it be overlooked, the same ruling of the appellate court in CA-G.R. SP No. 47832, as sustained by this Court in G.R. No.

163124, virtually confirms the ratio of the trial courts order of dismissal in Special Proceedings (SP) No. C-2140, i.e, that respondent failed to establish that she is in fact a legitimate child of Francisco. Accordingly, the question of whether or not the Motion to Dismiss[37] interposed by herein petitioner, as respondent in SP No. C-2140, is in the nature of a demurer to evidence has become moot and academic. It any minute further. need not detain us

Finally, it should be noted that on the matter of appointment of administrator of the estate of the deceased, the surviving spouse is preferred over the next of kin of the decedent.[38] When the law speaks of next of kin, the reference is to those who are entitled, under the statute of distribution, to the decedents property;[39] one whose relationship is such that he is entitled to share in the estate as distributed,[40] or, in short, an heir. In resolving, therefore, the issue of whether an applicant for letters of administration is a next of kin or an heir of the decedent, the probate court perforce has to determine and pass upon the issue of filiation. A separate action will only result in a multiplicity of suits. Upon this consideration, the trial court acted within bounds when it looked into and pass upon the claimed relationship of respondent to the late Francisco Angeles.

WHEREFORE, the herein assailed decision of the Court of Appeals is hereby REVERSED and SET ASIDE, and the order of the trial court dismissing Special Proceedings No. C-2140 REINSTATED.

No costs.

SO ORDERED.

CANCIO C. GARCIA Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN Associate Justice Chairman

ANGELINA SANDOVALGUTIERREZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ATTESTATION

I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

ARTEMIO V. PANGANIBAN Associate Justice Chairman, Third Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

HILARIO G. DAVIDE, JR. Chief Justice

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 164948 June 27, 2006

DIWATA RAMOS LANDINGIN Petitioner, vs. REPUBLIC OF THE PHILIPPINES, Respondent. DECISION CALLEJO, SR., J.: Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision1 of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision2 of the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner herein. The Antecedents On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition3 for the adoption of minors Elaine Dizon Ramos who was born on August 31, 1986;4 Elma Dizon Ramos, who was born on September 7, 1987;5 and Eugene Dizon Ramos who was born on August 5, 1989.6 The minors are the natural children of Manuel Ramos, petitioners brother, and Amelia Ramos. Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,7 the children were left to their paternal grandmother, Maria Taruc Ramos; their biological mother, Amelia, went to Italy, re-married there and now has two children by her second marriage and no longer communicated with her children by Manuel Ramos nor with her in-laws from the time she left up to the institution of the adoption; the minors are being financially supported by the petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the children; the minors have given their written consent8 to the adoption; she is qualified to adopt as shown by the fact that she is a 57-year-old widow, has children of her own who are already married, gainfully employed and have their respective families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and works as a restaurant server. She came back to the Philippines to spend time with the minors; her children gave their written consent9 to the adoption of the minors. Petitioners brother, Mariano Ramos, who earns substantial income, signified his willingness and commitment to support the minors while in petitioners custody.

Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows: WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor childrens name follow the family name of petitioner. Petitioner prays for such other reliefs, just and equitable under the premises.10 On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition.11 The Office of the Solicitor General (OSG) entered its appearance12 but deputized the City Prosecutor of Tarlac to appear in its behalf.13 Since her petition was unopposed, petitioner was allowed to present her evidence ex parte.14 The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to testify on the written consent executed by her and her siblings.15 The petitioner marked in evidence the Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent.16 On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac, submitted a Child Study Report, with the following recommendation: In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible for adoption because of the following reasons: 1. Minors surviving parent, the mother has voluntarily consented to their adoption by the paternal aunt, Diwata Landingin this is in view of her inability to provide the parental care, guidance and support they need. An Affidavit of Consent was executed by the mother which is hereto attached. 2. The three minors subject for adoption have also expressed their willingness to be adopted and joins the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto attached. The minors developed close attachment to the petitioners and they regarded her as second parent. 3. The minors are present under the care of a temporary guardian who has also family to look after. As young adolescents they really need parental love, care, guidance and support to ensure their protection and well being. In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial custody is hereby further recommended to be dispensed with considering that they are close

relatives and that close attachments was already developed between the petitioner and the 3 minors.17 Pagbilao narrated what transpired during her interview, as follows: The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks vacation. This is to enable her appear for the personal interview concerning the adoption of her children. The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after the death of their paternal grandmother and guardian. The paternal relatives including the petitioner who attended the wake of their mother were very much concerned about the wellbeing of the three minors. While preparing for their adoption, they have asked a cousin who has a family to stay with minors and act as their temporary guardian. The mother of minors was consulted about the adoption plan and after weighing the benefits of adoption to her children, she voluntarily consented. She realized that her children need parental love, guidance and support which she could not provide as she already has a second family & residing in Italy. Knowing also that the petitioners & her children have been supporting her children up to the present and truly care for them, she believes her children will be in good hands. She also finds petitioners in a better position to provide a secured and bright future to her children.18 However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present any documentary evidence to prove that Amelia assents to the adoption. On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision granting said petition. The dispositive portion reads: WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance from their natural parents and that they be declared for all legal intents and purposes the children of Diwata Ramos Landingin. Trial custody is dispensed with considering that parent-children relationship has long been established between the children and the adoptive parents. Let the surnames of the children be changed from "Dizon-Ramos" to "Ramos-Landingin." Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect the corresponding changes/amendment in the birth certificates of the above-mentioned minors. SO ORDERED.19 The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its brief21 for the oppositor-appellant, the OSG raised the following arguments:

I THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF CONSENT OF THE PROPOSED ADOPTEES BIOLOGICAL MOTHER. II THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF THE WRITTEN CONSENT OF THE PETITIONERS CHILDREN AS REQUIRED BY LAW. III THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONERS FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED ADOPTEES. On April 29, 2004, the CA rendered a decision22 reversing the ruling of the RTC. It held that petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the childrens natural mother. Moreover, the affidavit of consent of the petitioners children could not also be admitted in evidence as the same was executed in Guam, USA and was not authenticated or acknowledged before a Philippine consular office, and although petitioner has a job, she was not stable enough to support the children. The dispositive portion of the CA decision reads: WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and SET ASIDE. SO ORDERED.23 Petitioner filed a Motion for Reconsideration24 on May 21, 2004, which the CA denied in its Resolution dated August 12, 2004.25 Petitioner, thus, filed the instant petition for review on certiorari26 on September 7, 2004, assigning the following errors: 1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED THE RESULT OF THE CASE. 2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE CHILDREN.27

The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is entitled to adopt the minors without the written consent of their biological mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed by the petitioneradopters children sufficiently complies with the law; and (c) whether or not petitioner is financially capable of supporting the adoptees. The Courts Ruling The petition is denied for lack of merit. It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,28 that adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should thus be sustained to promote and fulfill these noble and compassionate objectives of the law.29 However, in Cang v. Court of Appeals,30 the Court also ruled that the liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Courts position should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child.31 Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides: Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required: (a) The adoptee, if ten (10) years of age or over; (b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; (c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any; (d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living with said adopter and the latters souse, if any;

(e) The spouse, if any, of the person adopting or to be adopted. The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption.32 Clearly, the written consent of the biological parents is indispensable for the validity of a decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and re-established in adoptive parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the adoption. We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is incredible that the latter would not require Amelia Ramos to execute a Written Consent to the adoption of her minor children. Neither did the petitioner bother to present Amelia Ramos as witness in support of the petition. Petitioner, nonetheless, argues that the written consent of the biological mother is no longer necessary because when Amelias husband died in 1990, she left for Italy and never came back. The children were then left to the guidance and care of their paternal grandmother. It is the paternal relatives, including petitioner, who provided for the childrens financial needs. Hence, Amelia, the biological mother, had effectively abandoned the children. Petitioner further contends that it was by twist of fate that after 12 years, when the petition for adoption was pending with the RTC that Amelia and her child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD social worker, was able to meet her, and during the meeting, Amelia intimated to the social worker that she conformed to the adoption of her three children by the petitioner. Petitioners contention must be rejected. When she filed her petition with the trial court, Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written consent of the biological parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother of the minors had indeed abandoned them, she should, thus have adduced the written consent of their legal guardian. Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct which evinces a settled purpose to forego all parental duties.33 The term means neglect and refusal to perform the filial and legal obligations of love and support. If a parent withholds presence, love, care, the opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in effect, abandons the child.34 Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.35 To dispense with the requirement of consent, the abandonment must be shown to have existed at the time of adoption.36

In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim that Amelia Ramos had abandoned her children. Petitioners testimony on that matter follows: Q Where is the mother of these three children now? A She left for Italy on November 20, 1990, sir. Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated with the family? A None, sir. Q How about with her children? A None, sir. Q Do you know what place in Italy did she reside? A I do not know, sir. Q Did you receive any news about Amelia Ramos? A What I know, sir, was that she was already married with another man. Q From whom did you learn that? A From others who came from Italy, sir. Q Did you come to know whether she has children by her second marriage? A Yes, sir, she got two kids.37 Elaine, the eldest of the minors, testified, thus: Q Where is your mother now? A In Italy, sir. Q When did your mother left for Italy? A After my father died, sir. Q How old were you when your mother left for Italy in 1990? A Two years old, sir.

Q At the time when your mother left for Italy, did your mother communicate with you? A No, sir.38 However, the Home Study Report of the DSWD Social Worker also stated the following: IV. Background of the Case: xxxx Since the mother left for Italy, minors siblings had been under the care and custody of their maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves as their guardian. The petitioner, together with her children and other relatives abroad have been supporting the minor children financially, even during the time that they were still living with their natural parents. Their mother also sends financial support but very minimal.39 xxxx V. Background Information about the Minors Being Sought for Adoption: xxxx As the eldest she tries her best to be a role model to her younger siblings. She helps them in their lessons, works and has fun with them. She also encourages openness on their problems and concerns and provides petty counseling. In serious problems she already consult (sic) her mother and petitioner-aunt.40 xxxx In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy and comfortable life. After the death of her husband, her in-laws which include the petitioner had continued providing support for them. However being ashamed of just depending on the support of her husbands relatives, she decided to work abroad. Her parents are also in need of financial help as they are undergoing maintenance medication. Her parents mortgaged their farm land which she used in going to Italy and worked as domestic helper. When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her mother-in-law who returned home for good, however she died on November 2000. While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in partners since 1995 and have a son John Mario who is now 2 years old. The three of them are considered Italian residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is amenable to it. He is providing his legitimate family regular support.

Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other paternal relatives are continuously providing support for most of the needs & education of minors up to present.41 Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently sever their mother-child relationship. She was merely impelled to leave the country by financial constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly obligations of rearing the children to her now deceased mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for serious personal problems. Likewise, Amelia continues to send financial support to the children, though in minimal amounts as compared to what her affluent in-laws provide. Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing all legal ties between the biological mother, Amelia, and the adoptees, and that the same shall then be vested on the adopter.42 It would thus be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his/her children. More proof has to be adduced that Amelia has emotionally abandoned the children, and that the latter will not miss her guidance and counsel if they are given to an adopting parent.43 Again, it is the best interest of the child that takes precedence in adoption. Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. The offer of evidence is necessary because it is the duty of the Court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such document is offered, the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings thereof as exhibits do not confer any evidentiary weight on documents unless formally offered.44 Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of Consent purportedly executed by her children; the authenticity of which she, likewise, failed to prove. The joint written consent of petitioners children45 was notarized on January 16, 2002 in Guam, USA; for it to be treated by the Rules of Court in the same way as a document notarized in this country it needs to comply with Section 2 of Act No. 2103,46 which states: Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be considered authentic if the acknowledgment and authentication are made in accordance with the following requirements: (a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, charg d affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done.

(b) The person taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him, and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister, secretary of legation, charg de affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited. The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and seal, if any, are genuine. As the alleged written consent of petitioners legitimate children did not comply with the aforecited law, the same can at best be treated by the Rules as a private document whose authenticity must be proved either by anyone who saw the document executed or written; or by evidence of the genuineness of the signature or handwriting of the makers.47 Since, in the instant case, no further proof was introduced by petitioner to authenticate the written consent of her legitimate children, the same is inadmissible in evidence. In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the children and is only relying on the financial backing, support and commitment of her children and her siblings.48 Petitioner contradicts this by claiming that she is financially capable as she has worked in Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children and siblings have likewise committed themselves to provide financial backing should the need arise. The OSG, again in its comment, banks on the statement in the Home Study Report that "petitioner has limited income." Accordingly, it appears that she will rely on the financial backing of her children and siblings in order to support the minor adoptees. The law, however, states that it is the adopter who should be in a position to provide support in keeping with the means of the family. Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child or children, in keeping with the means of the family. According to the Adoption Home Study Report49 forwarded by the Department of Public Health & Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting her legitimate children, as the latter are already adults, have individual lives and families. At the time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioners main intention in adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua

Subdivision in Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption proceedings. Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the financial aspect of rearing the three children in the US. She only has a part-time job, and she is rather of age. While petitioner claims that she has the financial support and backing of her children and siblings, the OSG is correct in stating that the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the latter. Moreover, the records do not prove nor support petitioners allegation that her siblings and her children are financially able and that they are willing to support the minors herein. The Court, therefore, again sustains the ruling of the CA on this issue. While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew, there are legal infirmities that militate against reversing the ruling of the CA. In any case, petitioner is not prevented from filing a new petition for adoption of the herein minors. WHEREFORE, premises considered, the petition is hereby DENIED. SO ORDERED. ROMEO J. CALLEJO, SR. Associate Justice WE CONCUR: ARTEMIO V. PANGANIBAN Chief Justice Chairperson CONSUELO YNARES-SANTIAGO Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Asscociate Justice

MINITA V. CHICO-NAZARIO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ARTEMIO V. PANGANIBAN Chief Justice

THIRD DIVISION

MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO B. SALIENTES, and ROSARIO C. SALIENTES, Petitioners,

G.R. No. 162734

Present:

QUISUMBING, J., Chairperson, CARPIO, - versus CARPIO MORALES, TINGA, and VELASCO, JR., JJ. LORAN S.D. ABANILLA, HONORABLE JUDGE PEDRO SABUNDAYO, JR., REGIONAL TRIAL COURT, BRANCH 203, MUNTINLUPA CITY, Respondents. August 29, 2006 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

Promulgated:

DECISION
QUISUMBING, J.:

The instant petition assails the Decision dated November 10, 2003 of the Court of Appeals in CA-G.R. SP No. 75680, which dismissed the petition for certiorari against the orders of the Regional Trial Court in Special Proceedings No. 03-004. Likewise assailed is the Court of Appeals Resolution dated March 19, 2004 denying reconsideration.

The facts of the case are as follows: Private respondent Loran S.D. Abanilla and petitioner Marie Antonette Abigail C. Salientes are the parents of the minor Lorenzo Emmanuel S. Abanilla. They lived with Marie Antonettes parents, petitioners Orlando B. Salientes and Rosario C. Salientes. Due to in-laws problems, private respondent suggested to his wife that they transfer to their own house, but Marie Antonette refused. So, he alone left the house of the Salientes. Thereafter, he was prevented from seeing his son.

Later, Loran S.D. Abanilla in his personal capacity and as the representative of his son, filed a Petition for Habeas Corpus and Custody, docketed as Special Proceedings No. 03-004 before the Regional Trial Court of Muntinlupa City. On January 23, 2003, the trial court issued the following order:
Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the Respondents Marie Antonette Abigail C. Salientes, Orlando B. Salientes and Rosario C. Salientes are hereby directed to produce and bring before this Court the body of minor Lorenzo Emmanuel Salientes Abanilla on January 31, 2003 at 1:00 oclock in the afternoon and to show cause why the said child should not be discharged from restraint.

Let this Writ be served by the Sheriff or any authorized representative of this Court, who is directed to immediately make a return. SO ORDERED.

Petitioners moved for reconsideration which the court denied.

Consequently, petitioners filed a petition for certiorari with the Court of Appeals, but the same was dismissed on November 10, 2003. The appellate court affirmed the February 24, 2003 Order of the trial court holding that its January 23, 2003 Order did not award the custody of the 2-year-old child to any one but was simply the standard order issued for the production of restrained persons. The appellate court held that the trial court was still about to conduct a full inquiry, in a summary proceeding, on the cause of the minors detention and the matter of his custody. The Court of Appeals ruled thus:
WHEREFORE, the petition is hereby DISMISSED for lack of merit. SO ORDERED.

Petitioners moved for reconsideration, which was denied on March 19, 2004.

Hence, petitioners interposed this appeal by certiorari anchored on the following grounds:
1. The Court of Appeals erred in not pronouncing the respondent judge gravely abused his discretion, amounting to lack or in excess of jurisdiction in issuing an order for the petitioner-mother to first show cause why her own three-year old child in her custody should not be discharged from a so-called restraint despite no evidence at all of restraint and no evidence of compelling reasons of maternal unfitness to

deprive the petitioner-mother of her minor son of tender years. The assailed orders, resolutions and decisions of the lower court and the Court of Appeals are clearly void; 2. The Court of Appeals erred in not pronouncing that the respondent judge gravely abused his discretion in issuing a writ of habeas corpus which clearly is not warranted considering that there is no unlawful restraint by the mother and considering further that the law presumes the fitness of the mother, thereby negating any notion of such mother illegally restraining or confining her very own son of tender years. The petition is not even sufficient in substance to warrant the writ. The assailed orders are clearly void. Contrary to the Court of Appeals decision, the Sombong vs. CA case supports rather than negates the position of the petitioners. Contrary to the Court of Appeals decision, summary proceeding does violence to the tender-years-rule The Court of Appeals failed to consider that the private respondent failed to present prima facie proof of any compelling reason of the unfitness of the petitioner-mother; The Court of Appeals failed to see that the New Rules on Custody SUFFICES AS REMEDY.

3. 4. 5.

6.

Plainly put, the issue is: Did the Court of Appeals err when it dismissed the petition for certiorari against the trial courts orders dated January 23, 2003 and February 24, 2003? Petitioners contend that the order is contrary to 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. They maintain that herein respondent Loran had the burden of showing any compelling reason but failed to present even a prima facie proof thereof.

Petitioners posit that even assuming that there were compelling reasons, the proper remedy for private respondent was simply an action for custody, but not habeas corpus. Petitioners assert that habeas corpus is unavailable against the mother who, under the law, has the right of custody of the minor. They insist there was no illegal or involuntary restraint of the minor by his own mother. There was no need for the mother to show cause and explain the custody of her very own child.

Private respondent counters that petitioners argument based on Article 213 of the Family Code applies only to the second part of his petition regarding the custody of his son. It does not address the first part, which pertains to his right as the father to see his son. He asserts that the writ of habeas corpus is available against any person who restrains the minors right to see his father and vice versa. He avers that the instant petition is merely filed for delay, for had petitioners really intended to bring the child before the court in accordance with the new rules on custody of minors, they would have done so on the dates specified in the January 23, 2003 and the February 24, 2003 orders of the trial court.

Private respondent maintains that, under the law, he and petitioner Marie Antonette have shared custody and parental authority over their son. He alleges that at times when petitioner Marie Antonette is out of the country as required of her job as an international flight stewardess, he, the father, should have custody of their son and not the maternal grandparents.

As correctly pointed out by the Court of Appeals, the assailed January 23, 2003 Order of the trial court did not grant custody of the minor to any of the parties but merely directed petitioners to produce the minor in court and explain why they are restraining his liberty. The assailed order was an interlocutory order precedent to the trial courts full inquiry into the issue of custody, which was still pending before it.

Under Rule 41, Section 1 of the Rules of Court, an interlocutory order is not appealable but the aggrieved party may file an appropriate special action under Rule 65. The aggrieved party must show that the court gravely abused its discretion in issuing the interlocutory order. In the present case, it is incumbent upon petitioners to show that the trial court gravely abused its discretion in issuing the order.

Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. Under Article 211 of the Family Code, respondent Loran and petitioner Marie Antonette have joint parental authority over their son and consequently joint custody. Further, although the couple is separated de facto, the issue of custody has yet to be adjudicated by the court. In the absence of a judicial grant of custody to one parent, both parents are still entitled to the custody of their child. In the present case, private respondents cause of action is the deprivation of his right to see his child as alleged in his petition. Hence, the remedy of habeas corpus is available to him.

In a petition for habeas corpus, the childs welfare is the supreme consideration. The Child and Youth Welfare Code unequivocally provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration.

Again, it bears stressing that the order did not grant custody of the minor to any of the parties but merely directed petitioners to produce the minor in court and explain why private respondent is prevented from seeing his child. This is in line with the directive in Section 9 of A.M. 03-04-04-SC that within fifteen days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order requiring the respondent (herein petitioners) to present the minor before the court. This was exactly what the court did.

Moreover, Article 213 of the Family Code deals with the judicial adjudication of custody and serves as a guideline for the proper award of custody by the court. Petitioners can raise it as a counter argument for private respondents petition for custody. But it is not a basis for preventing the father to see his own child. Nothing in the said provision disallows a father from seeing or visiting his child under seven years of age.

In sum, the trial court did not err in issuing the orders dated January 23, 2003 and February 24, 2003. Hence, the Court of Appeals properly dismissed the petition for certiorari against the said orders of the trial court.

WHEREFORE, the petition is DENIED. The Decision dated November 10, 2003 and the Resolution dated March 19, 2004 of the Court of Appeals in CAG.R. SP No. 75680 are AFFIRMED. Costs against petitioners.

SO ORDERED.

LEONARDO A. QUISUMBING Associate Justice

WE CONCUR:

ANTONIO T. CARPIO Associate Justice

CONCHITA CARPIO MORALES Associate Justice

DANTE O. TINGA Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING Associate Justice Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

ARTEMIO V. PANGANIBAN Chief Justice