REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

PAOLO AVELINO, Plaintiff-Appellee

- versus - CA-G.R. CV NO. 98839

JANET AVELINO, Defendant-Appellant
x-----------------------------------------------------------x

BRIEF FOR THE DEFENDANTS-APPELLANT

ASSIGNMENT OF ERROR

I.
The trial court erred in granting the petition to declare
the marriage null and void despite the fact that there
was no showing that there was a valid service of
summons, hence the court did not acquire
jurisdiction over the respondent


STATEMENT OF THE CASE

Appellee Paulo filed a complaint for declaration of nullity of marriage
on the alleged psychological incapacity of his estranged wife, as provided
under Article 36 of the Family Code. Summons and copy of the Complaint
was sent to the spouses provincial resort in Tacloban. The summon were
received by the caretaker of the said resort. Thus, the period to file an
answer has lapsed without the appellant being able to file her said
pleading.

In the meantime, the appellees lawyer moved to present evidence ex
parte, presenting on the witness stand the appellee. After him, another
2

witness, a certain Dr. Lourdes Caranto, a psychologist who diagnosed the
appellant to suffer from Histronic Personality Disorder which rendered her
incapable of performing her marital obligation.

The trial court rendered its decision and declared their marriage null
and void. Thereafter, the copy of the judgment was sent to the provincial
resort.

Appellant then filed a Motion for new trial invoking fraud as basis. But
the trial court denied the Motion.

Hence, this appeal.


STATEMENT OF FACTS

Appellee, Paolo wanted to have his marriage to appellant Janet, his
estranged wife, declared null and void based on Article 36 of the family
Code. It was alleged that the appellees lawyer suggested that to ensure
that the appellant would not be able to participate in the proceedings he
would have the summons sent to the spouses provincial resort in Tacloban
instead of the Pasig Condominium where his wife and their children were
actually living in.

Paulo agreed to this plan and it was arranged that the summons
would be received by the caretaker of the abandoned resort, Mang Pandoy,
who had not even completed his high school studies.

Appellant failed to file her answer in time, thus preventing her to
participate in the proceedings.

Meanwhile, appellees lawyer presented him on the witness stand to
testify on her abandoning him and taking their children. After his testimony,
3

a certain, Dr. Lourdes Caranto, a psychologist who Janet never met
testified that Janet suffered from Histronic Personality Disorder, which
rendered her incapable of performing her marital obligations.

The trial court rendered its decision granting the appellees petition of
declaration of nullity of their marriage. Subsequently, the copy of the
judgment was sent again to the provincial resort, however it was
intercepted by Mang Pandoys son Lito who then mailed the judgment to
Janets condominium.

Appellant Janet then filed a Motion for New Trial invoking fraud as a
ground. The trial court denied said Motion. Hence, Janet filed an appeal
before the Honorable Court of Appeals.


ISSUE

I.
Whether there was a strict compliance in the order of
mode of service of summons.

II.
Was the alleged service of summons on the care
taker of the provincial resort effective to confer
jurisdiction over the defendant before the trial court


ARGUMENTS

I.
There was no showing that the order of the mode of service of
summons was followed.

4

II.
Assuming arguendo that the mode of service of
summons was correct, there can still be no valid
service of summons through substituted service
because the copies of the summons must be left at
the defendants residence with some person of
suitable age and discretion.


DISCUSSION

I. There was no showing that there
was a valid service of summons.

Service of summons upon the defendant is essential for the court to
acquire jurisdiction over his person.
1
Under Rule 14, Section 6 of the
Revised Rules of Court, summons shall be served by handing the copy
thereof to the defendant in person, or if he refuses to receive and sign for it,
by tendering it to him. The failure to find the defendant in their residence on
the first and only attempt to effect service in person, does not justify the
availment of substituted service.
2
The mode of service should be strictly
followed in order that the court may acquire jurisdiction over the person.
3

Thus, it is only when the defendant cannot be served personally, within a
reasonable time that substituted summons may be made.
4


In the instant case, it can be logically inferred that the mode of
service was not strictly followed since the service of summons was sent to
the wrong address, as provided in the facts the appellant was residing in
her Pasig Condominium and not in the spouses provincial resort in
personally.

1
Arenas vs. Court of Appeals, 299 SCRA 733 (1988)
2
Laus vs. Court of Appeals, 219 SCRA 688
3
Gan Hock vs. Court of Appeals, 197 SCRA 223 (1991)
4
Keister vs. Navarro, 77 SCRA 209 (1977)
5

II. Assuming arguendo that
the mode of service of
summons was correct,
there can still be no valid
service of summons
through substituted
service because the
copies of the summons
must be left at the
defendants residence with
some person of suitable
age and discretion.

Under Section 7, Rule 14 of the Revised Rules of Court provides that
if the defendant cannot be served with summons personally within a
reasonable time, service may be effected by leaving copies of the
summons at the defendants residence with some person of suitable age
and discretion.

Residence is the place where the person named in the summons is
living at the time when the service is made.
5
As mentioned previously, the
summons was served in the spouses provincial resort which is clearly not
the defendant-appellants residential address. Hence, there was an
improper service of summons.

If the substituted service of summons will be effected at defendants
house or residence, it should be left with a person of suitable age and
discretion residing therein.
6
In the case of Pascual vs. Pascual
7
, it
discussed what the underlying meaning of person of suitable age and
discretion:

5
Montefalcon vs. Vasquez, G.R. No. 165016, June 17, 2008
6
Revised Rules of Court, Rule 14 Section 7
7
G.R. No. 171916, December 4, 2009
6

A person of suitable age and discretion is one who
has attained the age of full legal capacity (18 years
old) and is considered to have enough discernment
to understand the importance of a summons.
Discretion is defined as the ability to make
decisions which represent a responsible choice and
for which an understanding of what is lawful, right or
wise may be presupposed. Thus, to be of sufficient
discretion, such person must know how to read and
understand English to comprehend the import of the
summons, and fully realize the need to deliver the
summons and complaint to the defendant at the
earliest possible time for the person to take
appropriate action. Thus, the person must have the
relation of confidence to the defendant, ensuring
that the latter would receive or at least be notified of
the receipt of the summons. The sheriff must
therefore determine if the person found in the
alleged dwelling or residence of defendant is of
legal age, what the recipients relationship with the
defendant is, and whether said person
comprehends the significance of the receipt of the
summons and his duty to immediately deliver it to
the defendant or at least notify the defendant of said
receipt of summons. These matters must be clearly
and specifically described in the Return of
Summons.


In the case at bar, Mang Pandoy, the care taker, cannot be said to
have a the relation of confidence to the defendant for it failed to even
notify defendant of the receipt of summons when it was served at the
defendants provincial resort. The only time that the defendant was notified
of the said case was when the copy of judgment was intercepted by Mang
Pandoys son Lito, who then mailed the Judgment to Janets condominium.

Applying all the foregoing principles discussed, there can be no valid
service of summons, thus, the trial court does not acquire jurisdiction over
the person. The judgement rendered by the trial court as to the defendant
is void.



7

RELIEF

WHEREFORE, it is respectfully prayed that the decision by the trial
court be REVERSE and SET ASIDE.

Makati City, March 1, 2013.

ATTY. CHARMAINE P. MEJIA
Roll No. 23865
IBP Lifetime No. 08754
MCLE Compliance No. IV-0008521/ 11-13-12

Mejia & Mejia Law Office
21/F Yuchencgo Tower, RCBC Plaza, Ayala Avenue, Makati City.
Tel. No. 757-6888









Copy furnished:
Atty. Jocelyn Lumbres
15/F Two World Square,
22 Upper Mckinley Rd
McKinley Hill, Taguig City