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CIVIL LAW REVIEW

CASES
JULY 11, 2015

G.R. No. L-30977 January 31, 1972


CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:p


Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29
July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387,
dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen
O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as
the action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the
deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the
case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S.
Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically
on 30 September 1934; that they had lived together as husband and wife continuously until 1943
when her husband abandoned her; that they had no child; that they acquired properties during their
marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at
1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal
separation, which, among others, would order that the defendant Eufemio S. Eufemio should be
deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged
affirmative and special defenses, and, along with several other claims involving money and other
properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O.
Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law
and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective evidence. But
before the trial could be completed (the respondent was already scheduled to present surrebuttal
evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31
May 1969. Counsel for petitioner duly notified the court of her death.

On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2)
grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for
in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation.

On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the
order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the
question of whether or not the plaintiff's cause of action has survived, which the court resolved in the
negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969.

After first securing an extension of time to file a petition for review of the order of dismissal issued by
the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969.
The same was given due course and answer thereto was filed by respondent, who prayed for the
affirmance of the said order. 3
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he
did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said
counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal
separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab
initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did
not act on the motion for substitution) stated the principal issue to be as follows:
When an action for legal separation is converted by the counterclaim into one for a
declaration of nullity of a marriage, does the death of a party abate the proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to
one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that
"the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22).
Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self
same marriage can stand independent and separate adjudication. They are not inseparable nor was
the action for legal separation converted into one for a declaration of nullity by the counterclaim, for
legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage
as a pre-condition.
The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for
legal separation, abate the action? If it does, will abatement also apply if the action involves property
rights? .
An action for legal separation which involves nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else)
to claim legal separation; and in its Article 108, by providing that the spouses can, by their
reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one party to the action causes the
death of the action itself actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce, because the
marriage is dissolved. The heirs cannot even continue the suit, if the death of the

spouse takes place during the course of the suit (Article 244, Section 3). The action
is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H.
1933, 332.") 4 .
Marriage is a personal relation or status, created under the sanction of law, and an
action for divorce is a proceeding brought for the purpose of effecting a dissolution of
that relation. The action is one of a personal nature. In the absence of a statute to the
contrary, the death of one of the parties to such action abates the action, for the
reason that death has settled the question of separation beyond all controversy and
deprived the court of jurisdiction, both over the persons of the parties to the action
and of the subject-matter of the action itself. For this reason the courts are almost
unanimous in holding that the death of either party to a divorce proceeding, before
final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72;
Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134
Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md.
185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5
The same rule is true of causes of action and suits for separation and maintenance (Johnson vs.
Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows that they are solely
the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it
occurs prior to the decree. On the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed; .
(2) The conjugal partnership of gains or the absolute conjugal community of property
shall be dissolved and liquidated, but the offending spouse shall have no right to any
share of the profits earned by the partnership or community, without prejudice to the
provisions of article 176;
(3) The custody of the minor children shall be awarded to the innocent spouse,
unless otherwise directed by the court in the interest of said minors, for whom said
court may appoint a guardian;
(4) The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending
spouse made in the will of the innocent one shall be revoked by operation of law.
From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or
of the absolute community of property), the loss of right by the offending spouse to any share of the
profits earned by the partnership or community, or his disqualification to inherit by intestacy from the
innocent spouse as well as the revocation of testamentary provisions in favor of the offending
spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil
Code article, are vested exclusively in the persons of the spouses; and by their nature and intent,
such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to
said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule

3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased
party.
Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished,
the court shall order, upon proper notice, the legal representative of the deceased to
appear and to be substituted for the deceased, within a period of thirty (30) days, or
within such time as may be granted...
The same result flows from a consideration of the enumeration of the actions that survive for or
against administrators in Section 1, Rule 87, of the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought against executor or
administrator. No action upon a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or administrator; but actions to
recover real or personal property, or an interest therein, from the estate, or to enforce
a lien thereon, and actions to recover damages for an injury to person or property,
real or personal, may be commenced against him.
Neither actions for legal separation or for annulment of marriage can be deemed fairly included in
the enumeration..
A further reason why an action for legal separation is abated by the death of the plaintiff, even if
property rights are involved, is that these rights are mere effects of decree of separation, their source
being the decree itself; without the decree such rights do not come into existence, so that before the
finality of a decree, these claims are merely rights in expectation. If death supervenes during the
pendency of the action, no decree can be forthcoming, death producing a more radical and definitive
separation; and the expected consequential rights and claims would necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage
to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the
latter, and there could be no further interest in continuing the same after her demise, that
automatically dissolved the questioned union. Any property rights acquired by either party as a result
of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper
action for partition by either the appellee or by the heirs of the appellant.
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.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to costs.

ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C.


PACETE and EDUARDO C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS
PACETE, respondents.
Juan G. Sibug and Rodolfo B. Quiachon for petitioners.
Julio F. Andres, Jr. for private respondent.

VITUG, J.:
The issue in this petition for certiorari is whether or not the Court of First Instance (now Regional
Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its discretion
in denying petitioners' motion for extension of time to file their answer in Civil Case No. 2518,
in declaring petitioners in default and in rendering its decision of 17 March 1980 which, among other
things, decreed the legal separation of petitioner Enrico L. Pacete and private respondent
Concepcion Alanis and held to be null and void ab initio the marriage of Enrico L. Pacete to Clarita
de la Concepcion.
On 29 October 1979, Concepcion Alanis filed with the court below a complaint for the declaration of
nullity of the marriage between her erstwhile husband Enrico L. Pacete and one Clarita de la
Concepcion, as well as for legal separation (between Alanis and Pacete), accounting and separation
of property. In her complaint, she averred that she was married to Pacete on 30 April 1938 before
the Justice of the Peace of Cotabato, Cotabato; that they had a child named Consuelo who was born
on 11 March 1943; that Pacete subsequently contracted (in 1948) a second marriage with Clarita de
la Concepcion in Kidapawan, North Cotabato; that she learned of such marriage only on 01 August
1979; that during her marriage to Pacete, the latter acquired vast property consisting of large tracts
of land, fishponds and several motor vehicles; that he fraudulently placed the several pieces of
property either in his name and Clarita or in the names of his children with Clarita and other
"dummies;" that Pacete ignored overtures for an amicable settlement; and that reconciliation
between her and Pacete was impossible since he evidently preferred to continue living with Clarita.
The defendants were each served with summons on 15 November 1979. They filed a motion for an
extension of twenty (20) days from 30 November 1979 within which to file an answer. The court
granted the motion. On 18 December 1979, appearing through a new counsel, the defendants filed a
second motion for an extension of another thirty (30) days from 20 December 1979. On 07 January
1980, the lower court granted the motion but only for twenty (20) days to be counted from 20
December 1979 or until 09 January 1980. The Order of the court was mailed to defendants' counsel
on 11 January 1980. Likely still unaware of the court order, the defendants, on 05 February 1980,
again filed another motion (dated 18 January 1980) for an extension of "fifteen (15) days counted
from the expiration of the 30-day period previously sought" within which to file an answer. The
following day, or on 06 February 1980, the court denied this last motion on the ground that it was
"filed after the original period given . . . as first extension had expired." 1
The plaintiff thereupon filed a motion to declare the defendants in default, which the court forthwith
granted. The plaintiff was then directed to present her evidence. 2 The court received plaintiff's
evidence during the hearings held on 15, 20, 21 and 22 February 1980.

On 17 March 1980, the court 3 promulgated the herein questioned decision, disposing of the case, thus

WHEREFORE, order is hereby issued ordering:


1. The issuance of a Decree of Legal Separation of the marriage between, the
plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants, Enrico L.
Pacete, in accordance with the Philippine laws and with consequences, as provided
for by our laws;
2. That the following properties are hereby declared as the conjugal properties of the
partnership of the plaintiff, Concepcion (Conchita) Alanis Pacete and the defendant,
Enrico L. Pacete, half and half, to wit:
1. The parcel of land covered by TCT No. V-815 which is a parcel of land situated in
the barrio of Langcong, Municipality of Matanog (previously of Parang), province of
Maguindanao (previously of Cotabato province) with an area of 45,265 square
meters registered in the name of Enrico Pacete, Filipino, of legal age, married to
Conchita Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.
2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with an area
of 538 square meters and covered by Tax Declaration No. 2650 (74) in the name of
Enrico Pacete, situated in the Poblacion of Kidapawan, North Cotabato, together with
all its improvements, which parcel of land, as shown by Exhibits "K-1" was acquired
by way of absolute deed of sale executed by Amrosio Mondog on January 14, 1965.
3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and covered
by Tax Declaration No. 803 (74), with an area of 5.1670 hectares, more or less, as
shown by Exhibit "R", the same was registered in the name of Enrico Pacete and the
same was acquired by Enrico Pacete last February 17, 1967 from Ambag Ampoy, as
shown by Exhibit "R-1", situated at Musan, Kidapawan, North Cotabato.
4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area of
5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown by Exhibit "S",
and registered in the name of Enrico Pacete.
5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated at
Lika, Mlang, North Cotabato, with an area of 4.9841 hectares and the same is
covered by Tax Declaration No. 803 (74) and registered in the name of Enrico
Pacete and which land was acquired by Enrico Pacete from Salvador Pacete on
September 24, 1962, as shown by Exhibit "Q-1".
6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with an area of
9.9566 and also covered by Tax Declaration No. 8608 (74) and registered in the
name of the defendant Enrico L. Pacete which Enrico L. Pacete acquired from
Sancho Balingcos last October 22, 1962, as shown by Exhibit "L-1" and which parcel
of land is situated at (Kialab), Kiab, Matalam, North Cotabato.
7. A parcel of land covered by Transfer Certificate of Title No. T-9227, situated at
Kiab, Matalam, North Cotabato, with an area of 12.04339 hectares, more or less, and
also covered by Tax Declaration No. 8607 (74) both in the name of the defendant

Enrico L. Pacete which he acquired last October 15, 1962 from Minda Bernardino, as
shown by Exhibit "M-1".
8. A parcel of land covered by Transfer Certificate of Title No. T-9228, situated at
Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares, registered in the
name of Enrico Pacete and also covered by Tax Declaration No. 5781 (74) in the
name of Enrico Pacete and which parcel of land he acquired last September 25,
1962 from Conchita dela Torre, as shown by Exhibit "P-1".
9. A parcel of land covered by Transfer Certificate of Title No. T-10301, situated at
Linao, Matalam, North Cotabato, with an area of 7.2547 hectares, registered in the
name of Enrico Pacete and also covered by Tax Declaration No. 8716 (74) also in
the name of Enrico Pacete which Enrico Pacete acquired from Agustin Bijo last July
16, 1963, as shown by Exhibit "N-1".
10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the name of
the defendant, Enrico L. Pacete, with an area of 10.9006 hectares, situated at Linao,
Matalam, North Cotabato and is also covered by Tax Declaration No. 5745 (74) in
the name of Enrico Pacete, as shown on Exhibit "O" and which Enrico Pacete
acquired last December 31, 1963 from Eliseo Pugni, as shown on Exhibit "0-1".
3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering Lot
No. 1066, issued in the name of Evelina Pacete, situated at Kiab, Matalam, North
Cotabato, and ordering the registration of the same in the joint name of Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal property, with
address on the part of Concepcion (Conchita) Alanis Pacete at Parang,
Maguindanao and on the part of Enrico L. Pacete at Kidapawan, North Cotabato.
4. Ordering likewise the cancellation of Original Certificate of Title No. V-20101,
covering Lot No. 77, in the name of Eduardo C. Pacete, situated at New Lawaan,
Mlang, North Cotabato, and the issuance of a new Transfer Certificate of Title in the
joint name of (half and half) Concepcion (Conchita) Alanis Pacete and Enrico L.
Pacete.
5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890,
covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with an area of
12.1031 hectares, in the name of Emelda C. Pacete and the issuance of a new
Transfer Certificate of Title in the joint name (half and half) of Concepcion (Conchita)
Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond situated at
Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares and covered by
Fishpond Lease Agreement of Emelda C. Pacete, dated July 29, 1977 be cancelled
and in lieu thereof, the joint name of Concepcion (Conchita) Alanis Pacete and her
husband, Enrico L. Pacete, be registered as their joint property, including the 50
hectares fishpond situated in the same place, Barrio Timanan, Bislig, Surigao del
Sur.
6. Ordering the following motor vehicles to be the joint properties of the conjugal
partnership of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz:
a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137-20561;
Chassis No. 83920393, and Type, Mcarrier;

b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-229547;
Chassis No. 10D-1302-C; and Type, Mcarrier;
c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-116188;
Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;
d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5-11111;
Chassis No. HOCC-GPW-1161188-G; Type, Stake;
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED300-45758;
Chassis No. KB222-22044; Type, Stake; and
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv;
Chassis No. 10F-13582-K; Type, Stake.
7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of P46,950.00
which is the share of the plaintiff in the unaccounted income of the ricemill and corn
sheller for three years from 1971 to 1973.
8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the monetary
equipment of 30% of whether the plaintiff has recovered as attorney's fees;
9. Declaring the subsequent marriage between defendant Enrico L. Pacete and
Clarita de la Concepcion to be void ab initio; and
10. Ordering the defendants to pay the costs of this suit. 4
Hence, the instant special civil action of certiorari.
Under ordinary circumstances, the petition would have outrightly been dismissed, for, as also
pointed out by private respondents, the proper remedy of petitioners should have instead been either
to appeal from the judgment by default or to file a petition for relief from judgment. 5 This rule,
however, is not inflexible; a petition forcertiorari is allowed when the default order is improperly declared,
or even when it is properly declared, where grave abuse of discretion attended such declaration. 6 In
these exceptional instances, the special civil action of certiorari to declare the nullity of a judgment by
default is available. 7 In the case at bench, the default order unquestionably is not legally sanctioned. The
Civil Code provides:

Art. 101. No decree of legal separation shall be promulgated upon a stipulation of


facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting
attorney to inquire whether or not a collusion between the parties exists. If there is no
collusion, the prosecuting attorney shall intervene for the State in order to take care
that the evidence for the plaintiff is not fabricated.
The provision has been taken from Article 30 of the California Civil Code, 8 and it is, in substance,
reproduced in Article 60 of the Family Code. 9

Article 101 reflects the public policy on marriages, and it should easily explain the mandatory tenor
of the law. InBrown v. Yambao, 10 the Court has observed:

The policy of Article 101 of the new Civil Code, calling for the intervention of the state
attorneys in case of uncontested proceedings for legal separation (and of annulment
of marriages, under Article 88), is to emphasize that marriage is more than a mere
contract; that it is a social institution in which the state is vitally interested, so that its
continuation or interruption can not be made to depend upon the parties themselves
(Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42
Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with this policy that the
inquiry by the Fiscal should be allowed to focus upon any relevant matter that may
indicate whether the proceedings for separation or annulment are fully justified or
not.
Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that an action for
legal separation must "in no case be tried before six months shall have elapsed since the filing of the
petition," obviously in order to provide the parties a "cooling-off" period. In this interim, the court
should take steps toward getting the parties to reconcile.
The significance of the above substantive provisions of the law is further underscored by the
inclusion of the following provision in Rule 18 of the Rules of Court:
Sec. 6. No defaults in actions for annulments of marriage or for legal separation. If
the defendant in an action for annulment of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney to investigate whether or not a
collusion between the parties exists, and if there is no collusion, to intervene for the
State in order to see to it that the evidence submitted is not fabricated.
The special prescriptions on actions that can put the integrity of marriage to possible jeopardy are
impelled by no less than the State's interest in the marriage relation and its avowed intention not to
leave the matter within the exclusive domain and the vagaries of the parties to alone dictate.
It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That other remedies,
whether principal or incidental, have likewise been sought in the same action cannot dispense, nor
excuse compliance, with any of the statutory requirements aforequoted.

WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings below, including
the Decision of 17 March 1980 appealed from, are NULLIFIED and SET ASIDE. No costs.
SO ORDERED.

G.R. No. 119190 January 16, 1997


CHI MING TSOI, petitioner,
vs.
COURT OF APPEALS and GINA LAO-TSOI, respondents.

TORRES, JR., J.:


Man has not invented a reliable compass by which to steer a marriage in its journey over troubled
waters. Laws are seemingly inadequate. Over time, much reliance has been placed in the works of
the unseen hand of Him who created all things.
Who is to blame when a marriage fails?
This case was originally commenced by a distraught wife against her uncaring husband in the
Regional Trial Court of Quezon City (Branch 89) which decreed the annulment of the marriage on
the ground of psychological incapacity. Petitioner appealed the decision of the trial court to
respondent Court of Appeals (CA-G.R. CV No. 42758) which affirmed the Trial Court's decision
November 29, 1994 and correspondingly denied the motion for reconsideration in a resolution dated
February 14, 1995.
The statement of the case and of the facts made by the trial court and reproduced by the Court of
Appeals 1 its decision are as follows:
From the evidence adduced, the following acts were preponderantly established:
Sometime on May 22, 1988, the plaintiff married the defendant at the Manila Cathedral, . . .
Intramuros Manila, as evidenced by their Marriage Contract. (Exh. "A")
After the celebration of their marriage and wedding reception at the South Villa, Makati, they
went and proceeded to the house of defendant's mother.
There, they slept together on the same bed in the same room for the first night of their
married life.
It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they were
supposed to enjoy making love, or having sexual intercourse, with each other, the defendant
just went to bed, slept on one side thereof, then turned his back and went to sleep . There
was no sexual intercourse between them during the first night. The same thing happened on
the second, third and fourth nights.
In an effort to have their honeymoon in a private place where they can enjoy together during
their first week as husband and wife, they went to Baguio City. But, they did so together with
her mother, an uncle, his mother and his nephew. They were all invited by the defendant to
join them. [T]hey stayed in Baguio City for four (4) days. But, during this period, there was no
sexual intercourse between them, since the defendant avoided her by taking a long walk
during siesta time or by just sleeping on a rocking chair located at the living room. They slept
together in the same room and on the same bed since May 22, 1988 until March 15, 1989.
But during this period, there was no attempt of sexual intercourse between them. [S]he
claims, that she did not: even see her husband's private parts nor did he see hers.
Because of this, they submitted themselves for medical examinations to Dr. Eufemio
Macalalag, a urologist at the Chinese General Hospital, on January 20, 1989.
The results of their physical examinations were that she is healthy, normal and still a virgin,
while that of her husband's examination was kept confidential up to this time. While no
medicine was prescribed for her, the doctor prescribed medications for her husband which

was also kept confidential. No treatment was given to her. For her husband, he was asked
by the doctor to return but he never did.
The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not show
his penis. She said, that she had observed the defendant using an eyebrow pencil and
sometimes the cleansing cream of his mother. And that, according to her, the defendant
married her, a Filipino citizen, to acquire or maintain his residency status here in the country
and to publicly maintain the appearance of a normal man.
The plaintiff is not willing to reconcile with her husband.
On the other hand, it is the claim of the defendant that if their marriage shall be annulled by
reason of psychological incapacity, the fault lies with his wife.
But, he said that he does not want his marriage with his wife annulled for several
reasons, viz: (1) that he loves her very much; (2) that he has no defect on his part and he is
physically and psychologically capable; and, (3) since the relationship is still very young and
if there is any differences between the two of them, it can still be reconciled and that,
according to him, if either one of them has some incapabilities, there is no certainty that this
will not be cured. He further claims, that if there is any defect, it can be cured by the
intervention of medical technology or science.
The defendant admitted that since their marriage on May 22, 1988, until their separation on
March 15, 1989, there was no sexual contact between them. But, the reason for this,
according to the defendant, was that everytime he wants to have sexual intercourse with his
wife, she always avoided him and whenever he caresses her private parts, she always
removed his hands. The defendant claims, that he forced his wife to have sex with him only
once but he did not continue because she was shaking and she did not like it. So he
stopped.
There are two (2) reasons, according to the defendant , why the plaintiff filed this case
against him, and these are: (1) that she is afraid that she will be forced to return the pieces of
jewelry of his mother, and, (2) that her husband, the defendant, will consummate their
marriage.
The defendant insisted that their marriage will remain valid because they are still very young
and there is still a chance to overcome their differences.
The defendant submitted himself to a physical examination. His penis was examined by Dr.
Sergio Alteza, Jr., for the purpose of finding out whether he is impotent . As a result thereof,
Dr. Alteza submitted his Doctor's Medical Report. (Exh. "2"). It is stated there, that there is no
evidence of impotency (Exh. "2-B"), and he is capable of erection. (Exh. "2-C")
The doctor said, that he asked the defendant to masturbate to find out whether or not he has
an erection and he found out that from the original size of two (2) inches, or five (5)
centimeters, the penis of the defendant lengthened by one (1) inch and one centimeter. Dr.
Alteza said, that the defendant had only a soft erection which is why his penis is not in its full
length. But, still is capable of further erection, in that with his soft erection, the defendant is
capable of having sexual intercourse with a woman.
In open Court, the Trial Prosecutor manifested that there is no collusion between the parties
and that the evidence is not fabricated." 2

After trial, the court rendered judgment, the dispositive portion of which reads:
ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered into
by the plaintiff with the defendant on May 22, 1988 at the Manila Cathedral, Basilica of the
Immaculate Conception, Intramuros, Manila, before the Rt. Rev. Msgr. Melencio de Vera.
Without costs. Let a copy of this decision be furnished the Local Civil Registrar of Quezon
City. Let another copy be furnished the Local Civil Registrar of Manila.
SO ORDERED.
On appeal, the Court of Appeals affirmed the trial court's decision.
Hence, the instant petition.
Petitioner alleges that the respondent Court of Appeals erred:
I
in affirming the conclusions of the lower court that there was no sexual intercourse between
the parties without making any findings of fact.
II
in holding that the refusal of private respondent to have sexual communion with petitioner is
a psychological incapacity inasmuch as proof thereof is totally absent.
III
in holding that the alleged refusal of both the petitioner and the private respondent to have
sex with each other constitutes psychological incapacity of both.
IV
in affirming the annulment of the marriage between the parties decreed by the lower court
without fully satisfying itself that there was no collusion between them.
We find the petition to be bereft of merit.
Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private respondent has the
burden of proving the allegations in her complaint; that since there was no independent evidence to
prove the alleged non-coitus between the parties, there remains no other basis for the court's
conclusion except the admission of petitioner; that public policy should aid acts intended to validate
marriage and should retard acts intended to invalidate them; that the conclusion drawn by the trial
court on the admissions and confessions of the parties in their pleadings and in the course of the
trial is misplaced since it could have been a product of collusion; and that in actions for annulment of
marriage, the material facts alleged in the complaint shall always be proved. 3
Section 1, Rule 19 of the Rules of Court reads:

Section 1. Judgment on the pleadings. Where an answer fails to tender an issue, or


otherwise admits the material allegations of the adverse party's pleading, the court may, on
motion of that party, direct judgment on such pleading. But in actions for annulment of
marriage or for legal separation the material facts alleged in the complaint shall always be
proved.
The foregoing provision pertains to a judgment on the pleadings. What said provision seeks to
prevent is annulment of marriage without trial. The assailed decision was not based on such a
judgment on the pleadings. When private respondent testified under oath before the trial court and
was cross-examined by oath before the trial court and was cross-examined by the adverse party,
she thereby presented evidence in form of a testimony. After such evidence was presented, it be
came incumbent upon petitioner to present his side. He admitted that since their marriage on May
22, 1988, until their separation on March 15, 1989, there was no sexual intercourse between them.
To prevent collusion between the parties is the reason why, as stated by the petitioner, the Civil
Code provides that no judgment annulling a marriage shall be promulgated upon a stipulation of
facts or by confession of judgment (Arts. 88 and 101[par. 2]) and the Rules of Court prohibit such
annulment without trial (Sec. 1, Rule 19).
The case has reached this Court because petitioner does not want their marriage to be annulled.
This only shows that there is no collusion between the parties. When petitioner admitted that he and
his wife (private respondent) have never had sexual contact with each other, he must have been
only telling the truth. We are reproducing the relevant portion of the challenged resolution denying
petitioner's Motion for Reconsideration, penned with magisterial lucidity by Associate Justice
Minerva Gonzaga-Reyes, viz:
The judgment of the trial court which was affirmed by this Court is not based on a stipulation
of facts. The issue of whether or not the appellant is psychologically incapacitated to
discharge a basic marital obligation was resolved upon a review of both the documentary
and testimonial evidence on record. Appellant admitted that he did not have sexual relations
with his wife after almost ten months of cohabitation, and it appears that he is not suffering
from any physical disability. Such abnormal reluctance or unwillingness to consummate his
marriage is strongly indicative of a serious personality disorder which to the mind of this
Court clearly demonstrates an 'utter insensitivity or inability to give meaning and significance
to the marriage' within the meaning of Article 36 of the Family Code (See Santos vs. Court of
Appeals, G.R. No. 112019, January 4, 1995). 4
Petitioner further contends that respondent court erred in holding that the alleged refusal of both the
petitioner and the private respondent to have sex with each other constitutes psychological
incapacity of both. He points out as error the failure of the trial court to make "a categorical finding
about the alleged psychological incapacity and an in-depth analysis of the reasons for such refusal
which may not be necessarily due to physchological disorders" because there might have been other
reasons, i.e., physical disorders, such as aches, pains or other discomforts, why private
respondent would not want to have sexual intercourse from May 22, 1988 to March 15, 1989, in a
short span of 10 months.
First, it must be stated that neither the trial court nor the respondent court made a finding on who
between petitioner and private respondent refuses to have sexual contact with the other. The fact
remains, however, that there has never been coitus between them. At any rate, since the action to
declare the marriage void may be filed by either party, i.e., even the psychologically incapacitated,
the question of who refuses to have sex with the other becomes immaterial.

Petitioner claims that there is no independent evidence on record to show that any of the parties is
suffering from phychological incapacity. Petitioner also claims that he wanted to have sex with
private respondent; that the reason for private respondent's refusal may not be psychological but
physical disorder as stated above.
We do not agree. Assuming it to be so, petitioner could have discussed with private respondent or
asked her what is ailing her, and why she balks and avoids him everytime he wanted to have sexual
intercourse with her. He never did. At least, there is nothing in the record to show that he had tried to
find out or discover what the problem with his wife could be. What he presented in evidence is his
doctor's Medical Report that there is no evidence of his impotency and he is capable of
erection. 5 Since it is petitioner's claim that the reason is not psychological but perhaps physical disorder
on the part of private respondent, it became incumbent upon him to prove such a claim.

If a spouse, although physically capable but simply refuses to perform his or her essential
marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals
attribute the causes to psychological incapacity than to stubborn refusal. Senseless and
protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a
spouse to have sexual intercourse with his or her spouse is considered a sign of
psychological incapacity. 6
Evidently, one of the essential marital obligations under the Family Code is "To procreate children
based on the universal principle that procreation of children through sexual cooperation is the basic
end of marriage." Constant non- fulfillment of this obligation will finally destroy the integrity or
wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the
parties to fulfill the above marital obligation is equivalent to psychological incapacity.
As aptly stated by the respondent court,
An examination of the evidence convinces Us that the husband's plea that the wife did not
want carnal intercourse with him does not inspire belief. Since he was not physically
impotent, but he refrained from sexual intercourse during the entire time (from May 22, 1988
to March 15, 1989) that he occupied the same bed with his wife, purely out of symphaty for
her feelings, he deserves to be doubted for not having asserted his right seven though she
balked (Tompkins vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330).
Besides, if it were true that it is the wife was suffering from incapacity, the fact that defendant
did not go to court and seek the declaration of nullity weakens his claim. This case was
instituted by the wife whose normal expectations of her marriage were frustrated by her
husband's inadequacy. Considering the innate modesty of the Filipino woman, it is hard to
believe that she would expose her private life to public scrutiny and fabricate testimony
against her husband if it were not necessary to put her life in order and put to rest her marital
status.
We are not impressed by defendant's claim that what the evidence proved is the
unwillingness or lack of intention to perform the sexual act, which is not phychological
incapacity, and which can be achieved "through proper motivation." After almost ten months
of cohabitation, the admission that the husband is reluctant or unwilling to perform the sexual
act with his wife whom he professes to love very dearly, and who has not posed any
insurmountable resistance to his alleged approaches, is indicative of a hopeless situation,
and of a serious personality disorder that constitutes psychological incapacity to discharge
the basic marital covenants within the contemplation of the Family Code. 7

While the law provides that the husband and the wife are obliged to live together, observe mutual
love, respect and fidelity (Art. 68, Family Code), the sanction therefor is actually the "spontaneous,
mutual affection between husband and wife and not any legal mandate or court order" (Cuaderno vs.
Cuaderno 120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is an
island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is so
because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural
order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift
and a participation in the mystery of creation. It is a function which enlivens the hope of procreation
and ensures the continuation of family relations.
It appears that there is absence of empathy between petitioner and private respondent. That is a
shared feeling which between husband and wife must be experienced not only by having
spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way
process. An expressive interest in each other's feelings at a time it is needed by the other can go a
long way in deepening the marital relationship. Marriage is definitely not for children but for two
consenting adults who view the relationship with love amor gignit amorem, respect, sacrifice and a
continuing commitment to compromise, conscious of its value as a sublime social institution.
This Court, finding the gravity of the failed relationship in which the parties found themselves trapped
in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain the
studied judgment of respondent appellate court.
IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of Appeals dated
November 29, 1994 is hereby AFFIRMED in all respects and the petition is hereby DENIED for lack
of merit.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Baguio City

SECOND DIVISION

LILIBETH SUNGA-CHAN and


CECILIA SUNGA,
Petitioners,
- versus -

G.R. No. 164401

Present:
QUISUMBING, J., Chairperson,

CARPIO MORALES,
THE HONORABLE COURT OF
TINGA,
APPEALS; THE HONORABLE
VELASCO, JR., and
PRESIDING JUDGE, Regional
BRION, JJ.
Trial Court, Branch 11, Sindangan,
Zamboanga Del Norte; THE
REGIONAL TRIAL COURT
SHERIFF, Branch 11, Sindangan,
Zamboanga Del Norte; THE
Promulgated:
CLERK OF COURT OF MANILA,
as Ex-Officio Sheriff; and
June 25, 2008
LAMBERTO T. CHUA,
Respondents.
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
The Case
Before us is a petition for review under Rule 45, seeking to nullify and set
aside the Decision[1] and Resolution dated November 6, 2003 and July 6, 2004,
respectively, of the Court of Appeals (CA) in CA-G.R. SP No. 75688. The impugned
CA Decision and Resolution denied the petition for certiorari interposed by
petitioners assailing the Resolutions[2] dated November 6, 2002 and January 7, 2003,
respectively, of the Regional Trial Court (RTC), Branch 11 in Sindangan,
Zamboanga Del Norte in Civil Case No. S-494, a suit for winding up of partnership
affairs, accounting, and recovery of shares commenced thereat by respondent
Lamberto T. Chua.
The Facts
In 1977, Chua and Jacinto Sunga formed a partnership to engage in the
marketing of liquefied petroleum gas. For convenience, the business, pursued under
the name,Shellite Gas Appliance Center (Shellite), was registered as a sole
proprietorship in the name of Jacinto, albeit the partnership arrangement called for
equal sharing of the net profit.
After Jacintos death in 1989, his widow, petitioner Cecilia Sunga, and married
daughter, petitioner Lilibeth Sunga-Chan, continued with the business without
Chuas consent. Chuas subsequent repeated demands for accounting and winding up

went unheeded, prompting him to file on June 22, 1992 a Complaint for Winding Up
of a Partnership Affairs, Accounting, Appraisal and Recovery of Shares and
Damages with Writ of Preliminary Attachment, docketed as Civil Case No. S-494 of
the RTC in Sindangan, Zamboanga del Norte and raffled to Branch 11 of the court.
After trial, the RTC rendered, on October 7, 1997, judgment finding for Chua,
as plaintiff a quo. The RTCs decision would subsequently be upheld by the CA in
CA-G.R. CV No. 58751 and by this Court per its Decision dated August 15, 2001 in
G.R. No. 143340.[3] The corresponding Entry of Judgment[4] would later issue
declaring the October 7, 1997 RTC decision final and executory as of December 20,
2001. The fallo of the RTCs decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendants, as follows:
(1) DIRECTING them to render an accounting in acceptable form under
accounting procedures and standards of the properties, assets, income and profits
of [Shellite] since the time of death of Jacinto L. Sunga, from whom they
continued the business operations including all businesses derived from [Shellite];
submit an inventory, and appraisal of all these properties, assets, income, profits,
etc. to the Court and to plaintiff for approval or disapproval;
(2) ORDERING them to return and restitute to the partnership any and
all properties, assets, income and profits they misapplied and converted to their
own use and advantage that legally pertain to the plaintiff and account for the
properties mentioned in pars. A and B on pages 4-5 of this petition as basis;
(3) DIRECTING them to restitute and pay to the plaintiff shares and
interest of the plaintiff in the partnership of the listed properties, assets and good
will in schedules A, B and C, on pages 4-5 of the petition;
(4) ORDERING them to pay the plaintiff earned but unreceived income
and profits from the partnership from 1988 to May 30, 1992, when the plaintiff
learned of the closure of the store the sum of P35,000.00 per month, with legal
rate of interest until fully paid;
(5) ORDERING them to wind up the affairs of the partnership and terminate
its business activities pursuant to law, after delivering to the plaintiff all the interest,
shares, participation and equity in the partnership, or the value thereof in money or
moneys worth, if the properties are not physically divisible;

(6) FINDING them especially Lilibeth Sunga-Chan guilty of breach of trust


and in bad faith and hold them liable to the plaintiff the sum of P50,000.00 as moral
and exemplary damages; and,
(7) DIRECTING them to reimburse and pay the sum of P25,000.00 as
attorneys [fee] and P25,000.00 as litigation expenses.
NO special pronouncements as to COSTS.
SO ORDERED.[5] (Emphasis supplied.)

Via an Order[6] dated January 16, 2002, the RTC granted Chuas motion for
execution. Over a month later, the RTC, acting on another motion of Chua, issued
an amended writ of execution.[7]
It seems, however, that the amended writ of execution could not be
immediately implemented, for, in an omnibus motion of April 3, 2002, Chua, inter
alia, asked the trial court to commission a certified public accountant (CPA) to
undertake the accounting work and inventory of the partnership assets if petitioners
refuse to do it within the time set by the court. Chua later moved to withdraw his
motion and instead ask the admission of an accounting report prepared by CPA
Cheryl A. Gahuman. In the report under the heading, Computation of
Claims,[8] Chuas aggregate claim, arrived at using the compounding-of-interest
method, amounted to PhP 14,277,344.94. Subsequently, the RTC admitted and
approved the computation of claims in view of petitioners failure and refusal, despite
notice, to appear and submit an accounting report on the winding up of the
partnership on the scheduled hearings on April 29 and 30, 2002.[9]
After another lengthy proceedings, petitioners, on September 24, 2002,
submitted their own CPA-certified valuation and accounting report. In it, petitioners
limited Chuas entitlement from the winding up of partnership affairs to an aggregate
amount of PhP 3,154,736.65 only.[10] Chua, on the other hand, submitted a new
computation,[11] this time applying simple interest on the various items covered by
his claim. Under this methodology, Chuas aggregate claim went down to PhP
8,733,644.75.

On November 6, 2002, the RTC issued a Resolution,[12] rejecting the


accounting report petitioners submitted, while approving the new computation of
claims Chua submitted. The fallo of the resolution reads:
WHEREFORE, premises considered, this Court resolves, as it is hereby
resolved, that the Computation of Claims submitted by the plaintiff dated October
15, 2002 amounting to P8,733,644.75 be APPROVED in all respects as the final
computation and accounting of the defendants liabilities in favor of the plaintiff in
the above-captioned case, DISAPPROVING for the purpose, in its entirety, the
computation and accounting filed by the defendants.
SO RESOLVED.[13]

Petitioners sought reconsideration, but their motion was denied by the RTC
per its Resolution of January 7, 2003.[14]
In due time, petitioners went to the CA on a petition for certiorari[15] under
Rule 65, assailing the November 6, 2002 and January 7, 2003 resolutions of the RTC,
the recourse docketed as CA-G.R. SP No. 75688.
The Ruling of the CA
As stated at the outset, the CA, in the herein assailed Decision of November
6, 2003, denied the petition for certiorari, thus:
WHEREFORE, the foregoing considered, the Petition is hereby DENIED
for lack of merit.
SO ORDERED.[16]

The CA predicated its denial action on the ensuing main premises:


1. Petitioners, by not appearing on the hearing dates, i.e., April 29 and 30,
2002, scheduled to consider Chuas computation of claims, or rendering, as required,
an accounting of the winding up of the partnership, are deemed to have waived their
right to interpose any objection to the computation of claims thus submitted by Chua.

2. The 12% interest added on the amounts due is proper as the unwarranted
keeping by petitioners of Chuas money passes as an involuntary loan and
forbearance of money.
3. The reiterative arguments set forth in petitioners pleadings below were part
of their delaying tactics. Petitioners had come to the appellate court at least thrice
and to this Court twice. Petitioners had more than enough time to question the award
and it is now too late in the day to change what had become final and executory.
Petitioners motion for reconsideration was rejected by the appellate court
through the assailed Resolution[17] dated July 6, 2004. Therein, the CA explained
that the imposition of the 12% interest for forbearance of credit or money was proper
pursuant to paragraph 1 of the October 7, 1997 RTC decision, as the computation
done by CPA Gahuman was made in acceptable form under accounting procedures
and standards of the properties, assets, income and profits of [Shellite].[18] Moreover,
the CA ruled that the imposition of interest is not based on par. 3 of the October 7,
1997 RTC decision as the phrase shares and interests mentioned therein refers not
to an imposition of interest for use of money in a loan or credit, but to a legal share
or right. The appellate court also held that the imposition of interest on the
partnership assets falls under par. 2 in relation to par. 1 of the final RTC decision as
the restitution mentioned therein does not simply mean restoration but also
reparation for the injury or damage committed against the rightful owner of the
property.
Finally, the CA declared the partnership assets referred to in the final decision
as liquidated claim since the claim of Chua is ascertainable by mathematical
computation; therefore, interest is recoverable as an element of damage.
The Issues
Hence, the instant petition with petitioners raising the following issues for our
consideration:
I.
Whether or not the Regional Trial Court can [impose] interest on a final judgment
of unliquidated claims.

II.
Whether or not the Sheriff can enforce the whole divisible obligation under
judgment only against one Defendant.
III.
Whether or not the absolute community of property of spouses Lilibeth Sunga Chan
with her husband Norberto Chan can be lawfully made to answer for the liability
of Lilibeth Chan under the judgment.[19]

Significant Intervening Events


In the meantime, pending resolution of the instant petition for review and even
before the resolution by the CA of its CA-G.R. SP No. 75688, the following relevant
events transpired:
1. Following the RTCs approval of Chuas computation of claims in the
amount of PhP 8,733,644.75, the sheriff of Manila levied upon petitioner SungaChans property located along Linao St., Paco, Manila, covered by Transfer
Certificate of Title (TCT) No. 208782,[20] over which a building leased to the
Philippine National Bank (PNB) stood. In the auction sale of the levied lot, Chua,
with a tender of PhP 8 million,[21] emerged as the winning bidder.
2. On January 21, 2005, Chua moved for the issuance of a final deed of sale
and a writ of possession. He also asked the RTC to order the Registry of Deeds of
Manila to cancel TCT No. 208782 and to issue a new certificate. Despite petitioners
opposition on the ground of prematurity, a final deed of sale[22] was issued
on February 16, 2005.
3. On February 18, 2005, Chua moved for the confirmation of the sheriffs
final deed of sale and for the issuance of an order for the cancellation of TCT No.
208782.Petitioners again interposed an opposition in which they informed the RTC
that this Court had already granted due course to their petition for review on January
31, 2005;

4. On April 11, 2005, the RTC, via a Resolution, confirmed the sheriffs final
deed of sale, ordered the Registry of Deeds of Manila to cancel TCT No. 208782,
and granted a writ of possession[23] in favor of Chua.
5. On May 3, 2005, petitioners filed before this Court a petition for the
issuance of a temporary restraining order (TRO). On May 24, 2005, the sheriff
of Manila issued a Notice to Vacate[24] against petitioners, compelling petitioners to
repair to this Court anew for the resolution of their petition for a TRO.
6. On May 31, 2005, the Court issued a TRO,[25] enjoining the RTC and the
sheriff from enforcing the April 11, 2005 writ of possession and the May 24,
2005 Notice to Vacate. Consequently, the RTC issued an Order[26] on June 17, 2005,
suspending the execution proceedings before it.
7. Owing to the clashing ownership claims over the leased Paco property,
coupled with the filing of an unlawful detainer suit before the Metropolitan Trial
Court (MeTC) in Manila against PNB, the Court, upon the banks motion, allowed,
by Resolution[27] dated April 26, 2006, the consignation of the monthly rentals with
the MeTC hearing the ejectment case.

The Courts Ruling


The petition is partly meritorious.
First Issue: Interest Proper in Forbearance of Credit
Petitioners, citing Article 2213[28] of the Civil Code, fault the trial court for
imposing, in the execution of its final judgment, interests on what they considered
as unliquidated claims. Among these was the claim for goodwill upon which the
RTC attached a monetary value of PhP 250,000. Petitioners also question the
imposition of 12% interest on the claimed monthly profits of PhP 35,000, reckoned
from 1988 to October 15, 1992. To petitioners, the imposable rate should only be
6% and computed from the finality of the RTCs underlying decision, i.e., from
December 20, 2001.

Third on the petitioners list of unliquidated claims is the yet-to-be established


value of the one-half partnership share and interest adjudicated to Chua, which, they
submit, must first be determined with reasonable certainty in a judicial proceeding.
And in this regard, petitioners, citing Eastern Shipping Lines, Inc. v. Court of
Appeals,[29] would ascribe error on the RTC for adding a 12% per annum interest on
the approved valuation of the one-half share of the assets, inclusive of goodwill, due
Chua.
Petitioners are partly correct.
For clarity, we reproduce the summary valuations and accounting reports on
the computation of claims certified to by the parties respective CPAs. Chua claimed
the following:

A 50% share on assets (exclusive of goodwill) at fair


market value (Schedule 1) P 1,613,550.00
B 50% share in the monetary value of goodwill
(P500,000 x 50%) 250,000.00
C Legal interest on share of assets from June 1, 1992 to
Oct. 15, 2002 at 12% interest per year (Schedule 2) 2,008,869.75
D Unreceived profits from 1988 to 1992 and its corresponding
interest from Jan. 1, 1988 to Oct. 15, 2002
(Schedule 3) 4,761,225.00
E Damages 50,000.00
F Attorneys fees 25,000.00
G Litigation fees 25,000.00
TOTAL AMOUNT P 8,733,644.75

On the other hand, petitioners acknowledged the following to be due to Chua:

Total Assets Schedule 1 P2,431,956.35


50% due to Lamberto Chua P1,215,978.16
Total Alleged Profit, Net of Payments Made,
May 1992-Sch. 2 1,613,758.49
50% share in the monetary value of goodwill
(500,000 x 50%) 250,000.00
Moral and Exemplary Damages 50,000.00
Attorneys Fee 25,000.00
Litigation Fee 25,000.00
TOTAL AMOUNT P3,154,736.65

As may be recalled, the trial court admitted and approved Chuas computation
of claims amounting to PhP 8,733,644.75, but rejected that of petitioners, who came
up with the figure of only PhP 3,154,736.65. We highlight the substantial differences
in the accounting reports on the following items, to wit: (1) the aggregate amount of
the partnership assets bearing on the 50% share of Chua thereon; (2) interests added
on Chuas share of the assets; (3) amount of profits from 1988 through May 30, 1992,
net of alleged payments made to Chua; and (4) interests added on the amount entered
as profits.
From the foregoing submitted valuation reports, there can be no dispute about
the goodwill earned thru the years by Shellite. In fact, the parties, by their own
judicial admissions, agreed on the monetary value, i.e., PhP 250,000, of this item.
Clearly then, petitioners contradict themselves when they say that such amount of
goodwill is without basis. Thus, the Court is loathed to disturb the trial courts
approval of the amount of PhP 250,000, representing the monetary value of the
goodwill, to be paid to Chua.
Neither is the Court inclined to interfere with the CAs conclusion as to the
total amount of the partnership profit, that is, PhP 1,855,000, generated for the period
January 1988 through May 30, 1992, and the total partnership assets of PhP
3,227,100, 50% of which, or PhP 1,613,550, pertains to Chua as his share. To be
sure, petitioners have not adduced adequate evidence to belie the above CAs factual
determination, confirmatory of the trial courts own. Needless to stress, it is not the

duty of the Court, not being a trier of facts, to analyze or weigh all over again the
evidence or premises supportive of such determination, absent, as here, the most
compelling and cogent reasons.
This brings us to the question of the propriety of the imposition of interest
and, if proper, the imposable rate of interest applicable.

In Reformina v. Tomol, Jr.,[30] the Court held that the legal interest at 12% per
annum under Central Bank (CB) Circular No. 416 shall be adjudged only in cases
involving the loan or forbearance of money. And for transactions involving payment
of indemnities in the concept of damages arising from default in the performance of
obligations in general and/or for money judgment not involving a loan or
forbearance of money, goods, or credit, the governing provision is Art. 2209 of the
Civil Code prescribing a yearly 6% interest. Art. 2209 pertinently provides:
Art. 2209. If the obligation consists in the payment of a sum of money, and
the debtor incurs in delay, the indemnity for damages, there being no stipulation to
the contrary, shall be the payment of the interest agreed upon, and in the absence
of stipulation, the legal interest, which is six per cent per annum.

The term forbearance, within the context of usury law, has been described as
a contractual obligation of a lender or creditor to refrain, during a given period of
time, from requiring the borrower or debtor to repay the loan or debt then due and
payable.[31]
Eastern Shipping Lines, Inc. synthesized the rules on the imposition of
interest, if proper, and the applicable rate, as follows: The 12% per annum rate under
CB Circular No. 416 shall apply only to loans or forbearance of money, goods, or
credits, as well as to judgments involving such loan or forbearance of money, goods,
or credit, while the 6% per annum under Art. 2209 of the Civil Code applies when
the transaction involves the payment of indemnities in the concept of damage arising
from the breach or a delay in the performance of obligations in general, [32] with the
application of both rates reckoned from the time the complaint was filed until the
[adjudged] amount is fully paid.[33] In either instance, the reckoning period for the

commencement of the running of the legal interest shall be subject to the condition
that the courts are vested with discretion, depending on the equities of each case, on
the award of interest.[34]
Otherwise formulated, the norm to be followed in the future on the rates and
application thereof is:
I. When an obligation, regardless of its source, is breached, the contravenor
can be held liable for damages. The provisions under Title XVIII on Damages of
the Civil Code govern in determining the measure of recoverable damages.
II. With regard particularly to an award of interest in the concept of actual
and compensatory damages, the rate of interest, as well as the accrual thereof, is
imposed, as follows:
1. When the obligation breached consists in the payment of a sum of money,
i.e., a loan or forbearance of money, the interest due should be that which may have
been stipulated in writing. Furthermore, the interest due shall itself earn legal
interest from the time it is judicially demanded. In the absence of stipulation, the
rate of interest shall be 12% per annum to be computed from default, i.e., from
judicial or extrajudicial demand under and subject to the provisions of Article 1169
of the Civil Code.
2. When an obligation not constituting loans or forbearance of money is
breached, an interest on the amount of damages awarded may be imposed at the
discretion of the court at the rate of 6% per annum. No interest, however, shall be
adjudged on unliquidated claims or damages except when or until the demand can
be established with reasonable certainty. Accordingly, where the demand is
established with reasonable certainty, the interest shall begin to run from the time
the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but when
such certainty cannot be so reasonably established at the time the demand is made,
the interest shall begin to run only from the date the judgment of the court is made
(at which time the quantification of damages may be deemed to have been
reasonably ascertained). The actual base for the computation of legal interest shall,
in any case, be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money becomes final
and executory, the rate of legal interest, whether the case falls under paragraph 1 or
paragraph 2, above, shall be 12% per annum from such finality until its satisfaction,
this interim period being deemed to be by then an equivalent to a forbearance of
credit.[35]

Guided by the foregoing rules, the award to Chua of the amount representing
earned but unremitted profits, i.e.. PhP 35,000 monthly, from January 1988 until
May 30, 1992, must earn interest at 6% per annum reckoned from October 7, 1997,
the rendition date of the RTC decision, until December 20, 2001, when the said
decision became final and executory. Thereafter, the total of the monthly profits
inclusive of the add on 6% interest shall earn 12% per annum reckoned from
December 20, 2001 until fully paid, as the award for that item is considered to be,
by then, equivalent to a forbearance of credit. Likewise, the PhP 250,000 award,
representing the goodwill value of the business, the award of PhP 50,000 for moral
and exemplary damages, PhP 25,000 attorneys fee, and PhP 25,000 litigation fee
shall earn 12% per annum from December 20, 2001 until fully paid.
Anent the impasse over the partnership assets, we are inclined to agree with
petitioners assertion that Chuas share and interest on such assets partake of an
unliquidated claim which, until reasonably determined, shall not earn interest for
him. As may be noted, the legal norm for interest to accrue is reasonably
determinable, not, as Chua suggested and the CA declared, determinable by
mathematical computation.
The Court has certainly not lost sight of the fact that the October 7, 1997 RTC
decision clearly directed petitioners to render an accounting, inventory, and appraisal
of the partnership assets and then to wind up the partnership affairs by restituting
and delivering to Chua his one-half share of the accounted partnership assets. The
directive itself is a recognition that the exact share and interest of Chua over the
partnership cannot be determined with reasonable precision without going through
with the inventory and accounting process. In fine, a liquidated claim cannot validly
be asserted without accounting. In net effect, Chuas interest and share over the
partnership asset, exclusive of the goodwill, assumed the nature of a liquidated claim
only after the trial court, through its November 6, 2002 resolution, approved the
assets inventory and accounting report on such assets.
Considering that Chuas computation of claim, as approved by the trial court,
was submitted only on October 15, 2002, no interest in his favor can be added to his
share of the partnership assets. Consequently, the computation of claims of Chua
should be as follows:

(1) 50% share on assets (exclusive of goodwill)


at fair market value PhP 1,613,550.00
(2) 50% share in the monetary value of goodwill
(PhP 500,000 x 50%) 250,000.00
(3) 12% interest on share of goodwill from December
20, 2001 to October 15, 2000
[PhP 250,000 x 0.12 x 299/365 days] 24,575.34
(4) Unreceived profits from 1988 to May 30, 1992 1,855,000.00
(5) 6% interest on unreceived profits from January
1, 1988 to December 20, 2001[36] 1,360,362.50
(6) 12% interest on unreceived profits from December
20, 2001 to October 15, 2002
[PhP 3,215,362.50 x 12% x 299/365 days] 316,074.54
(7) Moral and exemplary damages 50,000.00
(8) Attorneys fee 25,000.00
(9) Litigation fee 25,000.00

(10) 12% interest on moral and exemplary damages,


attorneys fee, and litigation fee from December
20, 2001 to October 15, 2002
[PhP 100,000 x 12% x 299/365 days] 9,830.14
TOTAL AMOUNT PhP 5,529,392.52

Second Issue: Petitioners Obligation Solidary


Petitioners, on the submission that their liability under the RTC decision is
divisible, impugn the implementation of the amended writ of execution, particularly
the levy on execution of the absolute community property of spouses petitioner

Sunga-Chan and Norberto Chan. Joint, instead of solidary, liability for any and all
claims of Chua is obviously petitioners thesis.
Under the circumstances surrounding the case, we hold that the obligation of
petitioners is solidary for several reasons.
For one, the complaint of Chua for winding up of partnership affairs,
accounting, appraisal, and recovery of shares and damages is clearly a suit to enforce
a solidary or joint and several obligation on the part of petitioners. As it were, the
continuance of the business and management of Shellite by petitioners against the
will of Chua gave rise to a solidary obligation, the acts complained of not being
severable in nature. Indeed, it is well-nigh impossible to draw the line between when
the liability of one petitioner ends and the liability of the other starts. In this kind of
situation, the law itself imposes solidary obligation. Art. 1207 of the Civil Code thus
provides:

Art. 1207. The concurrence of two or more creditors or of two or more


debtors in one and the same obligation does not imply that each one of the former
has a right to demand, or that each of the latter is bound to render, entire compliance
with the prestation. There is solidary liability only when the obligation expressly
so states, or when the law or the nature of the obligation requires
solidarity. (Emphasis ours.)

Any suggestion that the obligation to undertake an inventory, render an


accounting of partnership assets, and to wind up the partnership affairs is divisible
ought to be dismissed.
For the other, the duty of petitioners to remit to Chua his half interest and
share of the total partnership assets proceeds from petitioners indivisible obligation
to render an accounting and inventory of such assets. The need for the imposition of
a solidary liability becomes all the more pronounced considering the impossibility
of quantifying how much of the partnership assets or profits was misappropriated by
each petitioner.

And for a third, petitioners obligation for the payment of damages and
attorneys and litigation fees ought to be solidary in nature, they having resisted in
bad faith a legitimate claim and thus compelled Chua to litigate.
Third Issue: Community Property Liable
Primarily anchored as the last issue is the erroneous theory of divisibility of
petitioners obligation and their joint liability therefor. The Court needs to dwell on
it lengthily.
Given the solidary liability of petitioners to satisfy the judgment award,
respondent sheriff cannot really be faulted for levying upon and then selling at public
auction the property of petitioner Sunga-Chan to answer for the whole obligation of
petitioners. The fact that the levied parcel of land is a conjugal or community
property, as the case may be, of spouses Norberto and Sunga-Chan does not per se
vitiate the levy and the consequent sale of the property. Verily, said property is not
among those exempted from execution under Section 13,[37] Rule 39 of the Rules of
Court.
And it cannot be overemphasized that the TRO issued by the Court on May
31, 2005 came after the auction sale in question.
Parenthetically, the records show that spouses Sunga-Chan and Norberto were
married on February 4, 1992, or after the effectivity of the Family Code on August
3, 1988. Withal, their absolute community property may be held liable for the
obligations contracted by either spouse. Specifically, Art. 94 of said Code pertinently
provides:
Art. 94. The absolute community of property shall be liable for:
(1) x x x x
(2) All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the community, or by both
spouses, or by one spouse with the consent of the other.

(3) Debts and obligations contracted by either spouse without the consent
of the other to the extent that the family may have been benefited. (Emphasis
ours.)

Absent any indication otherwise, the use and appropriation by petitioner


Sunga-Chan of the assets of Shellite even after the business was discontinued on
May 30, 1992 may reasonably be considered to have been used for her and her
husbands benefit.
It may be stressed at this juncture that Chuas legitimate claim against
petitioners, as readjusted in this disposition, amounts to only PhP 5,529,392.52,
whereas Sunga-Chans auctioned property which Chua acquired, as the highest
bidder, fetched a price of PhP 8 million. In net effect, Chua owes petitioner SungaChan the amount of PhP 2,470,607.48, representing the excess of the purchase price
over his legitimate claims.
Following the auction, the corresponding certificate of sale dated January 15,
2004 was annotated on TCT No. 208782. On January 21, 2005, Chua moved for the
issuance of a final deed of sale (1) to order the Registry of Deeds of Manila to cancel
TCT No. 208782; (2) to issue a new TCT in his name; and (3) for the RTC to issue
a writ of possession in his favor. And as earlier stated, the RTC granted Chuas
motion, albeit the Court restrained the enforcement of the RTCs package of orders
via a TRO issued on May 31, 2005.
Therefore, subject to the payment by Chua of PhP 2,470,607.48 to petitioner
Sunga-Chan, we affirm the RTCs April 11, 2005 resolution, confirming the sheriffs
final deed of sale of the levied property, ordering the Registry of Deeds of Manila to
cancel TCT No. 208782, and issuing a writ of possession in favor of Chua.
WHEREFORE, this petition is PARTLY GRANTED. Accordingly, the
assailed decision and resolution of the CA in CA-G.R. SP No. 75688 are
hereby AFFIRMEDwith the following MODIFICATIONS:
(1) The Resolutions dated November 6, 2002 and January 7, 2003 of the RTC,
Branch 11 in Sindangan, Zamboanga Del Norte in Civil Case No. S-494, as
effectively upheld by the CA, are AFFIRMED with the modification that the

approved claim of respondent Chua is hereby corrected and adjusted to cover only
the aggregate amount of PhP 5,529,392.52;
(2) Subject to the payment by respondent Chua of PhP 2,470,607.48 to petitioner
Sunga-Chan, the Resolution dated April 11, 2005 of the RTC, confirming the
sheriffs final deed of sale of the levied property, ordering the Registry of Deeds of
Manila to cancel TCT No. 208782, and issuing a writ of possession in favor of
respondent Chua, isAFFIRMED; and
The TRO issued by the Court on May 31, 2005 in the instant petition
is LIFTED.
No pronouncement as to costs.
SO ORDERED.

PRESBITERO J. VELASCO, JR.


Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES DANTE O. TINGA


Associate Justice Associate Justice

ARTURO D. BRION
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.

REYNATO S. PUNO

Chief Justice

[1]
Rollo, pp. 36-45. Penned by Associate Justice Romeo A. Brawner (Chairperson, now retired) and
concurred in by Associate Justices Jose L. Sabio, Jr. and Jose C. Reyes, Jr.
[2]
Id. at 90-91. Penned by Judge Mariano S. Macias.
[3]
Reported in 363 SCRA 249.
[4]
Rollo, p. 69.
[5]
Id. at 38.
[6]
Id. at 72.
[7]
Id. at 73-76.
[8]
Id. at 78-81.
[9]
Id. at 77.
[10]
Id. at 40.
[11]
Id. at 85-89.
[12]
Id. at 90.
[13]
Id.
[14]
Id. at 91.
[15]
Id. at 93-112.
[16]
Supra note 1, at 45.
[17]
Rollo, pp. 47-55.
[18]
Id. at 52.
[19]
Id. at 175.
[20]
Id. at 304-307.
[21]
Id. at 92, Minutes of Sale.
[22]
Id. at 256-257.
[23]
Id. at 238-240.
[24]
Id. at 264-265.
[25]
Id. at 266-267.
[26]
Id. at 276.
[27]
Id. at 446A-446B.
[28]
Art. 2213. Interest cannot be recovered upon unliquidated claims or damages, except when the demand
can be established with reasonable certainty.
[29]
G.R. No. 97412, July 12, 1994, 234 SCRA 78.
[30]
No. L-59096, October 11, 1985, 139 SCRA 260.
[31]
Eastern Shipping Lines, Inc., supra note 29, at 93-94; citing BLACKS LAW DICTIONARY 644 (1990).
[32]
Id. at 94.
[33]
Id. at 92; citing Florendo v. Ruiz, G.R. No. 60225, May 8, 1992, 208 SCRA 542; Reformina, supra note
30.
[34]
Id. at 94-95.
[35]
Id. at 95-97.
[36]
Interest computed as follows:
Interest
Period
Interest
Year
Principal
Rate
(months)
Earned
Balance
1988
420,000.00
6%
167.5
351,750.00
771,750.00
1989
420,000.00
6%
155.5
326,550.00
746,550.00
1990
420,000.00
6%
143.5
301,350.00
721,350.00
1991
420,000.00
6%
131.5
276,150.00
696,150.00
1992
175,000.00
6%
119.5
104,562.50
279,562.50

Totals

1,855,000.00

1,360,362.50

TOTAL (Principal plus Interest), as of December 20, 2001

PhP 3,215,362.50

[37]
SEC. 13. Property exempt from execution.Except as otherwise expressly provided by law, the following
property, and no other, shall be exempt from execution:
(a) The judgment obligors family home as provided by law, or the homestead in which he resides, and the
land necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him in his trade, employment or livelihood;
(c) Three horses x x x or other beasts of burden x x x;
(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;
(e) Household furniture and utensils necessary for housekeeping x x x;
(f) Provisions for individual or family use sufficient for four months;
(g) The professional libraries and equipment of judges, lawyers, physicians x x x;
(h) One fishing boat and accessories x x x;
(i) So much of the salaries, wages, or earnings of the judgment obligor x x x;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or x x x growing out of any life insurance;
(l) The right to receive legal support, or money or property obtained as such support, or any pension or
gratuity from the Government;
(m) Properties specially exempted by law.

But no article or species of property mentioned in this section shall be exempt from execution issued upon a
judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon.

THIRD DIVISION

[G.R. No. 146942. April 22, 2003]

CORAZON G. RUIZ, petitioner, vs. COURT OF APPEALS and


CONSUELO TORRES, respondents.
DECISION
PUNO, J.:

On appeal is the decision[1] of the Court of Appeals in CA-G.R. CV No. 56621 dated
25 August 2000, setting aside the decision[2] of the trial court dated 19 May 1997 and lifting
the permanent injunction on the foreclosure sale of the subject lot covered by TCT No.
RT-96686, as well as its subsequent Resolution[3] dated 26 January 2001, denying
petitioners Motion for Reconsideration.

The facts of the case are as follows:


Petitioner Corazon G. Ruiz is engaged in the business of buying and selling
jewelry.[4] She obtained loans from private respondent Consuelo Torres on different
occasions, in the following amounts: P100,000.00; P200,000.00; P300,000.00;
and P150,000.00.[5] Prior to their maturity, the loans were consolidated under one (1)
promissory note dated March 22, 1995, which reads as follows:[6]

P750,000.00 Quezon City, March 22, 1995


PROMISSORYNOTE
For value received, I, CORAZON RUIZ, as principal and ROGELIO RUIZ as surety
in solidum, jointly and severally promise to pay to the order of CONSUELO P.
TORRES the sum of SEVEN HUNDRED FIFTY THOUSAND PESOS
(P750,000.00) Philippine Currency, to earn an interest at the rate of three per cent
(3%) a month, for thirteen months, payable every _____ of the month, and to start
on April 1995 and to mature on April 1996, subject to renewal.
If the amount due is not paid on date due, a SURCHARGE of ONE PERCENT of the
principal loan, for every month default, shall be collected.
Remaining balance as of the maturity date shall earn an interest at the rate of ten
percent a month, compounded monthly.
It is finally agreed that the principal and surety in solidum, shall pay attorneys fees at
the rate of twenty-five percent (25%) of the entire amount to be collected, in case this
note is not paid according to the terms and conditions set forth, and same is referred to
a lawyer for collection.
In computing the interest and surcharge, a fraction of the month shall be considered
one full month.
In the event of an amicable settlement, the principal and surety in solidum shall
reimburse the expenses of the plaintiff.
(Sgd.) Corazon Ruiz __________________
Principal Surety
The consolidated loan of P750,000.00 was secured by a real estate mortgage on a
240-square meter lot in New Haven Village, Novaliches, Quezon City, covered by
Transfer Certificate of Title (TCT) No. RT-96686, and registered in the name of
petitioner.[7] The mortgage was signed by Corazon Ruiz for herself and as attorney-in-fact

of her husband Rogelio. It was executed on 20 March 1995, or two (2) days before the
execution of the subject promissory note.[8]
Thereafter, petitioner obtained three (3) more loans from private respondent, under
the following promissory notes: (1) promissory note dated 21 April 1995, in the amount
ofP100,000.00;[9] (2) promissory note dated May 23, 1995, in the amount
of P100,000.00;[10] and (3) promissory note dated December 21, 1995, in the amount
of P100,000.00.[11] These combined loans of P300,000.00 were secured by P571,000.00
worth of jewelry pledged by petitioner to private respondent.[12]
From April 1995 to March 1996, petitioner paid the stipulated 3% monthly interest on
the P750,000.00 loan,[13] amounting to P270,000.00.[14] After March 1996, petitioner was
unable to make interest payments as she had difficulties collecting from her clients in her
jewelry business.[15]
Due to petitioners failure to pay the principal loan of P750,000.00, as well as the
interest payment for April 1996, private respondent demanded payment not only of
the P750,000.00 loan, but also of the P300,000.00 loan.[16] When petitioner failed to pay,
private respondent sought the extra-judicial foreclosure of the aforementioned real estate
mortgage.[17]
On September 5, 1996, Acting Clerk of Court and Ex-Officio Sheriff Perlita V. Ele,
Deputy Sheriff In-Charge Rolando G. Acal and Supervising Sheriff Silverio P. Bernas
issued a Notice of Sheriffs Sale of subject lot. The public auction was scheduled on
October 8, 1996.[18]
On October 7, 1996, one (1) day before the scheduled auction sale, petitioner filed a
complaint with the RTC of Quezon City docketed as Civil Case No. Q-96-29024, with a
prayer for the issuance of a Temporary Restraining Order to enjoin the sheriff from
proceeding with the foreclosure sale and to fix her indebtedness to private respondent
to P706,000.00. The computed amount of P706,000.00 was based on the aggregate loan
of P750,000.00, covered by the March 22, 1995 promissory note, plus the other loans
of P300,000.00, covered by separate promissory notes, plus interest, minus P571,000.00
representing the amount of jewelry pledged in favor of private respondent.[19]
The trial court granted the prayer for the issuance of a Temporary Restraining
Order,[20] and on 29 October 1996, issued a writ of preliminary injunction. [21] In its Decision
dated May 19, 1997, it ordered the Clerk of Court and Ex-Officio Sheriff to desist with the
foreclosure sale of the subject property, and it made permanent the writ of preliminary
injunction. It held that the real estate mortgage is unenforceable because of the lack of
the participation and signature of petitioners husband. It noted that although the subject
real estate mortgage stated that petitioner was attorney-in-fact for herself and her
husband, the Special Power of Attorney was never presented in court during the trial.[22]
The trial court further held that the promissory note in question is a unilateral contract
of adhesion drafted by private respondent. It struck down the contract as repugnant to
public policy because it was imposed by a dominant bargaining party (private respondent)
on a weaker party (petitioner).[23] Nevertheless, it held that petitioner still has an obligation
to pay the private respondent. Private respondent was further barred from imposing on
petitioner the obligation to pay the surcharge of one percent (1%) per month from March

1996 onwards, and interest of ten percent (10%) a month, compounded monthly from
September 1996 to January 1997. Petitioner was thus ordered to pay the amount
of P750,000.00 plus three percent (3%) interest per month, or a total of P885,000.00, plus
legal interest from date of [receipt of] the decision until the total amount of P885,000.00
is paid.[24]
Aside from the foregoing, the trial court took into account petitioners proposal to pay
her other obligations to private respondent in the amount of P392,000.00.[25]
The trial court also recognized the expenses borne by private respondent with regard
the foreclosure sale and attorneys fees. As the notice of the foreclosure sale has already
been published, it ordered the petitioner to reimburse private respondent the amount
of P15,000.00 plus attorneys fees of the same amount.[26]
Thus, the trial court computed petitioners obligation to private respondent, as follows:

Principal Loan . P 750,000.00


Interest.. 135,000.00
Other Loans..392,000.00
Publication Fees.15,000.00
Attorneys Fees 15,000.00
TOTAL P1,307,000.00
with legal interest from date of receipt of decision until payment of total amount
of P1,307,000.00 has been made.[27]
Private respondents motion for reconsideration was denied in an Order dated July
21, 1997.
Private respondent appealed to the Court of Appeals. The appellate court set aside
the decision of the trial court. It ruled that the real estate mortgage is valid despite the
non-participation of petitioners husband in its execution because the land on which it was
constituted is paraphernal property of petitioner-wife. Consequently, she may encumber
the lot without the consent of her husband.[28] It allowed its foreclosure since the loan it
secured was not paid.
Nonetheless, the appellate court declared as invalid the 10% compounded monthly
interest[29] and the 10% surcharge per month stipulated in the promissory notes dated May
23, 1995 and December 1, 1995,[30] and so too the 1% compounded monthly interest
stipulated in the promissory note dated 21 April 1995,[31] for being excessive, iniquitous,
unconscionable, and contrary to morals. It held that the legal rate of interest of 12% per
annum shall apply after the maturity dates of the notes until full payment of the entire
amount due, and that the only permissible rate of surcharge is 1% per month, without

compounding.[32] The appellate court also granted attorneys fees in the amount
of P50,000.00, and not the stipulated 25% of the amount due, following the ruling in the
case of Medel v. Court of Appeals.[33]
Now, before this Court, petitioner assigns the following errors:

(1) PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED IN


RULING THAT THE PROMISSORY NOTE OF P750,000.00 IS NOT A
CONTRACT OF ADHESION DESPITE THE CLEAR SHOWING THAT THE
SAME IS A READY-MADE CONTRACT PREPARED BY (THE) RESPONDENT
CONSUELO TORRES AND DID NOT REFLECT THEIR TRUE INTENTIONS AS
IT WEIGHED HEAVILY IN FAVOR OF RESPONDENT AND AGAINST
PETITIONER.
(2) PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED IN
DECLARING THAT THE PROPERTY COVERED BY THE SUBJECT DEED OF
MORTGAGE OF MARCH 20, 1995 IS A PARAPHERNAL PROPERTY OF THE
PETITIONER AND NOT CONJUGAL EVEN THOUGH THE ISSUE OF
WHETHER OR NOT THE MORTGAGED PROPERTY IS PARAPHERNAL WAS
NEVER RAISED, NOR DISCUSSED AND ARGUED BEFORE THE TRIAL
COURT.
(3) PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED IN
DISREGARDING THE TRIAL COURTS COMPUTATION OF THE ACTUAL
OBLIGATIONS OF THE PETITIONER WITH (THE) RESPONDENT TORRES
EVEN THOUGH THE SAME IS BASED ON EVIDENCE SUBMITTED BEFORE
IT.
The pertinent issues to be resolved are:
(1) Whether the promissory note of P750,000.00 is a contract of adhesion;
(2) Whether the real property covered by the subject deed of mortgage dated March
20, 1995 is paraphernal property of petitioner; and
(3) Whether the rates of interests and surcharges on the obligation of petitioner to
private respondent are valid.
I

We hold that the promissory note in the case at bar is not a contract of
adhesion. In Sweet Lines, Inc. vs. Teves,[34] this Court discussed the nature of a contract
of adhesion as follows:

. . . there are certain contracts almost all the provisions of which have been drafted
only by one party, usually a corporation. Such contracts are called contracts of
adhesion, because the only participation of the other party is the signing of his

signature or his adhesion thereto. Insurance contracts, bills of lading, contracts of sale
of lots on the installment plan fall into this category.
[35]

. . . it is drafted only by one party, usually the corporation, and is sought to be


accepted or adhered to by the other party . . . who cannot change the same and who
are thus made to adhere hereto on the take it or leave it basis . . .
[36]

In said case of Sweet Lines,[37] the conditions of the contract on the 4 x 6 inches passenger
ticket are in fine print. Thus we held:

. . . it is hardly just and proper to expect the passengers to examine their tickets
received from crowded/congested counters, more often than not during rush hours, for
conditions that may be printed thereon, much less charge them with having consented
to the conditions, so printed, especially if there are a number of such conditions in fine
print, as in this case.
[38]

We further stressed in the said case that the questioned Condition No. 14 was
prepared solely by one party which was the corporation, and the other party who was
then a passenger had no say in its preparation. The passengers have no opportunity to
examine and consider the terms and conditions of the contract prior to the purchase of
their tickets.[39]
In the case at bar, the promissory note in question did not contain any fine print
provision which could not have been examined by the petitioner. Petitioner had all the
time to go over and study the stipulations embodied in the promissory note. Aside from
the March 22, 1995 promissory note for P750,000.00, three other promissory notes of
different dates and amounts were executed by petitioner in favor of private
respondent. These promissory notes contain similar terms and conditions, with a little
variance in the terms of interests and surcharges. The fact that petitioner and private
respondent had entered into not only one but several loan transactions shows that
petitioner was not in any way compelled to accept the terms allegedly imposed by private
respondent. Moreover, petitioner, in her complaint[40] dated October 7, 1996 filed with the
trial court, never claimed that she was forced to sign the subject note.Paragraph five of
her complaint states:

That on or about March 22, 1995 plaintiff was required by the defendant Torres to
execute a promissory note consolidating her unpaid principal loan and interests which
said defendant computed to be in the sum of P750,000.00 . . .
To be required is certainly different from being compelled. She could have rejected the
conditions made by private respondent. As an experienced business- woman, she ought
to understand all the conditions set forth in the subject promissory note. As held by this
Court in Lee, et al. vs. Court of Appeals, et al.,[41] it is presumed that a person takes
ordinary care of his concerns.[42] Hence, the natural presumption is that one does not sign
a document without first informing himself of its contents and consequences. This

presumption acquires greater force in the case at bar where not only one but several
documents were executed at different times by petitioner in favor of private respondent.
II

We also affirm the ruling of the appellate court that the real property covered by the
subject deed of mortgage is paraphernal property. The property subject of the mortgage
is registered in the name of Corazon G. Ruiz, of legal age, married to Rogelio Ruiz,
Filipinos. Thus, title is registered in the name of Corazon alone because the phrase
married to Rogelio Ruiz is merely descriptive of the civil status of Corazon and should not
be construed to mean that her husband is also a registered owner. Furthermore,
registration of the property in the name of Corazon G. Ruiz, of legal age, married to
Rogelio Ruiz is not proof that such property was acquired during the marriage, and thus,
is presumed to be conjugal. The property could have been acquired by Corazon while
she was still single, and registered only after her marriage to Rogelio Ruiz. Acquisition of
title and registration thereof are two different acts.[43] The presumption under Article 116
of the Family Code that properties acquired during the marriage are presumed to be
conjugal cannot apply in the instant case. Before such presumption can apply, it must first
be established that the property was in fact acquired during the marriage. In other words,
proof of acquisition during the marriage is a condition sine qua non for the operation of
the presumption in favor of conjugal ownership.[44] No such proof was offered nor
presented in the case at bar. Thus, on the basis alone of the certificate of title, it cannot
be presumed that said property was acquired during the marriage and that it is conjugal
property. Since there is no showing as to when the property in question was acquired, the
fact that the title is in the name of the wife alone is determinative of its nature as
paraphernal, i.e., belonging exclusively to said spouse.[45] The only import of the title is
that Corazon is the owner of said property, the same having been registered in her name
alone, and that she is married to Rogelio Ruiz.[46]
III

We now resolve the issue of whether the rates of interests and surcharges on the
obligation of petitioner to private respondent are legal.
The four (4) unpaid promissory notes executed by petitioner in favor of private
respondent are in the following amounts and maturity dates:
(1) P750,000.00, dated March 22, 1995 matured on April 21, 1996;
(2) P100,000.00, dated April 21, 1995 matured on August 21, 1995;
(3) P100,000.00, dated May 23, 1995 matured on November 23, 1995; and
(4) P100,000.00, dated December 21, 1995 matured on March 1, 1996.
The P750,000.00 promissory note dated March 22, 1995 has the following provisions:
(1) 3% monthly interest, from the signing of the note until its maturity date;
(2) 10% compounded monthly interest on the remaining balance at maturity date;
(3) 1% surcharge on the principal loan for every month of default; and

(4) 25% attorneys fees.


The P100,000.00 promissory note dated April 21, 1995 has the following provisions:
(1) 3% monthly interest, from the signing of the note until its maturity date;
(2) 10% monthly interest on the remaining balance at maturity date;
(3) 1% compounded monthly surcharge on the principal loan for every month of
default; and
(4) 10% attorneys fees.
The two (2) other P100,000.00 promissory notes dated May 23, 1995 and
December 1, 1995 have the following provisions:
(1) 3% monthly interest, from the signing of the note until its maturity date;
(2) 10% compounded monthly interest on the remaining balance at maturity date;
(3) 10% surcharge on the principal loan for every month of default; and
(4) 10% attorneys fees.
We affirm the ruling of the appellate court, striking down as invalid the 10%
compounded monthly interest, the 10% surcharge per month stipulated in the promissory
notes dated May 23, 1995 and December 1, 1995, and the 1% compounded monthly
interest stipulated in the promissory note dated April 21, 1995. The legal rate of interest
of 12% per annum shall apply after the maturity dates of the notes until full payment of
the entire amount due. Also, the only permissible rate of surcharge is 1% per month,
without compounding. We also uphold the award of the appellate court of attorneys fees,
the amount of which having been reasonably reduced from the stipulated 25% (in the
March 22, 1995 promissory note) and 10% (in the other three promissory notes) of the
entire amount due, to a fixed amount of P50,000.00. However, we equitably reduce the
3% per month or 36% per annum interest present in all four (4) promissory notes to 1%
per month or 12% per annum interest.
The foregoing rates of interests and surcharges are in accord with Medel vs. Court
of Appeals,[47] Garcia vs. Court of Appeals,[48] Bautista vs. Pilar Development
Corporation,[49]and the recent case of Spouses Solangon vs. Salazar.[50] This Court
invalidated a stipulated 5.5% per month or 66% per annum interest on a P500,000.00
loan in Medel[51] and a 6% per month or 72% per annum interest on a P60,000.00 loan
in Solangon[52] for being excessive, iniquitous, unconscionable and exorbitant. In both
cases, we reduced the interest rate to 12% per annum. We held that while the Usury Law
has been suspended by Central Bank Circular No. 905, s. 1982, effective on January 1,
1983, and parties to a loan agreement have been given wide latitude to agree on any
interest rate, still stipulated interest rates are illegal if they are unconscionable. Nothing
in the said circular grants lenders carte blanche authority to raise interest rates to levels
which will either enslave their borrowers or lead to a hemorrhaging of their assets. [53] On
the other hand, in Bautista vs. Pilar Development Corp.,[54] this Court upheld the validity
of a 21% per annum interest on a P142,326.43 loan, and in Garcia vs. Court of
Appeals, sustained the agreement of the parties to a 24% per annum interest on

anP8,649,250.00 loan. It is on the basis of these cases that we reduce the 36% per
annum interest to 12%. An interest of 12% per annum is deemed fair and reasonable.
While it is true that this Court invalidated a much higher interest rate of 66% per annum
in Medel[55] and 72% in Solangon[56] it has sustained the validity of a much lower interest
rate of 21% in Bautista[57]and 24% in Garcia.[58] We still find the 36% per annum interest
rate in the case at bar to be substantially greater than those upheld by this Court in the
two (2) aforecited cases.
The 1% surcharge on the principal loan for every month of default is valid. This
surcharge or penalty stipulated in a loan agreement in case of default partakes of the
nature of liquidated damages under Art. 2227 of the New Civil Code, and is separate and
distinct from interest payment.[59] Also referred to as a penalty clause, it is expressly
recognized by law. It is an accessory undertaking to assume greater liability on the part
of an obligor in case of breach of an obligation.[60] The obligor would then be bound to pay
the stipulated amount of indemnity without the necessity of proof on the existence and on
the measure of damages caused by the breach.[61] Although the courts may not at liberty
ignore the freedom of the parties to agree on such terms and conditions as they see fit
that contravene neither law nor morals, good customs, public order or public policy, a
stipulated penalty, nevertheless, may be equitably reduced if it is iniquitous or
unconscionable.[62] In the instant case, the 10% surcharge per month stipulated in the
promissory notes dated May 23, 1995 and December 1, 1995 was properly reduced by
the appellate court.
In sum, petitioner shall pay private respondent the following:

1. Principal of loan under promissory note dated


March 22, 1995 ... P750,000.00
a.

1% interest per month on principal from March 22, 1995 until fully
paid, less P270,000.00 paid by petitioner as interest from April 1995
to March 1996

b.

1% surcharge per month on principal from May 1996 until fully


paid

2. Principal of loan under promissory note dated


April 21, 1995 .. P100,000.00
a.

1% interest per month on principal from April 21, 1995 until fully
paid

b.

1% surcharge per month on principal from September 1995 until


fully paid

3. Principal of loan under promissory note dated


May 23, 1995 .... P100,000.00
a.

1% interest per month on principal from May 23, 1995 until fully paid

b.

1% surcharge per month on principal from December 1995 until fully


paid

4. Principal of loan under promissory note dated


December 1, 1995 ... P100,000.00
a.

1% interest per month on principal from December 1, 1995 until


fully paid

b.

1% surcharge per month on principal from April 1996 until fully


paid

5. Attorneys fees...P 50,000.00


Hence, since the mortgage is valid and the loan it secures remains unpaid, the
foreclosure proceedings may now proceed.
IN VIEW WHEREOF, the appealed Decision of the Court of Appeals is AFFIRMED,
subject to the MODIFICATION that the interest rate of 36% per annum is ordered reduced
to 12 % per annum.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

[1]

Rollo, pp. 126-136.

[2]

Id. at 162-165.

[3]

Id. at 38.

[4]

TSN, 17 January 1997, p. 5.

[5]

TSN, 03 February 1997, p. 9.

[6]

Id. at 12; RTC Records, p. 9.

[7]

Rollo, pp. 41-42.

[8]

Records, pp. 10-11.

[9]

Id. at 12.

[10]

Id. at 13.

[11]

Id. at 14.

[12]

TSN, 21 October 1996, pp. 21-22.

[13]

TSN, 17 January 1997, p. 8; TSN, 27 January 1997, pp. 7-8; Records, p. 103.

[14]

TSN, 21 October 1996, p. 21.

[15]

TSN, 17 January 1997, p. 13.

[16]

TSN, 29 January 1997, pp. 10-11.

[17]

Id. at 12.

[18]

Records, p. 15.

[19]

Id. at 3-4.

[20]

Id. at 23.

[21]

Id. at 58-59.

[22]

Rollo, p. 44.

[23]

Ibid.

[24]

Id. at 44-45.

[25]

Id. at 45.

[26]

Ibid.

[27]

Ibid.

[28]

Id. at 32.

[29]

Id. at 34, citing Medel vs. Court of Appeals, 299 SCRA 481 and Bautista vs. Pilar Development Corp., 312
SCRA 611.

[30]

Id. at 35.

[31]

Ibid.

[32]

Id. at 34.

[33]

Medel vs. Court of Appeals, 299 SCRA 481.

[34]

Sweet Lines, Inc. vs. Teves, 83 SCRA 361.

[35]

Supra note 34 at 368-369, citing Paras, Civil Code of the Philippines, Seventh Ed., Vol. I, p. 80.

[36]

Supra note 34 at 369.

[37]

Supra note 34.

[38]

Supra note 34 at 371.

[39]

Ibid.

[40]

Records, pp. 1-15.

[41]

G.R. No. 117913, 01 February 2002.

[42]

Section 3(d), Rule 131 of the Rules of Court.

[43]

Jocson vs. Court of Appeals, 170 SCRA 333, 345.

[44]

Id. at 344, citing Cobb-Perez vs. Lantin, 23 SCRA 637, 644.

[45]

Ibid.

[46]

Supra note 43.

[47]

Supra note 33.

[48]

Garcia vs. Court of Appeals, 167 SCRA 815.

[49]

Bautista vs. Pilar Development Corporation, 312 SCRA 611.

[50]

Spouses Solangon vs. Salazar, G.R. No. 125944, 29 June 2001.

[51]

Supra note 33.

[52]

Supra note 50.

[53]

Spouses Solangon vs. Salazar, G.R. No. 125944, 29 June 2001, also citing Almeda v. Court of
Appeals, 256 SCRA 292.

[54]

Supra note 49.

[55]

Supra note 33.

[56]

Supra note 50.

[57]

Supra note 49.

[58]

Supra note 48.

[59]

RCBC v. Court of Appeals, 289 SCRA 292, 312.

[60]

Ligutan, et al. vs. Court of Appeals, et al., G.R. No. 138677, 12 February 2002, also citing Art. 1226, Civil
Code.

[61]

Ibid., citing Art. 1228, Civil Code and Manila Racing Club vs. Manila Jockey Club, 69 Phil. 55.

[62]

Ibid., citing Arts. 2227 and 1229, Civil Code.

Republic of the Philippines


Supreme Court
Manila
FIRST DIVISION
HIYAS SAVINGS and LOAN G.R. NO. 154132
BANK, INC.
Petitioner,

Present:
PANGANIBAN, C.J.
(Chairperson)
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.
HON. EDMUNDO T. ACUA,
in his capacity as Pairing Judge
of Regional Trial Court, Branch
122, Caloocan City, and ALBERTO
MORENO, Promulgated:
Respondent. August 31, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court
seeking to nullify the Orders[1] of the Regional Trial Court (RTC) of Caloocan City,
Branch 122, dated November 8, 2001[2] and May 7, 2002[3] denying herein
petitioners Motion to Dismiss and Motion for Partial Reconsideration, respectively.
The antecedent facts are as follows:
On November 24, 2000, Alberto Moreno (private respondent) filed with the RTC of
Caloocan City a complaint against Hiyas Savings and Loan Bank, Inc. (petitioner),
his wife Remedios, the spouses Felipe and Maria Owe and the Register of Deeds
of Caloocan City for cancellation of mortgage contending that he did not secure any
loan from petitioner, nor did he sign or execute any contract of mortgage in its
favor; that his wife, acting in conspiracy with Hiyas and the spouses Owe, who were

the ones that benefited from the loan, made it appear that he signed the contract of
mortgage; that he could not have executed the said contract because he was then
working abroad.[4]
On May 17, 2001, petitioner filed a Motion to Dismiss on the ground that
private respondent failed to comply with Article 151 of the Family Code wherein it
is provided that no suit between members of the same family shall prosper unless it
should appear from the verified complaint or petition that earnest efforts toward a
compromise have been made, but that the same have failed. Petitioner contends that
since the complaint does not contain any fact or averment that earnest efforts toward
a compromise had been made prior to its institution, then the complaint should be
dismissed for lack of cause of action.[5]
Private respondent filed his Comment on the Motion to Dismiss with Motion
to Strike Out and to Declare Defendants in Default. He argues that in cases where
one of the parties is not a member of the same family as contemplated under Article
150 of the Family Code, failure to allege in the complaint that earnest efforts toward
a compromise had been made by the plaintiff before filing the complaint is not a
ground for a motion to dismiss. Alberto asserts that since three of the partydefendants are not members of his family the ground relied upon by Hiyas in its
Motion to Dismiss is inapplicable and unavailable. Alberto also prayed that
defendants be declared in default for their failure to file their answer on time.[6]
Petitioner filed its Reply to the Comment with Opposition to the Motion to
Strike and to Declare Defendants in Default.[7] Private respondent, in turn, filed his
Rejoinder.[8]
On November 8, 2001, the RTC issued the first of its assailed Orders denying
the Motion to Dismiss, thus:

The court agrees with plaintiff that earnest efforts towards a compromise is
not required before the filing of the instant case considering that the above-entitled
case involves parties who are strangers to the family. As aptly pointed out in the
cases cited by plaintiff, Magbaleta v. G[o]nong, L-44903, April 25, 1977 and
Mendez v. [B]iangon, L-32159, October 28, 1977, if one of the parties is a stranger,
failure to allege in the complaint that earnest efforts towards a compromise had
been made by plaintiff before filing the complaint, is not a ground for motion to
dismiss.
Insofar as plaintiffs prayer for declaration of default against defendants, the
same is meritorious only with respect to defendants Remedios Moreno and the
Register of Deeds of Kaloocan City. A declaration of default against defendant
bank is not proper considering that the filing of the Motion to Dismiss by said
defendant operates to stop the running of the period within which to file the required
Answer.[9]

Petitioner filed a Motion for Partial Reconsideration.[10] Private respondent


filed his Comment,[11] after which petitioner filed its Reply.[12] Thereafter, private
respondent filed his Rejoinder.[13]
On May 7, 2002, the RTC issued the second assailed Order denying
petitioners Motion for Partial Reconsideration. The trial court ruled:
Reiterating the resolution of the court, dated November 8, 2001, considering
that the above-entitled case involves parties who are strangers to the family, failure
to allege in the complaint that earnest efforts towards a compromise were made by
plaintiff, is not a ground for a Motion to Dismiss.
Additionally, the court agrees with plaintiff that inasmuch as it is defendant
Remedios Moreno who stands to be benefited by Art. 151 of the Family Code,
being a member of the same family as that of plaintiff, only she may invoke said
Art. 151.[14]
xxx

Hence, the instant Petition for Certiorari on the following grounds:


I. Public respondent committed grave abuse of discretion amounting to lack
or in excess of jurisdiction when he ruled that lack of earnest efforts toward a
compromise is not a ground for a motion to dismiss in suits between husband and
wife when other parties who are strangers to the family are involved in the suit.
Corollarily, public respondent committed grave abuse of discretion amounting to

lack or in excess of jurisdiction when he applied the decision in the case


of Magbaleta v. Gonong instead of the ruling in the case of De Guzman v. Genato.
II. Public respondent committed grave abuse of discretion amounting to
lack or in excess of jurisdiction when he ruled that a party who is a stranger to the
family of the litigants could not invoke lack of earnest efforts toward a compromise
as a ground for the dismissal of the complaint.[15]

At the outset, the Court notes that the instant Petition for Certiorari should
have been filed with the Court of Appeals (CA) and not with this Court pursuant to
the doctrine of hierarchy of courts. Reiterating the established policy for the strict
observance of this doctrine, this Court held in Heirs of Bertuldo Hinog v.
Melicor[16] that:
Although the Supreme Court, Court of Appeals and the Regional Trial
Courts have concurrent jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction, such
concurrence does not give the petitioner unrestricted freedom of choice of court
forum. As we stated in People v. Cuaresma:

This Court's original jurisdiction to issue writs


of certiorari is not exclusive. It is shared by this Court
with Regional Trial Courts and with the Court of
Appeals. This concurrence of jurisdiction is not, however,
to be taken as according to parties seeking any of the writs
an absolute, unrestrained freedom of choice of the court to
which application therefor will be directed. There is after
all a hierarchy of courts. That hierarchy is determinative of
the venue of appeals, and also serves as a general
determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level (inferior)
courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. A direct
invocation of the Supreme Courts original jurisdiction to
issue these writs should be allowed only when there are
special and important reasons therefor, clearly and
specifically set out in the petition. This is [an] established

policy. It is a policy necessary to prevent inordinate


demands upon the Courts time and attention which are
better devoted to those matters within its exclusive
jurisdiction, and to prevent further over-crowding of the
Courts docket.
The rationale for this rule is two-fold: (a) it would be an imposition upon the
precious time of this Court; and (b) it would cause an inevitable and resultant delay,
intended or otherwise, in the adjudication of cases, which in some instances had to
be remanded or referred to the lower court as the proper forum under the rules of
procedure, or as better equipped to resolve the issues because this Court is not a
trier of facts.
Thus, this Court will not entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate courts, and exceptional and
compelling circumstances, such as cases of national interest and of serious
implications, justify the availment of the extraordinary remedy of writ of certiorari,
calling for the exercise of its primary jurisdiction. Exceptional and compelling
circumstances were held present in the following cases: (a) Chavez vs. Romulo on
citizens right to bear arms; (b) Government of the United States of America vs.
Purganan on bail in extradition proceedings; (c) Commission on Elections vs.
Quijano-Padilla on government contract involving modernization and
computerization of voters registration list; (d) Buklod ng Kawaning EIIB vs.
Zamora on status and existence of a public office; and (e) Fortich vs. Corona on
the so-called Win-Win Resolution of the Office of the President which modified
the approval of the conversion to agro-industrial area.[17]

In the present case, petitioner failed to advance a satisfactory explanation as to its


failure to comply with the principle of judicial hierarchy. There is no reason why the
instant petition could not have been brought before the CA. On this basis, the instant
petition should be dismissed.
And even if this Court passes upon the substantial issues raised by petitioner,
the instant petition likewise fails for lack of merit.
Restating its arguments in its Motion for Partial Reconsideration, petitioner
argues that what is applicable to the present case is the Courts decision in De Guzman
v. Genato[18] and not in Magbaleta v. Gonong,[19] the former being a case involving
a husband and wife while the latter is between brothers.

The Court is not persuaded.


Article 151 of the Family Code provides as follows:
No suit between members of the same family shall prosper unless it should
appear from the verified complaint or petition that earnest efforts toward a
compromise have been made, but that the same have failed. If it is shown that no
such efforts were in fact made, the case must be dismissed.
This rule shall not apply to cases which may not be the subject of
compromise under the Civil Code.

Article 222 of the Civil Code from which Article 151 of the Family Code was taken,
essentially contains the same provisions, to wit:
No suit shall be filed or maintained between members of the same family
unless it should appear that earnest efforts toward a compromise have been made,
but that the same have failed, subject to the limitations in Article 2035.[20]

The Code Commission that drafted Article 222 of the Civil Code from which Article
151 of the Family Code was taken explains:
[I]t is difficult to imagine a sadder and more tragic spectacle than a litigation
between members of the same family. It is necessary that every effort should be
made toward a compromise before a litigation is allowed to breed hate and passion
in the family. It is known that a lawsuit between close relatives generates deeper
bitterness than between strangers.[21]

In Magbaleta, the case involved brothers and a stranger to the family, the alleged
owner of the subject property. The Court, taking into consideration the explanation
made by the Code Commision in its report, ruled that:
[T]hese considerations do not, however, weigh enough to make it imperative that
such efforts to compromise should be a jurisdictional pre-requisite for the
maintenance of an action whenever a stranger to the family is a party thereto,
whether as a necessary or indispensable one. It is not always that one who is alien
to the family would be willing to suffer the inconvenience of, much less relish, the
delay and the complications that wranglings between or among relatives more often

than not entail. Besides, it is neither practical nor fair that the determination of the
rights of a stranger to the family who just happened to have innocently acquired
some kind of interest in any right or property disputed among its members should
be made to depend on the way the latter would settle their differences among
themselves.[22] x x x.

Hence, once a stranger becomes a party to a suit involving members of the same
family, the law no longer makes it a condition precedent that earnest efforts be made
towards a compromise before the action can prosper.
In the subsequent case of De Guzman, the case involved spouses and the alleged
paramour of the wife. The Court ruled that due to the efforts exerted by the husband,
through the Philippine Constabulary, to confront the wife, there was substantial
compliance with the law, thereby implying that even in the presence of a party who
is not a family member, the requirements that earnest efforts towards a compromise
have been exerted must be complied with, pursuant to Article 222 of the Civil Code,
now Article 151 of the Family Code.
While De Guzman was decided after Magbaleta, the principle enunciated in
the Magbaleta is the one that now prevails because it is reiterated in the subsequent
cases
ofGonzales
v.
Lopez,[23]
Esquivias
v.
Court
of
Appeals,[24] Spouses Hontiveros v. Regional Trial Court, Branch
25, Iloilo City,[25] and the most recent case of Martinez v. Martinez.[26] Thus, Article
151 of the Family Code applies to cover when the suit is exclusively between or
among family members.
The Court finds no cogent reason why the ruling in Magbaleta as well as in
all of the aforementioned cases should not equally apply to suits involving husband
and wife.
Petitioner makes much of the fact that the present case involves a husband and
his wife while Magbaleta is a case between brothers. However, the Court finds no

specific, unique, or special circumstance that would make the ruling in Magbaleta as
well as in the abovementioned cases inapplicable to suits involving a husband and
his wife, as in the present case. In the first place, Article 151 of the Family Code and
Article 222 of the Civil Code are clear that the provisions therein apply to suits
involving members of the same family as contemplated under Article 150 of the
Family Code, to wit:
ART. 150. Family relations include those:
(1)
(2)
(3)
(4)

Between husband and wife;


Between parents and children;
Among other ascendants and descendants; and
Among brothers and sisters, whether of the full or half blood.

and Article 217 of the Civil Code, to wit:


ART. 217. Family relations shall include those:
(1)
(2)
(3)
(4)

Between husband and wife;


Between parent and child;
Among other ascendants and their descendants;
Among brothers and sisters.

Petitioner also contends that the trial court committed grave abuse of discretion when
it ruled that petitioner, not being a member of the same family as respondent, may
not invoke the provisions of Article 151 of the Family Code.
Suffice it to say that since the Court has ruled that the requirement under Article 151
of the Family Code is applicable only in cases which are exclusively between or
among members of the same family, it necessarily follows that the same may be
invoked only by a party who is a member of that same family.
WHEREFORE, the instant Petition for Certiorari is DISMISSED for lack of merit.
Costs against petitioner.

SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson

CONSUELO YNARES-SANTIAGO ROMEO J. CALLEJO, SR.


Associate Justice Associate 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

[1]

Penned by Judge Edmundo T. Acua.


Records, p. 45.
[3]
Id. at 73.
[4]
Id. at 1.
[5]
Id. at 16.
[6]
Id. at 22.
[7]
Id. at 28.
[8]
Id. at 39.
[9]
Id. at 45-46.
[10]
Id. at 47.
[11]
Id. at 61.
[12]
Id. at 65.
[13]
Id. at 70.
[14]
Id. at 74.
[15]
Rollo, p. 9.
[16]
G.R. No. 140954, April 12, 2005, 455 SCRA 460.
[17]
Id. at 470-472.
[18]
G.R. No. L-42260, April 30, 1979, 89 SCRA 674.
[19]
G.R. No. L-44903, April 22, 1977, 76 SCRA 511.
[20]
ART. 2035. No compromise upon the following questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
[21]
Report of the Code Commission, p. 18 cited in The Civil Code of the Philippines and Family Code, Vol. 1, 1990
ed., by Ramon C. Aquino and Carolina Grio-Aquino, p. 272.
[22]
Supra note 19, at 513.
[23]
G.R. No. L-48068, April 15, 1988, 160 SCRA 346.
[24]
339 Phil. 184 (1997).
[25]
368 Phil. 653 (1999).
[26]
G.R. No. 162084, June 28, 2005, 461 SCRA 562.
[2]

FIRST DIVISION

[G.R. No. 137359. September 13, 2004]

EDWIN
N.
TRIBIANA,
TRIBIANA, respondent.

petitioner,

vs.

LOURDES

M.

DECISION
CARPIO, J.:

The Case
This petition for review on certiorari[1] seeks to reverse the Court of Appeals
Resolutions[2] dated 2 July 1998 and 18 January 1999 in CA-G.R. SP No. 48049. The
Court of Appeals affirmed the Order[3] of the Regional Trial Court, Branch 19, Bacoor,
Cavite (RTC), denying petitioner Edwin N. Tribianas (Edwin) motion to dismiss the petition
for habeas corpus filed against him by respondent Lourdes Tribiana (Lourdes).

Antecedent Facts
Edwin and Lourdes are husband and wife who have lived together since 1996 but
formalized their union only on 28 October 1997. On 30 April 1998, Lourdes filed a petition
for habeas corpus before the RTC claiming that Edwin left their conjugal home with their
daughter, Khriza Mae Tribiana (Khriza). Edwin has since deprived Lourdes of lawful
custody of Khriza who was then only one (1) year and four (4) months of age. Later, it
turned out that Khriza was being held by Edwins mother, Rosalina Tribiana (Rosalina).
Edwin moved to dismiss Lourdes petition on the ground that the petition failed to allege
that earnest efforts at a compromise were made before its filing as required by Article 151
of the Family Code.
On 20 May 1998, Lourdes filed her opposition to Edwins motion to dismiss claiming
that there were prior efforts at a compromise, which failed. Lourdes attached to her
opposition a copy of the Certification to File Action from their Barangay dated 1 May 1998.
On 18 May 1998, the RTC denied Edwins motion to dismiss and reiterated a previous
order requiring Edwin and his mother, Rosalina to bring Khriza before the RTC. Upon
denial of his motion for reconsideration, Edwin filed with the Court of Appeals a petition
for prohibition and certiorari under Rule 65 of the Rules of Civil Procedure. The appellate
court denied Edwins petition on 2 July 1998. The appellate court also denied Edwins
motion for reconsideration.
Hence, this petition.

The Rulings of the RTC and the Court of Appeals


The RTC denied Edwins motion to dismiss on the ground that the Certification to File
Action attached by Lourdes to her opposition clearly indicates that the parties attempted
to reach a compromise but failed.

The Court of Appeals upheld the ruling of the RTC and added that under Section 412
(b) (2) of the Local Government Code, conciliation proceedings before the barangay are
not required in petitions for habeas corpus.

The Issue
Edwin seeks a reversal and raises the following issue for resolution:

WHETHER THE TRIAL AND APPELLATE COURTS SHOULD HAVE


DISMISSED THE PETITION FOR HABEAS CORPUS ON THE GROUND
OF FAILURE TO COMPLY WITH THE CONDITION PRECEDENT
UNDER ARTICLE 151 OF THE FAMILY CODE.
The Ruling of the Court
The petition lacks merit.
Edwin argues that Lourdes failure to indicate in her petition for habeas corpus that
the parties exerted prior efforts to reach a compromise and that such efforts failed is a
ground for the petitions dismissal under Section 1(j), Rule 16 of the 1997 Rules of Civil
Procedure.[4] Edwin maintains that under Article 151 of the Family Code, an earnest effort
to reach a compromise is an indispensable condition precedent. Article 151 provides:

No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise have
been made, but that the same have failed. If it is shown that no such efforts were in
fact made, the case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise under
the Civil Code.
Edwins arguments do not persuade us.
It is true that the petition for habeas corpus filed by Lourdes failed to allege that she
resorted to compromise proceedings before filing the petition. However, in her opposition
to Edwins motion to dismiss, Lourdes attached a Barangay Certification to File Action
dated 1 May 1998. Edwin does not dispute the authenticity of the Barangay Certification
and its contents. This effectively established that the parties tried to compromise but were
unsuccessful in their efforts. However, Edwin would have the petition dismissed despite
the existence of the Barangay Certification, which he does not even dispute.
Evidently, Lourdes has complied with the condition precedent under Article 151 of the
Family Code. A dismissal under Section 1(j) of Rule 16 is warranted only if there is

a failure to comply with a condition precedent. Given that the alleged defect is a
mere failure to allege compliance with a condition precedent, the proper solution is not an
outright dismissal of the action, but an amendment under Section 1 of Rule 10 of the 1997
Rules of Civil Procedure.[5] It would have been a different matter if Edwin had asserted
that no efforts to arrive at a compromise have been made at all.
In addition, the failure of a party to comply with a condition precedent is not a
jurisdictional defect.[6] Such defect does not place the controversy beyond the courts
power to resolve. If a party fails to raise such defect in a motion to dismiss, such defect
is deemed waived.[7] Such defect is curable by amendment as a matter of right without
leave of court, if made before the filing of a responsive pleading. [8] A motion to dismiss is
not a responsive pleading.[9] More importantly, an amendment alleging compliance with a
condition precedent is not a jurisdictional matter. Neither does it alter the cause of action
of a petition for habeas corpus. We have held that in cases where the defect consists of
the failure to state compliance with a condition precedent, the trial court should order the
amendment of the complaint.[10] Courts should be liberal in allowing amendments to
pleadings to avoid multiplicity of suits and to present the real controversies between the
parties.[11]
Moreover, in a habeas corpus proceeding involving the welfare and custody of a child
of tender age, the paramount concern is to resolve immediately the issue of who has legal
custody of the child. Technicalities should not stand in the way of giving such child of
tender age full protection.[12] This rule has sound statutory basis in Article 213 of the Family
Code, which states, No child under seven years of age shall be separated from the mother
unless the court finds compelling reasons to order otherwise. In this case, the child
(Khriza) was only one year and four months when taken away from the mother.
The Court of Appeals dismissed Edwins contentions by citing as an additional ground
the exception in Section 412 (b) (2) of the Local Government Code (LGC) on barangay
conciliation, which states:

(b) Where the parties may go directly to court. the parties may go directly to court in
the following instances:
xxx
2) Where a person has otherwise been deprived of personal liberty calling
for habeas corpus proceedings;
xxx.
Under Rule 102 of the 1997 Rules of Civil Procedure, a party may resort to a habeas
corpus proceeding in two instances. The first is when any person is deprived of liberty
either through illegal confinement or through detention. The second instance is when
custody of any person is withheld from the person entitled to such custody. The most
common case falling under the second instance involves children who are taken away

from a parent by another parent or by a relative. The case filed by Lourdes falls under this
category.
The barangay conciliation requirement in Section 412 of the LGC does not apply
to habeas corpus proceedings where a person is deprived of personal liberty. In such a
case, Section 412 expressly authorizes the parties to go directly to court without need of
any conciliation proceedings. There is deprivation of personal liberty warranting a petition
for habeas corpuswhere the rightful custody of any person is withheld from the person
entitled thereto.[13] Thus, the Court of Appeals did not err when it dismissed Edwins
contentions on the additional ground that Section 412 exempts petitions for habeas
corpus from the barangay conciliation requirement.
The petition for certiorari filed by Edwin questioning the RTCs denial of his motion to
dismiss merely states a blanket allegation of grave abuse of discretion. An order denying
a motion to dismiss is interlocutory and is not a proper subject of a petition for
certiorari.[14] Even in the face of an error of judgment on the part of a judge denying the
motion to dismiss, certiorari will not lie. Certiorari is not a remedy to correct errors of
procedure.[15] The proper remedy against an order denying a motion to dismiss is to file an
answer and interpose as affirmative defenses the objections raised in the motion to
dismiss. It is only in the presence of extraordinary circumstances evincing a patent
disregard of justice and fair play where resort to a petition for certiorari is proper.[16]
The litigation of substantive issues must not rest on a prolonged contest on
technicalities. This is precisely what has happened in this case. The circumstances are
devoid of any hint of the slightest abuse of discretion by the RTC or the Court of Appeals.
A party must not be allowed to delay litigation by the sheer expediency of filing a petition
for certiorari under Rule 65 based on scant allegations of grave abuse. More importantly,
any matter involving the custody of a child of tender age deserves immediate resolution
to protect the childs welfare.
WHEREFORE, we DISMISS the instant petition for lack of merit. We AFFIRM the
Resolutions of the Court of Appeals dated 2 July 1998 and 18 January 1999 in CA-G.R.
SP No. 48049. The Regional Trial Court, Branch 19, Bacoor, Cavite is ordered to act with
dispatch in resolving the petition for habeas corpus pending before it. This decision is
IMMEDIATELY EXECUTORY.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna,
JJ., concur.

[1]

Under Rule 45 of the 1997 Rules of Civil Procedure.

[2]

Penned by Associate Justice Romeo J. Callejo, Sr. with Associate Justices Angelina Sandoval-Gutierrez
and Mariano M. Umali concurring.

[3]

Penned by Judge Edelwina C. Pastoral.

[4]

Section 1(j) of Rule 16 of the Rules of Court states:

SECTION 1. Grounds. Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:
xxx
(j) That a condition precedent for filing the claim has not been complied with.
[5]

Section 1 of Rule 10 of the 1997 Rules of Civil Procedure states:

SECTION 1. Amendments in general. Pleadings may be amended by adding or striking out an allegation
or the name of any party, or by correcting a mistake in the name of a party or a mistaken or
inadequate allegation or description in any other respect, so that the actual merits of the
controversy may speedily be determined, without regard to technicalities, and in the most
expeditious and inexpensive manner.
[6]

Ebol, et al. v. Judge Amin, et al., 220 Phil. 114 (1985).

[7]

Soto v. Jareno, 228 Phil. 117 (1986).

[8]

Section 2, Rule 10 of the 1997 Rules of Civil Procedure.

[9]

Breslin v. Luzon Stevedoring Co., 84 Phil. 618 (1949).

[10]

Versoza, et al., v. Versoza, 135 Phil. 84 (1968)

[11]

Sps. Tirona v. Hon. Alejo, 419 Phil. 285 (2001).

[12]

Macazo and Nuez v. Nuez, 105 Phil. 55 (1959).

[13]

Section 1, Rule 102 of the 1997 Rules of Civil Procedure.

[14]

Santiago Land Development Company v. Court of Appeals, G.R. No. 103922, 9 July 1996, 258 SCRA
535.

[15]

Ibid.

[16]

Quisumbing v. Gumban, G.R. No. 85156, 5 February 1991, 193 SCRA 520.

FIRST DIVISION
PERLA G. PATRICIO, G.R. No. 170829
Petitioner,
Present:
Panganiban, C.J. (Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and

Chico-Nazario, JJ.
MARCELINO G. DARIO III and
THE HONORABLE COURT OF Promulgated:
APPEALS, Second Division,
Respondents. November 20, 2006
x ---------------------------------------------------------------------------------------- x

DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court seeks to
annul and set aside the Resolution of the Court of Appeals dated December 9,
2005[1] in CA-G.R. CV No. 80680, which dismissed the complaint for partition filed
by petitioner for being contrary to law and evidence.
On July 5, 1987, Marcelino V. Dario died intestate. He was survived by his wife,
petitioner Perla G. Patricio and their two sons, Marcelino Marc Dario and private
respondent Marcelino G. Dario III. Among the properties he left was a parcel of land
with a residential house and a pre-school building built thereon situated at 91 Oxford
corner Ermin Garcia Streets in Cubao, Quezon City, as evidenced by Transfer
Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon City Registry of
Deeds, covering an area of seven hundred fifty five (755) square meters, more or
less.[2]
On August 10, 1987, petitioner, Marcelino Marc and private respondent,
extrajudicially settled the estate of Marcelino V. Dario. Accordingly, TCT No. RT30731 (175992) was cancelled and TCT No. R-213963 was issued in the names of
petitioner, private respondent and Marcelino Marc.
Thereafter, petitioner and Marcelino Marc formally advised private respondent of
their intention to partition the subject property and terminate the coownership. Private respondent refused to partition the property hence petitioner and
Marcelino Marc instituted an action for partition before the Regional Trial Court of

Quezon City which was docketed as Civil Case No. Q-01-44038 and raffled to
Branch 78.
On October 3, 2002,[3] the trial court ordered the partition of the subject
property in the following manner: Perla G. Patricio, 4/6; Marcelino Marc G. Dario,
1/6; and Marcelino G. Dario III, 1/6. The trial court also ordered the sale of the
property by public auction wherein all parties concerned may put up their bids. In
case of failure, the subject property should be distributed accordingly in the
aforestated manner.[4]
Private respondent filed a motion for reconsideration which was denied by the
trial court on August 11, 2003,[5] hence he appealed before the Court of Appeals,
which denied the same on October 19, 2005. However, upon a motion for
reconsideration filed by private respondent on December 9, 2005, the appellate court
partially reconsidered the October 19, 2005 Decision. In the now assailed
Resolution, the Court of Appeals dismissed the complaint for partition filed by
petitioner and Marcelino Marc for lack of merit. It held that the family home should
continue despite the death of one or both spouses as long as there is a minor
beneficiary thereof. The heirs could not partition the property unless the court found
compelling reasons to rule otherwise. The appellate court also held that the minor
son of private respondent, who is a grandson of spouses Marcelino V. Dario and
Perla G. Patricio, was a minor beneficiary of the family home.[6]
Hence, the instant petition on the following issues:
I.
THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN
REVERSING ITS EARLIER DECISION OF OCTOBER 19, 2005 WHICH
AFFIRMED IN TOTO THE DECISION OF THE TRIAL COURT DATED 03
OCTOBER 2002 GRANTING THE PARTITION AND SALE BY PUBLIC
AUCTION OF THE SUBJECT PROPERTY.
II.
COROLLARILY, THE HONORABLE COURT OF APPEALS PATENTLY
ERRED IN APPLYING ARTICLE 159 IN RELATION TO ARTICLE 154 OF
THE FAMILY CODE ON FAMILY HOME INSTEAD OF ARTICLE 494 IN
RELATION TO ARTICLES 495 AND 498 OF THE NEW CIVIL CODE ON COOWNERSHIP.[7]

The sole issue is whether partition of the family home is proper where one of
the co-owners refuse to accede to such partition on the ground that a minor
beneficiary still resides in the said home.
Private respondent claims that the subject property which is the family home
duly constituted by spouses Marcelino and Perla Dario cannot be partitioned while
a minor beneficiary is still living therein namely, his 12-year-old son, who is the
grandson of the decedent. He argues that as long as the minor is living in the family
home, the same continues as such until the beneficiary becomes of age. Private
respondent insists that even after the expiration of ten years from the date of death
of Marcelino on July 5, 1987, i.e., even after July 1997, the subject property
continues to be considered as the family home considering that his minor son,
Marcelino Lorenzo R. Dario IV, who is a beneficiary of the said family home, still
resides in the premises.
On the other hand, petitioner alleges that the subject property remained as a
family home of the surviving heirs of the late Marcelino V. Dario only up to July 5,
1997, which was the 10th year from the date of death of the decedent. Petitioner
argues that the brothers Marcelino Marc and private respondent Marcelino III were
already of age at the time of the death of their father,[8] hence there is no more minor
beneficiary to speak of.
The family home is a sacred symbol of family love and is the repository of
cherished memories that last during ones lifetime.[9] It is the dwelling house where
husband and wife, or by an unmarried head of a family, reside, including the land on
which it is situated.[10] It is constituted jointly by the husband and the wife or by an
unmarried head of a family.[11] The family home is deemed constituted 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.[12]
The law explicitly provides that occupancy of the family home either by the owner
thereof or by any of its beneficiaries must be actual. That which is actual is
something real, or actually existing, as opposed to something merely possible, or to
something which is presumptive or constructive. Actual occupancy, however, need

not be by the owner of the house specifically. Rather, the property may be occupied
by the beneficiaries enumerated in Article 154 of the Family Code, which may
include the in-laws where the family home is constituted jointly by the husband and
wife. But the law definitely excludes maids and overseers. They are not the
beneficiaries contemplated by the Code.[13]
Article 154 of the Family Code enumerates who are the beneficiaries of a family
home: (1) The husband and wife, or an unmarried person who is the head of a family;
and (2) Their parents, ascendants, descendants, brothers and sisters, whether the
relationship be legitimate or illegitimate, who are living in the family home and who
depend upon the head of the family for legal support.
To be a beneficiary of the family home, three requisites must concur: (1) they must
be among the relationships enumerated in Art. 154 of the Family Code; (2) they live
in the family home; and (3) they are dependent for legal support upon the head of
the family.
Moreover, Article 159 of the Family Code provides that 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 10 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.
Article 159 of the Family Code applies in situations where death occurs to persons
who constituted the family home. Dr. Arturo M. Tolentino comments on the effect
of death of one or both spouses or the unmarried head of a family on the continuing
existence of the family home:
Upon the death of the spouses or the unmarried family head who constituted the
family home, or of the spouse who consented to the constitution of his or her
separate property as family home, the property will remain as family home for ten
years or for as long as there is a minor beneficiary living in it. If there is no more
beneficiary left at the time of death, we believe the family home will be dissolved
or cease, because there is no more reason for its existence. If there are
beneficiaries who survive living in the family home, it will continue for ten years,
unless at the expiration of the ten years, there is still a minor beneficiary, in which
case the family home continues until that beneficiary becomes of age.

After these periods lapse, the property may be partitioned by the heirs. May the
heirs who are beneficiaries of the family home keep it intact by not partitioning the
property after the period provided by this article? We believe that although the
heirs will continue in ownership by not partitioning the property, it will cease to
be a family home.[14] (Emphasis supplied)

Prof. Ernesto L. Pineda further explains the import of Art. 159 in this manner:
The family home shall continue to exist despite the death of one or both spouses or
of the unmarried head of the family. Thereafter, the length of its continued existence
is dependent upon whether there is still a minor-beneficiary residing therein. For
as long as there is one beneficiary even if the head of the family or both spouses
are already dead, the family home will continue to exist (Arts. 153, 159). If there
is no minor-beneficiary, it will subsist until 10 years and within this period, the
heirs cannot partition the same except when there are compelling reasons which
will justify the partition. This rule applies regardless of whoever owns the property
or who constituted the family home.[15] (Emphasis supplied)

The rule in Article 159 of the Family Code may thus be expressed in this wise: If
there are beneficiaries who survive and are living in the family home, it will continue
for 10 years, unless at the expiration of 10 years, there is still a minor beneficiary, in
which case the family home continues until that beneficiary becomes of age.
It may be deduced from the view of Dr. Tolentino that as a general rule, the family
home may be preserved for a minimum of 10 years following the death of the
spouses or the unmarried family head who constituted the family home, or of the
spouse who consented to the constitution of his or her separate property as family
home. After 10 years and aminor beneficiary still lives therein, the family home shall
be preserved only until that minor beneficiary reaches the age of majority. The
intention of the law is to safeguard and protect the interests of the minor
beneficiary until he reaches legal age and would now be capable of supporting
himself. However, three requisites must concur before a minor beneficiary is entitled
to the benefits of Art. 159: (1) the relationship enumerated in Art. 154 of the Family
Code; (2) they live in the family home, and (3) they are dependent for legal support
upon the head of the family.
Thus, the issue for resolution now is whether Marcelino Lorenzo R. Dario IV, the
minor son of private respondent, can be considered as a beneficiary under Article
154 of the Family Code.

As to the first requisite, the beneficiaries of the family home are: (1) The
husband and wife, or an unmarried person who is the head of a family; and (2) Their
parents, ascendants, descendants, brothers and sisters, whether the relationship be
legitimate or illegitimate. The term descendants contemplates all descendants of the
person or persons who constituted the family home without distinction; hence, it
must necessarily include the grandchildren and great grandchildren of the spouses
who constitute a family home.Ubi lex non distinguit nec nos distinguire debemos.
Where the law does not distinguish, we should not distinguish. Thus, private
respondents minor son, who is also the grandchild of deceased Marcelino V. Dario
satisfies the first requisite.
As to the second requisite, minor beneficiaries must be actually living in the family
home to avail of the benefits derived from Art. 159. Marcelino Lorenzo R. Dario IV,
also known as Ino, the son of private respondent and grandson of the decedent
Marcelino V. Dario, has been living in the family home since 1994, or within 10
years from the death of the decedent, hence, he satisfies the second requisite.
However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot demand
support from his paternal grandmother if he has parents who are capable of
supporting him.The liability for legal support falls primarily on Marcelino Lorenzo
R. Dario IVs parents, especially his father, herein private respondent who is the head
of his immediate family.The law first imposes the obligation of legal support upon
the shoulders of the parents, especially the father, and only in their default is the
obligation imposed on the grandparents.
Marcelino Lorenzo R. Dario IV is dependent on legal support not from his
grandmother, but from his father. Thus, despite residing in the family home and his
being a descendant of Marcelino V. Dario, Marcelino Lorenzo R. Dario IV cannot
be considered as beneficiary contemplated under Article 154 because he did not
fulfill the third requisite of being dependent on his grandmother for legal support. It
is his father whom he is dependent on legal support, and who must now establish his
own family home separate and distinct from that of his parents, being of legal age.
Legal support, also known as family support, is that which is provided by law,
comprising everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of

the family.[16] Legal support has the following characteristics: (1) It is personal,
based on family ties which bind the obligor and the obligee; (2) It is intransmissible;
(3) It cannot be renounced; (4) It cannot be compromised; (5) It is free from
attachment or execution; (6) It is reciprocal; (7) It is variable in amount.[17]
Professor Pineda is of the view that grandchildren cannot demand support directly
from their grandparents if they have parents (ascendants of nearest degree) who are
capable of supporting them. This is so because we have to follow the order of support
under Art. 199.[18] We agree with this view.
The reasons behind Art. 199 as explained by Pineda and Tolentino: the closer the
relationship of the relatives, the stronger the tie that binds them. Thus, the obligation
to support under Art. 199 which outlines the order of liability for support is imposed
first upon the shoulders of the closer relatives and only in their default is the
obligation moved to the next nearer relatives and so on.
There is no showing that private respondent is without means to support his
son; neither is there any evidence to prove that petitioner, as the paternal
grandmother, was willing to voluntarily provide for her grandsons legal support. On
the contrary, herein petitioner filed for the partition of the property which shows an
intention to dissolve the family home, since there is no more reason for its existence
after the 10-year period ended in 1997.
With this finding, there is no legal impediment to partition the subject
property.
The law does not encourage co-ownerships among individuals as oftentimes it
results in inequitable situations such as in the instant case. Co-owners should be
afforded every available opportunity to divide their co-owned property to prevent
these situations from arising.
As we ruled in Santos v. Santos,[19] no co-owner ought to be compelled to stay in a
co-ownership indefinitely, and may insist on partition on the common property at
any time.An action to demand partition is imprescriptible or cannot be barred by
laches. Each co-owner may demand at any time the partition of the common
property.[20]

Since the parties were unable to agree on a partition, the court a quo should
have ordered a partition by commissioners pursuant to Section 3, Rule 69 of the
Rules of Court.Not more than three competent and disinterested persons should be
appointed as commissioners to make the partition, commanding them to set off to
the plaintiff and to each party in interest such part and proportion of the property as
the court shall direct.
When it is made to appear to the commissioners that the real estate, or a portion
thereof, cannot be divided without great prejudice to the interest of the parties, the
court may order it assigned to one of the parties willing to take the same, provided
he pays to the other parties such sum or sums of money as the commissioners deem
equitable, unless one of the parties interested ask that the property be sold instead of
being so assigned, in which case the court shall order the commissioners to sell the
real estate at public sale, and the commissioners shall sell the same accordingly.[21]
The partition of the subject property should be made in accordance with the rule
embodied in Art. 996 of the Civil Code.[22] Under the law of intestate succession, if
the widow and legitimate children survive, the widow has the same share as that of
each of the children. However, since only one-half of the conjugal property which is
owned by the decedent is to be allocated to the legal and compulsory heirs (the other
half to be given exclusively to the surviving spouse as her conjugal share of the
property), the widow will have the same share as each of her two surviving children.
Hence, the respective shares of the subject property, based on the law on intestate
succession are: (1) Perla Generosa Dario, 4/6; (2) Marcelino Marc G. Dario II, 1/6
and (3) Marcelino G. Dario III, 1/6.
In Vda. de Daffon v. Court of Appeals,[23] we held that an action for partition is at
once an action for declaration of co-ownership and for segregation and conveyance
of a determinate portion of the properties involved. If the court after trial should find
the existence of co-ownership among the parties, the court may and should order the
partition of the properties in the same action.[24]
WHEREFORE, the petition is GRANTED. The Resolution of the Court of
Appeals in CA-G.R. CV No. 80680 dated December 9, 2005, is REVERSED and
SET ASIDE. The case is REMANDED to the Regional Trial Court of Quezon City,
Branch 78, who is directed to conduct a PARTITION BY COMMISSIONERS and
effect the actual physical partition of the subject property, as well as the

improvements that lie therein, in the following manner: Perla G. Dario, 4/6;
Marcelino Marc G. Dario, 1/6 and Marcelino G. Dario III, 1/6. The trial court
is DIRECTED to appoint not more than three (3) competent and disinterested
persons, who should determine the technical metes and bounds of the property and
the proper share appertaining to each heir, including the improvements, in
accordance with Rule 69 of the Rules of Court. When it is made to the
commissioners that the real estate, or a portion thereof, cannot be divided without
great prejudice to the interest of the parties, the court a quo may order it assigned to
one of the parties willing to take the same, provided he pays to the other parties such
sum or sums of money as the commissioners deem equitable, unless one of the
parties interested ask that the property be sold instead of being so assigned, in which
case the court shall order the commissioners to sell the real estate at public sale, and
the commissioners shall sell the same accordingly, and thereafter distribute the
proceeds of the sale appertaining to the just share of each heir. No pronouncement
as to costs.
SO ORDERED.

CONSUELO YNARES-SANTIAGO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.


Associate Justice Associate 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

[1]

Rollo, pp 38-49. Penned by Associate Justice Eugenio S. Labitoria and concurred in by Associate Justices Eliezer
R. de los Santos and Jose C. Reyes, Jr.
[2]
Id. at 59.
[3]
Id. at 77-80. Penned by Judge Percival Mandap Lopez.
[4]
Id. at 80.
[5]
Id. at 88. Penned by Judge Demetrio B. Macapagal, Sr. as Pairing Judge.
[6]
Id. at 44-49.
[7]
Id. at 21.
[8]
Id. at 26.
[9]
A. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. I (1990 ed.), p.
508, citing Code Commission of 1947, pp. 18-19, 20.
[10]
FAMILY CODE, Art. 152.
[11]
Id.
[12]
Id., Art. 153.
[13]
Manacop v. Court of Appeals, 342 Phil. 735, 744 (1997).
[14]
Supra note 9 at 515-516.
[15]
E. Pineda, The Family Code of the Philippines Annotated (1999 ed.), p. 291.
[16]
FAMILY CODE, Art. 194.
[17]
Supra note 9 at 575.
[18]
Supra note 15 at 401. Art. 199 provides that [w]henever two or more persons are obliged to give support, the
liability shall devolve upon the following persons in the order herein provided: (1) The spouse; (2) The descendants
in the nearest degree; (3) The ascendants in the nearest degree; (4) The brothers and sisters.
[19]
396 Phil. 928 (2000).
[20]
Id. at 948.
[21]
RULES OF COURT, Rule 69, Sec. 5.
[22]
Art. 996 states that [i]f the widow or widower and legitimate children or descendants are left, the surviving spouse
has in the succession the same share as that of each of the children.
[23]
436 Phil. 233 (2002).
[24]
Id. at 240-241.

SECOND DIVISION

JOSE E. HONRADO, G.R. No. 166333


Petitioner,

Present:

- versus - PUNO, J., Chairman,


AUSTRIA-MARTINEZ,
CALLEJO, SR.,
COURT OF APPEALS, TINGA, and
HON. ROGELIO M. PIZARRO, CHICO-NAZARIO,* JJ.
in his official capacity as Presiding
Judge of the Regional Trial Court,
Quezon City, Branch 222;
THE CLERK OF COURT OF
THE REGIONAL TRIAL COURT,
as Ex-Officio Sheriff of the RTC of Promulgated:
Quezon City; MR. NERY G. ROY,
in his official capacity as Sheriff IV of November 25, 2005
the RTC of Quezon City; and PREMIUM
AGRO-VET PRODUCTS, INC.,
Respondents.
x-----------------------------------------------------------------------------------------x

DECISION
CALLEJO, SR., J.:

Before this Court is a petition for review of the Decision[1] of the Court of Appeals
(CA) in CA-G.R. SP No. 77488 dated June 30, 2004 dismissing the petition
for certiorari for the nullification of the April 14, 2003

Resolution of the Regional Trial Court (RTC) of Quezon City, Branch 222 in Civil
Case No. Q-97-32965. Also assailed in this petition is the CA Resolution dated
December 2, 2004 denying the motion for reconsideration of the said decision.
On December 11, 1997, Premium Agro-Vet Products, Inc. (Premium) filed
with the RTC of Quezon City a complaint for sum of money against Jose Honrado,
who was doing business under the name and style of J.E. Honrado Enterprises. The
case was docketed as Civil Case No. Q-97-32965. Premium sought to collect the
amount ofP240,765.00 representing the total price of veterinary products purchased
on credit by Honrado from November 18, 1996 until June 30, 1997.
For failure of Honrado, as well as his counsel, to appear at the pre-trial
conference, he was declared in default. Premium was, thus, allowed to present
evidence ex parte.
It turned out that the Spouses Jose and Andrerita Honrado had filed a
petition with the RTC of Calamba City for the judicial constitution of the parcel of
land registered in Honrados name under Transfer Certificate of Title (TCT) No. T143175 located in Calamba, Laguna, and the house thereon, as their family house.
The case was docketed as SP Case No. 489-1998-C. In his petition, Honrado
declared that his creditors were Atty. Domingo Luciano, P & J Agriculture Trading,
Inc., and Mr. Tito Dela Merced, and that the estimated value of the property was
not more than P240,000.00.

On February 23, 1999, the RTC rendered judgment in favor of Premium:


WHEREFORE, premises considered, judgment is hereby rendered in favor of
plaintiff and against defendant directing the latter to pay plaintiff the following:

1) P240,765.00 representing the total overdue account plus interest of 28% per
annum thereon computed from their respective dates of deliveries until the
same shall have been paid in full;

2)

25% of the total amount awarded, plus acceptance fee of P50,000.00 and
additional P1,500.00 for each day of court appearance, as attorneys fees; and

3) Costs of this suit.

SO ORDERED.[2]

Honrado filed a Notice of Appeal. However, on March 20, 2000, the appeal
was dismissed for his failure to file his brief as appellant. Entry of judgment was
made on April 26, 2000.[3] On October 10, 2000, Premium filed a Motion for
Issuance of Writ of Execution.[4] The RTC granted the motion[5] and a writ of
execution was issued on March 29, 2001.[6]

The Sheriff levied on the parcel of land covered by TCT No. T-143175. The
Notice of Levy was annotated at the dorsal portion of the title on April 4,
2001.[7] The Sheriff set the sale of the property at public auction on April 4, 2001.
Honrado was served with a copy of the notice of such sale but he opposed the
same.

On May 17, 2001, the property was sold to Premium, the highest bidder, for
the amount of P650,204.10.[8] On May 23, 2001, the corresponding Certificate of
Sale was issued[9] and annotated at the dorsal portion of the title.[10] Honrado failed
to redeem the property.

In the meantime, the RTC of Calamba City rendered a Decision[11] in SP Case


No. 489-1998-C on April 29, 2002, declaring the property a family home.

On May 3, 2002, Honrado filed a Motion to Declare Properties Exempt from


Execution under Article 155 of the Family Code of the Philippines in Civil Case No.
Q-97-32965. It was alleged therein that the property is exempt from execution
because it is a family home which had been constituted as such before he incurred
his indebtedness with Premium. He also alleged that he and his family had no other
real property except the land which was levied upon and sold on
execution.[12] Premium opposed the motion on the ground that Honrado was
already estopped or barred by laches from claiming the exemption, and that said
claim has been mooted by the lapse of the redemption period for Honrado to
redeem the property. Premium averred that, after the sale at public auction,
Honrado and his family even vacated the property. Honrado re-occupied the
property only in April or May 2002.[13] It further averred that the law does not
automatically exempt a family home from levy or execution and there was no
showing that its present value does not exceed the amount allowed by law under
Article 157 of the Family Code.[14]

On September 18, 2002, the RTC denied said motion on the ground that
Honrado is deemed to have waived the exemption considering that he failed to
object to the sale of the property on execution on May 17, 2001.[15] Honrado did
not assail the said order.

On October 14, 2002, Premium filed a Motion for Issuance of Final Deed
of Conveyance and Writ of Possession[16] asserting that the one-year
redemption period had already lapsed on May 23, 2002, without any
redemption being made by Honrado. The latter opposed the said motion

claiming that the RTC of Calamba, Laguna, had already rendered a decision
declaring the property a family home. Honrado further averred that his family
resided in the house before the Family Code became effective and was entitled
to the exemption under the Code.[17]
On April 14, 2003, the respondent Judge issued an Order[18] granting the
motion of Premium and directing Honrado to: (1) execute a final deed of
conveyance over the subject parcel of land covered by TCT No. T-143175 of the
Registry of Deeds of Calamba, Laguna; and (2) surrender of the subject title, TCT
No. T-143175. The respondent Judge further ordered that after execution of the
deed of conveyance, a writ of possession be issued over the aforesaid property in
favor of the plaintiff and against the defendant or his successors-in-interest who
are in possession of the said premises.

Honrado filed a petition for certiorari with the CA assailing the April 14, 2003
Resolution of the RTC. On June 30, 2004, the CA dismissed the petition. [19] The CA
declared that there was no proof that the public respondents committed grave
abuse of discretion. The CA ruled that the petitioner failed to assert his claim for
exemption at the time of the levy or within a reasonable time thereafter. It held
that once a judgment becomes final and executory, the prevailing party can have it
executed as a matter of right, and the issuance of a writ of execution becomes a
ministerial duty of the court.[20]

On December 2, 2004, the CA denied the motion for reconsideration filed by


Honrado.[21]

In this petition for review, the petitioner alleges that the CA committed
serious errors of law and facts:

5:A IN FINDING AND CONCLUDING THAT ARTICLE 153 OF THE FAMILY CODE FINDS
NO APPLICATION IN THE INSTANT CASE;
5:B IN FINDING AND CONCLUDING THAT HONRADOS FAILURE TO ASSERT HIS
CLAIM FOR EXEMPTION OF HIS FAMILY HOME FROM EXECUTION AT THE TIME OF THE
LEVY OR WITHIN A REASONABLE TIME IS FATAL TO HIS CLAIM;
5:C IN NOT FINDING THAT THE RIGHT TO CLAIM EXEMPTION CANNOT BE WAIVED
BECAUSE IT IS CONTRARY TO LAW AND/OR PUBLIC POLICY.[22]

The petitioner contends that the trial court committed grave abuse of
discretion in disallowing his prayer for exemption of his family home from
execution. The petitioner avers that the ruling of the RTC of Calamba, Laguna,
Branch 35 in SP Case No. 489-1998-C, declaring that the property in question is a
family home, has already become final; hence, it can no longer be disturbed. The
family home cannot be levied upon considering that the debt, which was the basis
of the judgment under execution, was incurred between the period from
November 18, 1996 and June 30, 1997, or after the Family Code had been in effect.
Hence, the family home of the petitioner is exempt from execution under Article
155 of the Family Code.[23]

The petitioner further asserts that he and his family had been occupying the
property as their family home as early as 1992. Under Article 153 of the Family
Code, his house was constituted as a family home in that year. Thus, even if he
failed to contest the levy on his property or move for the lifting thereof, the same
cannot be deemed a waiver of his right to claim the exemption of his family home.
He avers that his right cannot be waived, for it would be contrary to public policy.
He claims that the policy of the State, in conferring such exemption, is to allow a
particular family to occupy, use and enjoy their family home, which must remain
with the person constituting it and his heirs. Moreover, the waiver must be shown
by

overt acts and it cannot be presumed from the mere failure to assert the claim for
exemption within a reasonable time.[24]
The private respondent avers that the petitioner is estopped from claiming
that the property is exempt from execution and from assailing the levy of the
property, the sale thereof at public auction and the September 18, 2002 and April
14, 2003 Orders of the RTC. It points out that the petitioner agreed to the levy and
sale of the property at public auction; he even surrendered the key to the house
and vacated the property after it was purchased by the private respondent at the
public auction. The private respondent averred that the petitioner hoped to get a
higher amount than his debt. The petitioner never adverted to his petition in the
RTC of Calamba, Laguna, for the constitution of the property as a family home. The
petitioner revealed the decision of the RTC in SP Case No. 489-1998-C only on
November 25, 2002 when he opposed the private respondents motion for a final
deed of conveyance. It was only after the RTC of Calamba, Laguna, rendered its
decision that the petitioner re-occupied the property and claimed, for the first
time, that the property is a family home and exempt from execution. By then, the
period for the petitioner to redeem the property had long lapsed.
The petition has no merit.
In dismissing Honrados petition, the CA declared that:
Article 153 of the Family Code provides that the family home is deemed
constituted on a house and lot from the time it is occupied as the family residence. From
the time of its constitution and so long as 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. A family home is a real right, which is gratuitous, inalienable and free from
attachment, constituted over the dwelling place and the land on which it is situated,
which confers upon a particular family the right to enjoy such properties, which must
remain with the person constituting it and his heirs. It cannot be seized by creditors
except in certain special cases. Such provision finds no application in this case.

Although the Rules of Court does not prescribe the period within which to claim
the exemption, the rule is, nevertheless, well-settled that the right of exemption must be
claimed by the debtor himself at the time of levy or within a reasonable period thereafter.
It is self-evident that petitioner did not assert their claim of exemption within a
reasonable time. Any claim for exemption from execution of properties under Section 12
of Rule 39 of the Rules of Court must be presented before its sale on execution by the
sheriff. Petitioner and his wife failed to disclose in their petition for the judicial
constitution of a family home that Premium Agro-Vet Products, Inc. is one of their
creditors considering the fact that the collection case filed against Honrado was filed
in 1997 or prior to the institution of said petition in 1998. Petitioner never raised the
argument of exemption of his family home before the trial court before and during the
auction sale. We find that such actions reveal a dilatory intent to render nugatory the sale
on execution and defeat the very purpose of execution to put an end to litigation.
Petitioner previously failed to appear in the pre-trial conference, failed to submit his
appellants brief and now conveniently raised the issue of exemption almost a year from
the auction sale.

We find no proof of grave abuse of discretion [on] the part of public respondents.
Once a judgment becomes final and executory, the prevailing party can have it executed
as a matter of right, and the issuance of a Writ of Execution becomes a ministerial duty of
the court. It is well-settled that the sheriffs duty in the execution of a writ issued by a
court is purely ministerial. The function of ordering the execution of a judgment, being
judicial, devolves upon the judge.[25]

The ruling of the appellate court is correct. The respondent court, tribunal or
administrative agency acts without jurisdiction if it does not have the legal power
to determine the case. There is excess of jurisdiction where the respondent, being
clothed with the power to determine the case, oversteps its authority as
determined by law. There is grave abuse of discretion where the public respondent
acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of its
judgment as to be said to be equivalent to lack of jurisdiction. Mere abuse of
discretion is not enough.[26]

Moreover, in a petition for certiorari, the jurisdiction of the court is narrow


in scope. It is limited to resolving only cases of jurisdiction.[27] A writ of certiorari is

an equitable remedy and he who comes to court for equity must do so with clean
hands.

In this case, the RTC acted in accord with case law when it issued the assailed
order. The petitioner admits to having been notified of the levy of his property and
of its sale at public auction at 9:30 a.m. on May 17, 2001 at the Municipal Hall of
Calamba, Laguna. However, he did not bother to object to the levy and the
projected sale on the ground that the property and the house thereon was a family
home. The petitioner allowed the sale at public auction to proceed and the Sheriff
to execute a certificate of sale over the property in favor of the private respondent
for P650,204.10. He even vacated the property after the said sale. The petitioner
remained silent and failed to seek relief from the Sheriff or the court until May 3,
2002, when he filed his motion to declare the property exempt from execution
under Article 155 of the Family Code and Section 13, Rule 39 of the Rules on Civil
Procedure. Even then, there was no showing that, during the hearing of said
motion, the petitioner adduced evidence to prove the value of the property and
that it is, indeed, a family home.

Moreover, the petitioner set the hearing of his motion on May 10, 2002 at
8:30 a.m. The private respondent opposed the motion, but the petitioner did not
file any reply thereto. Moreover, the petitioner never informed the Court that the
RTC of Calamba, Laguna, had rendered judgment in SP Case No. 489-1998-C earlier
on April 29, 2002. It was only on November 25, 2002 that the petitioner revealed
to the RTC of Quezon City that there was such a case and a decision had already
been rendered. The petitioner has not justified why he concealed such matters for
such considerable period of time.

While it is true that the family home is constituted on a house and lot from
the time it is occupied as a family residence and is exempt from execution or forced
sale under Article 153 of the Family Code, such claim for exemption should be set

up and proved to the Sheriff before the sale of the property at public auction.
Failure to do so would estop the party from later claiming the exemption. As this
Court ruled in Gomez v. Gealone:[28]
Although the Rules of Court does not prescribe the period within which to claim
the exemption, the rule is, nevertheless, well-settled that the right of exemption is a
personal privilege granted to the judgment debtor and as such, it must be claimed not by
the sheriff, but by the debtor himself at the time of the levy or within a reasonable period
thereafter;

In the absence of express provision it has variously held that claim (for
exemption) must be made at the time of the levy if the debtor is present, that
it must be made within a reasonable time, or promptly, or before the creditor
has taken any step involving further costs, or before advertisement of sale, or
at any time before sale, or within a reasonable time before the sale, or before
the sale has commenced, but as to the last there is contrary authority.

In the light of the facts above summarized, it is self-evident that appellants did
not assert their claim of exemption within a reasonable time. Certainly, reasonable time,
for purposes of the law on exemption, does not mean a time after the expiration of the
one-year period provided for in Section 30 of Rule 39 of the Rules of Court for judgment
debtors to redeem the property sold on execution, otherwise it would render nugatory
final bills of sale on execution and defeat the very purpose of executionto put an end to
litigation. We said before, and We repeat it now, that litigation must end and terminate
sometime and somewhere, and it is essential to an effective administration of justice that,
once a judgment has become final, the winning party be not, through a mere subterfuge,
deprived of the fruits of the verdict. We now rule that claims for exemption from
execution of properties under Section 12 of Rule 39 of the Rules of Court must be presented
before its sale on execution by the sheriff.[29]

IN VIEW OF ALL THE FOREGOING, the petition is DENIED. Costs against the
petitioner.

SO ORDERED.
ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairman

MA. ALICIA AUSTRIA-MARTINEZ DANTE O. TINGA


Associate Justice Associate Justice

On leave
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

On leave.
Penned by Associate Justice Eliezer R. de los Santos, with Associate Justices Ruben T. Reyes and Arturo D. Brion
concurring; Rollo, pp. 32-38.
[2]
Rollo, p. 42.
[3]
Id. at 46.
[4]
Id. at 43.
[5]
Id. at 47.
[6]
Id. at 49-50.
[7]
Id. at 56.
[8]
Rollo, pp. 53-54.
[9]
Ibid.
[10]
Id. at 56.
[11]
Id. at 86-88.
[12]
Id. at 57-58.
[13]
Id. at 60-68.
[14]
Rollo, p. 64.
[15]
Id. at 69.
[16]
Id. at 70-73.
[17]
Id. at 82-85.
[18]
Id. at 89.
[19]
Rollo, p. 38.
[20]
Id. at 37-38.
[21]
Id. at 40.
[22]
Id. at 18.
[23]
Rollo, pp. 19-20.
[1]

[24]

Rollo, pp. 21-23.


Rollo, pp. 37-38.
[26]
People v. Court of Appeals, G.R. No. 144332, 10 June 2004, 431 SCRA 610.
[27]
Id. at 617.
[28]
G.R. No. 58281, 13 November 1991, 203 SCRA 474.
[29]
Gomez v. Gealone, supra. (Emphasis supplied)
[25]

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.7This prompted respondent to file with the
RTC an Urgent Manifestation and Motion for Contempt of Court,8praying 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 coowner 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 proprioby 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 extra-judicially
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.

G.R. No. 180587

March 20, 2009

SIMEON CABANG, VIRGINIA CABANG and VENANCIO CABANG ALIAS


"DONDON", Petitioners,
vs.
MR. & MRS. GUILLERMO BASAY, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul and set aside
the Decision of the Court of Appeals in CA-G.R. CV No. 767551 dated May 31, 20072 which reversed
the Order3 of the Regional Trial Court of Molave, Zamboanga Del Sur, Branch 23 in Civil Case No.
99-20-127 which denied respondents motion for execution on the ground that petitioners family
home was still subsisting. Also assailed is the Resolution dated September 21, 2007 denying the
motion for reconsideration.
The facts as summarized by the appellate court:
Deceased Felix Odong was the registered owner of Lot No. 7777, Ts- 222 located in Molave,
Zamboanga del Sur. Said lot was covered by Original Certificate of Title No. 0-2,768 pursuant to
Decree No. N-64 and issued on March 9, 1966. However, Felix Odong and his heirs never occupied
nor took possession of the lot.
On June 16, 1987, plaintiff-appellants bought said real property from the heirs of Felix Odong for
P8,000.00. Consequently, OCT No. 0-2,768 was cancelled and in its stead, Transfer Certificate of
Title No. T-22,048 was issued on August 6, 1987 in the name of plaintiff-appellants. The latter also
did not occupy the said property.
Defendant-appellees, on the other hand, had been in continuous, open, peaceful and adverse
possession of the same parcel of land since 1956 up to the present. They were the awardees in the
cadastral proceedings of Lot No. 7778 of the Molave Townsite, Ts-222. During the said cadastral
proceedings, defendant-appellees claimed Lot No. 7778 on the belief that the area they were
actually occupying was Lot No. 7778. As it turned out, however, when the Municipality of Molave
relocated the townsite lots in the area in 1992 as a big portion of Lot No. 7778 was used by the
government as a public road and as there were many discrepancies in the areas occupied, it was
then discovered that defendant-appellees were actually occupying Lot No. 7777.
On June 23, 1992, plaintiff-appellants filed a Complaint docketed as Civil Case No. 92-20-127 for
Recovery of Property against defendant-appellees.
On July 19, 1996, the trial court rendered its decision, the dispositive portion of which reads, thus:
WHEREFORE, judgment is hereby rendered in favor of the defendants and against the plaintiff
1. Holding that the rights of the plaintiffs to recover the land registered in their names, have
been effectively barred by laches; and
2. Ordering the dismissal of the above-entitled case.

No pronouncement as to cost.
SO ORDERED.
Aggrieved, plaintiff-appellants filed an appeal before the Court of Appeals assailing the abovedecision. Said appeal was docketed as CA-G.R. CV No. 55207.
On December 23, 1998, the Court of Appeals, through the then Second Division, rendered a
Decision reversing the assailed decision and decreed as follows:
WHEREFORE, the judgment herein appealed from is hereby REVERSED, and judgment is hereby
rendered declaring the plaintiffs-appellants to be entitled to the possession of Lot No. 7777 of the
Molave Townsite, subject to the rights of the defendants-appellees under Article (sic) 448, 546, 547
and 548 of the New Civil Code.
The records of this case are hereby ordered remanded to the court of origin for further proceedings
to determine the rights of the defendants-appellees under the aforesaid article (sic) of the New Civil
Code, and to render judgment thereon in accordance with the evidence and this decision.
No pronouncement as to costs.
SO ORDERED.
Defendant-appellees thereafter filed a petition for review on certiorari under Rule 45 of the Rules of
Court before the Supreme Court docketed as G.R. No. 139601. On October 18, 1999, the Supreme
Court issued a Resolution denying the petition for late filing and lack of appropriate service.
Subsequently, or on February 15, 2000, the Supreme Court Resolution had become final and
executory.
Consequently, the case was remanded to the court a quo and the latter commissioned the Municipal
Assessor of Molave, Zamboanga del Sur to determine the value of the improvements introduced by
the defendant-appellees.
The Commissioners Report determined that at the time of ocular inspection, there were three (3)
residential buildings constructed on the property in litigation. During the ocular inspection, plaintiffappellants son, Gil Basay, defendant-appellee Virginia Cabang, and one Bernardo Mendez, an
occupant of the lot, were present. In the report, the following appraised value of the improvements
were determined, thus:
lawphil.net

Owner

Lot No. Area (sq.m.) Improvement

Virginia Cabang

7777

32.55

Building

P21,580.65

Jovencio Capuno 7777

15.75

Building

18,663.75

Amelito Mata

14.00

Building

5,658.10

Toilet

1,500.00

Plants & Trees

2,164.00

7777

Appraised Value

TOTAL

P49,566.50

Thereafter, upon verbal request of defendant-appellees, the court a quo in its Order declared that
the tie point of the survey should be the BLLM (Bureau of Lands Location Monument) and
authorized the official surveyor of the Bureau of Lands to conduct the survey of the litigated property.
Pursuant to the above Order, the Community Environment and Natural Resources Office (CENRO)
of the Department of Environment and Natural Resources (DENR)-Region XI designated Geodetic
Engineer Diosdado L. de Guzman to [act] as the official surveyor. On March 2002, Engr. De
Guzman submitted his survey report which stated, inter alia:
1. That on September 18, 2001, the undersigned had conducted verification survey of Lot
7777, Ts-222 and the adjacent lots for reference purposes-with both parties present on the
survey;
2. That the survey was started from BLLM #34, as directed by the Order, taking sideshots of
lot corners, existing concrete fence, road and going back to BLLM #34, a point of reference;
3. Considering that there was only one BLLM existing on the ground, the undersigned
conducted astronomical observation on December 27, 2001 in order to check the carried
Azimuth of the traverse;
4. That per result of the survey conducted, it was found out and ascertained that the area
occupied by Mrs. Virginia Cabang is a portion of Lot 7777, with lot assignment to be known
as Lot 7777-A with an area of 303 square meters and portion of Lot 7778 with lot assignment
to be known as Lot 7778-A with an area of 76 square meters. On the same lot, portion of
which is also occupied by Mr. Bernardo Mendez with lot assignment to be known as Lot
7777-B with an area of 236 square meters and Lot 7778-B with an area of 243 square
meters as shown on the attached sketch for ready reference;
5. That there were three (3) houses made of light material erected inside Lot No. 7777-A,
which is owned by Mrs. Virginia Cabang and also a concrete house erected both on portion
of Lot No. 7777-B and Lot No. 7778-B, which is owned by Mr. Bernardo Mendez. x x x;
6. That the existing road had been traversing on a portion of Lot 7778 to be know (sic) as Lot
7778-CA-G.R. SP No. with an area of 116 square meters as shown on attached sketch plan.
During the hearing on May 10, 2002, plaintiff-appellants offer to pay P21,000.00 for the
improvement of the lot in question was rejected by defendant-appellees. The court a quo disclosed
its difficulty in resolving whether or not the houses may be subject of an order of execution it being a
family home.
On June 18, 2002, plaintiff-appellants filed their Manifestation and Motion for Execution alleging
therein that defendant-appellees refused to accept payment of the improvements as determined by
the court appointed Commissioner, thus, they should now be ordered to remove said improvements
at their expense or if they refused, an Order of Demolition be issued.
On September 6, 2002, the court a quo issued the herein assailed Order denying the motion for
execution.4

Respondents thereafter elevated their cause to the appellate court which reversed the trial court in
its May 31, 2007 Decision in CA-G.R. CV No. 76755. Petitioners Motion for Reconsideration was
denied by the Court of Appeals in its Resolution5 dated September 21, 2007.
Hence, this petition.
Petitioners insist that the property subject of the controversy is a duly constituted family home which
is not subject to execution, thus, they argue that the appellate tribunal erred in reversing the
judgment of the trial court.
The petition lacks merit.
It bears stressing that the purpose for which the records of the case were remanded to the court of
origin was for the enforcement of the appellate courts final and executory judgment6 in CA-G.R. CV
No. 55207 which, among others, declared herein respondents entitled to the possession of Lot No.
7777 of the Molave Townsite subject to the provisions of Articles 448,7 546,8 5479 an 54810 of the
Civil Code. Indeed, the decision explicitly decreed that the remand of the records of the case was for
the court of origin "[t]o determine the rights of the defendants-appellees under the aforesaid article[s]
of the New Civil Code, and to render judgment thereon in accordance with the evidence and this
decision."
A final and executory judgment may no longer be modified in any respect, even if the modification is
meant to correct erroneous conclusions of fact or law and whether it will be made by the court that
rendered it or by the highest court in the land.11 The only exceptions to this rule are the correction of
(1) clerical errors; (2) the so-called nunc pro tunc entries which cause no prejudice to any party, and
(3) void judgments.12
Well-settled is the rule that there can be no execution until and unless the judgment has become
final and executory, i.e. the period of appeal has lapsed without an appeal having been taken, or,
having been taken, the appeal has been resolved and the records of the case have been returned to
the court of origin, in which event, execution shall issue as a matter of right.13 In short, once a
judgment becomes final, the winning party is entitled to a writ of execution and the issuance thereof
becomes a courts ministerial duty.14
Furthermore, as a matter of settled legal principle, a writ of execution must adhere to every essential
particulars of the judgment sought to be executed.15 An order of execution may not vary or go
beyond the terns of the judgment it seeks to enforce.16 A writ of execution must conform to the
judgment and if it is different from, goes beyond or varies the tenor of the judgment which gives it
life, it is a nullity.17 Otherwise stated, when the order of execution and the corresponding writ issued
pursuant thereto is not in harmony with and exceeds the judgment which gives it life, they have pro
tanto no validity18 to maintain otherwise would be to ignore the constitutional provision against
depriving a person of his property without due process of law.19
As aptly pointed out by the appellate court, from the inception of Civil Case No. 99-20-127, it was
already of judicial notice that the improvements introduced by petitioners on the litigated property are
residential houses not family homes. Belatedly interposing such an extraneous issue at such a late
stage of the proceeding is tantamount to interfering with and varying the terms of the final and
executory judgment and a violation of respondents right to due process because
As a general rule, points of law, theories and issues not brought to the attention of the trial court
cannot be raised for the first time on appeal. For a contrary rule would be unfair to the adverse party

who would have no opportunity to present further evidence material to the new theory, which it could
have done had it been aware of if at the time of the hearing before the trial court.20
lawphil.net

The refusal, therefore, of the trial court to enforce the execution on the ground that the
improvements introduced on the litigated property are family homes goes beyond the pale of what it
had been expressly tasked to do, i.e. its ministerial duty of executing the judgment in accordance
with its essential particulars. The foregoing factual, legal and jurisprudential scenario reduces the
raising of the issue of whether or not the improvements introduced by petitioners are family homes
into a mere afterthought.
Even squarely addressing the issue of whether or not the improvements introduced by petitioners on
the subject land are family homes will not extricate them from their predicament.
As defined, "[T]he family home is a sacred symbol of family love and is the repository of cherished
memories that last during ones lifetime.21 It is the dwelling house where the husband and wife, or an
unmarried head of a family reside, including the land on which it is situated.22 It is constituted jointly
by the husband and the wife or by an unmarried head of a family."23 Article 153 of the Family Code
provides that
The family home is deemed constituted 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.
The actual value of the family home shall not exceed, at the time of its constitution, the amount of
P300,000.00 in urban areas and P200,000.00 in rural areas.24 Under the afore-quoted provision, a
family home is deemed constituted on a house and a lot from the time it is occupied as a family
residence. There is no need to constitute the same judicially or extra-judicially.25
There can be no question that a family home is generally exempt from execution,26 provided it was
duly constituted as such. It is likewise a given that the family home must be constituted on property
owned by the persons constituting it. Indeed as pointed out in Kelley, Jr. v. Planters Products,
Inc.27 "[T]he family home must be part of the properties of the absolute community or the conjugal
partnership, or of the exclusive properties of either spouse with the latters consent, or on the
property of the unmarried head of the family."28 In other words:
The family home must be established on the properties of (a) the absolute community, or (b) the
conjugal partnership, or (c) the exclusive property of either spouse with the consent of the other. It
cannot be established on property held in co-ownership with third persons. However, it can be
established partly on community property, or conjugal property and partly on the exclusive property
of either spouse with the consent of the latter.
1avvphi 1

If constituted by an unmarried head of a family, where there is no communal or conjugal property


existing, it can be constituted only on his or her own property.29 (Emphasis and italics supplied)
Therein lies the fatal flaw in the postulate of petitioners. For all their arguments to the contrary, the
stark and immutable fact is that the property on which their alleged family home stands is owned by
respondents and the question of ownership had been long laid to rest with the finality of the
appellate courts judgment in CA-G.R. CV No. 55207. Thus, petitioners continued stay on the
subject land is only by mere tolerance of respondents.

All told, it is too late in the day for petitioners to raise this issue. Without doubt, the instant case
where the family home issue has been vigorously pursued by petitioners is but a clear-cut ploy
meant to forestall the enforcement of an otherwise final and executory decision. The execution of a
final judgment is a matter of right on the part of the prevailing party whose implementation is
mandatory and ministerial on the court or tribunal issuing the judgment.30
The most important phase of any proceeding is the execution of judgment.31 Once a judgment
becomes final, the prevailing party should not, through some clever maneuvers devised by an
unsporting loser, be deprived of the fruits of the verdict.32 An unjustified delay in the enforcement of a
judgment sets at naught the role of courts in disposing of justiciable controversies with
finality.33 Furthermore, a judgment if not executed would just be an empty victory for the prevailing
party because execution is the fruit and end of the suit and very aptly called the life of the law.34
The issue is moreover factual and, to repeat that trite refrain, the Supreme Court is not a trier of
facts. It is not the function of the Court to review, examine and evaluate or weigh the probative value
of the evidence presented. A question of fact would arise in such event. Questions of fact cannot be
raised in an appeal via certiorari before the Supreme Court and are not proper for its
consideration.35 The rationale behind this doctrine is that a review of the findings of fact of the
appellate tribunal is not a function this Court normally undertakes. The Court will not weigh the
evidence all over again unless there is a showing that the findings of the lower court are totally
devoid of support or are clearly erroneous so as to constitute serious abuse of discretion.36 Although
there are recognized exceptions37 to this rule, none exists in this case to justify a departure
therefrom.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated May 31, 2007 in
CA-G.R. CV No. 76755 declaring respondents entitled to the writ of execution and ordering
petitioners to vacate the subject property, as well as the Resolution dated September 21, 2007
denying the motion for reconsideration, are AFFIRMED. Costs against petitioners.
SO ORDERED.

G.R. No. 131286

March 18, 2004

JOSE LAM, petitioner,


vs.
ADRIANA CHUA, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for review on certiorari assailing the Decision1 dated June 11, 1997 and
the Resolution dated October 27, 1997 of the Court of Appeals in CA-G.R. CV. No. 51107, entitled,
"Adriana Chua, Petitioner-Appellee vs. Jose Lam, Respondent-Appellant."

The case commenced on March 11, 1994 upon the filing of a petition for declaration of nullity of
marriage by Adriana Chua against Jose Lam in the Regional Trial Court of Pasay City (Branch 109).
Adriana alleged in the petition that: she and Jose were married on January 13, 1984; out of said
marriage, they begot one son, John Paul Chua Lam; Jose was psychologically incapacitated to
comply with the essential marital obligations of marriage but said incapacity was not then apparent;
such psychological incapacity of Jose became manifest only after the celebration of the marriage
when he frequently failed to go home, indulged in womanizing and irresponsible activities, such as,
mismanaging the conjugal partnership of gains; in order to save what was left of the conjugal
properties, she was forced to agree with Jose on the dissolution of their conjugal partnership of
gains and the separation of present and future properties; said agreement was approved by the
Regional Trial Court of Makati City (Branch 149) in a Decision dated February 28, 1994; they had
long been separated in bed and board; they have agreed that the custody of their child will be with
her, subject to visitation rights of Jose. Adriana prayed that the marriage between her and Jose be
declared null and void but she failed to claim and pray for the support of their child, John Paul.
Summons was duly served on Jose Lam on March 22, 1994. Despite the lapse of fifteen days after
service of summons, no responsive pleading was filed by him. Hence, the trial court issued an Order
dated April 13, 1994, directing Asst. City Prosecutor Bonifacio Barrera to conduct an investigation for
determination whether or not there was collusion between the parties and to submit his report
thereon. On April 28, 1994, Asst. City Prosecutor Barrera filed his Report stating that "there seems
to be no collusion between the parties".2
The trial court then set the case for hearing. The lone witness was Adriana herself. She testified that
her marriage with Jose was arranged by her parents in the traditional Chinese way; that her married
life was abnormal because Jose very seldom came home, never worked for a living and instead kept
asking for money from her to buy his sports cars; that she was also the one spending for all the
expenses of their only child, John Paul.3 After her testimony, counsel for Adriana formally offered the
documentary evidence. No evidence was presented regarding the amount of support needed by
John Paul or the capacity of Jose to give support.
On June 23, 1994, Adriana filed an Urgent Motion to Re-Open4 on the ground that she was able to
secure additional new evidence which were significant, material and indispensable. On July 6, 1994,
the trial court granted the motion to re-open the case and held a hearing for the reception of
additional evidence. The Pasay RTC admitted into evidence the Marriage Contract dated May 25,
1977 between Jose and one Celia Santiago, and another Marriage Contract dated May 6, 1982
between Jose and one Evan Lock,5 showing that Jose had been married twice before he married
Adriana in 1984.
On August 4, 1994, the Pasay RTC rendered its Decision6 the dispositive portion of which reads as
follows:
IN VIEW OF ALL THE FOREGOING, the Court hereby declares the marriage between petitioner
Adriana Chua and respondent Jose Lam null and void for being bigamous by nature. The Local Civil
Registrar of Quezon City and the Office of the Civil Registrar General are hereby ordered to cancel
the marriage between Adriana Chua and Jose Lam celebrated on January 13, 1984 by Hon.
Guillermo L. Loja of the Metropolitan Trial Court, Quezon City.
Likewise, respondent Jose Lam is hereby ordered to give a monthly support to his son John Paul
Chua Lam in the amount of P20,000.00.
SO ORDERED.7

On November 3, 1994, Jose filed a Motion for Reconsideration8 thereof but only insofar as the
decision awarded monthly support to his son in the amount of P20,000.00. He argued that there was
already a provision for support of the child as embodied in the decision9 dated February 28, 1994 of
the Makati RTC wherein he and Adriana agreed to contribute P250,000.00 each to a common fund
for the benefit of the child, to wit:
8. Nothing herein shall diminish the rights and obligations of both parties with respect to their son. In
the best interest of the child, the Second Party shall retain care and custody, subject to visitation
rights by the First Party to be exercised through mutual arrangements.
9. It is hereby agreed by the First Party and the Second Party that the First Party and the Second
Party shall initially contribute P250,000.00 each to a common fund, to be increased as required, to
be used solely and exclusively for the benefit of their son. Said common fund shall be managed and
administered by the Second Party, subject to periodic accounting, until the son reaches majority
age.10
Jose further alleged in his motion that his contribution to the common fund had even amounted
to P500,000.00.
On August 22, 1995, the Pasay RTC issued an Order denying Jose Lams motion for
reconsideration ruling that the compromise agreement entered into by the parties and approved by
the Makati RTC before the marriage was declared null and void ab initio by the Pasay RTC, is of no
moment and cannot limit and/or affect the support ordered by the latter court.
Jose then appealed the Pasay RTCs decision to the Court of Appeals, assigning only a single error
of the trial court:
THE LOWER COURT SERIOUSLY ERRED IN ORDERING APPELLANT TO GIVE A MONTHLY
SUPPORT OFP20,000.00 TO HIS SON BECAUSE THIS WOULD, IN EFFECT, REQUIRE
APPELLANT TO PAY TWICE THE MONTHLY SUPPORT FOR HIS CHILD. BESIDES, THE
LOWER COURT HAS DULY ADMITTED THE FACT THAT THERE WAS A DECISION ISSUED BY
ANOTHER COURT REQUIRING APPELLANT TO CONTRIBUTE THE AMOUNT OF P250,000.00
AS THE LATTERS SHARE IN THE COMMON FUND FOR SUPPORT OF THE CHILD, SUBJECT
TO PERIODIC ACCOUNTING AND TO BE MANAGED BY APPELLEE.11
On June 11, 1997, the Court of Appeals promulgated its decision affirming the Pasay RTCs decision
in all respects. Jose filed a motion for reconsideration of the Decision but in a Resolution dated
October 27, 1997, the Court of Appeals denied the same.
Hence, Jose filed the present petition for review on certiorari under Rule 45 of the Rules of Court,
likewise raising a single error of the appellate court, to wit:
THE HONORABLE COURT OF APPEALS ERRED IN DECIDING LEGAL QUESTIONS OF
SUBSTANCE NOT IN ACCORDANCE WITH LAW AND JURISPRUDENCE IN FINDING THAT THE
TRIAL COURTS RULING THAT THE COMPROMISE AGREEMENT BETWEEN PETITIONER AND
RESPONDENT WHERE THEY BOUND THEMSELVES TO CONTRIBUTE THE AMOUNT OF TWO
HUNDRED FIFTY THOUSAND PESOS (P250,000.00) TO A COMMON FUND FOR THE BENEFIT
OF THEIR CHILD DOES NOT BAR THE TRIAL COURT IN ANNULMENT CASE TO AGAIN
AWARD SUPPORT IN FAVOR OF THE CHILD.
The Pasay RTC and the Court of Appeals are both correct insofar as they ruled that the amount of
support is by no means permanent. In Advincula vs. Advincula,12 we held that another action for

support could be filed again by the same plaintiff notwithstanding the fact that the previous case for
support filed against the same defendant was dismissed. We further held in said case that:
. . . Judgment for support does not become final. The right to support is of such nature that its
allowance is essentially provisional; for during the entire period that a needy party is entitled to
support, his or her alimony may be modified or altered, in accordance with his increased or
decreased needs, and with the means of the giver. It cannot be regarded as subject to final
determination.13
Thus, there is no merit to the claim of Jose that the compromise agreement between him and
Adriana, as approved by the Makati RTC and embodied in its decision dated February 28, 1994 in
the case for voluntary dissolution of conjugal partnership of gains, is a bar to any further award of
support in favor of their child John Paul. The provision for a common fund for the benefit of their child
John Paul, as embodied in the compromise agreement between herein parties which had been
approved by the Makati RTC, cannot be considered final andres judicata since any judgment for
support is always subject to modification, depending upon the needs of the child and the capabilities
of the parents to give support.
Having settled the issue on the authority of the trial court to award support for the child in an action
for declaration of nullity of marriage of the childs parents, this Court will now discuss the propriety of
the proceedings conducted by the Pasay RTC and the decision it rendered, as affirmed by the Court
of Appeals.
The Court notes four circumstances that taint the regularity of the proceedings and the decision
rendered by the trial court.
First, the only ground alleged in the petition for declaration of nullity of marriage filed by Adriana with
the Pasay RTC is the psychological incapacity of Jose without any prayer for the support of her
child. Adriana presented, formally offered her evidence in support of the petition and submitted the
case for decision as of May 12, 1994.14But on a motion to re-open filed by her on June 23, 1994, the
trial court set the case for reception of evidence on July 6, 1994 and subsequently allowed Adriana
to present evidence of two previous marriages contracted by Jose with other women to prove that
the marriage between Adriana and Jose was null and void for being bigamous. It is only at the July
6, 1994 hearing that respondent Adriana first claimed support for John Paul when she testified in
open court.
The petition of Adriana was, in effect, substantially changed by the admission of the additional
evidence. The ground relied on for nullity of the marriage was changed from the psychological
incapacity of Jose to that of existence of previous marriages of Jose with two different women with
an additional claim for support of the child. Such substantial changes were not reflected in the
petition filed with the trial court, as no formal amendment was ever made by Adriana except the
insertion of the handwritten phrase "And for respondent to support the child of petitioner in an
amount this Honorable Court may deem just and reasonable"15 found at the ultimate paragraph of
the petition, as allowed by the Pasay RTC. There is nothing on record to show that petitioner Jose
was notified of the substantial changes in the petition of Adriana.
Second, the Pasay RTC did not give Jose an opportunity to be present on July 6, 1994 for the
presentation of evidence by Adriana and to refute the same. Although copy of the motion filed on
June 23, 1994 with a notice of hearing on June 27, 1994 was sent to Jose, the record does not show
that he received the notice in due time; neither does the record show that he was notified of the
subsequent hearing held on July 6, 1994 where Adriana presented the marriage certificates and
claimed for the support of their child sans the presence of Jose.

Third, the records do not show that petitioner was sent a copy of the Order dated July 6, 1994
wherein the trial court granted the Urgent Motion to Re-Open of respondent Adriana and forthwith
allowed her to present her evidence to prove that petitioner herein contracted previous marriages
with different women.
Fourth, the evidence presented by respondent regarding her claim for support for John Paul is
glaringly insufficient and cannot be made a valid basis upon which the Pasay RTC could have
determined the monthly amount of P20,000.00 for the support to be given to John Paul by petitioner
Jose.
A party who has been declared in default is entitled to service of substantially amended or
supplemental pleadings.16 Considering that in cases of declaration of nullity of marriage or
annulment of marriage, there can be no default pursuant to Section 6, Rule 18 of the Revised Rules
of Court17 in relation to Article 48 of the Family Code,18 it is with more reason that petitioner should
likewise be entitled to notice of all proceedings.
Furthermore, the lower courts are reminded of the ruling of the Court in Asian Transmission
Corporation vs. Canlubang Sugar Estates,19 to wit:
It is also a general principle of law that a court cannot set itself in motion, nor has it power to decide
questions except as presented by the parties in their pleadings. Anything that is decided beyond
them is coram non-judice and void. Therefore where a court enters a judgment or awards relief
beyond the prayer of the complaint or the scope of its allegations the excessive relief is not
merely irregular but is void for want of jurisdiction, and is open to collateral attack.
The appellate court also ruled that a judgment of a court upon a subject within its general
jurisdiction, but which is not brought before it by any statement or claim of the parties, and is foreign
to the issues submitted for its determination, is a nullity. (Emphasis supplied)
Pursuant to the foregoing principle, it is a serious error for the trial court to have rendered judgment
on issues not presented in the pleadings as it was beyond its jurisdiction to do so. The amendment
of the petition to reflect the new issues and claims against Jose was, therefore, indispensable so as
to authorize the court to act on the issue of whether the marriage of Jose and Adriana was bigamous
and the determination of the amount that should have been awarded for the support of John Paul.
When the trial court rendered judgment beyond the allegations contained in the copy of the petition
served upon Jose, the Pasay RTC had acted in excess of its jurisdiction and deprived petitioner Lam
of due process.
Insofar as the declaration of nullity of the marriage between Adriana and Jose for being bigamous is
concerned, the decision rendered by the Pasay RTC could be declared as invalid for having been
issued beyond its jurisdiction. Nonetheless, considering that Jose, did not assail the declaration of
nullity of his marriage with Adriana in his motion for reconsideration which he filed with the Pasay
RTC. In the petitions he filed in the Court of Appeals and with us, he likewise did not raise the issue
of jurisdiction of the Pasay RTC to receive evidence and render judgment on his previous marriages
with other woman which were not alleged in the petition filed by Adriana. Petitioner Jose is estopped
from questioning the declaration of nullity of his marriage with Adriana and therefore, the Court will
not undo the judgment of the Pasay RTC declaring the marriage of Adriana and Jose null and void
for being bigamous. It is an axiomatic rule that while a jurisdictional question may be raised at any
time, this, however, admits of an exception where estoppel has supervened.20
Consequently, the Court will only resolve the lone issue raised by Jose in the present petition for
review on certiorari which is the award of support for his child, John Paul.

The Pasay RTC should have been aware that in determining the amount of support to be awarded,
such amount should be in proportion to the resources or means of the giver and the necessities of
the recipient, pursuant to Articles 194, 201 and 202 of the Family Code, to wit:
Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the preceding paragraph shall
include his schooling or training for some profession, trade or vocation, even beyond the age of
majority. Transportation shall include expenses in going to and from school, or to and from place of
work.
Art. 201. The amount of support, in the cases referred to in Articles 19521 and 196,22 shall be in
proportion to the resources or means of the giver and to the necessities of the recipient.
Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased
proportionately, according to the reduction or increase of the necessities of the recipient and the
resources or means of the person obliged to furnish the same.
It is incumbent upon the trial court to base its award of support on the evidence presented before it.
The evidence must prove the capacity or resources of both parents who are jointly obliged to support
their children as provided for under Article 195 of the Family Code; and the monthly expenses
incurred for the sustenance, dwelling, clothing, medical attendance, education and transportation of
the child.
In this case, the only evidence presented by respondent Adriana regarding her claim for support of
the child is her testimony, which is quoted below in verbatim:
Atty. Lorbes:
Q - After discovering that your husband had contracted two valid marriages prior to your
marriage, how do you feel about it?
A - I felt it is unfair to my life.
Q - Considering the bigamous marriage contract by your husband with you, what do you
want to request to the Honorable Court?
A - I want to request the Court that the respondent be ordered to support my little boy.
Court:
Q - How much support do you want?
A - P20,000.00 to P25,000.00
Q - Is there a prayer for support?
Atty. Lorbes:

A - None, Your Honor.


Court:
Get the original copy of the complaint, add and sign it for the support of the boy.
A - Yes, Your Honor.23
Evidently, such testimony does not establish the amount needed by the child nor the amount that the
parents are reasonably able to give.
We take note of the Compromise Agreement, approved by and embodied in the decision of the
Makati RTC, portions of which read as follows:
8. Nothing herein shall diminish the rights and obligations of both parties with respect to their son. In
the best interest of the child, the Second Party shall retain care and custody, subject to visitation
rights by the First Party to be exercised through mutual arrangements.
9. It is hereby agreed by the First Party and the Second Party that the First Party and the Second
Party shall initially contribute P250,000.00 each to a common fund, to be increased as required, to
be used solely and exclusively for the benefit of their son. Said common fund shall be managed and
administered by the Second Party, subject to periodic accounting, until the son reaches majority age.
WHEREFORE, finding the aforequoted agreement to be in order, and not being contrary to law,
morals or public policy, the same is hereby APPROVED. Accordingly, the conjugal partnership of
gains existing between the said spouses is dissolved and a decree of complete separation is
established in accordance with the provisions of Chapter 6 of the Family Code of the Philippines.
The parties are hereby enjoined to faithfully comply with the conditions of their Agreement as
embodied in this petition and the same shall, as between the parties, be deemed to be a decision
and/or award in the matters treated in the aforesaid settlement.
Let a copy of this petition as well as the foregoing Decision be recorded in the proper local civil
registries and registries of property at the expense of the herein petitioners pursuant to Article 139 of
the Family Code.
SO ORDERED.
GIVEN this 28th day of February, 1994 at Makati, Metro Manila.24
The matter of support is a question that may be raised and threshed out before the Makati RTC as it
was the court that approved the Compromise Agreement, or before the Pasay RTC where the
petition for declaration of nullity or annulment of marriage is filed. In the interest of orderly
administration of justice, the Court deems it proper that the issue on support should be resolved by
the Pasay RTC where the claim for support of the child was initiated by Adriana.
The trial courts action of merely ordering in open court during the July 6, 1994 hearing that a prayer
for support be written and inserted in the petition filed by respondent Adriana does not constitute
proper amendment and notice upon petitioner Jose. Consequently, herein petitioner Jose was
deprived of due process when the trial court proceeded to hear the case on a motion to re-open and
render judgment without giving Jose the requisite notice and the opportunity to refute the new claim
against him.

Verily, the manner by which the trial court arrived at the amount of support awarded to John Paul
was whimsical, arbitrary and without any basis.
Such being the case, the Court has no other recourse but to reverse the decision of the Court of
Appeals and Pasay RTC insofar as the award of support is concerned and order the remand of the
case to Pasay RTC for further proceedings as to the issue regarding support.
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision and Resolution of the
Court of Appeals in CA-G.R. CV. No. 51107, dated June 11, 1997 and October 27,
1997, dismissing the appeal anddenying the motion for reconsideration, respectively, are hereby
SET ASIDE but only insofar as the award of support in favor of John Paul Chua Lam is
concerned. The Decision dated August 4, 1994 and the Order of the Regional Trial Court of Pasay
City (Branch 109), dated August 22, 1995, are REVERSED and SET ASIDE for being null and void,
likewise only insofar as the matter on support is concerned.
Let the records of Civil Case No. 94-0331 be remanded to the Regional Trial Court of Pasay City
(Branch 109) which is DIRECTED to reopen the trial of Civil Case No. 94-0331 with respect to the
claim of Adriana Chua against Jose Lam for the support of John Paul Chua Lam and conduct
hearings for further reception of evidence for the proper determination of the proper amount of
support to be awarded to the child John Paul Chua Lam.
SO ORDERED.

G.R. No. 165016

June 17, 2008

DOLORES MONTEFALCON & LAURENCE MONTEFALCON, petitioners,


vs.
RONNIE S. VASQUEZ, respondent.
DECISION
QUISUMBING, J.:
This petition for review assails the September 29, 2003 Decision1 and the July 19, 2004
Resolution2 of the Court of Appeals in CA-G.R. CV No. 71944, which had reversed the May 28, 2001
Decision3 of the Regional Trial Court (RTC), Branch 19, of Naga City in Civil Case No. RTC '994460.
The facts culled from the records are as follows.
In 1999, petitioner Dolores P. Montefalcon filed a Complaint4 for acknowledgment and support
against respondent Ronnie S. Vasquez before the RTC of Naga City. Alleging that her son Laurence
is the illegitimate child of Vasquez, she prayed that Vasquez be obliged to give support to copetitioner Laurence Montefalcon, whose certificate of live birth he signed as father.5 According to
petitioners, Vasquez only gave a total of P19,000 as support for Laurence since Laurence was born

in 1993. Vasquez allegedly also refused to give him regular school allowance despite repeated
demands. Petitioner Dolores added that she and Vasquez are not legally married, and that Vasquez
has his own family.
A sheriff tried to serve the summons and complaint on Vasquez in Aro-aldao, Nabua, Camarines
Sur. Vasquez's grandfather received them as Vasquez was in Manila. Vasquez's mother returned
the documents to the clerk of court, who informed the court of the non-service of summons.6
Petitioners then filed a motion to declare Vasquez in default. The court denied it for lack of proper
service of summons.7
In 2000, the court issued an alias summons on Vasquez at "10 Int. President Garcia St., Zone 6,
Signal Village, Taguig, Metro Manila" upon petitioners' motion. Albeit a Taguig deputy sheriff served
it by substituted service on Vasquez's caretaker Raquel Bejer, the sheriff's return incorrectly stated
"Lazaro" as Vasquez's surname.8
Another alias summons9 was issued, also received by Bejer. The second sheriff's return states:
THIS IS TO CERTIFY THAT on the 19th day of July 2000 the undersigned sheriff caused the
service of summons issued by the court in the above-entitled case together with the copy of
the complaint and annexes attached thereon upon defendant RONNIE S. VASQUEZ, by
substituted service, thru his caretaker, RAQUEL BEJER, a person of sufficient discretion,
who acknowledged the receipt thereof at No. 10 Int. President Garcia St. Zone 6, Signal
Village, Taguig, Metro Manila, as evidenced by her signature appearing at the lower portion
of the original copy of summons.
WHEREFORE, said summons is hereby returned to the court of origin DULY SERVED for its
records and information.
Taguig for Naga City, July 19, 2000
(SGD.)
ERNESTO G. RAYMUNDO, JR.,
Deputy Sheriff
MTC BR 74
Taguig, Metro Manila10
On petitioners' motion, the trial court declared Vasquez in default for failure to file an answer despite
the substituted service of summons. Vasquez was furnished with court orders and notices of the
proceedings at his last known address, but these were returned as he had allegedly moved to
another place and left no new address.11
In 2001, the court granted petitioners' prayers, explaining that they had no ill-motive and that Dolores
gave a truthful testimony. The court added that Vasquez admitted the truth of the allegations by his
silence. It further explained that Laurence's certificate of live birth, being a public document, is
irrefutably a prima facie evidence of illegitimate filiation. The trial court decreed:
WHEREFORE, by preponderant evidence, judgment is hereby rendered in favor of the
plaintiffs Dolores Montefalcon and her minor child Laurence Montefalcon and against
defendant Ronnie S. Vasquez who is hereby ordered to:

1. Acknowledge plaintiff Laurence Montefalcon as his illegitimate child with Dolores


Montefalcon;
2. Give support to the said minor in the amount of FIVE THOUSAND (P5,000.00) PESOS
monthly commencing on June 1, 1993, the past support for eight (8) years in the amount of
FOUR HUNDRED EIGHTY THOUSAND (P480,000.00) PESOS less the amount of
NINETEEN THOUSAND (P19,000.00) PESOS previously given, shall be paid promptly and
the monthly support of FIVE THOUSAND (P5,000.00) PESOS shall be paid not later than
the end of each month beginning on July 31, 2001 and every end of the month thereafter as
prayed for in the complaint; and
3. Pay the sum of TEN THOUSAND (P10,000.00) PESOS and THREE THOUSAND
(P3,000.00) PESOS as attorney's and appearance fees, respectively, and litigation expenses
of ONE THOUSAND (P1,000.00) PESOS.
SO ORDERED.12
In the same year, Vasquez surfaced. He filed a notice of appeal to which petitioners opposed.
Appeal was granted by the court.13 Before the appellate court, he argued that the trial court erred in
trying and deciding the case as it "never" acquired jurisdiction over his person, as well as in
awarding P5,000-per-month support, which was allegedly "excessive and exorbitant." The appellate
court noted that the service of summons on Vasquez was "defective" as there was no explanation of
impossibility of personal service and an attempt to effect personal service, and decreed as follows:
WHEREFORE, based on the foregoing premises, the instant appeal is GRANTED. The
appealed May 28, 2001 Decision of the Regional Trial Court of Naga City in Civil Case No.
RTC '99-4460 is herebyNULLIFIED and SET ASIDE. Accordingly, let this case
be REMANDED to the court a quo for further proceedings.
SO ORDERED.14
Petitioners argued in their motion for reconsideration15 that any attempt at personal service of
summons was needless as Vasquez already left for abroad. The appellate court, however, denied
the motion. Hence, this petition.
Petitioners assign two appellate court errors:
I.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE RESPONDENT IN THIS
CASE WAS NOT VALIDLY SERVED WITH THE SUMMONS AND COMPLAINT IN CIVIL
CASE NO. RTC '99-4460; AND THAT
II.
THE COURT OF APPEALS ERRED IN ANNUL[L]ING AND SETTING ASIDE THE TRIAL
COURT'S DECISION (ANNEX "B") FOR LACK OF JURISDICTION.16
Petitioners justify the validity of substituted service as Vasquez had left as overseas seafarer when
the sheriff served the summons on July 19, 2000 in Taguig. Noting that Vasquez's seaman's book

indicated that he left the country on January 24, 2000 and came back on October 12, 2000, they
criticize the appellate court for anchoring its rulings on mere technicality.
Vasquez counters that because he was abroad, service of summons should have been personal or
by publication as substituted service is proper only if a defendant is in the country. Vasquez also
added that the sheriff's return did not state that he exerted efforts to personally serve the
summons.17
In their reply, petitioners insist that a substituted service is the normal method if one is temporarily
away from the country as personal service abroad or by publication are not ordinary means of
service.18
Simply put, the issues now for resolution are: (1) whether there is a valid substituted service of
summons on Vasquez to clothe the trial court with jurisdiction over his person; and (2) whether he is
obliged to give support to co-petitioner Laurence.
To acquire jurisdiction over the person of a defendant, service of summons must be personal,19 or if
this is not feasible within a reasonable time, then by substituted service.20 It is of judicial notice that
overseas Filipino seafarers are contractual employees. They go back to the country once their
contracts expire, and wait for the signing of another contract with the same or new manning agency
and principal if they wish. It is therefore common knowledge that a Filipino seaman often has a
temporary residence in the urban areas like Metro Manila, where majority of the manning agencies
hold offices, aside from his home address in the province where he originates. In this case,
respondent Vasquez hails from Camarines Sur but he has lived in Taguig City when the complaint
was filed. Notice may then be taken that he has established a residence in either place. Residence
is a place where the person named in the summons is living at the time when the service was made,
even though he was temporarily abroad at the time. As an overseas seafarer, Vasquez was a
Filipino resident temporarily out of the country. Hence, service of summons on him is governed by
Rule 14, Section 16 of the Rules of Court:
SEC. 16. Residents temporarily out of the Philippines. When any action is commenced
against a defendant who ordinarily resides within the Philippines, but who is temporarily out
of it, service may, by leave of court, be also effected out of the Philippines, as under
the preceding section. (Emphasis supplied.)
The preceding section referred to states:
SEC. 15. Extraterritorial service. When the defendant does not reside and is not found in
the Philippines, and the action affects the personal status of the plaintiff or relates to, or the
subject of which is, property within the Philippines, in which the defendant has or claims a
lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in
part, in excluding the defendant from any interest therein, or the property of the defendant
has been attached within the Philippines, service may, by leave of court, be effected out of
the Philippines by personal service as under section 6; or by publication in a newspaper of
general circulation in such places and for such time as the court may order, in which case a
copy of the summons and order of the court shall be sent by registered mail to the last
known address of the defendant, or in any other manner the court may deem sufficient. Any
order granting such leave shall specify a reasonable time, which shall not be less than sixty
(60) days after notice, within which the defendant must answer.

Because Section 16 of Rule 14 uses the words "may" and "also," it is not mandatory. Other methods
of service of summons allowed under the Rules may also be availed of by the serving officer on a
defendant-seaman.
Ideally, Vasquez must be personally served summons. But was personal service of summons
practicable? Conversely, was substituted service of summons justified?
Obviously, personal service of summons was not practicable since the defendant was temporarily
out of the country. To proceed with personal service of summons on a defendant-seaman who went
on overseas contract work would not only be impractical and futile it would also be absurd.
The impossibility of prompt personal service was shown by the fact that the Naga City-based sheriff
purposely went to a barrio in Camarines Sur to serve the summons personally on Vasquez. When
service of summons failed, said sheriff ascertained the whereabouts of Vasquez. Upon being
informed that Vasquez was in Manila, the Naga court commissioned a Taguig City-based sheriff to
serve the summons. Both the Naga and Taguig sheriffs inquired about Vasquez's whereabouts,
signifying that they did not immediately resort to substituted service. There was no undue haste in
effecting substituted service. The fact that the Naga court allowed a reasonable time to locate
Vasquez to as far as Taguig shows that there was indeed no precipitate haste in serving the
summons.
In this case, we agree that the substituted service in Taguig was valid and justified because previous
attempts were made by the sheriffs to serve the summons, but to no avail. Diligent efforts were
evidently exerted in the conduct of the concerned sheriffs in the performance of their official duty.
Also, the person who received the alias summons was of suitable age and discretion, then residing
at Vasquez's dwelling. There is no quarrel that it was really Vasquez's residence, as evidenced by
his employment contract, executed under the supervision and authority of the Philippine Overseas
Employment Administration (POEA). Vasquez cannot deny that in his contract of employment and
seafarer's information sheet, both bearing POEA's letterhead, his address in Metro Manila was what
was correctly mentioned in the alias summons that Bejer received. She must have informed
Vasquez one way or another of the suit upon his return in October 2000 after finishing his ninemonth contract with Fathom Ship Management.
Thus, it is reasonable to conclude that he had enough time to have the default order set aside. The
default judgment was rendered on May 28, 2001. He also had enough time to file a motion for
reconsideration. But he did nothing. The interregnum between the first but failed attempt at personal
service by the RTC of Naga City in Vasquez's place in Camarines Sur to the final substituted service
in Metro Manila by a Taguig RTC sheriff was almost eight months, a reasonable time long enough to
conclude that personal service had failed and was futile.
Montalban v. Maximo21 offers a rational and logical solution of the issue. We held in said case that
the normal method of service of summons on one temporarily absent is by substituted service
because personal service abroad and service by publication are not ordinary means of summoning
defendants. Summons in a suit in personam against a temporarily absent resident may be by
substituted service as domiciliaries of a State are always amenable to suits in personam therein.22
"Residence" is the place where the person named in the summons is living at the time when the
service is made, even though he may be temporarily out of the country at the time. A plaintiff is
merely required to know the defendant's residence, office or regular business place. He need not
know where a resident defendant actually is at the very moment of filing suit. He is not even dutybound to ensure that the person upon whom service was actually made delivers the summons to the

defendant or informs him about it. The law presumes that for him. It is immaterial that defendant
does not receive actual notice.
As well said in Montalban:
. . . A man temporarily absent from this country leaves a definite place of residence, a
dwelling where he lives, a local base, so to speak, to which any inquiry about him may be
directed and where he is bound to return. Where one temporarily absents himself, he leaves
his affairs in the hands of one who may be reasonably expected to act in his place and
stead; to do all that is necessary to protect his interests; and to communicate with him from
time to time any incident of importance that may affect him or his business or his affairs. It is
usual for such a man to leave at his home or with his business associates information as to
where he may be contacted in the event a question that affects him crops up. If he does not
do what is expected of him, and a case comes up in court against him, he cannot in justice
raise his voice and say that he is not subject to the processes of our courts. He cannot stop a
suit from being filed against him upon a claim that he cannot be summoned at his dwelling
house or residence or his office or regular place of business.
Not that he cannot be reached within a reasonable time to enable him to contest a suit
against him. There are now advanced facilities of communication. Long distance telephone
calls and cablegrams make it easy for one he left behind to communicate with him.23
Aside from, at present, various forms of texting and short message services by the ubiquitous
cellular phones.
More importantly, the letter of the law must yield to its spirit. The absence in the final sheriff's return
of a statement about the impossibility of personal service does not conclusively prove that the
service is invalid. Such failure should not unduly prejudice petitioners if what was undisclosed was in
fact done. Proof of prior attempts at personal service may have been submitted by the plaintiff during
the hearing of any incident assailing the validity of the substituted service24 had Vasquez surfaced
when the case was heard. In fact, he was declared in default. It was only when a judgment against
him was rendered by the trial court that he questioned the validity of service of summons before the
appellate court. Such failure to appear, and then later to question the court's jurisdiction over his
person, should not be taken against herein petitioners.
Between Vasquez's self-serving assertion that he only came to know of the case when his mother
told him about the trial court's decision and the sheriff's return on the substituted service which
carries a presumption of regularity, the latter is undoubtedly deserving of more faith and credit. The
sheriff's certificate of service of summons is prima facie evidence of the facts set out in it. Only clear
and convincing evidence may overcome its presumption of regularity. Given the circumstances in
the present case, we agree that the presumption of regularity in the performance of duty on the part
of the sheriff stands.25
On the second issue, the trial court's order must also be sustained. Co-petitioner Laurence is legally
entitled to support from the respondent, and the amount of P5,000 monthly set by the trial court is
neither excessive nor unreasonable.
Article 17526 of the Family Code of the Philippines mandates that illegitimate filiation may be
established in the same way and on the same evidence as legitimate children. Under Article
172,27 the filiation of legitimate children is established by any of the following: (1) through record of
birth appearing in the civil register or a final order; or (2) by admission of filiation in a public
document or private handwritten instrument and signed by the parent concerned; or in default of

these two, by open and continuous possession of the status of a legitimate child or by any other
means allowed by the Rules of Court and special laws.
Laurence's record of birth is an authentic, relevant and admissible piece of evidence to prove
paternity and filiation. Vasquez did not deny that Laurence is his child with Dolores. He signed as
father in Laurence's certificate of live birth, a public document. He supplied the data entered in it.
Thus, it is a competent evidence of filiation as he had a hand in its preparation. In fact, if the child
had been recognized by any of the modes in the first paragraph of Article 172, there is no further
need to file any action for acknowledgment because any of said modes is by itself a consummated
act.28
As filiation is beyond question, support follows as matter of obligation. Petitioners were able to prove
that Laurence needs Vasquez's support and that Vasquez is capable of giving such support. Dolores
testified that she spent around P200,000 for Laurence; she spends P8,000 a month for his schooling
and their subsistence. She told the lower court Vasquez was earning US$535 monthly based on his
January 10, 2000 contract of employment29 with Fathom Ship Management and his seafarer
information sheet.30 That income, if converted at the prevailing rate, would be more than sufficient to
cover the monthly support for Laurence.
Under Article 195 (4)31 of the Family Code, a parent is obliged to support his illegitimate child. The
amount is variable. There is no final judgment thereof as it shall be in proportion to the resources or
means of the giver and the necessities of the recipient.32 It may be reduced or increased
proportionately according to the reduction or increase of the necessities of the recipient and the
resources or means of the person obliged to support.33Support comprises everything indispensable
for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with
the financial capacity of the family.34 Under the premises, the award of P5,000 monthly support to
Laurence is reasonable, and not excessive nor exorbitant.
In sum, we rule that the Court of Appeals erred in invalidating the substituted service of summons
and remanding the case. As there was valid substituted service of summons under the
circumstances of this case, the lower court acquired jurisdiction over his person and correctly
ordered him to pay past and present monthly support to his illegitimate child as well as attorney's
fees and litigation expenses to petitioners.
WHEREFORE, the petition is GRANTED. The Decision dated September 29, 2003 and Resolution
dated July 19, 2004 of the Court of Appeals in CA-G.R. CV No. 71944 are REVERSED and SET
ASIDE. The Decision dated May 28, 2001 of the Regional Trial Court, Branch 19, Naga City in Civil
Case No. RTC '99-4460 is herebyREINSTATED.
Costs against respondent.
SO ORDERED.

SECOND DIVISION

EDWARD V. LACSON, G.R. No. 150644


Petitioner,
Present:
PUNO, J., Chairperson,
- versus - SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
GARCIA, JJ.
MAOWEE DABAN LACSON
and MAONAA DABAN Promulgated:
LACSON, represented by their
mother and guardian ad-litem,
LEA DABAN LACSON, August 28, 2006
Respondents.
x-----------------------------------------------------------------------------------------x

DECISION
GARCIA, J.:

Petitioner Edward V. Lacson, father of the respondent sisters Maowee Daban


Lacson and Maonaa Daban Lacson and husband of their mother and guardian adlitem, Lea Daban Lacson, has come to this Court via this petition for review under
Rule 45 of the Rules of Court to seek the reversal and setting aside of the
Decision[1] dated July 13, 2001 of the Court of Appeals (CA) in CA-G.R. CV No.
60203, as reiterated in its Resolution[2] of October 18, 2001 denying his motion for
reconsideration.

From the petition and its annexes, the respondents reply thereto, and
other pleadings, the Court gathers the following facts:

The sisters Maowee Daban Lacson and Maonaa Daban Lacson are legitimate
daughters of petitioner Edward V. Lacson and his wife, Lea
Daban Lacson. Maowee was born onDecember 4, 1974, while Maonaa, a little less
than a year later. Not long after the birth of Maonaa, petitioner left the conjugal
home in Molo, Iloilo City, virtually forcing mother and children to seek, apparently
for financial reason, shelter somewhere else. For a month, they stayed with Leas
mother-in-law, Alicia Lacson, then with her (Leas) mother and then with her
brother Noel Daban. After some time, they rented an apartment only to return later
to the house of Leas mother. As the trial court aptly observed, the sisters and their
mother, from 1976 to 1994, or for a period of eighteen (18) years, shuttled from
one dwelling place to another not their own.
It appears that from the start of their estrangement, Lea did not badger her
husband Edward for support, relying initially on his commitment memorialized in a
note datedDecember 10, 1975 to give support to his daughters. As things turned out,
however, Edward reneged on his promise of support, despite Leas efforts towards
having him fulfill the same. Lea would admit, though, that Edward occasionally gave
their children meager amounts for school expenses. Through the years and up to the
middle part of 1992, Edwards mother, Alicia Lacson, also gave small amounts to

help in the schooling of Maowee and Maonaa, both of whom


eventually took up nursing at St. Pauls College in Iloilo City. In the early part of
1995 when Lea, in behalf of her two daughters, filed a complaint against Edward for
support before the Regional Trial Court of Iloilo City, Branch 33, Maowee was about
to graduate.
In that complaint dated January 30, 1995, as amended,[3] docketed as Civil Case No.
22185, Maowee and Maonaa, thru their mother, averred that their father Edward,
despite being gainfully employed and owning several pieces of valuable lands, has
not provided them support since 1976. They also alleged that, owing to years of
Edwards failure and neglect, their mother had, from time to time, borrowed money
from her brother Noel Daban. As she would later testify, Lea had received from
Noel, by way of a loan, as much asP400,000.00 to P600,000.00.

In his Answer, Edward alleged giving to Maowee and Maonaa sufficient sum to
meet their needs. He explained, however, that his lack of regular income and the
unproductivity of the land he inherited, not his neglect, accounted for his failure at
times to give regular support. He also blamed financial constraint for his inability to
provide the P12,000.00monthly allowance prayed for in the complaint.

As applied for and after due hearing, the trial court granted the sisters
Maowee and Maonaa support pendente lite at P12,000.00 per month, subject to
the schedule of payment and other conditions set forth in the courts corresponding
order of May 13, 1996.[4]

Following trial, the RTC rendered on June 26, 1997 judgment finding for the plaintiff
sisters, as represented by their mother. In that judgment, the trial court, following
an elaborate formula set forth therein, ordered their defendant
father Edward to pay them a specific sum which represented 216 months, or 18
years, of support in arrears. The falloof the trial courts decision[5] reads:

WHEREFORE, judgment is hereby rendered:

1)

Ordering defendant to compensate plaintiffs support in arrears in the


amount of TWO MILLION FOUR HUNDRED NINETY-SIX THOUSAND (P2,
496,000.00) PESOS from which amount shall be deducted ONE HUNDRED
TWENTY-FOUR (P124,000.00) PESOS that which they received from
defendant for two years and that which they received by way of support
pendent lite;

2) Ordering defendant to pay TWENTY THOUSAND (P20,000.00) PESOS as


attorneys fees; and

3)

Pay costs.

SO ORDERED.

Therefrom, Edward appealed to the CA whereat his recourse was docketed as CAG.R. CV. No. 60203.

Eventually, the CA, in the herein assailed Decision dated July 13, 2001,[6] dismissed
Edwards appeal, disposing as follows;

WHEREFORE, premises considered, the present appeal is hereby DISMISSED and the appealed
Decision in Civil Case No. 22185 is hereby AFFIRMED.

Double costs against the defendant appellant [Edward Lacson].

SO ORDERED. (Words in bracket added.)

In time, Edward moved for reconsideration, but his motion was denied by the
appellate court in its equally assailed Resolution of October 18, 2001.[7]

Hence, Edwards present recourse on his submission that the CA erred -

I.

XXX WHEN IT AFFIRMED THE GRANT OF SUPPORT IN ARREARS FROM 1976 TO 1994.

II.

XXX IN AFFIRMING THE ALLEGED ADVANCES OF SUPPORT BY RESPONDENTS UNCLE NOEL


DABAN.

III.

XXX IN AFFIRMING THE AWARD OF SUPPORT EVEN IF PETITIONER IS NOT FINANCIALLY


CAPABLE OF PROVIDING THE SAME TO RESPONDENTS.

IV.

XXX WHEN IT ORDERED PETITIONER TO PROVIDE SUPPORT TO XXX RESPONDENTS EVEN


IF PETITIONERS OBLIGATION TO PROVIDE SUPPORT HAD ALREADY BEEN COMPLETELY
SATISFIED BY THE PROCEEDS OF THE SALE OF HIS EXCLUSIVE PROPERTY WHICH WERE ALL
APPROPRIATED BY THE RESPONDENTS.

The petition lacks merit.


Petitioner admits being obliged, as father, to provide support to both respondents,
Maowee and Maonaa. It is his threshold submission, however, that he should not
be made to pay support in arrears, i.e., from 1976 to 1994, no previous
extrajudicial, let alone judicial, demand having been made by the respondents. He
invokes the following provision of the Family Code to complete his point:

Article 203 The obligation to give support shall be demandable from the time the person
who has a right to receive the same needs it for maintenance, but it shall not be paid
except from the date of judicial or extrajudicial demand.

To petitioner, his obligation to pay under the aforequoted provision starts from the
filing of Civil Case No. 22185 in 1995, since only from that moment can it be said
that an effective demand for support was made upon him.

Petitioners above posture has little to commend itself. For one, it conveniently
glossed over the fact that he veritably abandoned the respondent sisters even
before the elder of the two could celebrate her second birthday. To be sure,
petitioner could not plausibly expect any of the sisters during their tender years to
go through the motion of demanding support from him, what with the fact that
even their mother (his wife) found it difficult during the period material to get in
touch with him. For another, the requisite demand for support appears to have
been made sometime in 1975. It may be that Lea made no extrajudicial demand in
the sense of a formal written demand in terms and in the imperious tenor
commonly used by legal advocates in a demand letter. Nonetheless, what would
pass as a demand was, however, definitely made. Asking one to comply with his
obligation to support owing to the urgency of the situation is no less a demand
because it came by way of a request or a plea. As it were, the trial court found that
a demand to sustain an award of support in arrears had been made in this case and
said so in its decision, thus:
From 1976, [respondents] mother now and then went to their [paternal] grandmothers
house by their father and asked for support; this notwithstanding their fathers
commitment for this purpose which the latter embodied in a note dated December 10,
1975. For twenty-one years that they needed support, [petitioner] complied with his
obligation for only two (2) years.

xxx xxx xxx

Last December 10, 1975, [petitioner] committed self for the support of his children, the
[respondents] herein but failing, plaintiffs mother asked extrajudicially for her childrens
support since 1976, when she went to her mothers house. .[8] (Words in bracket and
underscoring added.)

The appellate court made a parallel finding on the demand angle, formulating the
same in the following wise:

We could not confer judicial approval upon [petitioners] posture of trying to evade his
responsibility to give support to his daughters simply because their mother did not make
a formal demand therefor from him. [Petitioners] insistence on requiring a formal
demand from his wife is truly pointless, in the face of his acknowledgment of and
commitment to comply with such obligation through a note in his own handwriting. Said
note [stating that he will sustain his two daughters Maowee and Maonaa] also stated as
requested by their mother thus practically confirming the fact of such demand having
been made by [respondents] mother. The trial court thus correctly ruled that [petitioners]
obligation to pay support in arrears should commence from 1976.[9](Words in bracket
added).

The Court finds no adequate reason to disturb the factual determination of the CA
confirmatory of that of the trial court respecting the demand Lea made on the
petitioner to secure support for the respondents. As a matter of long and sound
appellate practice, factual findings of the CA are accorded respect, if not finality,
save for the most compelling and cogent reasons.[10] Not one of the well-recognized
exceptions to this rule on conclusiveness of factual findings appear to obtain in this
case. Accordingly, the Court cannot grant the petitioners plea for a review of the
CAs findings bearing on the actuality that, as basis for an award of support in
arrears, an extrajudicial demand for support had been made on the petitioner as
evidenced by the December 10, 1975 note adverted to. Lest it be overlooked, the
jurisdiction of the Court in a petition for review, as here, is generally limited to
correction of errors of law. Complementing that postulate is the rule that the
Court is not bound to analyze and weigh all over again the evidence already
considered in the proceedings below,[11] except when, as earlier indicated,
compelling reasons demand a review of the factual conclusions drawn from such
evidence.

Petitioners second specification of error touches on the CAs affirmatory holding


that respondents uncle, Noel Daban, advanced the money for their support. Again,
petitioners lament on the matter is a veritable call for review of factual
determinations of the two courts below. It need not, accordingly, detain us long.
Suffice it to state in that regard that, of their close relatives, the respondents
appeared to have stayed longest with their uncle, Noel Daban. Noteworthy also is
the fact that petitioner, from 1976 to 1994, only gave Maowee and Maonaa token
amounts for schooling when support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance and education,[12]or, in short,
whatever is necessary to keep a person alive. Logically, the sisters would, thru their
mother, turn to their uncle (Noel Daban) for their sustenance and education when
petitioner failed to give the same, a failing which stretched from their pre-schooling
days to their college years. Since such failure has been established, it is not amiss
to deduce, as did the trial court and the CA, that Noel Daban who, owing to
consideration of kinship, had reasons to help, indeed lent his sister Lea money to
support her children.
Pursuant to Article 207 of the Family Code, Noel Daban can rightfully exact
reimbursement from the petitioner. The provision reads:

When the person obliged to support another unjustly refuses or fails to give support when
urgently needed by the latter, any third person may furnish support to the needy
individual, with right of reimbursement from the person obliged to give support.

Mention may also be made that, contextually, the resulting juridical relationship
between the petitioner and Noel Daban is a quasi-contract,[13] an equitable
principle enjoining one from unjustly enriching himself at the expense of another.
As for the amount of support in arrears, there is also no reason to disturb the
absolute figures arrived at by the two courts below, appearing as they do to be
reasonable and proper. Arbitrariness respecting the determination of the final
numbers cannot plausibly be laid on the doorsteps of the CA, and the trial court
before it, considering that they fixed such amount based on the varying needs of
the respondents during the years included in the computation and to the financial

resources of the petitioner, as proved by the evidence adduced below. As a matter


of law, the amount of support which those related by marriage and family
relationship is generally obliged to give each other shall be in proportion to the
resources or means of the giver and to the needs of the recipient.[14]

Petitioner closes his petition by urging the Court, as it did the CA earlier, to consider
a transaction that transpired after the trial court had rendered judgment. We refer
to the sale by Lea of half of what petitioner claims to be his exclusive or capital
property. As the petitioner would have this Court believe, Lea and the respondent
sisters appropriated the P5 Million proceeds of the sale for themselves. Pressing
on, he alleged that the amount thus received from the sale is more than enough to
fully satisfy thus release him from complying with- the underlying judgment for
support, assuming ex gratia argumenti his obligation to pay support in arrears.

Petitioners above submission is flawed by the premises holding it together. For


firstly, it assumes as a fact that what was sold for P5 Million was indeed his exclusive
property.But, as the CA aptly observed, there is no showing whether the property
subject of the transaction mentioned by [the petitioner] is a conjugal property or
[his] exclusive property, as in fact [respondents] mother asserts that she and
[petitioner] had separately sold their respective shares on said property.[15]

Secondly, the respondent sisters were not party to the sale aforementioned.
Petitioners suggestion, therefore, that part of the proceeds of the sale went to
them and may be set off for what petitioner owes them by way of support in arrears
is unacceptable, being at best gratuitous and self-serving.

Petitioner, unlike any good father of a family, has been remiss in his duty to provide
respondents with support practically all throughout their growing years. At bottom,
the sisters have been deprived by a neglectful father of the basic necessities in life
as if it is their fault to have been born. This disposition is thus nothing more than a
belated measure to right a wrong done the herein respondents who are no less
petitioners daughters.

WHEREFORE, the instant petition is DENIED and the appealed CA decision and
resolution are AFFIRMED.

Costs against petitioner.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairperson

ANGELINA SANDOVAL-GUTIERREZ

RENATO C. CORONA

Associate Justice

Associate Justice

ADOLFO S. AZCUNA
Associate Justice

ATESTATION

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

[1]

Penned by Associate Justice Martin S. Villarama, Jr., with Associate Justice Conrado M. Vasquez, Jr., and Associate
Justice Sergio L. Pestao (ret.) concurring; Rollo, pp. 44-49.
[2]
Id. at 51.
[3]
Id. at 56 et seq.
[4]
Page 2 of CA Decision; Id. at 45.
[5]

Id. at 66-80.
Supra note 1.
[7]
Supra note 2.
[8]
Page 14 of RTC Decision; Rollo, p. 79
[9]
CA Decision, p. 4; Id. at 47.
[10]
Republic v. CA, G.R. No. 116372, January 18, 2001, 349 SCRA 451.
[11]
Velasquez, Jr. v. Court of Appeals, G.R. No. 138480, March 25, 2004, 426 SCRA 309, citing cases.
[12]
Art. 194 of the Family Code.
[13]
Sta. Maria, Persons and Family Relations Law, 3rd [1999] ed., p. 684.
[14]
Art. 201, Family Code; Baltazar v. Serfino, No. L. 17315, July 31, 1965, 10 SCRA 189.
[15]
CA Decision, pp. 5-6; Rollo, pp. 48-49.
[6]

THIRD DIVISION

SPOUSES PRUDENCIO and G.R. No. 163209


FILOMENA LIM,
Petitioners,

Present:
CARPIO, J., Chairperson,
QUISUMBING,*
CHICO-NAZARIO,
- versus - PERALTA, and
ABAD,** JJ.
MA. CHERYL S. LIM,
for herself and on behalf of
her minor children LESTER
EDWARD S. LIM, CANDICE
GRACE S. LIM, and MARIANO Promulgated:
S. LIM, III,
Respondents. October 30, 2009
x --------------------------------------------------------------------------------------- x

DECISION
CARPIO, J.:

The Case

For review[1] is the Decision[2] of the Court of Appeals, dated 28 April 2003, ordering
petitioners Prudencio and Filomena Lim (petitioners) to provide legal support to
respondents Cheryl, Lester Edward, Candice Grace and Mariano III, all surnamed
Lim (respondents).

The Facts

In 1979, respondent Cheryl S. Lim (Cheryl) married Edward Lim (Edward), son
of petitioners. Cheryl bore Edward three children, respondents Lester Edward,
Candice Grace and Mariano III. Cheryl, Edward and their children resided at the
house of petitioners in Forbes Park, Makati City, together with Edwards ailing
grandmother, Chua Giak and her husband Mariano Lim (Mariano). Edwards family
business, which provided him with a monthly salary of P6,000, shouldered the
family expenses. Cheryl had no steady source of income.

On 14 October 1990, Cheryl abandoned the Forbes Park residence, bringing


the children with her (then all minors), after a violent confrontation with Edward
whom she caught with the in-house midwife of Chua Giak in what the trial court
described a very compromising situation.[3]

Cheryl, for herself and her children, sued petitioners, Edward, Chua Giak and
Mariano (defendants) in the Regional Trial Court of Makati City, Branch 140 (trial
court) for support. The trial court ordered Edward to provide monthly support
of P6,000 pendente lite.[4]
The Ruling of the Trial Court

On 31 January 1996, the trial court rendered judgment ordering Edward and
petitioners to jointly provide P40,000 monthly support to respondents, with
Edward shouldering P6,000 and petitioners the balance of P34,000 subject to Chua
Giaks subsidiary liability.[5]

The defendants sought reconsideration, questioning their liability. The trial


court, while denying reconsideration, clarified that petitioners and Chua Giak were

held jointly liable with Edward because of the latters inability x x x to give sufficient
support x x x.[6]

Petitioners appealed to the Court of Appeals assailing, among others, their liability
to support respondents. Petitioners argued that while Edwards income is
insufficient, the law itself sanctions its effects by providing that legal support should
be in keeping with the financial capacity of the family under Article 194 of the Civil
Code, as amended by Executive Order No. 209 (The Family Code of the
Philippines).[7]

The Ruling of the Court of Appeals

In its Decision dated 28 April 2003, the Court of Appeals affirmed the trial court. On
the issue material to this appeal, that is, whether there is basis to hold petitioners,
as Edwards parents, liable with him to support respondents, the Court of Appeals
held:

The law on support under Article 195 of the Family Code is clear on this matter. Parents
and their legitimate children are obliged to mutually support one another and this
obligation extends down to the legitimate grandchildren and great grandchildren.

In connection with this provision, Article 200 paragraph (3) of the Family Code clearly
provides that should the person obliged to give support does not have sufficient means
to satisfy all claims, the other persons enumerated in Article 199 in its order shall provide
the necessary support. This is because the closer the relationship of the relatives, the
stronger the tie that binds them. Thus, the obligation to support is imposed first upon the
shoulders of the closer relatives and only in their default is the obligation moved to the
next nearer relatives and so on.[8]

Petitioners sought reconsideration but the Court of Appeals denied their motion in
the Resolution dated 12 April 2004.

Hence, this petition.

The Issue

The issue is whether petitioners are concurrently liable with Edward to provide
support to respondents.

The Ruling of the Court

We rule in the affirmative. However, we modify the appealed judgment by limiting


petitioners liability to the amount of monthly support needed by
respondents Lester Edward, Candice Grace and Mariano III only.
Petitioners Liable to Provide Support
but only to their Grandchildren

By statutory[9] and jurisprudential mandate,[10] the liability of ascendants to provide


legal support to their descendants is beyond cavil. Petitioners themselves admit as
much they limit their petition to the narrow question of when their liability is
triggered, not if they are liable. Relying on provisions[11] found in Title IX of the Civil
Code, as amended, on Parental Authority, petitioners theorize that their liability is
activated only upon default of parental authority, conceivably either by its

termination[12] or suspension[13]during the childrens minority. Because at the time


respondents sued for support, Cheryl and Edward exercised parental authority over
their children,[14] petitioners submit that the obligation to support the
latters offspring ends with them.

Neither the text of the law nor the teaching of jurisprudence supports this severe
constriction of the scope of familial obligation to give support. In the first place, the
governing text are the relevant provisions in Title VIII of the Civil Code, as amended,
on Support, not the provisions in Title IX on Parental Authority. While both areas
share a common ground in that parental authority encompasses the obligation to
provide legal support,[15] they differ in other concerns including the duration of the
obligation and itsconcurrence among relatives of differing degrees.[16] Thus,
although the obligation to provide support arising from parental authority ends
upon the emancipation of the child,[17] the same obligation arising from spousal and
general familial ties ideally lasts during the obligee's lifetime.. Also, while parental
authority under Title IX (and the correlative parental rights) pertains to parents,
passing to ascendants only upon its termination or suspension, the obligation to
provide legal support passes on to ascendants not only upon default of the parents
but also for the latters inability to provide sufficient support. As we observed in
another case raising the ancillary issue of an ascendants obligation to give support
in light of the fathers sufficient means:

Professor Pineda is of the view that grandchildren cannot demand support directly from
their grandparents if they have parents (ascendants of nearest degree) who are capable
of supporting them. This is so because we have to follow the order of support under Art.
199. We agree with this view.
xxxx

There is no showing that private respondent is without means to support his son; neither
is there any evidence to prove that petitioner, as the paternal grandmother, was willing
to voluntarily provide for her grandson's legal support. x x x[18] (Emphasis supplied;
internal citations omitted)

Here, there is no question that Cheryl is unable to discharge her obligation to


provide sufficient legal support to her children, then all school-bound. It is also
undisputed that the amount of support Edward is able to give to
respondents, P6,000 a month, is insufficient to meet respondents basic needs. This
inability of Edward and Cheryl to sufficiently provide for their children shifts a
portion of their obligation to the ascendants in the nearest degree, both in the
paternal (petitioners) and maternal[19] lines, following the ordering in Article 199.
To hold otherwise, and thus subscribe to petitioners theory, is to sanction the
anomalous scenario of tolerating extreme material deprivation of children because
of parental inability to give adequate support even if ascendants one degree
removed are more than able to fill the void.

However, petitioners partial concurrent obligation extends only to


their descendants as this word is commonly understood to refer to relatives, by
blood of lower degree. As petitioners grandchildren by blood, only
respondents Lester Edward, Candice Grace and Mariano III belong to this category.
Indeed, Cheryls right to receive support from the Lim family extends only to her
husband Edward, arising from their marital bond.[20] Unfortunately, Cheryls share
from the amount of monthly support the trial court awarded cannot be determined
from the records. Thus, we are constrained to remand the case to the trial court
for this limited purpose.[21]

Petitioners Precluded from Availing


of the Alternative Option Under
Article 204 of the Civil Code, as Amended

As an alternative proposition, petitioners wish to avail of the option in Article 204


of the Civil Code, as amended, and pray that they be allowed to fulfill their
obligation by maintaining respondents at petitioners Makati residence. The option
is unavailable to petitioners.

The application of Article 204 which provides that

The person obliged to give support shall have the option to fulfill the obligation either by
paying the allowance fixed, or by receiving and maintaining in the family dwelling the
person who has a right to receive support. The latter alternative cannot be availed of in
case there is a moral or legal obstacle thereto. (Emphasis supplied)

is subject to its exception clause. Here, the persons entitled to receive support are
petitioners grandchildren and daughter-in-law. Granting petitioners the option in
Article 204will secure to the grandchildren a well-provided future; however, it will
also force Cheryl to return to the house which, for her, is the scene of her husbands
infidelity. While not rising to the level of a legal obstacle, as indeed, Cheryls charge
against Edward for concubinage did not prosper for insufficient evidence, her
steadfast insistence on its occurrence amounts to a moral impediment bringing the
case within the ambit of the exception clause of Article 204, precluding its
application.

WHEREFORE, we DENY the petition. We AFFIRM the Decision of the Court of


Appeals, dated 28 April 2003, and its Resolution dated 12 April 2004 with
theMODIFICATION that petitioners Prudencio and Filomena Lim are liable to
provide support only to respondents Lester Edward, Candice Grace and Mariano III,
all surnamed Lim. We REMAND the case to the Regional Trial Court of Makati City,
Branch 140, for further proceedings consistent with this ruling.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice

MINITA V. CHICO NAZARIO DIOSDADO M. PERALTA


Associate Justice Associate Justice

ROBERTO A. ABAD
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.

ANTONIO T. CARPIO
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.

REYNATO S. PUNO
Chief Justice

Designated additional member per Special Order No. 755.


Designated additional member per Special Order No. 753.
[1]
Under Rule 45 of the 1997 Rules of Civil Procedure.
[2]
Penned by Associate Justice Elvi John S. Asuncion with Associate Justices Ruben T. Reyes and Lucas P. Bersamin
(now a member of this Court), concurring.
[3]
CA rollo, p. 99. Cheryl filed criminal charges against Edward (for concubinage, physical injuries, and grave threats)
which, however, the investigating prosecutor dismissed. It appears that Edward, in turn, sued Cheryl for the
declaration of nullity of their marriage (Civil Case No. 99-1852) which the Regional Trial Court of Makati
City, Branch 140, granted. Cheryls appeal of the ruling awaits resolution.
**

[4]
[5]

In an Order dated 28 June 1991.


The dispositive portion of the ruling provides (Records, pp. 1021-1022):

WHEREFORE, premises considered, judgment is hereby rendered as follows:


1. Defendant/s EDWARD N. LIM and Spouses PRUDENCIO and FILOMENA NG LIM
are ordered to jointly provide monthly support for the plaintiff, Ma. Cheryl S. Lim and the
three (3) minor children, in the total amount of FORTY THOUSAND (P40,000.00) Pesos
to be adjusted as may be needed, and to be given in the following manner:
a) Six Thousand (P6,000.00) Pesos to be paid by defendant EDWARD N. LIM;
b) The remaining balance of Thirty Four Thousand (P34,000.00) Pesos shall be shouldered
by defendant/spouses PRUDENCIO and FILOMENA NG LIM, they, being in the remoter
line pursuant to Article 199 of the Family Code. However, in the event that spouses
Prudencio and Filomena Ng Lim fail to provide plaintiffs the amount they are entitled to
receive, the obligation shall be borne by CHUA GIAK, being the grandmother of
defendant Edward Lim;
c) The payment of the aforesaid monthly support should be made within the first five (5)
days of each month;
2. The custody of the three (3) minor children, namely, Lester Edward, Candice Grace and
Mariano III shall be awarded to the parent with whom each one shall choose to live with,
they, being over seven (7) years of age;
3. Defendants are directed to pay the plaintiffs attorneys fees in the amount of FIFTY
THOUSAND (P50,000.00) PESOS, plus FIVE HUNDRED (P500.00) PESOS for each
Court appearance, and the cost of the suit.
[6]
The dispositive portion of the Order provides (Id. at 1058):
In the light of the foregoing, item No. 1 in the dispositive part of the Decision of this Court dated
January 31, 1996, is hereby amended to read as follows:
(1.a) Defendant Edward N. Lim is ordered to continue providing the amount of SIX THOUSAND
(P6,000.00) PESOS as his monthly support for the plaintiffs;
(b) Considering the inability of defendant Edward N. Lim to give sufficient support,
defendants/spouses Prudencio and Filomena Ng Lim being in the remoter line (Art. 199, Family
Code), are ordered to give the amount of THIRTY-FOUR THOUSAND (P34,000.00) PESOS as
their monthly support for the three (3) minor children. In case of default, the obligation shall be
borne by defendant Chua Giak;
(c) The payment of the aforesaid monthly support shall be made within the first five (5) days of each
month.
[7]
This provision reads: Support comprises everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the preceding paragraph shall include his
schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation
shall include expenses in going to and from school, or to and from place of work.
[8]
Rollo, pp. 27-28.
[9]
Article 199, Civil Code, as amended, provides:

Whenever two or more persons are obliged to give support, the liability shall devolve upon the
following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters
[10]
Patricio v. Dario III, G.R. No. 170829, 20 November 2006, 507 SCRA 438.
[11]
Articles 214 and 216, Civil Code, as amended.
[12]
See Articles 228(1), 229(4) and (5), and 232, Civil Code, as amended.
[13]
See Articles 230 and 231, Civil Code, as amended.
[14]
Respondents Lester Edward (born on 11 June 1981), Candice Grace (born on 23 October 1985) and Mariano III
(born on 31 August 1986) have since reached the age of majority, thus emancipating them from their
parents authority (see Article 228(3), Civil Code, as amended).
[15]
Article 209 in relation to Article 220(4), Civil Code, as amended.
[16]
The ordering of persons obliged to provide support in Article 199 is different from the preference of right
to receive it under Article 200, par. 3. Thus, the Court of Appeals, while correctly affirming the trial court's
ruling, as we do, misapplied the latter provision as basis for its ruling sustaining petitioners'
concurrent obligation to provide support.
[17]
Article 228(3), Civil Code, as amended.
[18]
Supra note 10 at 448-449.
[19]
Respondents no longer sought support from the childrens maternal ascendants because at the time respondents
filed their complaint, they were living with, and received support from, Cheryls mother.
[20]
Thus, should the ruling of the trial court in Civil Case No. 99-1852 (declaring the nullity of Cheryl and Edwards
marriage) be affirmed on appeal, the mutual obligation to provide support between them ceases. See Pelayo
v. Lauron, 12 Phil. 453, 457 (1908) (holding that in-laws are strangers with respect to the obligation that
revolves upon the husband to provide support to his wife).
[21]
After the trial courts determination, the Edward and petitioners liability should be reckoned from the time the trial
court rendered its judgment on 31 January 1996.

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