THIRD DIVISION FRANCISCO L. GONZALES, Petitioner, versus ERMINDA F. GONZALES, Respondents. G.R. No.

159521 December 16, 2005

DECISION SANDOVAL-GUTIERREZ, J.: This petition for review on certiorari seeks the reversal of the Decision dated April 2, 2003 and Resolution dated August 8, 2003, both issued by the Court of Appeals in CA-G.R. CV No. 66041, entitled, Erminda F. Gonzales, plaintiff-appellee versus Francisco L. Gonzales, defendant-appellant. In March 1977, Francisco Gonzales, petitioner, and Erminda Gonzales, respondent, started living as husband and wife. After two (2) years, or on February 4, 1979, they got married. From this union, four (4) children were born, namely: Carlo Manuel, Maria Andres, Maria Angelica and Marco Manuel. On October 29, 1992, respondent filed a complaint with the Regional Trial Court, Branch 143, Makati City, for annulment of marriage with prayer for support pendente lite, docketed as Civil Case No. 32-31111. The complaint alleges that petitioner is psychologically incapacitated to comply with the obligations of marriage. He beats her for no justifiable reason, humiliates and embarrasses her, and denies her love, sexual comfort and loyalty. During the time they lived together, they acquired properties. She managed their pizza business and worked hard for its development. She prays for the declaration of the nullity of their marriage and for the dissolution of the conjugal partnership of gains. In his answer to the complaint, petitioner averred that it is respondent who is psychologically incapacitated. He denied that she was the one who managed the pizza business and claimed that he exclusively owns the properties existing during their marriage. In her reply, respondent alleged that she controlled the entire generation of Fiesta Pizza representing 80% of the total management of the same and that all income from said business are conjugal in nature. The public prosecutor, in compliance with the directive of the trial court, and pursuant Section 48 of the F amily Code,[1] certified that no collusion exists between the parties in asking for the declaration of the nullity of their marriage and that he would appear for the state to see to it that the evidence is not fabricated or suppressed. Each party submitted a list of the properties with their valuation, acquired during their union, thus: Valuation of respondent (Record, p. 110) Valuation of petitioner (Record, 1. Acropolis property 2. Baguio City property

p. 111)

3. 4. 5. 6. 7. 8. 9.

Nasugbu, Batangas property Corinthian house and lot Sagitarius condominium Office Greenmeadows lot White Plains Corinthian lot

None P 10,000,000 5,000,000 18,000,000 2,500,000 30,000,000 10,000,000 7,000,000 12,000,000 P 6,000,000 10,000,000 5,000,000 23,000,000 2,000,000 24,000,000 15,000,000 10,000,000 None Personal Property (Vehicles) 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. None Galant 83 model Toyota Corona 79 model Coaster 77 model Pajero 89 model Corolla 92 model L-300 90 model Mercedes Sedan 79 model Pick-up 89 model Mercedes wagon 80 model Nissan Sentra 89 model 8Tamaraws

P 120,000 80,000 150,000 500,000 180,000 350,000 220,000 100,000 300,000 200,000 Evidence adduced during the trial show that petitioner used to beat respondent without justifiable reasons, humiliating and embarrassing her in the presence of people and even in front of their children. He has been afflicted with satyriasis, a personality disorder characterized by excessive and promiscuous sex hunger manifested by his indiscriminate womanizing. The trial court found that: The evidence adduced by plaintiff was overwhelming to prove that the defendant by his infliction of injuries on the plaintiff, his wife, and excessive and promiscuous hunger for sex, a personality disorder called satyriasis, was, at the time of the celebration of marriage, psychologically incapacitated to comply with the essential obligations of marriage although such incapacity became manifest only after its solemnization. The defendants evidence, on the other hand, on the psychological incapacity of plaintiff did not have any evidentiary weight, the same being doubtful, unreliable, unclear and unconvincing.

On February 12, 1997, the trial court rendered its Decision, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, judgment is rendered: 1) Declaring the marriage contracted by and between FRANCISCO L. GONZALEZ and ERMINDA F. FLORENTINO solemnized by Rev. Fr. Alberto Ampil, S.J. on February 4, 1979, at the Manila Hilton Chapel, Nuestra de Guia Parish, Ermita, Manila, NULL and VOID ab initio with all legal effects as provided for under applicable laws; 2) Awarding the custody of minors Maria Andrea and Marco Manuel to the plaintiff, and Carlo Manuel and Maria Angela with rights of visitation given to both parties under an arrangement mutually acceptable to both of them; 3) Ordering the parties to deliver the childrens legitimes pursuant to Article 50, in relation to Article 51 of the Family Code;

4) Ordering the defendant to give monthly support to Maria Andrea and Marco Manuel in the amount of Forty Thousand (P40,000.00) Pesos within five (5) days of each corresponding month delivered at the residence of the plaintiff staring January 1997 and thereafter; 5) Ordering the dissolution of the conjugal partnership of gains and dividing the conjugal properties between the plaintiff and the defendant as follows: A. 1) Plaintiffs share of real properties: 1. Corinthian lot -------------------- P 12,000,000 2. Acropolis property ------------6,000,000 3. Baguio property ----------------- 10,000,000 4. Nasugbu property -------------5,000,000 5. Greenmeadows property ----- 12,500,000 6. Sagitarius condominium -----2,250,000 P 47,750,000 2) Personal: 1. Pajero 89 model --------------- P 2. L-300 90 model ---------------3. Nissan Sentra 89 model ----500,000 350,000 200,000 P 1,050,000

B. 1) Defendants share of real properties: 1. Corinthian house and lot ---2. Office ----------------------------2) Personal: 1. Galant 83 model --------------- P 2. Toyota Corona 79 model ---3. Coaster 77 model -------------4. Corolla 92 model -------------5. Mercedes Sedan 79 model --6. Pick-up 89 model -------------7. Mercedes wagon 80 model P 1,150,000 8. Four (4) Tamaraws ------------120,000 80,000 150,000 180,000 220,000 100,000 300,000 P 20,500,000 27,000,000 P 47,500,000

6) Ordering the plaintiff to pay the defendant in cash the amount of P2,196,125. 7) Ordering the defendant who has actual possession of the conjugal properties to deliver to plaintiff her share of the real and personal properties, including four (4) Tamaraws, above-described, and execute the necessary documents valid in law conveying the title and ownership of said properties in favor of the plaintiff.

Not satisfied with the manner their properties were divided, petitioner appealed to the Court of Appeals. He did not contest that part of the decision which declared his marriage to respondent void ab initio. In its Decision dated April 2, 2003, the Appellate Court affirmed the assailed Decision of the trial court. Petitioner filed a motion for reconsideration but it was denied in an Order dated July 23, 1997. Hence, the instant petition for review on certiorari. The sole issue for our resolution is whether the court of Appeals erred in ruling that the properties should be divided equally between the parties. Let it be stressed that petitioner does not challenge the Appellate Courts Decision declaring his marriage with respondent void. Consequently, their property relation shall be governed by the provisions of Article 147 of the Family Code quoted as follows: "ART. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household." These provisions enumerate the two instances when the property relations between spouses shall be governed by the rules on co-ownership. These are: (1) when a man and woman capacitated to marry each other live exclusively with each other as husband and wife without the benefit of marriage; and (2) when a man and woman live together under a void marriage. Under this property regime of co-ownership, properties acquired by both parties during their union, in the absence of proof to the contrary, are presumed to have been obtained through the joint efforts of the parties and will be owned by them in equal shares. Article 147 creates a presumption that properties acquired during the cohabitation of the parties have been acquired through their joint efforts, work or industry and shall be owned by them in equal shares. It further provides that a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the formers efforts consisted in the care and maintenance of the family and of the household. While it is true that all the properties were bought from the proceeds of the pizza business, petitioner himself testified that respondent was not a plain housewife and that she helped him in managing the business. In his handwritten letter to her dated September 6, 1989, he admitted that Youve helped me for what we are now and I wont let it be destroyed.

It appeared that before they started living together, petitioner offered respondent to be his partner in his pizza business and to take over its operations. Respondent started managing the business in 1976. Her job was to: (1) take care of the daily operations of the business; (2) manage the personnel; and (3) meet people during inspection and supervision of outlets. She reported for work everyday, even on Saturdays and Sundays, without receiving any salary or allowance. In petitions for review on certiorari under Rule 45 of the Rules of Court, the general rule is that only questions of law may be raised by the parties and passed upon by this Court.[2] Factual findings of the Appellate Court are generally binding on, especially this Court, when in complete accord with the findings of the trial court,[3] as in this case. This is because it is not our function to analyze or weigh the evidence all over again.[4] WHEREFOR, the instant petition is hereby DENIED. The assailed Decision and Resolution of the Court of Appeals, in CA-G.R. CV No. 66041, are AFFIRMED. Costs against petitioner. SO ORDERED.

SECOND DIVISION G.R. No. 146294 July 31, 2006 JOHN ABING, petitioner, vs. JULIET WAEYAN, respondent. DECISION GARCIA, J.: In this appeal by way of a petition for review under Rule 45 of the Rules of Court, petitioner John Abing (John, hereafter) seeks to set aside the Decision1 dated October 24, 2000 of the Court of Appeals (CA) in CA-G.R. SP No. 48675, reversing that of the Regional Trial Court (RTC) of Benguet, Branch 64, which affirmed an earlier decision of the Municipal Trial Court (MTC) of Mankayan, Benguet in an ejectment suit thereat commenced by the petitioner against the respondent. In the main, the controversy is between a man and a woman who, during the good old days, lived together as husband and wife without the benefit of marriage. During their cohabitation, they acquired properties. Later, they parted ways, and with it this litigation between them involving one of their common properties. The facts: Sometime in 1986, John and respondent Juliet Waeyan (Juliet, for short) met and fell in love with each other. In time, the duo cohabited as husband and wife without the benefit of marriage. Together, the couple bought a 2-storey residential house from one Benjamin Macua which was erected on a lot owned by a

certain Alejandro Dio on Aurora Street, Mankayan, Benguet. Consequent to the purchase, the tax declaration of the 2-storey house was transferred in the name of Juliet. On December 2, 1991, Juliet left for overseas employment in Korea. She would send money to John who deposited the same in their joint bank account. In 1992, the original 2-storey residential house underwent renovation. To it was annexed a new structure which housed a sari-sari store. This new structure and the sari-sari store thereat are the properties involved in this case. In 1994, Juliet returned from Korea and continued to live with John. She managed the sari-sari store while John worked as a mine employee of the Lepanto Consolidated Mining, Inc. In 1995, the relationship between the two turned from bad to worse. Hence, they decided to partition their properties. For the purpose, they executed on October 7, 1995 a Memorandum of Agreement. Unfortunately, the document was left unsigned by the parties although signed by the witnesses thereto. Under their unsigned agreement, John shall leave the couples' dwelling with Juliet paying him the amount of P428,870.00 representing John's share in all their properties. On the same date October 7, 1995 Juliet paid John the sum ofP232,397.66 by way of partial payment of his share, with the balance of P196,472.34 to be paid by Juliet in twelve monthly installment beginning November 1995. Juliet, however, failed to make good the balance. On account thereof, John demanded of her to vacate the annex structure housing the sari-sari store. Juliet refused, prompting John to file an ejectment suit against her before the MTC of Mankayan, Benguet. In his complaint, John alleged that he alone spent for the construction of the annex structure with his own funds and thru money he borrowed from his relatives. In fact, he added that the tax declaration for the structure was under his name. On this premise, John claimed exclusive ownership of the subject structure, which thereby gave him the right to eject Juliet therefrom upon the latter's failure to pay the agreed balance due him under the aforementioned Memorandum of Agreement. In her answer, Juliet countered that their original house was renovated thru their common funds and that the subject structure annexed thereto was merely an attachment or an extension of their original residential house, hence the same pertained to the two of them in common. In a decision2 dated March 15, 1997, the MTC, on its finding that the money used in the construction of the structure in question solely came from John, ruled that the same exclusively pertained to the latter, and accordingly ordered Juliet's eviction therefrom, including the sari-sari store thereat, and required her to surrender possession thereof to John, thus: WHEREFORE, judgment is rendered in favor of the plaintiff (John) and against the defendant (Juliet). Defendant is hereby ordered to vacate the premises of the store in litigation covered by Tax Declaration No. 96-001-00445 in the name of the Plaintiff and turn over possession thereof to the latter.

Defendant is hereby further ordered to pay the Plaintiff the sum of P2,500.00 a month from the time she withheld possession of the store in litigation in June 1996 until she vacates the same and turn over possession thereof to the Plaintiff. Defendant is finally ordered, to pay the sum of P5,000.00 to the Plaintiff by way of Attorney's fees; and to pay the costs. SO ORDERED. On Juliet's appeal to the RTC, the latter, in its decision of July 29, 1995, affirmed that of the MTC. Undaunted, Juliet then went to the CA in CA-G.R. SP No. 48675. As stated at the threshold hereof, the CA, in its Decision of October 24, 2000,3 reversed that of the RTC, to wit: WHEREFORE, the petition is GRANTED. The assailed decision of the Regional Trial Court is hereby reversed and set aside. Petitioner, Juliet Waeyan is entitled to possess the property and maintain therein her business. SO ORDERED. Partly says the CA in its reversal disposition: It is undisputed that the parties lived together as husband and wife without the benefit of marriage from 1986 to 1995 and that they acquired certain properties which must be divided between them upon the termination of their common law relationship. xxx xxx xxx

. . . their property relations cannot be governed by the provision of the Civil Code on conjugal partnership... but by the rule on co-ownership. xxx xxx xxx

. . . the parties' share in respect of the properties they have accumulated during their cohabitation shall be equal unless there is proof to the contrary. To the CA, John's evidence failed to establish that he alone spent for the construction of the annex structure. Hence, the same pertained to both, and being a co-owner herself, Juliet cannot be evicted therefrom, adding that if ever, John's cause of action should have been for a sum of money "because he claims that Juliet still owes him the payment for the extension." According to the CA, ejectment cannot lie against Juliet because Juliet's possession of the premises in dispute was not by virtue of a contract, express or implied, nor did she obtain such possession thru force, intimidation, threat, strategy or stealth. Hence, John's present recourse, submitting that the CA erred in

1. not giving effect to the parties' Memorandum of Agreement which should have been binding between them albeit unsigned by both; 2. in holding that the subject premises (annex structure housing the sari-sari store) is owned by the two of them in common; 3. in ruling that the parties should settle their common properties in a separate action for partition even as the community character of the subject premises has not been proven. We AFFIRM with modification. Essentially, the issues raised center on the core question of whether or not the property subject of the suit pertains to the exclusive ownership of petitioner, John. Departing from the factual findings of the two courts before it, the CA found that the premises in dispute is owned in common by Juliet and John, the latter having failed to establish by the required quantum of proof that the money spent for the construction thereof solely came from him. Being a co-owner of the same structure, Juliet may not be ejected therefrom. While the question raised is essentially one of fact, of which the Court normally eschews from, yet, given the conflicting factual findings of the three courts below, the Court shall go by the exception 4 to the general rule and proceed to make its own assessment of the evidence. First and foremost, it is undisputed that the parties hereto lived together as husband and wife from 1986 to 1995 without the benefit of marriage. Neither is it disputed that sometime in December 1991, Juliet left for Korea and worked thereat, sending money to John which the latter deposited in their joint account. In fact, Juliet was still in Korea when the annex structure was constructed in 1992. Other than John's bare allegation that he alone, thru his own funds and money he borrowed from his relatives, spent for the construction of the annex structure, evidence is wanting to support such naked claim. For sure, John even failed to reveal how much he spent therefor. Neither did he divulge the names of the alleged relatives from whom he made his borrowings, let alone the amount of money he borrowed from them. All that petitioner could offer by way of reinforcing his claim of spending his own funds and borrowed money in putting up the subject structure was the affidavit executed by a certain Manuel Macaraeg to the effect that petitioner borrowedP30,000.00 from him. Even then, Macaraeg stated in his affidavit that it was sometime in 1990 when John borrowed said amount from him. With the petitioner's own admission that the subject structure was constructed only in 1992, or two years after he borrowed P30,000.00 from Macaraeg, it is even doubtful whether the amount he allegedly borrowed from the latter went into the construction of the structure in dispute. More, it is noted that while petitioner was able to present in evidence the Macaraeg affidavit, he failed to introduce similar affidavits, if any, of his close relatives from whom he claimed to have made similar borrowings. For sure, not a single relative came forward to confirm petitioner's tale. In short, there is a paucity of evidence, testimonial or documentary, to support petitioner's self-serving allegation that the annex structure which housed the sari-sari store was put up thru his own funds and/or money borrowed by him. Sure, petitioner has in his favor the tax declaration covering the subject structure. We have, however, ruled time and again that tax declarations do not prove ownership but at best an indicia of claims of ownership.5 Payment of taxes is not proof of ownership, any more than indicating possession in the concept of an owner.6 Neither tax receipts nor declaration of ownership for taxation purposes are evidence of ownership or of the right to possess realty when not supported by other effective proofs. 7

In this connection, Article 147 of the Family Code is instructive. It reads: Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. The law is clear. In the absence, as here, of proofs to the contrary, any property acquired by common-law spouses during their period of cohabitation is presumed to have been obtained thru their joint efforts and is owned by them in equal shares. Their property relationship is governed by the rules on co-ownership. And under this regime, they owned their properties in common "in equal shares." Being herself a co-owner of the structure in question, Juliet, as correctly ruled by the CA, may not be ejected therefrom. True it is that under Article 4878 of the Civil Code, a co-owner may bring an action for ejectment against a co-owner who takes exclusive possession and asserts exclusive ownership of a common property. It bears stressing, however, that in this case, evidence is totally wanting to establish John's or Juliet's exclusive ownership of the property in question. Neither did Juliet obtain possession thereof by virtue of a contract, express or implied, or thru intimidation, threat, strategy or stealth. As borne by the record, Juliet was in possession of the subject structure and the sari-sari store thereat by virtue of her being a co-owner thereof. As such, she is as much entitled to enjoy its possession and ownership as John. We, however, disagree with the ruling of the CA that the subject Memorandum of Agreement, being unsigned by Juliet and John, has no binding effect between them. It is a matter of record that pursuant to said Agreement, Juliet did pay John the amount of P232,397.66, as initial payment for John's share in their common properties, with the balance of P196,472.34 payable in twelve monthly installments beginning November 1995. It is also a matter of record that the Agreement was signed by the witnesses thereto. Hence, the irrelevant circumstances that the Agreement was left unsigned by Juliet and John cannot adversely affect its binding force or effect between them, as evidently, Juliet's initial payment ofP232,397.66 to John was in fulfillment of what the parties had agreed upon thereunder. However, and as correctly held by the CA, Juliet's failure to pay John the balance of the latter's share in their common properties could at best give rise to an action for a sum of money against Juliet, or for rescission of the said agreement and not for ejectment. WHEREFORE, the petition is DENIED and the assailed CA Decision is AFFIRMED, except that portion thereof denying effect to the parties' Memorandum of Agreement for being unsigned by both. Costs against petitioner. SO ORDERED.

FIRST DIVISION [G.R. No. 147394. August 11, 2004] SPOUSES MANUEL and ROSEMARIE WEE, petitioners, vs. ROSARIO D. GALVEZ, respondent. DECISION QUISUMBING, J.: For review is the Decision[1] dated December 4, 2000 of the Court of Appeals in CA-G.R. SP No. 55415, which denied special civil action for certiorari, prohibition, and mandamus filed by petitioners Manuel and Rosemarie Wee. In said petition, the Wees sought to (1) annul and set aside the Order dated July 29, 1999 of the Regional Trial Court (RTC) of Quezon City, Branch 80, denying their prayer to dismiss Civil Case No. Q-99-37372, as well as the Order of September 20, 1999 denying their motion for reconsideration; (2) order the trial court to desist from further proceedings in Civil Case No. Q-99-37372; and (3) order the trial court to dismiss the said action. Also assailed by the Wees is the Resolution[2] of the Court of Appeals, promulgated March 7, 2001, denying their motion for reconsideration. The antecedent facts in this case are not complicated. Petitioner Rosemarie Wee and respondent Rosario D. Galvez are sisters.[3] Rosemarie lives with her husband, petitioner Manuel Wee, in Balanga, Bataan, while Rosario resides in New York, U.S.A. The present controversy stemmed from an investment agreement between the two sisters, which had gone sour along the way. On April 20, 1999, Rosario, represented by Grace Galvez as her attorney-in-fact, filed a complaint before the RTC of Quezon City to collect a sum of money from Manuel and Rosemarie Wee. The amount for collection was US$20,000 at the exchange rate of P38.30 per dollar. The complaint, which was docketed as Civil Case No. Q-99-37372, alleged that Rosario and Rosemarie entered into an agreement whereby Rosario would send Rosemarie US$20,000, half of said amount to be deposited in a savings account while the balance could be invested in the money market. The interest to be earned therefrom would be given to Rosarios son, Manolito Galvez, as his allowance. Rosario claimed that pursuant to their agreement, she sent to Rosemarie on various dates in 1993 and 1994, five (5) Chemical Bank checks, namely:

CHECK No. CB No. 97 CB No. 101 CB No. 104 CB No. 105

DATE 05-24-93 06-11-93 11-12-93 02-01-94

AMOUNT US$1,550.00 10,000.00 5,500.00 2,000.00

CB No. 123 TOTAL

03-03-94

1,000.00 US$20,050.00[4]

Rosario further alleged that all of the aforementioned checks were deposited and encashed by Rosemarie, except for the first check, Chemical Bank Check No. 97, which was issued to one Zenedes Mariano, who gave the cash equivalent of US$2,000 to Rosemarie. In accordance with her agreement with Rosario, Rosemarie gave Manolito his monthly allowance ranging from P2,000 to P4,000 a month from 1993 to January 1999. However, sometime in 1995, Rosario asked for the return of the US$20,000 and for an accounting. Rosemarie promised to comply with the demand but failed to do so. In January 1999, Rosario, through her attorney-in-fact, Grace Galvez, sent Rosemarie a written demand for her US$20,000 and an accounting. Again, Rosemarie ignored the demand, thus causing Rosario to file suit. On May 18, 1999, the Wees moved to dismiss Civil Case No. Q-99-37372 on the following grounds: (1) the lack of allegation in the complaint that earnest efforts toward a compromise had been made in accordance with Article 151[5] of the Family Code; (2) failure to state a valid cause of action, the action being premature in the absence of previous earnest efforts toward a compromise; and (3) the certification against forum shopping was defective, having been executed by an attorney-in-fact and not the plaintiff, as required by Rule 7, Section 5[6] of the 1997 Rules of Civil Procedure. Conformably with Rule 10, Sections 1[7] and 3[8] of the 1997 Rules of Civil Procedure, Rosario amended her complaint with the addition of the following paragraph: 9-A. Earnest efforts towards (sic) have been made but the same have failed. As a matter of fact, plaintiff thru her daughter as Attorney-In-Fact caused the sending of a Demand Letter dated January 4, 1999 and the last paragraph of which reads as follows: . . .Trusting this will merit your utmost preferential attention and consideration in as much as you and our client are sisters and in order that [earnest] efforts toward a compromise could be obtained.[9] The Wees opposed Rosarios motion to have the Amended Complaint admitted. They contended that saidmotion was a mere scrap of paper for being in violation of the three-day notice requirement of Rule 15, Section 4[10] of the 1997 Rules of Civil Procedure and for having the notice of hearing addressed to the Clerk of Court and not to the adverse party as required by Section 5[11] of the same Rule. On July 29, 1999, the trial court came out with an Order denying the Wees motion to dismiss for being moot and academic, thus: WHEREFORE, premises considered, the amended complaint is hereby admitted. Defendant-spouses are hereby directed to file their Answer within the reglementary period provided by the Rules of Court.

SO ORDERED.[12]

The Wees duly moved for reconsideration, but the motion was denied on September 20, 1999, for lack of merit.

On October 18, 1999, the Wee couple brought the matter to the Court of Appeals via a special civil action for certiorari, prohibition, and mandamus, docketed as CA-G.R. SP No. 55415. The petition assailed the trial court for having acted with grave abuse of discretion amounting to lack or excess of jurisdiction for issuing the interlocutory orders of July 29, 1999 and September 20, 1999, instead of dismissing Civil Case No. Q-99-37372 outright.

On December 4, 2000, the appellate court decided CA-G.R. SP No. 55415 in this wise:

WHEREFORE, the instant petition for certiorari, prohibition and mandamus is DENIED.

SO ORDERED.[13]

The Court of Appeals held that the complaint in Civil Case No. Q-99-37372, as amended, sufficiently stated a cause of action. It likewise held that the questioned certification against forum shopping appended thereto was not so defective as to warrant the dismissal of the complaint.

On January 9, 2001, the petitioners herein moved for reconsideration of the appellate courts decision, but this was denied on March 7, 2001.

Hence, the instant petition, raising the following issues:

1. WHETHER OR NOT THE INSTANT PETITION FOR REVIEW ON CERTIORARI UNDER RULE 45 OF THE REVISED RULES OF COURT IS THE PROPER REMEDY FOR PETITIONERS UPON THE DENIAL OF THEIR PETITION FOR CERTIORARI, PROHIBITION AND MANDAMUS BY THE COURT OF APPEALS;

2. WHETHER OR NOT THE CERTIFICATION OF NON-FORUM SHOPPING EXECUTED BY THE PLAINTIFFS ATTORNEY-IN-FACT IS DEFECTIVE; AND

3. WHETHER OR NOT THE AMENDED COMPLAINT BEFORE THE REGIONAL TRIAL COURT SUFFICIENTLY STATES A CAUSE OF ACTION AGAINST THE DEFENDANTS.[14]

We shall now resolve these issues seriatim.

On the first issue, the petitioners argue that the present appeal by certiorari filed with this Court assailing the dismissal of their special civil action for certiorari, prohibition, and mandamus by the appellate court is meritorious. After all, according to petitioners, a petition for review under Rule 45, Section 1,[15] of the 1997 Rules of Civil Procedure could be brought before us, regardless of whether the assailed decision of the appellate court involves an appeal on the merits from the trial courts judgment or the dismissal of a special civil action questioning an interlocutory order of the trial court. What is important under Rule 45, Section 1, is that the assailed decision of the appellate court is final and that the petition before this Court should raise only questions of law.

Respondent, in turn, point out that the dismissal by the Court of Appeals of herein petitioners special civil action for certiorari, prohibition, and mandamus in CA-G.R. SP No. 55415 is not the final judgment or order, which could be the subject of an appeal by certiorari under Rule 45. This is because, according to respondent, certiorari as a mode of appeal involves the review of a judgment, final order, or award on the merits. Respondent contends that the appellate courts ruling in CA-G.R. SP No. 55415 did not dispose of the case on the merits, as the orders of the trial court subject of CA-G.R. SP No. 55415 were all interlocutory. In other words, the ruling of the appellate court did not put an end to Civil Case No. Q-9937372, which is still pending before the trial court. Hence, a petition for review on certiorari will not lie to assail the judgment of the Court of Appeals in CA-G.R. SP No. 55415, according to respondent.

We find no basis for respondents contention that the decision of the Court of Appeals in CA-G.R. SP No. 55415, dismissing the petitioners special civil action for certiorari, prohibition, and mandamus is interlocutory in nature. The CAs decision on said petition is final for it disposes of the original action for certiorari, prohibition, and mandamus directed against the interlocutory orders of the trial court in Civil Case No. Q-99-37372. In other words, having dismissed the said action, there is nothing more left to be done in CA-G.R. SP No. 55415 as far as the appellate court is concerned.

Nor can we sustain respondents argument that the appellate courts decision in CA-G.R. SP No. 55415 is not on the merits. In special civil actions for certiorari, such as CA-G.R. SP No. 55415, the only issue before the appellate court is whether the lower court acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction. Stated differently, in a certiorari petition the appellate court is not tasked to adjudicate the merits of the respondents claims before the trial court. Resolving such claims on the merits remains the proper province of the trial court in Civil Case No. Q-9937372. The appellate court properly ruled in CA-G.R. SP No. 55415 that the trial court committed no grave abuse of discretion amounting to lack or excess of jurisdiction so as to warrant the issuance of writs of certiorari, prohibition, and mandamus that petitioners sought. In so limiting itself to and addressing squarely only the issue of grave abuse of discretion or lack or excess of jurisdiction, the Court of Appeals, in CAG.R. SP No. 55415, precisely decided the matter on the merits. In other words, it found that the special civil action of petitioners before it had no merit.

Now, as to whether the Court of Appeals decided the matter in CA-G.R. SP No. 55415 in a manner contrary to law or established jurisprudence remains precisely for us to determine in this review on certiorari. Considering the factual and procedural circumstances of this case, the present petition is petitioners proper remedy to challenge the appellate courts judgment in CA-G.R. SP No. 55415 now.

Anent the second issue, the petitioners aver that the Court of Appeals gravely erred in finding that the certification against forum shopping in Civil Case No. Q-99-37372 was valid, notwithstanding that it was not the plaintiff below, Rosario D. Galvez, who executed and signed the same, but her attorney-in-fact, Grace Galvez. Petitioners insist that there was nothing in the special power of attorney executed by Rosario D. Galvez in favor of Grace Galvez, which expressly conferred upon the latter the authority to execute and sign, on behalf of the former, the certificate of non-forum shopping. Petitioners point out that under Rule 7, Section 5 of the 1997 Rules of Civil Procedure, it is the plaintiff or principal party who must sign the certification. They rely on our ruling in BA Savings Bank v. Sia,[16] that where the parties in an action are natural persons, the party himself is required to sign the certification, and where a representative is allowed in case of artificial persons, he must be specifically authorized to execute and sign the certification. The petitioners stress that Rosario D. Galvez failed to show any justifiable reason why her attorney-in-fact should be the one to sign the certification against forum shopping, instead of herself as the party, as required by Santos v. Court of Appeals.[17]

Respondent counters that petitioners contention has no basis. The Special Power of Attorney executed by her in favor of Grace Galvez, if subjected to careful scrutiny would clearly show that the authority given to the latter is not only broad but also all encompassing, according to respondent. By virtue of said document, Grace Galvez is given the power and authority to institute both civil and criminal actions against any person, natural or juridical, who may be obliged or answerable to the respondent. Corollary with this power is the authority to sign all papers, documents, and pleadings necessary for the accomplishment of the said purpose. Respondent likewise stresses that since Grace Galvez is the one authorized to file any action in the Philippines on behalf of her principal, she is in the best position to know whether there are other cases

involving the same parties and the same subject matter instituted with or pending before any other court or tribunal in this jurisdiction. Moreover, as an attorney-in-fact, Grace Galvez is deemed to be a party, pursuant to Rule 3, Section 3[18] of the 1997 Rules of Civil Procedure. Hence, petitioners argument that Grace Galvez is not specifically authorized to execute and sign the certification of non-forum shopping deserves scant consideration.

We find for the respondent. Noteworthy, respondent in the instant case is already a resident of the United States, and not of the Philippines. Hence, it was proper for her to appoint her daughter, Grace Galvez, to act as her attorney-in-fact in the Philippines. The Special Power of Attorney granted by the respondent to her attorney-in-fact, Grace Galvez, categorically and clearly authorizes the latter to do the following:

1. To ask, demand and claim any sum of money that is duly [due] from any person natural, juridical and/or corporation in the Philippines;

2. To file criminal and/or civil complaints before the courts of justice in the Philippines to enforce my rights and interest[s];

3. To attend hearings and/or Preliminary Conference[s], to make stipulations, adjust claims, to settle and/or enter into Compromise Agreement[s], to litigate and to terminate such proceedings; [and]

4. To sign all papers, documents and pleadings necessary for the accomplishment of the above purposes.[19]

From the foregoing, it is indisputable that Grace Galvez, as attorney-in-fact of the respondent, was duly authorized and empowered not just to initiate complaints, whether criminal or civil, to enforce and protect the respondents rights, claims, and interests in this jurisdiction, but is specifically authorized to sign all papers, documents, and pleadings necessarily connected with the filing of a complaint. Pursuant to Administrative Circular No. 04-94,[20] which extended the requirement of a certification on non-forum shopping to all initiatory pleadings filed in all courts and quasi-judicial agencies,[21] as well as Rule 7, Section 5 of the 1997 Rules of Civil procedure, the aforementioned papers and documents, which Grace Galvez was authorized and empowered to sign, must necessarily include the certification on non-forum shopping. To conclude otherwise would render nugatory the Special Power of Attorney and also render respondents constitution of an attorney-in-fact inutile.

Forum shopping occurs when a party attempts to have his action tried in a particular court or jurisdiction where he feels he will receive the most favorable judgment or verdict.[22] In our jurisdiction, it has taken the form of filing multiple petitions or complaints involving the same issues before two or more tribunals or agencies in the hope that one or the other court would make a favorable disposition.[23] There is also forum shopping when, because of an adverse decision in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another.[24] The rationale against forum shopping is that a party should not be allowed to pursue simultaneous remedies in two different fora. Filing multiple petitions or complaints constitutes abuse of court processes,[25] which tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts.[26] Thus, the rule proscribing forum shopping seeks to promote candor and transparency among lawyers and their clients in the pursuit of their cases before the courts to promote the orderly administration of justice, prevent undue inconvenience upon the other party, and save the precious time of the courts. It also aims to prevent the embarrassing situation of two or more courts or agencies rendering conflicting resolutions or decisions upon the same issue.[27] It is in this light that we must look at the propriety and correctness of the Certificate of Non-Forum Shopping signed by Grace Galvez on the respondents behalf. We have examined said Certificate[28] and find that under the circumstances, it does not negate but instead serves the purpose of the rule against forum shopping, namely to promote and facilitate the orderly administration of justice.

Rule 7, Section 5 of the Rules of Court, requires that the certification should be signed by the petitioner or principal party himself. The rationale behind this is because only the petitioner himself has actual knowledge of whether or not he has initiated similar actions or proceedings in different courts or agencies.[29] However, the rationale does not apply where, as in this case, it is the attorney-in-fact who instituted the action. The Special Power of Attorney in this instance was constituted precisely to authorize Grace Galvez to file and prosecute suits on behalf of respondent, who was no longer resident of the Philippines but of New York, U.S.A. As respondent points out, it is Grace Galvez, as attorney-in-fact for her, who has actual and personal knowledge whether she initiated similar actions or proceedings before various courts on the same issue on respondents behalf. Said circumstance constitutes reasonable cause to allow the attorney-in-fact, and not the respondent, as plaintiff in Civil Case No. Q-99-37372 to personally sign the Certificate of Non-Forum Shopping. Under the circumstances of this case, we hold that there has been proper compliance with the rule proscribing forum shopping. As we previously held concerning Administrative Circular No. 04-94:

The fact that the Circular requires that it be strictly complied with merely underscores its mandatory nature in that it cannot be dispensed with or its requirements altogether disregarded, but it does not thereby interdict substantial compliance with its provisions under justifiable circumstances.[30]

Administrative Circular No. 04-94 is now incorporated in the 1997 Rules of Civil Procedure, as Rule 7, Section 5. It is basic that the Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.[31] Otherwise put, the rule requiring a certification of forum shopping to accompany every initiatory pleading, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure which is to achieve substantial justice as expeditiously as possible.[32]

On the third issue, petitioners submit that the amended complaint in Civil Case No. Q-99-37372 violates Rule 8, Section 1[33] of the 1997 Rules of Civil Procedure, as there is no plain and direct statement of the ultimate facts on which the plaintiff relies for her claim. Specifically, petitioners contend that the allegation in paragraph 9-A[34] of the amended complaint that Earnest efforts towards have been made but the same have failed is clearly insufficient. The sentence is incomplete, thus requires the reader of the pleading to engage in deductions or inferences in order to get a complete sense of the cause of action, according to petitioners.

Respondent rebuts petitioners contention by stating that the amended complaint as well as the annexes attached to the pleadings should be taken in their entirety in determining whether a cause of action was validly stated in the complaint. Thus taken together, in their entirety, the amended complaint and the attachments to the original complaint, clearly show that a sufficient cause of action as it is shown and stated that earnest efforts towards a compromise have been made, according to respondent.

Under Article 151 of the Family Code, a suit between members of the same family shall not be entertained, unless it is alleged in the complaint or petition that the disputants have made earnest efforts to resolve their differences through compromise, but these efforts have not succeeded. The attempt to compromise as well as its failure or inability to succeed is a condition precedent to the filing of a suit between members of the same family.[35] Rule 8, Section 3[36] of the 1997 Rules of Civil Procedure provides that conditions precedent may be generally averred in the pleadings. Applying the foregoing to the instant case, we have to ask: Is there a sufficient general averment of the condition precedent required by the Family Code in the Amended Complaint in Civil Case No. Q-99-37372?

We find in the affirmative. Our examination of paragraph 9-A of the Amended Complaint shows that respondent has complied with this requirement of a general averment. It is true that the lead sentence of paragraph 9-A, which reads Earnest efforts towards have been made but the same have failed may be incomplete or even grammatically incorrect as there might be a missing word or phrase, but to our mind, a lacking word like compromise could be supplied by the rest of the paragraph. A paragraph is a distinct section or subdivision of a written or printed composition that consists of from one to many sentences, forms a rhetorical unit (as by dealing with a particular point of the subject or by comprising the words of a distinct speaker).[37] As a short composition consisting of a group of sentences dealing with a single

topic,[38] a paragraph must necessarily be construed in its entirety in order to properly derive the message sought to be conveyed. In the instant case, paragraph 9-A of the Amended Complaint deals with the topic of efforts made by the respondent to reach a compromise between the parties. Hence, it is in this light that the defective lead sentence must be understood or construed. Contrary to what petitioners claim, there is no need for guesswork or complicated deductions in order to derive the point sought to be made by respondent in paragraph 9-A of the Amended Complaint, that earnest efforts to compromise the differences between the disputants were made but to no avail. The petitioners stance that the defective sentence in paragraph 9-A of the Amended Complaint fails to state a cause of action, thus, has no leg to stand on. Having examined the Amended Complaint in its entirety as well as the documents attached thereto, following the rule that documents attached to a pleading are considered both as evidence and as part of the pleading,[39] we find that the respondent has properly set out her cause of action in Civil Case No. Q-9937372.

WHEREFORE, the instant petition is DENIED for lack of merit. The Decision dated December 4, 2000 of the Court of Appeals in CA-G.R. SP No. 55415, as well as its Resolution dated March 7, 2001, are hereby AFFIRMED. Costs against the petitioners. SO ORDERED.

[5] ART. 151. 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.

[6] SEC. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice,

unless otherwise provided, upon motion and after hearing. The submission of a false certification or noncompliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.

[7] SEC. 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.

[8] SEC. 3. Amendments by leave of court. Except as provided in the next preceding section, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard.

[9] CA Rollo, pp. 50-51.

[10] SEC. 4. Hearing of motion. - Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice.

[11] SEC. 5. Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion.

[12] CA Rollo, p. 63.

[13] Rollo, p. 138.

[14] Id. at 230.

[15] SEC. 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.

[16] G.R. No. 131214, 27 July 2000, 336 SCRA 484, 489.

[17] G.R. No. 141947, 5 July 2001, 360 SCRA 521, 526.

[18] SEC. 3. Representatives as parties. Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal.

[19] Records, p. 11.

[20] The Circular is entitled Additional Requisites for Civil Complaints, Petitions and Other Initiatory Pleadings Filed In All Courts and Agencies, Other Than the Supreme Court and the Court of Appeals, To Prevent Forum Shopping or Multiple Filing of Such Pleadings.

[21] Benguet Electric Cooperative, Inc. v. Flores, A.C. No. 4058, 12 March 1998, 287 SCRA 449, 456.

[23] Melo v. Court of Appeals, G.R. No. 123686, 16 November 1999, 318 SCRA 94, 100 citing Executive Secretary v. Gordon, G.R. No. 134171, 18 November 1998, 298 SCRA 736, 740; Domingo, Jr. v. Commission on Elections, G.R. No. 136587, 30 August 1999, 313 SCRA 311, 317.

[24] Fortich v. Corona, G.R. No. 131457, 24 April 1998, 289 SCRA 624, 647 citing First Philippine International Bank v. Court of Appeals, G.R. No. 115849, 24 January 1996, 252 SCRA 259, 283; Villanueva v. Adre, G.R. No. 80863, 27 April 1989, 172 SCRA 876, 882; Crisostomo v. Securities and Exchange Commission, G.R. Nos. 89095 & 89555, 6 November 1989, 179 SCRA 146, 155. [33] SEC. 1. In general. Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. [34] Records, pp. 38-39. Paragraph 9-A in its entirety reads as follows: Earnest efforts towards (sic) have been made but the same have failed. As a matter of fact, plaintiff thru her daughter as Attorney-In-Fact caused the sending of a Demand Letter dated January 4, 1999 and the last paragraph of which reads as follows: Trusting this will merit your utmost preferential attention and consideration in as much as you and our client are sisters and in order that eranest (sic) efforts toward a compromise could be obtained. [35] OLaco v. Co Cho Chit, G.R. No. 58010, 31 March 1993, 220 SCRA 656, 661 citing Mendoza v. Court of Appeals, No. L-23102, 24 April 1967, 19 SCRA 756, 759; Guerrero v. RTC of Ilocos Norte, Br. XVI, G.R. No. 109068, 10 January 1994, 229 SCRA 274, 277. [36] SEC. 3. Conditions precedent. In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 109068 January 10, 1994 GAUDENCIO GUERRERO, petitioner, vs. REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI, JUDGE LUIS B. BELLO, JR., PRESIDING, and PEDRO G. HERNANDO, respondents.

Juan Jacito for petitioner. Alipio V. Flores for private respondent.

BELLOSILLO, J.: Filed by petitioner as an accion publicana 1 against private respondent, this case assumed another dimension when it was dismissed by respondent Judge on the ground that the parties being brother-in-law the complaint should have alleged that earnest efforts were first exerted towards a compromise. Admittedly, the complaint does not allege that the parties exerted earnest towards a compromise and that the same failed. However, private respondent Pedro G. Hernando apparently overlooked this alleged defect since he did not file any motion to dismiss nor attack the complaint on this ground in his answer. It was only on 7 December 1992, at the pre-trial conference, that the relationship of petitioner Gaudencio Guerrero and respondent Hernando was noted by respondent Judge Luis B. Bello, Jr., they being married to half-sisters hence are brothers-in-law, and on the basis thereof respondent Judge gave petitioner five (5) days "to file his motion and amended complaint" to allege that the parties were very close relatives, their respective wives being sisters, and that the complaint to be maintained should allege that earnest efforts towards a compromise were exerted but failed. Apparently, respondent Judge considered this deficiency a jurisdictional defect. On 11 December 1992, Guerrero moved to reconsider the 7 December 1992 Order claiming that since brothers by affinity are not members of the same family, he was not required to exert efforts towards a compromise. Guerrero likewise argued that Hernando was precluded from raising this issue since he did not file a motion to dismiss nor assert the same as an affirmative defense in his answer. On 22 December 1992, respondent Judge denied the motion for reconsideration holding that "[f]ailure to allege that earnest efforts towards a compromise is jurisdictional such that for failure to allege same the court would be deprived of its jurisdiction to take cognizance of the case." He warned that unless the complaint was amended within five (5) days the case would be dismissed. On 29 January 1993, the 5-day period having expired without Guerrero amending his complaint, respondent Judge dismissed the case, declaring the dismissal however to be without prejudice. Guerrero appeals by way of this petition for review the dismissal by the court a quo. He raises these legal issues: (a) whether brothers by affinity are considered members of the same family contemplated in Art. 217, par. (4), and Art. 222 of the New Civil Code, as well as under Sec. 1, par. (j), Rule 16, of the Rules of Court requiring earnest efforts towards a compromise before a suit between them may be instituted and maintained; and, (b) whether the absence of an allegation in the complaint that earnest efforts towards a compromise were exerted, which efforts failed, is a ground for dismissal for lack of jurisdiction. The Constitution protects the sanctity of the family and endeavors to strengthen it as a basic autonomous social institution. 2 This is also embodied in Art. 149, 3 and given flesh in Art. 151, of the Family Code, which provides:

Art. 151. 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 had 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. Considering that Art. 151 herein-quoted starts with the negative word "No", the requirement is mandatory 4 that the complaint or petition, which must be verified, should allege that earnest efforts towards a compromise have been made but that the same failed, so that "[i]f it is shown that no such efforts were in fact made, the case must be dismissed." Further, Art. 151 is contemplated by Sec. 1, par. (j), Rule 16, of the Rules of Court which provides as a ground for motion to dismiss "(t)hat the suit is between members of the same family and no earnest efforts towards a compromise have been made." The Code Commission, which drafted the precursor provision in the Civil Code, explains the reason for the requirement that earnest efforts at compromise be first exerted before a complaint is given due course This rule is introduced because it 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 . . . A litigation in a family is to be lamented far more than a lawsuit between strangers . . . 5 But the instant case presents no occasion for the application of the above-quoted provisions. As early as two decades ago, we already ruled in Gayon v. Gayon 6 that the enumeration of "brothers and sisters" as members of the same family does not comprehend "sisters-inlaw". In that case, then Chief Justice Concepcion emphasized that "sisters-in-law" (hence, also "brothers-inlaw") are not listed under Art. 217 of the New Civil Code as members of the same family. Since Art. 150 of the Family Code repeats essentially the same enumeration of "members of the family", we find no reason to alter existing jurisprudence on the matter. Consequently, the court a quo erred in ruling that petitioner Guerrero, being a brother-in-law of private respondent Hernando, was required to exert earnest efforts towards a compromise before filing the present suit. In his Comment, Hernando argues that ". . . although both wives of the parties were not impleaded, it remains a truism that being spouses of the contending parties, and the litigation involves ownership of real property, the spouses' interest and participation in the land in question cannot be denied, making the suit still a suit between half-sisters . . ." 7 Finding this argument preposterous, Guerrero counters in his Reply that his "wife has no actual interest and participation in the land subject of the . . . suit, which the petitioner bought, according to his complaint, before he married his wife." 8 This factual controversy however may be best left to the court a quo to resolve when it resumes hearing the case.

As regards the second issue, we need only reiterate our ruling in 9 citing Mendoza v. Court of Appeals, 10 that the attempt to compromise as well as O'Laco v. Co Cho Chit, the inability to succeed is a condition precedent to the filing of a suit between members of the same family, the absence of such allegation in the complaint being assailable at any stage of the proceeding, even on appeal, for lack of cause of action. It is not therefore correct, as petitioner contends, that private respondent may be deemed to have waived the aforesaid defect in failing to move or dismiss or raise the same in the Answer. On the other hand, we cannot sustain the proposition of private respondent that the case was, after all, also dismissed pursuant to Sec. 3, Rule 17, of the Rules of Court 11 for failure of petitioner to comply with the court's order to amend his complaint. A review of the assailed orders does not show any directive which Guerrero supposedly defied. The Order of 7 December 1992 merely gave Guerrero five (5) days to file his motion and amended complaint with a reminder that the complaint failed to allege that earnest efforts were exerted towards a compromise. The Order of 22 December 1992, which denied Guerrero's motion for reconsideration, simply stated that "Plaintiff if it (sic) so desire must amend the complaint otherwise, the court will have to dismiss the case (emphasis supplied) . . ." The Order of 29 January 1993 dismissing the case without prejudice only made reference to an earlier order "admonishing" counsel for Guerrero to amend the complaint, and an "admonition" is not synonymous with "order". Moreover, since the assailed orders do not find support in our jurisprudence but, on the other hand, are based on an erroneous interpretation and application of the law, petitioner could not be bound to comply with them. 12 WHEREFORE, the petition is GRANTED and the appealed Orders of 7 December 1992, 22 December 1992 and 29 January 1993 are SET ASIDE. The Regional Trial Court of Laoag City, Branch 16, or whichever branch of the court the case may now be assigned, is directed to continue with Civil Case No. 10084-16 with deliberate dispatch. SO ORDERED.

MAXIMO ALVAREZ, Petitioner,

T H I R D D I V I S I O N G.R. No. 143439 Present: PANGANIBAN, J., Chairman, SANDOVAL-GUTIERREZ, CORONA, CARPIO MORALES, and GARCIA, JJ. Promulgated:

- versus -

SUSAN RAMIREZ,

Respondent. October 14, 2005 x---------------------------------------------------------------------------------------------x D E C I S I O N SANDOVAL-GUTIERREZ, J.:

Before us is a petition for review on certiorari[1] assailing the Decision[2] of the Court of Appeals dated May 31, 2000 in CA-G.R. SP No. 56154, entitled SUSAN RAMIREZ, petitioner, versus, HON. BENJAMIN M. AQUINO, JR., asJUDGE RTC, MALABON, MM, BR. 72, and MAXIMO ALVAREZ, respondents. Susan Ramirez, herein respondent, is the complaining witness in Criminal Case No. 19933-MN for arson[3] pending before the Regional Trial Court, Branch 72, Malabon City. The accused is Maximo Alvarez, herein petitioner. He is the husband of Esperanza G. Alvarez, sister of respondent. On June 21, 1999, the private prosecutor called Esperanza Alvarez to the witness stand as the first witness against petitioner, her husband. Petitioner and his counsel raised no objection. Esperanza testified as follows: ATTY. ALCANTARA: We are calling Mrs. Esperanza Alvarez, the wife of the accused, Your Honor. COURT: Swear in the witness. xxx ATTY. MESIAH: (sic) Your Honor, we are offering the testimony of this witness for the purpose of proving that the accused Maximo Alvarez committed all the elements of the crime being charged particularly that accused Maximo Alvarez pour on May 29, 1998 gasoline in the house located at Blk. 5, Lot 9, Phase 1-C, Dagat-dagatan, Navotas, Metro Manila, the

house owned by his sister-in-law Susan Ramirez; that accused Maximo Alvarez after pouring the gasoline on the door of the house of Susan Ramirez ignited and set it on fire; that the accused at the time he successfully set the house on fire (sic) of Susan Ramirez knew that it was occupied by Susan Ramirez, the members of the family as well as Esperanza Alvarez, the estranged wife of the accused; that as a consequence of the accused in successfully setting the fire to the house of Susan Ramirez, the door of said house was burned and together with several articles of the house, including shoes, chairs and others. COURT: You may proceed. xxx DIRECT EXAMINATION ATTY. ALCANTARA: xxx Q: A: When you were able to find the source, incidentally what was the source of that scent? When I stand by the window, sir, I saw a man pouring the gasoline in the house of my sister (and witness pointing to the person of the accused inside the court room). For the record, Mrs. Witness, can you state the name of that person, if you know? He is my husband, sir, Maximo Alvarez. If that Maximo Alvarez you were able to see, can you identify him? Yes, sir. If you can see him inside the Court room, can you please point him? Witness pointing to a person and when asked to stand and asked his name, he gave his name as Maximo Alvarez.[4]

Q: A: Q: A: Q: A:

In the course of Esperanzas direct testimony against petitioner, the latter showed uncontrolled emotions, prompting the trial judge to suspend the proceedings. On June 30, 1999, petitioner, through counsel, filed a motion [5] to disqualify Esperanza from testifying against him pursuant to Rule 130 of the Revised Rules of Court on marital disqualification.

Respondent filed an opposition[6] to the motion. Pending resolution of the motion, the trial court directed the prosecution to proceed with the presentation of the other witnesses. On September 2, 1999, the trial court issued the questioned Order disqualifying Esperanza Alvarez from further testifying and deleting her testimony from the records. [7] The prosecution filed a motion for reconsideration but was denied in the other assailed Order dated October 19, 1999. [8] This prompted respondent Susan Ramirez, the complaining witness in Criminal Case No. 19933MN, to file with the Court of Appeals a petition for certiorari[9] with application for preliminary injunction and temporary restraining order.[10] On May 31, 2000, the Appellate Court rendered a Decision nullifying and setting aside the assailed Orders issued by the trial court.

Hence, this petition for review on certiorari.

The issue for our resolution is whether Esperanza Alvarez can testify against her husband in Criminal Case No. 19933-MN. Section 22, Rule 130 of the Revised Rules of Court provides: Sec. 22. Disqualification by reason of marriage. During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latters direct descendants or ascendants.

The reasons given for the rule are: 1. There is identity of interests between husband and wife;

2. 3.

If one were to testify for or against the other, there is consequent danger of perjury; The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness; and

4.

Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other.[11]

But like all other general rules, the marital disqualification rule has its own exceptions, both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For instance, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life, which the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a void in the unhappy home. [12]

In Ordoo vs. Daquigan,[13] this Court held: We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargil vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said: The rule that the injury must amount to a physical wrong upon the person is too narrow; and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attacks, or directly and vitally impairs, the conjugal relation, it comes within the exception to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committee (by) one against the other.

Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal relation between him and his wife Esperanza. His act, as embodied in the Information for arson filed against him, eradicates all the major aspects of marital life such as trust, confidence, respect and love by which virtues the conjugal relationship survives and flourishes. As correctly observed by the Court of Appeals: The act of private respondent in setting fire to the house of his sister-in-law Susan Ramirez, knowing fully well that his wife was there, and in fact with the alleged intent of injuring the latter, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation. It underscored the fact that the marital and domestic relations between her and the accused-husband have become so strained that there is no more harmony, peace or tranquility to be preserved. The Supreme Court has held that in such a case, identity is non-existent. In such a situation, the security and confidences of private life which the law aims to protect are nothing but ideals which through their absence, merely leave a void in the unhappy home. (People v. Castaeda, 271 SCRA 504). Thus, there is no longer any reason to apply the Marital Disqualification Rule.

It should be stressed that as shown by the records, prior to the commission of the offense, the relationship between petitioner and his wife was already strained. In fact, they were separated de facto almost six months before the incident. Indeed, the evidence and facts presented reveal that the preservation of the marriage between petitioner and Esperanza is no longer an interest the State aims to protect. At this point, it bears emphasis that the State, being interested in laying the truth before the courts so that the guilty may be punished and the innocent exonerated, must have the right to offer the direct testimony of Esperanza, even against the objection of the accused, because (as stated by this Court in Francisco[14]), it was the latter himself who gave rise to its necessity.

WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial court, RTC, Branch 72, Malabon City, is ordered to allow Esperanza Alvarez to testify against petitioner, her husband, in Criminal Case No. 19933-MN. Costs against petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. NO. 154132 August 31, 2006 HIYAS SAVINGS and LOAN BANK, INC. Petitioner,vs. HON. EDMUNDO T. ACUA, in his capacity as Pairing Judge of Regional Trial Court, Branch 122, Caloocan City, and ALBERTO MORENO, Respondent. 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 3denying 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 party-defendants 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. Purgananon bail in extradition proceedings; (c) Commission on Elections vs. QuijanoPadilla 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 of Gonzales 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) Between husband and wife; (2) Between parents and children; (3) Among other ascendants and descendants; and (4) 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) Between husband and wife;

(2) Between parent and child; (3) Among other ascendants and their descendants; (4) 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. SECOND DIVISION [G.R. No. 162084. June 28, 2005] APRIL MARTINEZ, FRITZ DANIEL MARTINEZ and MARIA OLIVIA MARTINEZ, petitioners, vs. RODOLFO G. MARTINEZ, respondent. DECISION CALLEJO, SR., J.: This is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No. 59420 setting aside and reversing the decision of the Regional Trial Court (RTC) of Manila, Branch 30, in Civil Case No. 00-96962 affirming, on appeal, the decision of the Metropolitan Trial Court (MTC) of Manila in Civil Case No. 164761 (CV) for ejectment. The Antecedents The spouses Daniel P. Martinez, Sr. and Natividad de Guzman-Martinez were the owners of a parcel of land identified as Lot 18-B-2 covered by Transfer Certificate of Title (TCT) No. 54334, as well as the house constructed thereon.[2] On March 6, 1993, Daniel, Sr. executed a Last Will and Testament [3] directing the subdivision of the property into three lots, namely, Lots 18-B-2-A, 18-B-2-B and 18-B-2-C. He then bequeathed the three lots to each of his sons, namely, Rodolfo, Manolo and Daniel, Jr.; Manolo was designated as the administrator of the estate. In May 1995, Daniel, Sr. suffered a stroke which resulted in the paralysis of the right side of his body. Natividad died on October 26, 1996.[4] Daniel, Sr. passed away on October 6, 1997.[5]

On September 16, 1998, Rodolfo found a deed of sale purportedly signed by his father on September 15, 1996, where the latter appears to have sold Lot 18-B-2 to Manolo and his wife Lucila.[6] He also discovered that TCT No. 237936 was issued to the vendees based on the said deed of sale.[7] Rodolfo filed a complaint[8] for annulment of deed of sale and cancellation of TCT No. 237936 against his brother Manolo and his sister-in-law Lucila before the RTC. He also filed a criminal complaint for estafa through falsification of a public document in the Office of the City Prosecutor against Manolo, which was elevated to the Department of Justice.[9] On motion of the defendants, the RTC issued an Order[10] on March 29, 1999, dismissing the complaint for annulment of deed of sale on the ground that the trial court had no jurisdiction over the action since there was no allegation in the complaint that the last will of Daniel Martinez, Sr. had been admitted to probate. Rodolfo appealed the order to the CA.[11] On October 4, 1999, Rodolfo filed a Petition with the RTC of Manila for the probate of the last will of the deceased Daniel Martinez, Sr.[12] In the meantime, the spouses Manolo and Lucila Martinez wrote Rodolfo, demanding that he vacate the property. Rodolfo ignored the letter and refused to do so. This prompted the said spouses to file a complaint for unlawful detainer against Rodolfo in the MTC of Manila. They alleged that they were the owners of the property covered by TCT No. 237936, and that pursuant to Presidential Decree (P.D.) No. 1508, the matter was referred to the barangay for conciliation and settlement, but none was reached. They appended the certification to file action executed by the barangay chairman to the complaint. In his Answer[13] to the complaint filed on October 11, 1999, Rodolfo alleged, inter alia, that the complaint failed to state a condition precedent, namely, that earnest efforts for an amicable settlement of the matter between the parties had been exerted, but that none was reached. He also pointed out that the dispute had not been referred to the barangay before the complaint was filed. On October 20, 1999, the spouses Martinez filed an Amended Complaint in which they alleged that earnest efforts toward a settlement had been made, but that the same proved futile. Rodolfo filed his opposition thereto, on the ground that there was no motion for the admission of the amended complaint. The trial court failed to act on the matter. The spouses Martinez alleged in their position paper that earnest efforts toward a compromise had been made and/or exerted by them, but that the same proved futile. [14] No amicable settlement was, likewise, reached by the parties during the preliminary conference because of irreconcilable differences. The MTC was, thus, impelled to terminate the conference.[15] On February 21, 2000, the trial court rendered judgment in favor of the spouses Martinez. The fallo of the decision reads: WHEREFORE, premises considered, judgment is rendered in favor of plaintiff. The defendant, including any person claiming right under him, is ordered: 1) 2) To vacate the subject premises; To pay plaintiff the sum of P10,000.00 a month starting July 17, last demand until he vacates the same; 3) To pay the sum of P10,000.00 as and for attorneys fees; and 4) Costs of suit. 1999, the date of

SO ORDERED.[16] The trial court declared that the spouses Martinez had substantially complied with Article 151 of the Family Code of the Philippines[17]based on the allegations of the complaint and the appended certification to file action issued by the barangay captain. Rodolfo appealed the decision to the RTC. On May 31, 2000, the RTC rendered judgment affirming the appealed decision. He then filed a petition for review of the decision with the CA, alleging that: 1. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND WITHOUT MERIT THE DEFENSE OF PETITIONER THAT THERE IS NO ALLEGATION IN THE COMPLAINT THAT PETITIONER HAS UNLAWFULLY WITHHELD POSSESSION OF THE PROPERTY FROM RESPONDENTS A REQUIREMENT IN [AN] UNLAWFUL DETAINER SUIT. 2. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT PETITIONERS POSSESSION OF THE PROPERTY IS BY MERE TOLERANCE OF RESPONDENTS. 3. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THE RESPONDENTS HAVE A CAUSE OF ACTION. 4. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH DID NOT RESOLVE THE SIXTH ISSUE, TO WIT, Whether or not this Court has jurisdiction over this case considering that the allegations in the complaint makes out a case of accion publiciana. 5. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH HAS NO JURISDICTION OVER THE CASE. 6. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THE MANDATORY REQUIREMENT OF CONCILIATION HAS BEEN COMPLIED WITH. 7. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THERE WAS SUBSTANTIAL COMPLIANCE WITH THE KATARUNGANG PAMBARANGAY LAW. 8. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THE PENDENCY OF CIVIL CASE NO. 98-91147 AND SPECIAL PROCEEDINGS NO. 99-95281, INVOLVING THE PETITIONER AND RESPONDENTS AND INVOLVING THE SAME PROPERTY DID NOT DIVEST THE MTC OF AUTHORITY TO DECIDE THE CASE. 9. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH GRANTED THE RELIEF PRAYED FOR BY THE RESPONDENTS. 10. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC.[18] On November 27, 2003, the CA rendered judgment granting the petition and reversing the decision of the RTC. The appellate court ruled that the spouses Martinez had failed to comply with Article 151 of the Family code. The CA also held that the defect in their complaint before the MTC was not cured by the filing of an amended complaint because the latter pleading was not admitted by the trial court. Upon the denial of their motion for reconsideration of the said decision, the spouses Martinez filed the present petition for review oncertiorari, in which they raise the following issues:

I. WHETHER OR NOT THE CERTIFICATION TO FILE ACTION AND THE ALLEGATIONS IN THE COMPLAINT THAT THE CASE PASSED [THROUGH] THE BARANGAY BUT NO SETTLEMENT WAS REACHED, ARE SUFFICIENT COMPLIANCE TO PROVE THAT, INDEED, EARNEST EFFORTS WERE, IN FACT, MADE BUT THE SAME HAVE FAILED PRIOR TO THE FILING OF THE COMPLAINT. II. WHETHER OR NOT THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN FINDING THAT THERE WAS NON-COMPLIANCE WITH THE REQUIREMENT PROVIDED FOR UNDER ARTICLE 151 OF THE FAMILY CODE, CONSIDERING THAT ONE OF THE PARTIES TO A SUIT IN THIS CASE IS NOT A MEMBER OF THE SAME FAMILY.[19] The petitioners alleged that they substantially complied with Article 151 of the Family Code, since they alleged the following in their original complaint: 2. In compliance with P.D. 1508, otherwise known as the Katarungang Pambarangay, this case passed [through] the Barangay and no settlement was forged between plaintiffs and defendant as a result of which Certification to File Action was issued by Barangay 97, Zone 8, District I, Tondo, Manila. xxx (Underscoring supplied)[20] Further, the petitioners averred, they alleged in their position paper that they had exerted earnest efforts towards a compromise which proved futile. They also point out that the MTC resolved to terminate the preliminary conference due to irreconcilable difference between the parties. Besides, even before they filed their original complaint, animosity already existed between them and the respondent due to the latters filing of civil and criminal cases against them; hence, the objective of an amicable settlement could not have been attained. Moreover, under Article 150 of the Family Code, petitioner Lucila Martinez had no familial relations with the respondent, being a mere sister-in-law. She was a stranger to the respondent; hence, there was no need for the petitioners[21] to comply with Article 151 of the Family Code. The petition is meritorious. Article 151 of the Family Code provides: Art. 151. 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. The phrase members of the family must be construed in relation to Article 150 of the Family Code, to wit: Art. 150. Family relations include those: (1) Between husband and wife;

(2) Between parents and children; (3) Among other ascendants and descendants; and (4) Among brothers and sisters, whether of the full or half-blood. Article 151 of the Family code must be construed strictly, it being an exception to the general rule. Hence, a sister-in-law or brother-in-law is not included in the enumeration.[22] As pointed out by the Code Commission, it 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 and it is known that a lawsuit between close relatives generates deeper bitterness than between strangers. [23] Thus, a partys failure to comply with Article 151 of the Family Code before filing a complaint against a family member would render such complaint premature. In this case, the decision of the CA that the petitioners were mandated to comply with Article 151 of the Family code and that they failed to do so is erroneous. First. Petitioner Lucila Martinez, the respondents sister-in-law, was one of the plaintiffs in the MTC. The petitioner is not a member of the same family as that of her deceased husband and the respondent: As regards plaintiffs failure to seek a compromise, as an alleged obstacle to the present case, Art. 222 of our Civil Code provides: 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. It is noteworthy that the impediment arising from this provision applies to suits filed or maintained between members of the same family. This phrase, members of the same family, should, however, be construed in the light of Art. 217 of the same Code, pursuant to which: Family relations shall include those: (1) Between husband and wife; (2) Between parent and child; (3) Among other ascendants and their descendants; (4) Among brothers and sisters. Mrs. Gayon is plaintiffs sister-in-law, whereas her children are his nephews and/or nieces. Inasmuch as none of them is included in the enumeration contained in said Art. 217 which should be construed strictly, it being an exception to the general rule and Silvestre Gayon must necessarily be excluded as party in the case at bar, it follows that the same does not come within the purview of Art. 222, and plaintiffs failure to seek a compromise before filing the complaint does not bar the same.[24] Second. The petitioners were able to comply with the requirements of Article 151 of the Family Code because they alleged in their complaint that they had initiated a proceeding against the respondent for unlawful detainer in the Katarungang Pambarangay, in compliance with P.D. No. 1508; and that, after due proceedings, no amicable settlement was arrived at, resulting in the barangay chairmans issuance of a

certificate to file action.[25] The Court rules that such allegation in the complaint, as well as the certification to file action by the barangaychairman, is sufficient compliance with article 151 of the Family Code. It bears stressing that under Section 412(a) of Republic Act No. 7160, no complaint involving any matter within the authority of the Lupon shall be instituted or filed directly in court for adjudication unless there has been a confrontation between the parties and no settlement was reached.[26] IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 59420 is REVERSED AND SET ASIDE. The Decision of the Metropolitan Trial Court of Manila, as affirmed on appeal by the Regional Trial Court of Manila, Branch 30, in Civil Case No. 164761(CV) is REINSTATED. No costs. SO ORDERED.

THIRD DIVISION NICANOR T. SANTOS, Petitioner, G.R. No. 134787 Present: PANGANIBAN, J., Chairman SANDOVAL-GUTIERREZ, CORONA, CARPIO MORALES, and GARCIA, JJ. Promulgated: November 15, 2005

- versus -

COURT OF APPEALS, CONSUELO T. SANTOSGUERRERO and ANDRES GUERRERO, Respondents.

x----------------------------------------------------------------------------------x DECISION GARCIA, J.: Jurisprudence is replete with cases of close family ties sadly torn apart by disputes over inheritance. This is one of them and, for sure, will not be the last. In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Nicanor T. Santosassails and seeks to set aside the Decision dated March 24, 1998 [1] of the Court of Appeals (CA)

in C.A. G.R. CV No. 50060 dismissing his appeal from the amended decision dated July 27, 1995 of the Regional Trial Court of Malabon-Navotas in Civil Case No. 1784-MN, an action for revival of judgment. The facts: Petitioner Nicanor T. Santos and private respondent Consuelo T. Santos-Guerrero are brother and sister, born to spouses Urbano Santos and Candelaria Santos, now both deceased. Sometime in 1956, Nicanor, Consuelo and eight of their siblings, executed a Basic Agreement of Partition covering properties they inherited from their parents. Two years later, Consuelo, joined by her husband, herein respondent Andres Guerrero (collectively, the Guerreros), filed suit with the then Court of First Instance (CFI) of Rizal against petitioner Nicanor and two (2) other brothers, for recovery of inheritance. Pending resolution of Civil Case No. 4871, the following events transpired: 1. The Santos heirs executed on May 5, 1959 another document, denominated Deed of Partition (With More Corrections). In it, the properties allotted to the heirs belonging to Group 4, to which Consuelo and Nicanor belonged, were divided into four (4) shares. Share No. 3 was adjudicated to Nicanor who, however, was obligated to pay Consuelo the amount of P31,825.00. 2. Spouses Guerreros filed another complaint against petitioner Nicanor, docketed as Civil Case No. 5858 of CFI-Rizal, for the recovery of her (Consuelos) share under the May 5, 1959 Deed of Partition. Civil Case No. 4871 and Civil Case No. 5858 would subsequently be consolidated before the CFI-Rizal, Branch 11, presided, according to petitioner, by Judge Andres Reyes. On November 27, 1960, Judge Reyes rendered a decision (Exh.5), disposing as follows: IN VIEW OF THE FOREGOING, the Court hereby renders judgment, ordering the defendant [herein petitioner] to comply with his part of the Deed of Partition and deliver to the plaintiff [respondent Consuelo] the amount of P26,650.00 without prejudice to the right of reimbursement under the same deed. No pronouncement as to costs. SO ORDERED. (Words in bracket supplied)[2]

Subsequently, the Guerreros instituted another complaint against Nicanor with the CFI at Pasig for recovery of sums of money under the May 5, 1959 Deed of Partition. For some reason unclear from the

records and which the parties have not explained, the case was also assigned docket number Civil Case No. 5858. It was raffled to Branch VI of the court, presided by Judge Eutropio Migrio.[3] Thereat, Nicanor, as defendant a quo, filed a third party complaint against brothers Ernesto et al. And albeit not touched upon in the basic pleadings, the issue of whether Nicanor was obligated to pay Consuelo the amount of P31,825.00, as stated in the 1959 deed of partition, or the amount of P26,650.00, as decreed in Exhibit 5, was raised in the parties respective memoranda.[4] In fact, during the hearing of this particular case, the Guerreros filed a Manifestation and Motion, stating as follows: 1. That they agree to submit this case . . . on the basis of the total amount of P34, 825.00 due to the plaintiff, Consuelo T. Santos-Guerrero, minus P8,175.00 due to Group 8, or a net balance of P26,650.00 in favor of the plaintiff . . . . 2. xxx 3. That they finally agree that the total net balance of P26,650.00 plus the interest thereon and attorneys fees in the amount which this Honorable Court will determine, shall be paid by the defendant-third party plaintiff Nicanor T. Santos and all of the third-party defendants . WHEREFORE, it is respectfully prayed . . . that judgment be rendered in the above-entitled case in accordance with the foregoing terms and conditions.

Eventually, on December 28, 1979, Judge Migrio rendered judgment (Exh. A) ordering Nicanor, as defendant a quo, to pay Consuelo P31,825.00, representing the amount due her under the May 5, 1959 deed of partition, plus damages and attorneys fees.[5] In time, Nicanor went to the Intermediate Appellate Court (IAC), now CA, where his appellate recourse was docketed as CA-G.R. No. 69008-CV. In a Decision dated October 21, 1985, the IAC affirmed the December 28, 1979 CFI decision of Judge Migrio, but reduced the award of moral damages. Nicanors petition for review of the IAC decision would subsequently be denied by this Court per its Resolution dated February 19, 1986 in G.R. No. L-73121.[6] Following the issuance by the Court of an Entry of Judgment on April 1, 1986,[7] the records were subsequently remanded to the trial court. For some reason, however, the Guerreros did not pursue execution of the judgment. A little over six (6) years later, or on June 3, 1992, to be precise, the Guerreros filed a complaint for revival of the December 28, 1979 decision of Judge Migrio (Exh. A), docketed as Civil Case No. 1784-MN of the Regional Trial Court (RTC) of Malabon-Navotas. Petitioner Nicanor, as defendant,

countered with a motion to dismiss on several grounds, among which were: (a) that the complaint for revival of judgment is barred under the res judicata rule; and (b) that the suit is between members of the same family and no earnest efforts towards an amicable settlement have been made. After due proceedings, the RTC of Malabon-Navotas dismissed the complaint for revival of judgment. However, on motion for reconsideration and following a new trial, the trial court reversed itself and, accordingly, rendered on July 27, 1995 an amended decision, the fallo of which reads: WHEREFORE, judgment is hereby rendered reviving the Decision dated December 28, 1979 in Civil Case No. 5858 and correspondingly, [petitioner] is hereby ordered to pay [private respondents] as follows. a) THIRTY ONE THOUSAND EIGHT HUNDRED TWENTY FIVE PESOS (P31,825.00) representing the amount due from him to her under their deed of partition of May 5, 1959; b) TWENTY FIVE THOUSAND PESOS (P25,000.00) by way of unrealized profits; c) FIVE THOUSAND PESOS (P5,000.00) by way of moral damages; and d) FIVE THOUSAND PESOS (P5,000.00) by way of attorneys fees, all which sums shall be with interest at the rate of six percent (6%) from October 30, 1959 when the complaint was filed, up to and including July 28, 1974 and at the rate of twelve percent (12%) from July 29, 1974 until fully paid. SO ORDERED. (Words in bracket added) Therefrom, Nicanor went on appeal to the CA whereat his recourse was docketed as CA G.R. CV No. 50060. On March 24, 1998, the appellate court rendered the herein assailed Decision dismissing the appeal.[8] A Resolution of July 24, 1998 denying Nicanors motion for reconsideration followed. [9] Hence, this instant petition for review,[10] petitioner ascribing to the Court of Appeals the commission of the following serious errors, viz: 1. In holding that Article 222 of the New Civil Code in relation to Section 1(j), Rule 16 of the Rules of Court has no application, and if there is, the subsequent act of herein petitioner already achieved that purpose; In disregarding the fact that the decision issued by Judge Eutropio Migrio is null and void for being barred by res judicata and therefore cannot be revived; and

2.

3.

In not ruling that the action based on the decision issued by Judge Andres Reyes is already barred by prescription.

The petition has no merit. A lawsuit between close relatives generates deeper bitterness than between strangers.[11] Thus, the provision making honest efforts towards a settlement a condition precedent for the maintenance of an action between members of the same family. As it were, a complaint in ordinary civil actions involving members of the same family must contain an allegation that earnest efforts toward a compromise have been made pursuant to Article 222 [12] of the Civil Code, now pursuant to Article 151 of the Family Code.[13] Otherwise, the complaint may be dismissed under Section 1(j), Rule 16 of the Rules of Court.[14] Admittedly, the complaint filed in this case contains no such allegation. But a complaint otherwise defective on that score may be cured by the introduction of evidence effectively supplying the necessary averments of a defective complaint.[15] Petitioner cannot plausibly look to Article 222 of the Civil Code to effectively dismiss, as presently urged, Civil Case No. 1784 MN. It cannot be over-emphasized in this regard that the rationale of said provision is to obviate hatred and passion in the family likely to be spawned by litigation between and among the members thereof. Civil Case No. 1784 MN, however, being merely an action for revival of judgment of a dormant decision rendered in an original action, can hardly be the kind of suit contemplated in Article 222 of the Code. What the appellate court said in the decision subject of review on the inapplicability under the premises of Article 222 of the Code is well-taken: xxx The rule should have been invoked by [petitioner] in the original action [Civil Case 5858 subject of appeal in CA-G.R No. 69008-CV) where the actual controversy is still at issue and not in the present case where the actual controversy between the parties had already been decided by the Court and what remains to be done is the enforcement of the decision. [At p. 8; Words in bracket added] Certainly not lost on the Court is an incident during the pre-trial of Civil Case No. 1784 MN which very well addressed, as aptly noted by the appellate court, the ideal sought to be achieved by said Article 222. We refer to petitioners act, via a proposal, of extending a conciliatory hand to his elder sister in a failed bid to arrive at an amicable settlement. An excerpt of petitioners written proposal: We are fast approaching the cross-road of our journey. I am now 75 years and [respondent Consuelo] is passed (sic) 78. It is unfortunate that for the past 30 years we had been quarrelling about this partition and I feel embarrassed . . . .

I appeal to the conscience and understanding of the [respondent] and by way of compromise settlement, I offer to pay [her] the amount of P5,000.00 in lieu of my original obligation of P3,536.11 . . . . Your HONOR, I am very sorry. Allow me to apologize . . . for bringing our family problem to this courtroom which should had been settled among us privately. (At pp. 8-9 of CAs Decision; Words in bracket added)

This bring us to the inter-related second and third assignments of error both of which question, in the light of Exhibit 5 (the joint decision dated November 27, 1960 of Judge Reyes.[16]), the validity of Exhibit A, the December 28, 1979 decision (of Judge Migrio), the revival of which is challenged in this case. Petitioner contends that the Judgment dated 28 December 1979 rendered by Judge Migrio which is the basis of the present case is null and void for being barred by res judicata. Said decision, petitioner adds, had already been the subject of a prior Decision rendered by Judge Andres Reyes on 27 November 1960. We are not persuaded. Res judicata, according to Black, refers to the rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.[17] It embraces two concepts: a) the effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand or cause of action; this is designated as bar by former judgment; and, b) precludes the relitigation of a particular fact or issues in another action between the same parties on a different claim or cause of action. This is the rule on conclusiveness of judgment.[18] Contrary to petitioners understanding of the doctrine, res judicata, assuming its applicability on a given situation, is not a nullifying factor, such that the final judgment in the former action works to nullify the proceedings in the subsequent action where the doctrine is invoked. In context, res judicata is a rule of preclusion to the end that facts or issues settled by final judgment should not be tried anew. [19] Section 1, Rule 16 of the Rules of Courts listsres judicata as among the grounds for a motion to dismiss or as a defense to defeat a claim, but the same must be pleaded at the earliest opportunity, either in a motion to dismiss or in the answer. Else, the defense or objection on that ground is deemed waived.[20]

The Court distinctly notes that Exhibit A (Migrio decision), which petitioner described as a nullity owing to the operation of res judicata, was, as earlier narrated, affirmed first by the IAC, then by this Court, per its Resolution of February 19, 1986 in G.R. No. L-73121.[21] The implication of these affirmatory actions on the issue of the validity or nullity of Exhibit A need no further belaboring. The Court observes likewise petitioners seeming lack of spirit, if not reasons, to support his position on the issue of res judicata and the consequent effects thereof on the final outcome of this case. Consider: Save for copies of the impugned CA decision and resolution, the basic petition for review was filed with this Court without annexes to support petitioners narration of facts whence he drew his conclusions. Worse still, petitioner did not even take serious effort to explain why he believed the doctrine of res judicata should be applied. All he virtually does is to state that xxx after Judge Reyes decided Civil Case No. 5858, all the issues therein were already put to rest [and] [T]he subsequent re-opening of the same by Judge Migrio was without any legal basis and renders [the latters] decision null and void. In net effect, petitioner has not demonstrated, but assumed the existence of the requisites of res judicata and peremptorily pronounced the nullificatory effect thereof on Exhibit A. Needless to state, simplistic conclusions and gratuitous assumptions drawn from unestablished facts are unacceptable norms for an intelligent judgment. The third assigned error is also undeserving of consideration predicated, as it were, on the erroneous proposition that the decision sought to be revived is Exhibit 5 issued, to repeat, on November 27, 1960, notExhibit A, which petitioner tags as a void decision despite its having been affirmed by the IAC and this Court. As did the RTC of Malabon-Navotas, the Court of Appeals found Exhibit 5 and Exhibit A to have resolved two (2) separate complaints, each based on different causes of actions or claims. This factual determination, needless to state, deserves great respect. Surely, petitioners declaration, without more, that Exhibit 5 and Exhibit Aresolved one and the same cause of action involving the same parties cannot be the kind of evidence sufficient to overturn such factual finding. WHEREFORE, the instant petition is DENIED and the impugned decision of the Court of Appeals AFFIRMED. Costs against petitioner. SO ORDERED. FIRST DIVISION [G.R. No. 172263,July 09, 2008]

SPOUSES AUTHER G. KELLEY, JR. AND DORIS A. KELLEY, COMPLAINANTS, VS. PLANTERS PRODUCTS, INC. AND JORGE A. RAGUTANA,[1] RESPONDENTS. RESOLUTION CORONA, J.: Petitioner Auther G. Kelley, Jr. (Auther) acquired agricultural chemical products on consignment from respondent Planters Products, Inc. (PPI) in 1989. Due to Auther's failure to pay despite demand, PPI filed an action for sum of money against him in the Regional Trial Court of Makati City, Branch 57 (RTC Makati City). This was docketed as Civil Case No. 91-904. After trial on the merits, the RTC Makati City decided in favor of PPI and issued a writ of execution. Pursuant thereto, respondent sheriff Jorge A. Ragutana sold on execution real property covered by TCT No. 15079 located in Naga City. A certificate of sale was issued in favor of PPI as the highest bidder. After being belatedly informed of the said sale, petitioners Auther and his wife Doris A. Kelley (Doris) filed a motion to dissolve or set aside the notice of levy in the RTC Makati City on the ground that the subject property was their family home which was exempt from execution. Petitioners' motion was denied for failure to comply with the three-day notice requirement. Subsequently, petitioners filed a complaint for declaration of nullity of levy and sale of the alleged family home with damages against Ragutana and PPI in the Regional Trial Court of Naga City, Branch 19 (RTC Naga City). This was docketed as Civil Case No. 2000-0188. The case was, however, dismissed for lack of jurisdiction and lack of cause of action. The dismissal was upheld by the CA. Petitioners now come to us in this petition for review on certiorari contending that the CA erred in upholding the dismissal of Civil Case No. 2000-0188 by the RTC Naga City. They claim that Doris was a stranger [2] to Civil Case No. 91-904 (in the RTC Makati City) who could not be forced to litigate therein. Petitioners anchor their action in Civil Case No. 2000-0188 on their contention that TCT No. 15079 is the Kelley family home. No doubt, a family home is generally exempt from execution [3] provided it was duly constituted as such. There must be proof that the alleged family home was constituted jointly by the husband and wife or by an unmarried head of a family.[4] It must be the house where they and their family actually reside and the lot on which it is situated.[5] The 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 latter's consent, or on the property of the unmarried head of the family. [6] The actual value of the family home shall not exceed, at the time of its constitution, the amount of P300,000 in urban areas and P200,000 in rural areas.[7] Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All family homes constructed after the effectivity of the Family Code (August 3, 1988) are constituted as such by operation of law. All existing family residences as of August 3, 1988 are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. [8] The exemption is effective from the time of the constitution of the family home as such and lasts as long as

any of its beneficiaries actually resides therein.[9] Moreover, the debts for which the family home is made answerable must have been incurred after August 3, 1988. Otherwise (that is, if it was incurred prior to August 3, 1988), the alleged family home must be shown to have been constituted either judicially or extrajudicially pursuant to the Civil Code. The rule, however, is not absolute. The Family Code, in fact, expressly provides for the following exceptions: Article 155. The family home shall be exempt from execution, forced sale or attachment except: (1) (2) (3) (4) xxx For non-payment of taxes; For debts incurred prior to the constitution of the family home; For debts secured by a mortgage on the premises before or after such constitution; and For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. xxx

xxx

Article 160. When a creditor whose claim is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum amount allowed by law in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply. xxx xxx xxx We grant the petition only to the extent of allowing petitioners to adduce evidence in the trial court that TCT No. 15079 is in fact their family home as constituted in accordance with the requirements of law. This is in consonance with our ruling inGomez v. Sta. Ines[10] where we held: [The husband and children] were not parties to the Pasig RTC case and are third-party claimants who became such only after trial in the previous case had been terminated and the judgment therein had become final and executory. Neither were they indispensable nor necessary parties in the Pasig RTC case, and they could not therefore intervene in said case. As strangers to the original case, respondents cannot be compelled to present their claim with the Pasig RTC which issued the writ of execution.xxx In said case, the alleged family home was sold on execution by the sheriff of the Pasig RTC. The husband and children of the judgment debtor filed a complaint for annulment of sale of the levied property in Bayombong, Nueva Vizcaya where the alleged family home was situated. As they were considered strangers to the action filed in the Pasig RTC, we ruled that the Nueva Vizcaya RTC had jurisdiction over the complaint and that they could vindicate their alleged claim to the levied property there. [11] WHEREFORE, Civil Case No. 2000-0188 captioned Spouses Auther G. Kelley, Jr. and Doris A. Kelley v. Planters Products, Inc. and Jorge A. Ragutana is herebyREINSTATED and this case is hereby REMANDED to the Regional Trial Court of Naga City, Branch 19 for determination whether or not the property covered by TCT No. 15079 is a duly constituted family home and therefore exempt from execution.

SO ORDERED. 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 APPEALS, Second Division, Respondents. November 20, 2006 Promulgated:

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. RT-30731 (175992) was cancelled and TCT No. R213963 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 co-ownership. 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 CO-OWNERSHIP.[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 10 th 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 inlaws 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 a minor 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 10year 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.

THIRD DIVISION [G.R. No. 97898. August 11, 1997] FLORANTE F. MANACOP, petitioner, vs. COURT OF APPEALS and E & L MERCANTILE, INC., respondents. DECISION PANGANIBAN, J.: May a writ of execution of a final and executory judgment issued before the effectivity of the Family Code be executed on a house and lot constituted as a family home under the provision of said Code? Statement of the Case This is the principal question posed by petitioner in assailing the Decision of Respondent Court of Appeals[1] in CA-G.R. SP No. 18906 promulgated on February 21, 1990 and its Resolution promulgated on March 21, 1991, affirming the orders issued by the trial court commanding the issuance of various writs of execution to enforce the latters decision in Civil Case No. 53271. The Facts Petitioner Florante F. Manacop[2] and his wife Eulaceli purchased on March 10, 1972 a 446-squaremeter residential lot with a bungalow, in consideration of P75,000.00.[3] The property, located in Commonwealth Village, Commonwealth Avenue, Quezon City, is covered by Transfer Certificate of Title No. 174180. On March 17, 1986, Private Respondent E & L Mercantile, Inc. filed a complaint against petitioner and F.F. Manacop Construction Co., Inc. before the Regional Trial Court of Pasig, Metro Manila to collect an indebtedness of P3,359,218.45. Instead of filing an answer, petitioner and his company entered into a compromise agreement with private respondent, the salient portion of which provides: c. That defendants will undertake to pay the amount of P2,000,000.00 as and when their means permit, but expeditiously as possible as their collectibles will be collected. (sic) On April 20, 1986, the trial court rendered judgment approving the aforementioned compromise agreement. It enjoined the parties to comply with the agreement in good faith. On July 15, 1986, private respondent filed a motion for execution which the lower court granted on September 23, 1986. However, execution of the judgment was delayed. Eventually, the sheriff levied on several vehicles and other

personal properties of petitioner. In partial satisfaction of the judgment debt, these chattels were sold at public auction for which certificates of sale were correspondingly issued by the sheriff. On August 1, 1989, petitioner and his company filed a motion to quash the alias writs of execution and to stop the sheriff from continuing to enforce them on the ground that the judgment was not yet executory. They alleged that the compromise agreement had not yet matured as there was no showing that they had the means to pay the indebtedness or that their receivables had in fact been collected. They buttressed their motion with supplements and other pleadings. On August 11, 1989, private respondent opposed the motion on the following grounds: (a) it was too late to question the September 23, 1986 Order considering that more than two years had elapsed; (b) the second alias writ of execution had been partially implemented; and (c) petitioner and his company were in bad faith in refusing to pay their indebtedness notwithstanding that from February 1984 to January 5, 1989, they had collected the total amount of P41,664,895.56. On September 21, 1989, private respondent filed an opposition to petitioner and his companys addendum to the motion to quash the writ of execution. It alleged that the property covered by TCT No. 174180 could not be considered a family home on the grounds that petitioner was already living abroad and that the property, having been acquired in 1972, should have been judicially constituted as a family home to exempt it from execution. On September 26, 1989, the lower court denied the motion to quash the writ of execution and the prayers in the subsequent pleadings filed by petitioner and his company. Finding that petitioner and his company had not paid their indebtedness even though they collected receivables amounting to P57,224,319.75, the lower court held that the case had become final and executory. It also ruled that petitioners residence was not exempt from execution as it was not duly constituted as a family home, pursuant to the Civil Code. Hence, petitioner and his company filed with the Court of Appeals a petition for certiorari assailing the lower courts Orders of September 23, 1986 and September 26, 1989. On February 21, 1990, Respondent Court of Appeals rendered its now questioned Decision dismissing the petition for certiorari. The appellate court quoted with approval the findings of the lower court that: (a) the judgment based on the compromise agreement had become final and executory, stressing that petitioner and his company had collected the total amount of P57,224,319.75 but still failed to pay their indebtedness and (b) there was no showing that petitioners residence had been duly constituted as a family home to exempt it from execution. On the second finding, the Court of Appeals added that: x x x. We agree with the respondent judge that there is no showing in evidence that petitioner Maacops residence under TCT 174180 has been duly constituted as a family home in accordance with law. For one thing, it is the clear implication of Article 153 that the family home continues to be so deemed constituted so long as any of its beneficiaries enumerated in Article 154 actually resides therein. Conversely, it ceases to continue as such family home if none of its beneficiaries actually occupies it. There is no showing in evidence that any of its beneficiaries is actually residing therein. On the other hand, the unrefuted assertion of private respondent is that petitioner Florante Maacop had already left the country and is now, together with all the members of his family, living in West Covina, Los Angeles, California, U.S.A. Petitioner and his company filed a motion for reconsideration of this Decision on the ground that the property covered by TCT No. 174180 was exempt from execution. On March 21, 1991, the Court of Appeals rendered the challenged Resolution denying the motion. It anchored its ruling on Modequillo v. Breva,[4] which held that all existing family residences at the time of the effectivity of the Family Code are

considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. Applying the foregoing pronouncements to this case, the Court of Appeals explained: The record of the present case shows that petitioners incurred the debt of P3,468,000.00 from private respondent corporation on February 18, 1982 (Annex `A, Petition). The judgment based upon the compromise agreement was rendered by the court on April 18, 1986 (Annex `C, Ibid). Paraphrasing the aforecited Modequillo case, both the debt and the judgment preceded the effectivity of the Family Code on August 3, 1988. Verily, the case at bar does not fall under the exemptions from execution provided under Article 155 of the Family Code. Undeterred, petitioner filed the instant petition for review on certiorari arguing that the Court of Appeals misapplied Modequillo. He contends that there was no need for him to constitute his house and lot as a family home for it to be treated as such since he was and still is a resident of the same property from the time it was levied upon and up to this moment. The Issue As stated in the opening sentence of this Decision, the issue in this case boils down to whether a final and executory decision promulgated and a writ of execution issued before the effectivity of the Family Code can be executed on a family home constituted under the provisions of the said Code. The Courts Ruling We answer the question in the affirmative. The Court of Appeals committed no reversible error. On the contrary, its Decision and Resolution are supported by law and applicable jurisprudence. No Novel Issue At the outset, the Court notes that the issue submitted for resolution in the instant case is not entirely new. In Manacop v. Court of Appeals,[5]petitioner himself as a party therein raised a similar question of whether this very same property was exempt from preliminary attachment for the same excuse that it was his family home. In said case, F.F. Cruz & Co., Inc. filed a complaint for a sum of money. As an incident in the proceedings before it, the trial court issued a writ of attachment on the said house and lot. In upholding the trial court (and the Court of Appeals) in that case, we ruled that petitioner incurred the indebtedness in 1987 or prior to the effectivity of the Family Code on August 3, 1988. Hence, petitioners family home was not exempt from attachment by sheer force of exclusion embodied in paragraph 2, Article 155 of the Family Code cited in Modequillo, where the Court categorically ruled: Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as

required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouses or head of the family who owns the home. Article 155 of the Family Code also provides as follows: Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. The exemption provided as aforestated is effective from the time of the constitution of the family home as such, and lasts so long as any of its beneficiaries actually resides therein. In the present case, the residential house and lot of petitioner was not constituted as a family home whether judicially or extrajudicially under the Civil Code. It became a family home by operation of law only under Article 153 of the Family Code. It is deemed constituted as a family home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year). The contention of petitioner that it should be considered a family home from the time it was occupied by petitioner and his family in 1960 is not well-taken. Under Article 162 of the Family Code, it is provided that `the provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable. It does not mean that Articles 152 and 153 of said Code have a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and are exempt from execution for the payment of obligations incurred before the effectivity of the Family Code. Article 162 simply means that all existing family residences at the time of the effectivity of the Family Code, are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. Article 162 does not state that the provisions of Chapter 2, Title V have a retroactive effect. Is the family home of petitioner exempt from execution of the money judgment aforecited? No. The debt or liability which was the basis of the judgment arose or was incurred at the time of the vehicular accident on March 16, 1976 and the money judgment arising therefrom was rendered by the appellate court on January 29, 1988. Both preceded the effectivity of the Family Code on August 3, 1988. This case does not fall under the exemptions from execution provided in the Family Code.[6]6 (Underscoring supplied.) Article 153 of the Family Code Has No Retroactive Effect

Petitioner contends that the trial court erred in holding that his residence was not exempt from execution in view of his failure to show that the property involved has been duly constituted as a family home in accordance with law. He asserts that the Family Code and Modequillo require simply the occupancy of the property by the petitioner, without need for its judicial or extrajudicial constitution as a family home.[7] Petitioner is only partly correct. True, under the Family Code which took effect on August 3, 1988,[8] the subject property became his family home under the simplified process embodied in Article 153 of said Code. However, Modequillo explicitly ruled that said provision of the Family Code does not have retroactive effect. In other words, prior to August 3, 1988, the procedure mandated by the Civil Code [9] had to be followed for a family home to be constituted as such. There being absolutely no proof that the subject property was judicially or extrajudicially constituted as a family home, it follows that the laws protective mantle cannot be availed of by petitioner. Since the debt involved herein was incurred and the assailed orders of the trial court issued prior to August 3, 1988, the petitioner cannot be shielded by the benevolent provisions of the Family Code. List of Beneficiary-Occupants Restricted to Those Enumerated in the Code In view of the foregoing discussion, there is no reason to address the other arguments of petitioner other than to correct his misconception of the law. Petitioner contends that he should be deemed residing in the family home because his stay in the United States is merely temporary. He asserts that the person staying in the house is his overseer and that whenever his wife visited this country, she stayed in the family home. This contention lacks merit. 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. [10] Actual occupancy, however, need not be by the owner of the house specifically. Rather, the property may be occupied by the beneficiaries enumerated by Article 154 of the Family Code. Art. 154. The beneficiaries of a family home are: (1) (2) The husband and wife, or an unmarried person who is the head of the family; and 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 lead support.

This enumeration may include the in-laws where the family home is constituted jointly by the husband and wife.[11] But the law definitely excludes maids and overseers. They are not the beneficiaries contemplated by the Code. Consequently, occupancy of a family home by an overseer like Carmencita V. Abat in this case [12] is insufficient compliance with the law. WHEREFORE, the petition is hereby DENIED for utter lack of merit. This Decision is immediately executory. Double costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 164740 July 31, 2006 SPOUSES EDUARDO and ELSA VERSOLA, petitioners, vs. HON. COURT OF APPEALS, SHERIFF REYNALDO B. MADOLARIA, JUDGE LYDIA QUERUBIN LAYOSA BOTH OF THE REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 217, REGISTER OF DEEDS OF QUEZON CITY AND DR. VICTORIA T. ONG, OH, respondents. DECISION CHICO-NAZARIO, J.: This Petition for Review under Rule 45 of the Rules of Court, filed by petitioners spouses Eduardo and Elsa Versola, seeks to nullify and set aside the 28 April 2004 Decision1 and 28 July 2004 Resolution of the Court of Appeals in CA-G.R. SP No. 79300, which affirmed the Orders dated 6 January 2003 and 14 July 2003 of the Regional Trial Court (RTC) of Quezon City, Branch 217, in Civil Case No. Q-93-16003. This case has its genesis from a loan transaction entered into by private respondent Dr. Victoria T. Ong Oh and a certain Dolores Ledesma, wherein the former granted a P1,000,000.00 loan to the latter. As a security for said loan, Ledesma issued to private respondent a check for the same amount dated 10 February 1993 and promised to execute a deed of real estate mortgage over her house and lot located at Tandang Sora, Quezon City, covered by Transfer Certificate of Title (TCT) No. RT-51142. The execution of the deed of real estate mortgage did not materialize, but Ledesma delivered the owner's duplicate copy of the TCT No. RT-51142 to private respondent. Thereafter, Ledesma sold the said house and lot to petitioners for P2,500,000.00. Petitioners paid LedesmaP1,000,000.00 as downpayment, with the remaining balance of P1,500,000.00 to be paid in monthly installments of P75,000.002 starting 15 March 1993. Even before the monthly installments became due, Ledesma already asked petitioners to pay the remaining balance of P1,500,000.00. Petitioners, however, were only able to pay the amount of P50,000.00 to Ledesma. To raise the full amount that Ledesma demanded, petitioners applied for a loan with Asiatrust Bank, Inc. (Asiatrust) in the amount of P2,000,000.00. In the course of the application for said loan, petitioners, private respondent, and Ledesma convened with Asiatrust to arrive at a scheme to settle the obligation of Ledesma to private respondent and the obligation of petitioners to Ledesma. After the meeting, the following agreement 3 was arrived at: (1) private respondent would grant Ledesma an additional loan ofP450,000.00, making the latter's loan from the former amount to P1,450,000.00 (the amount of P1,450,000.00 would then be credited to petitioners as full settlement of the purchase price of the property); (2) Ledesma would execute a Deed of Sale transferring ownership over her house and lot, covered by TCT No. RT-51142, to petitioners; (3) private respondent would then deliver the duplicate copy of TCT No. RT-51142 to Asiatrust; (4) once petitioners had secured a title to the said house and lot in their names, they would execute a real estate mortgage over it in favor of Asiatrust to secure their loan of P2,000,000.00; and (5) Asiatrust would then grant a loan of P2,000,000.00 to petitioners with a written guarantee that the P1,500,000.00 would be

given directly by Asiatrust to private respondent after the mortgage lien of Asiatrust would have been annotated on the title of the said property. In keeping with the foregoing agreement, private respondent granted Ledesma an additional loan of P450,000.00. Ledesma, in turn, executed a Deed of Sale transferring the title of the subject property to petitioners. Private respondent then delivered the title of the said property to Asiatrust. The Deed of Sale was registered and TCT No. RT-51142 in the name of Ledesma was cancelled and a new one, TCT No. 83104, was issued in the names of petitioners. Thereafter, Asiatrust approved the loan application of petitioners, after which the latter issued a check in the amount of P1,500,000.00 to private respondent. However, when Asiatrust tried to register the Real Estate Mortgage covering the subject property executed in its favor by petitioners, it discovered a notice of levy on execution was annotated on the title in connection with Ledesma's obligation to a certain Miladay's Jewels, Inc., in the amount of P214,284.00. Because of this annotated encumbrance, Asiatrust did not register said Real Estate Mortgage and refused to release the P2,000,000.00 loan of petitioners. When private respondent presented Ledesma's check for payment, the same was dishonored for the reason that the account was already closed. Subsequently, when private respondent presented for payment the check issued by petitioners, the said check was likewise dishonored because there was a stop payment order. With the dishonor of the checks and with Asiatrust's refusal to release the P2,000,000.00 loan of petitioners, private respondent came away emptyhanded as she did not receive payment for the P1,500,000.00 loan she granted to Ledesma that was assumed by petitioners. As a result, private respondent filed a Complaint for Sum of Money against Ledesma, petitioners, and Asiatrust before the RTC, Branch 217, Quezon City, docketed as Civil Case No. Q-93-16003. After trial, the RTC, in a Decision dated 31 May 1996, rendered a verdict in favor of private respondent and against petitioners, the dispositive portion of which reads: Wherefore, in view of the foregoing, judgment is hereby rendered in favor of the plaintiff Dr. Victoria Ong Oh and against defendant-spouses Eduardo and Elsa Versola. The appellants Versolas are hereby ordered to pay to Dr. Victoria Ong Oh the following: a) the sum of one million five hundred thousand pesos (P1,500,000.00) plus legal interest to be computed from the time of judicial demand; b) one hundred thousand pesos (P100,000.00) as moral damages and fifty thousand pesos (P50,000.00) as exemplary damages; and, c) attorney's fees of one hundred thousand pesos (P100,000.00).4 Undaunted, petitioners appealed the trial court's Decision to the Court of Appeals, with the appeal docketed as CA-G.R. CV No. 54399. In a Decision dated 30 August 1999, the Court of Appeals rendered a judgment affirming the Decision of the trial court, but modifying the award of moral, exemplary damages and attorney's fees by deleting the same, to wit:

WHEREFORE, the appealed Decision is hereby MODIFIED in this wise: the Court orders appellants spouses Eduardo and Elsa Versola to pay appellee Victoria T. Ong Oh One Million Five Hundred Thousand (P1,500,000.00) Pesos with legal interest from March 24, 1993.5 No appeal having been filed, the foregoing Decision attained finality. On 3 April 2000, private respondent filed a Motion for Execution with the trial court, the latter granted the same in an Order dated 14 April 2000. On 23 June 2000, the property covered by TCT No. 83104, in the names of petitioners, was levied upon. The sheriff set the sale of the property at public auction on 19 September 2000. Petitioners were served a copy of the notice of the sale. On 18 September 2000, petitioners filed with the sheriff an "Objection/Exception to the Sheriff's Sale of Defendant Sps. Eduardo and Elsa Versola's Family Home Pending Court Order or Clearance." Despite petitioners' objections, however, the property was still sold at public auction on 19 September 2000 and was awarded to private respondent at the bid price of P2,835,000.00. For failure of petitioners to redeem the property during the redemption period, a Sheriff's Final Deed of Sale was issued in favor of private respondent on 19 March 2002. On 5 August 2002, private respondent filed with the trial court an Ex-parte Motion for Issuance of Confirmation of Judicial Sale of Real Property of Sps. Eduardo and Elsa Versola. Petitioners opposed the said motion on the following grounds: (1) the property sold at the public auction is the family home of petitioners which is exempt from execution pursuant to Article 155 of the Family Code; (2) no application was made by private respondent for the determination of the value of their family home to be subjected to execution, as required under Article 160 of the Family Code; and (3) there were serious defects in the conduct of the execution sale. In an Order dated 6 January 2003, the trial court debunked petitioners' arguments, and granted private respondent's Ex-parte Motion and confirmed the Sheriff's Final Deed of Sale. In an Order dated 14 July 2003, the trial court denied the Motion for Reconsideration filed by petitioners. Petitioners then filed a Petition for Certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 79300, alleging grave abuse of discretion on the part of the trial court Judge in confirming the judicial sale of their family home. In a Decision dated 28 April 2004, the Court of Appeals dismissed the Petition for lack of merit. A Motion for Reconsideration thereof was filed, but was denied by the Court of Appeals in a Resolution dated 28 July 2004. Hence, the instant Petition. Petitioners submit the following issues for the Court's consideration: A. WHETHER OR NOT COMPLIANCE ON (sic) THE PROVISIONS OF THE FAMILY CODE SPECIFICALLY ARTICLES 152 TO 160 IN RELATION TO THE PROVISION OF ARTICLE III SECTION 1 OF THE CONSTITUTION, IS MANDATORY; and

B. WHETHER OR NOT THE PROVISION UNDER ARTICLE 160 REQUIRING AN APPLICATION TO THE COURT FOR AN ORDER DIRECTING THE AUCTION SALE OF A FAMILY HOME IS MANDATORY AND A CONDITION SINE QUA NON THAT MUST BE COMPLIED WITH PRIOR TO THE AUCTION SALE. 6 Petitioners aver that prior to the auction sale of their family home, they registered their opposition and objection to the same by filing with the trial court an "Urgent Motion to Suspend Auction Sale on the Property of Defendants under TCT No. 83104 located at Sunville Subdivision, Quezon City," dated 12 September 2000 which was admittedly treated by the court as a "mere scrap of paper and is deemed not filed." They also claim that a day before the scheduled auction sale, they filed with the sheriff of the trial court an "Objection/Exception to the Sheriff's Sale of Defendant Sps. Eduardo and Elsa Versola's Family Home Pending Court Order or Clearance" which the latter disregarded. Petitioners maintain that said objection to the sale was based on the fact that there was no order or clearance from the trial court for the sheriff to proceed with the auction sale, in clear violation of Article 160 of the Family Code, which requires an application by the creditor and a determination of the actual value of the family home by the court ordering the sale of property under execution. It was likewise contended by petitioners that there were serious defects in the conduct of the execution sale, namely, the sheriff based the execution on the dispositive portion of the Decision of the RTC and not the modified Decision of the Court of Appeals, and that there were no documents proving the amount of execution sale and the determination of the proceeds. On the other hand, the trial court found that the allegations of serious defects in the sheriff's conduct of the execution sale are unfounded. According to the trial court, although the sheriff inadvertently quoted the decision of the trial court in the "Sheriff's Final Deed of Sale" dated 19 March 2002, the "Statement of Accounts" submitted by private respondent, as well as the computation of the sheriff showed that the auction sale was based on the decision of the Court of Appeals. The bid price amounted to P2,835,000.00, P1,500,000.00 thereof representing the principal amount owed by petitioners to private respondent while the remaining P1,335,000.00 represented the legal interest of 12% counted from 24 March 1993 up to 24 August 2000. As to the allegation that the sheriff failed to act on petitioners' Objection/Exception to Sheriff's Sale of Defendant Sps. Eduardo and Elsa Versola's Family Home, the trial court ratiocinated that such inaction of the sheriff was justified since petitioners never filed any motion before the said court to hold in abeyance the impending auction sale. Accordingly, it held that it was correct for the sheriff to proceed with the auction sale as there will be no order forthcoming to suspend the sale absent any motion from petitioners. Finally, the trial court criticized petitioner's claim that the subject property was their family home. The court opined that the claim was never substantiated by petitioners aside from the fact that they asserted this defense only after two years since the auction sale has transpired. It added that if not for the private respondent's Ex-parte Motion for Issuance of Confirmation of Judicial Sale of Real Property of Sps. Eduardo and Elsa Versola filed on 5 August 2002, petitioners would not have raised the issue of family home before the said court. The issue in the main is whether or not petitioners timely raised and proved that their property is exempt from execution.

Article 153 of the Family Code provides: 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 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. Under the cited provision, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence; there is no need to constitute the same judicially or extrajudicially.7 The settled rule is that the right to exemption or forced sale under Article 153 of the Family Code 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 before the sale of the property at public auction. 8 It is not sufficient that the person claiming exemption merely alleges that such property is a family home. This claim for exemption must be set up and proved to the Sheriff.9 Failure to do so would estop the party from later claiming the exception.10 In the case under consideration, petitioners allegedly filed with the trial court an "Urgent Motion to Suspend Auction Sale on the Property of Defendants under TCT No. 83104 located at Sunville Subdivision, Quezon City" which was dated 12 September 2000. The said motion was filed before 19 September 2000, the scheduled date for the sale of the subject property at public auction. The records of the case, however, do not disclose that petitioners in the said motion set up and proved that the property to be sold was their family home. In any event, said motion was treated by the trial court as a mere scrap of paper presumably on the ground that such motion did not contain a notice of hearing. 11 As we have repeatedly held, a motion that does not contain a notice of hearing is a mere scrap of paper, it presents no question which merits the attention of the court.12 Being a mere scrap of paper, the trial court had no alternative but to disregard it.13 Such being the case, it was as if no opposition to the auction sale was filed. On the day immediately prior to the scheduled sale of the subject property, petitioners filed with the sheriff an Objection/Exception to Sheriff's Sale of Defendant Sps. Eduardo and Elsa Versola's Family Home. Petitioners simply alleged there that the property subject of the intended auction sale was their family home. Instead of substantiating their claim, petitioners languidly presupposed that the sheriff had prior knowledge that the said property was constituted by them as their family home. Lamentably, in the said objection, petitioners did not set forth therein any evidence to substantiate their claim that the property to be sold at the execution sale was indeed exempt for having been constituted as a family home. The objection read: "Evidently, a court determination of the value of the family home is indispensable for the same to be subjected to execution sale, and more importantly, the judgment creditor has to apply for a court order direction (sic) auction sale of said judicial home. Your good office, thru you, has PRIOR knowledge of the fact that the real property subject of the intended auction sale is the family home being occupied by the Defendants Spouses Eduardo and Elsa Versola.

Allow us to enter our objection/exception to the auction sale which is without the benefit of a court order. We accordingly ask that the sale be suspended/held in abeyance pending the court order directing the sale of the family home."14 (Underscoring supplied.) It was only after almost two years from the time of the execution sale and after the "Sheriff's Final Deed of Sale" was issued did petitioners rigorously claim in their Opposition to private respondent's Ex-parte Motion for Issuance of Confirmation of Judicial Sale of Real Property of Sps. Eduardo and Elsa Versola that the property in question is exempt from execution. Even then, there was no showing that petitioners adduced evidence to prove that it is indeed a family home. In the case of Honrado v. Court of Appeals,15 the family home of the petitioner therein was levied upon to answer for his judgment debt, and the sale of the said property was set. Petitioner was served with a copy of the notice of sale which he opposed. Petitioner, however, allowed the sale at the public auction to proceed and the Sheriff to execute a certificate of sale over the property in favor of the private respondent therein. The petitioner remained silent and failed to seek relief from the Sheriff or the court until after almost one year from the date of the auction sale when he filed his motion to declare the property exempt from execution. But even in the said motion, petitioner did not present evidence that the property was a family home. Finding that petitioner's claim of exemption was not substantiated and was filed belatedly, the Court therein ruled: 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 x x x.16 (Emphasis supplied.) In view of the facts obtaining in this case, and taking into consideration the applicable jurisprudence on the matter, the Court finds that petitioners' assertion for exemption is a mere afterthought, a sheer artifice to deprive private respondent of the fruits of the verdict of her case. As the Court aptly inculcated: 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 execution to 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. x x x .17 WHEREFORE, the petition is DENIED. The judgment of the Court of Appeals dismissing the petition in CAG.R. SP No. 79300, for lack of merit, is hereby AFFIRMED. Costs against petitioners. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 86355 May 31, 1990 JOSE MODEQUILLO, petitioner, vs. HON. AUGUSTO V. BREVA FRANCISCO SALINAS, FLORIPER ABELLAN-SALINAS, JUANITO CULAN-CULAN and DEPUTY SHERIFF FERNANDO PLATA respondents. GANCAYCO, J.: The issue in this petition is whether or not a final judgment of the Court of Appeals in an action for damages may be satisfied by way of execution of a family home constituted under the Family Code. The facts are undisputed. On January 29, 1988, a judgment was rendered by the Court of Appeals in CA-G.R. CV No. 09218 entitled"Francisco Salinas, et al. vs. Jose Modequillo, et al.," the dispositive part of which read as follows: WHEREFORE, the decision under appeal should be, as it is hereby, reversed and set aside. Judgment is hereby rendered finding the defendants-appellees Jose Modequillo and Benito Malubay jointly and severally liable to plaintiffs-appellants as hereinbelow set forth. Accordingly, defendants-appellees are ordered to pay jointly and severally to: 1. Plaintiffs-appellants, the Salinas spouses: a. the amount of P30,000.00 by way of compensation for the death of their son Audie Salinas; b. P10,000.00 for the loss of earnings by reason of the death of said Audie Salinas; c. the sum of P5,000.00 as burial expenses of Audie Salinas; and d. the sum of P5,000.00 by way of moral damages. 2. Plaintiffs-appellants Culan-Culan: a. the sum of P5,000.00 for hospitalization expenses of Renato Culan- Culan; and b. P5,000.00 for moral damages. 3. Both plaintiff-appellants Salinas and Culan-Culan, P7,000.00 for attorney's fees and litigation expenses. All counterclaims and other claims are hereby dismissed. 1

The said judgment having become final and executory, a writ of execution was issued by the Regional Trial Court of Davao City to satisfy the said judgment on the goods and chattels of the defendants Jose Modequillo and Benito Malubay at Malalag, Davao del Sur. On July 7, 1988, the sheriff levied on a parcel of residential land located at Poblacion Malalag, Davao del Sur containing an area of 600 square meters with a market value of P34,550.00 and assessed value of P7,570.00 per Tax Declaration No. 87008-01359, registered in the name of Jose Modequillo in the office of the Provincial Assessor of Davao del Sur; and a parcel of agricultural land located at Dalagbong Bulacan, Malalag, Davao del Sur containing an area of 3 hectares with a market value of P24,130.00 and assessed value of P9,650.00 per Tax Declaration No. 87-08-01848 registered in the name of Jose Modequillo in the office of the Provincial Assessor of Davao del Sur. 2 A motion to quash and/or to set aside levy of execution was filed by defendant Jose Modequillo alleging therein that the residential land located at Poblacion Malalag is where the family home is built since 1969 prior to the commencement of this case and as such is exempt from execution, forced sale or attachment under Articles 152 and 153 of the Family Code except for liabilities mentioned in Article 155 thereof, and that the judgment debt sought to be enforced against the family home of defendant is not one of those enumerated under Article 155 of the Family Code. As to the agricultural land although it is declared in the name of defendant it is alleged to be still part of the public land and the transfer in his favor by the original possessor and applicant who was a member of a cultural minority was not approved by the proper government agency. An opposition thereto was filed by the plaintiffs. In an order dated August 26, 1988, the trial court denied the motion. A motion for reconsideration thereof was filed by defendant and this was denied for lack of merit on September 2, 1988. Hence, the herein petition for review on certiorari wherein it is alleged that the trial court erred and acted in excess of its jurisdiction in denying petitioner's motion to quash and/or to set aside levy on the properties and in denying petitioner' motion for reconsideration of the order dated August 26, 1988. Petitioner contends that only a question of law is involved in this petition. He asserts that the residential house and lot was first occupied as his family residence in 1969 and was duly constituted as a family home under the Family Code which took effect on August 4, 1988. Thus, petitioner argues that the said residential house and lot is exempt from payment of the obligation enumerated in Article 155 of the Family Code; and that the decision in this case pertaining to damages arising from a vehicular accident took place on March 16, 1976 and which became final in 1988 is not one of those instances enumerated under Article 155 of the Family Code when the family home may be levied upon and sold on execution. It is further alleged that the trial court erred in holding that the said house and lot became a family home only on August 4, 1988 when the Family Code became effective, and that the Family Code cannot be interpreted in such a way that all family residences are deemed to have been constituted as family homes at the time of their occupancy prior to the effectivity of the said Code and that they are exempt from execution for the payment of obligations incurred before the effectivity of said Code; and that it also erred when it declared that Article 162 of the Family Code does not state that the provisions of Chapter 2, Title V have a retroactive effect. Articles 152 and 153 of the Family Code provide as follows:

Art. 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. Art. 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. Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouses or head of the family who owns the home. Article 155 of the Family Code also provides as follows: Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For non-payment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, material men and others who have rendered service or furnished material for the construction of the building. The exemption provided as aforestated is effective from the time of the constitution of the family home as such, and lasts so long as any of its beneficiaries actually resides therein. In the present case, the residential house and lot of petitioner was not constituted as a family home whether judicially or extrajudicially under the Civil Code. It became a family home by operation of law only under Article 153 of the Family Code. It is deemed constituted as a family home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year). The contention of petitioner that it should be considered a family home from the time it was occupied by petitioner and his family in 1969 is not well- taken. Under Article 162 of the Family Code, it is provided that "the provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable." It does not mean that Articles 152 and 153 of said Code have a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and are exempt from execution for the payment of obligations incurred before the effectivity of the Family Code. Article 162 simply means that all existing

family residences at the time of the effectivity of the Family Code, are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. Article 162 does not state that the provisions of Chapter 2, Title V have a retroactive effect. Is the family home of petitioner exempt from execution of the money judgment aforecited No. The debt or liability which was the basis of the judgment arose or was incurred at the time of the vehicular accident on March 16, 1976 and the money judgment arising therefrom was rendered by the appellate court on January 29, 1988. Both preceded the effectivity of the Family Code on August 3, 1988. This case does not fall under the exemptions from execution provided in the Family Code. As to the agricultural land subject of the execution, the trial court correctly ruled that the levy to be made by the sheriff shall be on whatever rights the petitioner may have on the land. WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 165546 February 27, 2006 SOCIAL SECURITY SYSTEM, Petitioner, vs. ROSANNA H. AGUAS, JANET H. AGUAS, and minor JEYLNN H. AGUAS, represented by her Legal Guardian, ROSANNA H. AGUAS, Respondents. DECISION CALLEJO, SR., J.: Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 66531 and its Resolution denying the motion for reconsideration thereof. The antecedents are as follows: Pablo Aguas, a member of the Social Security System (SSS) and a pensioner, died on December 8, 1996. Pablos surviving spouse, Rosanna H. Aguas, filed a claim with the SSS for death benefits on December 13, 1996. Rosanna indicated in her claim that Pablo was likewise survived by his minor child, Jeylnn, who was born on October 29, 1991. Her claim for monthly pension was settled on February 13, 1997. Sometime in April 1997, the SSS received a sworn letter dated April 2, 1997 from Leticia AguasMacapinlac, Pablos sister, contesting Rosannas claim for death benefits. She alleged that Rosanna abandoned the family abode approximately more than six years before, and lived with another man on whom she has been dependent for support. She further averred that Pablo had no legal children with Rosanna, but that the latter had several children with a certain Romeo dela Pea. In support of her

allegation, Leticia enclosed a notarized copy of the original birth certificate 5 of one Jefren H. dela Pea, showing that the latter was born on November 15, 1996 to Rosanna Y. Hernandez and Romeo C. dela Pea, and that the two were married on November 1, 1990. As a result, the SSS suspended the payment of Rosanna and Jeylnns monthly pension in September 1997. It also conducted an investigation to verify Leticias allegations. In a Memorandum 6 dated November 18, 1997, the Social Security Officer who conducted the investigation reported that, based on an interview with Mariquita D. Dizon, Pablos first cousin and neighbor, and Jessie Gonzales (also a neighbor). She learned that the deceased had no legal children with Rosanna; Jenelyn7 and Jefren were Rosannas children with one Romeo C. dela Pea; and Rosanna left the deceased six years before his death and lived with Romeo while she was still pregnant with Jenelyn, who was born on October 29, 1991. Mariquita also confirmed that Pablo was not capable of having a child as he was under treatment. On the basis of the report and an alleged confirmation by a certain Dr. Manuel Macapinlac that Pablo was infertile, the SSS denied Rosannas request to resume the payment of their pensions. She was advised to refund to the SSS within 30 days the amount of P10,350.00 representing the total death benefits released to her and Jenelyn from December 1996 to August 1997 at P1,150.00 per month.8 Rosanna and Jeylnn, through counsel, requested for a reconsideration of the said decision.9 However, in its Letter dated February 6, 1998, the SSS denied the claim.10 This prompted Rosanna and Jeylnn to file a claim/petition for the Restoration/Payment of Pensions with the Social Security Commission (SSC) on February 20, 1998.11 Janet H. Aguas, who also claimed to be the child of the deceased and Rosanna, now joined them as claimant. The case was docketed as SSC Case No. 3-14769-98. The claimants appended to their petition, among others, photocopies of the following: (1) Pablo and Rosannas marriage certificate; (2) Janets certificate of live birth; (3) Jeylnns certificate of live birth; and (4) Pablos certificate of death. In its Answer, the SSS averred that, based on the sworn testimonies and documentary evidence showing the disqualification of the petitioners as primary beneficiaries, the claims were barren of factual and legal basis; as such, it was justified in denying their claims.12 In their Position Paper, the claimants averred that Jeylnn was a legitimate child of Pablo as evidenced by her birth certificate bearing Pablos signature as Jeylnns father. They asserted that Rosanna never left Pablo and that they lived together as husband and wife under one roof. In support thereof, they attached a Joint Affidavit13 executed by their neighbors, Vivencia Turla and Carmelita Yangu, where they declared that Rosanna and Pablo lived together as husband and wife until the latters death. In Janets birth certificate, which was registered in the Civil Registry of San Fernando, it appears that her father was Pablo and her mother was Rosanna. As to the alleged infertility of Pablo, the claimants averred that Dr. Macapinlac denied giving the opinion precisely because he was not an expert on such matters, and that he treated the deceased only for tuberculosis. The claimant likewise claimed that the information the SSS gathered from the doctor was privileged communication.14

In compliance with the SSCs order, the SSS secured Confirmation Reports15 signed by clerks from the corresponding civil registers confirming (1) the fact of marriage between Pablo and Rosanna on December 4, 1977; (2) the fact of Jefren dela Peas birth on November 15, 1996; (3) the fact of Jeylnns birth on October 29, 1991; and (4) the fact of Pablos death on December 8, 1996. The SSC decided to set the case for hearing. It also directed the SSS to verify the authenticity of Pablos signature as appearing on Jeylnns birth certificate from his claim records, particularly his SSS Form E-1 and retirement benefit application.16 The SSS complied with said directive and manifested to the SSC that, based on the laboratory analysis conducted, Pablos signature in the birth certificate was made by the same person who signed the members record and other similar documents submitted by Pablo.17 The SSC then summoned Vivencia Turla, Carmelita Yangu and Leticia Aguas-Macapinlac for clarificatory questions with regard to their respective sworn affidavits.18 Vivencia testified that she had known Pablo and Rosanna for more than 30 years already; the couple were married and lived in Macabacle, Dolores, San Fernando, Pampanga; she was a former neighbor of the spouses, but four years after their marriage, she (Vivencia) and her family moved to Sto. Nio Triangulo, San Fernando, Pampanga; she would often visit the two, especially during Christmas or fiestas; the spouses real child was Jeylnn; Janet was only an adopted child; the spouse later transferred residence, not far from their old house, and Janet, together with her husband and son, remained in the old house.19 On the other hand, Carmelita testified that she had been a neighbor of Pablo and Rosanna for 15 years and that, up to the present, Rosanna and her children, Janet, Jeylnn and Jefren, were still her neighbors; Janet and Jeylnn were the children of Pablo and Rosanna but she did not know whose child Jefren is. 20 According to Leticia, Janet was not the real child of Pablo and Rosanna; she was just taken in by the spouses because for a long time they could not have children;21 however, there were no legal papers on Janets adoption.22 Later on, Rosanna got pregnant with Jeylnn; after the latters baptism, there was a commotion at the house because Romeo dela Pea was claiming that he was the father of the child and he got mad because the child was named after Pablo; the latter also got mad and even attempted to shoot Rosanna; he drove them away from the house; since then, Pablo and Rosanna separated; 23 she knew about this because at that time their mother was sick, and she would often visit her at their ancestral home, where Pablo and Rosanna were also staying; Rosanna was no longer living in their ancestral home but Janet resided therein; she did not know where Rosanna was staying now but she knew that the latter and Romeo dela Pea were still living together.24 Subsequently, Mariquita Dizon and Jessie Gonzales were also summoned for clarificatory questions.25 During the hearing, Mariquita brought with her photocopies of two baptismal certificates: that of Jeylnn Aguas,26 child of Pablo Aguas and Rosanna Hernandez born on October 29, 1991, and that of Jenelyn H. dela Pea,27 child of Romeo dela Pea and Rosanna Hernandez, born on January 29, 1992. On March 14, 2001, the SSC rendered a decision denying the claims for lack of merit and ordering Rosanna to immediately refund to the SSS the amount of P10,350.00 erroneously paid to her and Jeylnn as primary beneficiaries of the deceased. The SSC likewise directed the SSS to pay the death benefit to qualified secondary beneficiaries of the deceased, and in their absence, to his legal heirs. 28

The SSC ruled that Rosanna was no longer qualified as primary beneficiary, it appearing that she had contracted marriage with Romeo dela Pea during the subsistence of her marriage to Pablo. The SSC based its conclusion on the birth certificate of Jefren dela Pea stating that his mother, Rosanna, and father, Romeo dela Pea, were married on November 1, 1990. The SSC declared that Rosanna had a child with Romeo dela Pea while she was still married to Pablo (as evidenced by the baptismal certificate of Jenelyn H. dela Pea showing that she was the child of Rosanna Hernandez and Romeo dela Pea and that she was born on January 29, 1992). The SSC concluded that Rosanna was no longer entitled to support from Pablo prior to his death because of her act of adultery. As for Jeylnn, the SSC ruled that, even if her birth certificate was signed by Pablo as her father, there was more compelling evidence that Jeylnn was not his legitimate child. The SSC deduced from the records that Jeylnn and Jenelyn was one and the same person and concluded, based on the latters baptismal certificate, that she was the daughter of Rosanna and Romeo dela Pea. It also gave credence to the testimonies of Leticia and Mariquita that Jeylnn was the child of Rosanna and Romeo dela Pea. As for Janet, the SSC relied on Leticias declaration that she was only adopted by Pablo and Rosanna. 29 The claimants filed a motion for reconsideration of the said decision but their motion was denied by the SSC for lack of merit and for having been filed out of time. 30 The claimants then elevated the case to the CA via a petition for review under Rule 43 of the Rules of Court. On September 9, 2003, the CA rendered a decision in favor of petitioners. The fallo of the decision reads: WHEREFORE, the resolution and order appealed from are hereby REVERSED and SET ASIDE, and a new one is entered DECLARING petitioners as ENTITLED to the SSS benefits accruing from the death of Pablo Aguas. The case is hereby REMANDED to public respondent for purposes of computing the benefits that may have accrued in favor of petitioners after the same was cut and suspended in September 1997. SO ORDERED.31 In so ruling, the CA relied on the birth certificates of Janet and Jeylnn showing that they were the children of the deceased. According to the appellate court, for judicial purposes, these records were binding upon the parties, including the SSS. These entries made in public documents may only be challenged through adversarial proceedings in courts of law, and may not be altered by mere testimonies of witnesses to the contrary. As for Rosanna, the CA found no evidence to show that she ceased to receive support from Pablo before he died. Rosannas alleged affair with Romeo dela Pea was not properly proven. In any case, even if Rosanna married Romeo dela Pea during her marriage to Pablo, the same would have been a void marriage; it would not have ipso facto made her not dependent for support upon Pablo and negate the presumption that, as the surviving spouse, she is entitled to support from her husband.32 The SSS filed a motion for reconsideration of the decision, which the CA denied for lack of merit. 33 Hence, this petition. Petitioner seeks a reversal of the decision of the appellate court, contending that it I

GRAVELY ERRED IN HOLDING THAT ROSANNA AGUAS IS ACTUALLY DEPENDENT FOR SUPPORT UPON THE MEMBER DURING HIS LIFETIME TO QUALIFY AS PRIMARY BENEFICIARY WITHIN THE INTENDMENT OF SECTION 8(e), IN RELATION TO SECTION (k) OF THE SSS LAW, AS AMENDED. II ERRED IN HOLDING THAT JANET AGUAS AND JEYLNN AGUAS ARE ENTITLED TO THE PENSION BENEFIT ACCRUING FROM THE DEATH OF PABLO AGUAS.34 Petitioner invokes Section 8 of Republic Act No. 1161, as amended by Presidential Decree No. 735, which defines a dependent spouse as "the legitimate spouse dependent for support upon the employee." According to petitioner, Rosanna forfeited her right to be supported by Pablo when she engaged in an intimate and illicit relationship with Romeo dela Pea and married the latter during her marriage to Pablo. Such act constitutes abandonment, which divested her of the right to receive support from her husband. It asserts that her act of adultery is evident from the birth certificate of Jefren H. dela Pea showing that he was born on November 15, 1996 to Rosanna and Romeo dela Pea. Petitioner submits that Rosanna cannot be considered as a dependent spouse of Pablo; consequently, she is not a primary beneficiary. 35 As for Janet and Jeylnn, petitioner maintains that they are not entitled to the pension because, based on the evidence on record, particularly the testimonies of the witnesses, they are not the legitimate children of Pablo. It argues that, in the exercise of its quasi-judicial authority under Section 5(a) of the Social Security Act, the SSC can pass upon the legitimacy of respondents relationship with the member to determine whether they are entitled to the benefits, even without correcting their birth certificates.36 Respondents, for their part, assert that petitioner failed to prove that Rosanna committed acts of adultery or that she married another man after the death of her husband. They contend that Janet and Jeylnns legitimacy may be impugned only on the grounds stated in Article 166 of the Family Code, none of which were proven in this case.37 The issue to be resolved in this case is whether Rosanna, Jeylnn and Janet are entitled to the SSS death benefits accruing from the death of Pablo. The petition is partly meritorious. The general rule is that only questions of law may be raised by the parties and passed upon by the Court in petitions for review under Rule 45 of the Rules of Court.38 In an appeal via certiorari, the Court may not review the factual findings of the CA.39 It is not the Courts function under Rule 45 to review, examine, and evaluate or weigh the probative value of the evidence presented.40 However, the Court may review findings of facts in some instances, such as, when the judgment is based on a misapprehension of facts, when the findings of the CA are contrary to those of the trial court or quasi-judicial agency, or when the findings of facts of the CA are premised on the absence of evidence and are contradicted by the evidence on record.41 The Court finds these instances present in this case. At the time of Pablos death, the prevailing law was Republic Act No. 1161, as amended by Presidential Decree No. 735. Section 13 of the law enumerates those who are entitled to death benefits:

Sec.13. Death benefits. Effective July 1, 1975, upon the covered employees death, (a) his primary beneficiaries shall be entitled to the basic monthly pension, and his dependents to the dependents pension: Provided, That he has paid at least thirty-six monthly contributions prior to the semester of death: Provided, further, That if the foregoing condition is not satisfied, or if he has no primary beneficiaries, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to thirty times the basic monthly pension: Provided, however, That the death benefit shall not be less than the total contributions paid by him and his employer on his behalf nor less than five hundred pesos: Provided, finally, That the covered employee who dies in the month of coverage shall be entitled to the minimum benefit. Section 8(k) and (e), in turn, defines dependents and primary beneficiaries of an SSS member as follows: SECTION 8. Terms defined. For the purposes of this Act the following terms shall, unless the context indicates otherwise, have the following meanings: xxxx (e) Dependent. The legitimate, legitimated, or legally adopted child who is unmarried, not gainfully employed, and not over twenty-one years of age provided that he is congenitally incapacitated and incapable of self-support physically or mentally; the legitimate spouse dependent for support upon the employee; and the legitimate parents wholly dependent upon the covered employee for regular support. xxxx (k) Beneficiaries. The dependent spouse until he remarries and dependent children, who shall be the primary beneficiaries. In their absence, the dependent parents and, subject to the restrictions imposed on dependent children, the legitimate descendants and illegitimate children who shall be the secondary beneficiaries. In the absence of any of the foregoing, any other person designated by the covered employee as secondary beneficiary. Whoever claims entitlement to such benefits should establish his or her right thereto by substantial evidence. Substantial evidence, the quantum of evidence required to establish a fact in cases before administrative or quasi-judicial bodies, is that level of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.42 The Court has reviewed the records of the case and finds that only Jeylnn has sufficiently established her right to a monthly pension. Jeylnns claim is justified by the photocopy of her birth certificate which bears the signature of Pablo. Petitioner was able to authenticate the certification from the Civil Registry showing that she was born on October 29, 1991. The records also show that Rosanna and Pablo were married on December 4, 1977 and the marriage subsisted until the latters death on December 8, 1996. It is therefore evident that Jeylnn was born during Rosanna and Pablos marriage. It bears stressing that under Article 164 of the Family Code, children conceived or born during the marriage of the parents are legitimate. This Court, in De Jesus v. Estate of Decedent Juan Gamboa Dizon,43 extensively discussed this presumption

There is perhaps no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate. This presumption indeed becomes conclusive in the absence of proof that there is physical impossibility of access between the spouses during the first 120 days of the 300 days which immediately precedes the birth of the child due to (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely prevents sexual intercourse. Quite remarkably, upon the expiration of the periods set forth in Article 170, 44 and in proper cases Article 171,45 of the Family Code (which took effect on 03 August 1988), the action to impugn the legitimacy of the child would no longer be legally feasible and the status conferred by the presumption becomes fixed and unassailable.46 Indeed, impugning the legitimacy of a child is a strictly personal right of the husband or, in exceptional cases, his heirs.47 In this case, there is no showing that Pablo challenged the legitimacy of Jeylnn during his lifetime. Hence, Jeylnns status as a legitimate child of Pablo can no longer be contested. The presumption that Jeylnn is a legitimate child is buttressed by her birth certificate bearing Pablos signature, which was verified from his specimen signature on file with petitioner. A birth certificate signed by the father is a competent evidence of paternity.48 The presumption of legitimacy under Article 164, however, can not extend to Janet because her date of birth was not substantially proven. Such presumption may be availed only upon convincing proof of the factual basis therefor, i.e., that the childs parents were legally married and that his/her conception or birth occurred during the subsistence of that marriage.49 It should be noted that respondents likewise submitted a photocopy of Janets alleged birth certificate. However, the Court cannot give said birth certificate the same probative weight as Jeylnns because it was not verified in any way by the civil register. It stands as a mere photocopy, without probative weight. Unlike Jeylnn, there was no confirmation by the civil register of the fact of Janets birth on the date stated in the certificate. In any case, a record of birth is merely prima facie evidence of the facts contained therein. 50 Here, the witnesses were unanimous in saying that Janet was not the real child but merely adopted by Rosanna and Pablo. Leticia also testified that Janets adoption did not undergo any legal proceedings; hence, there were no papers to prove it. Under Section 8(e) of Republic Act No. 1161, as amended, only "legally adopted" children are considered dependent children. Absent any proof that the family has legally adopted Janet, the Court cannot consider her a dependent child of Pablo, hence, not a primary beneficiary. On the claims of Rosanna, it bears stressing that for her to qualify as a primary beneficiary, she must prove that she was "the legitimate spouse dependent for support from the employee." The claimant-spouse must therefore establish two qualifying factors: (1) that she is the legitimate spouse, and (2) that she is dependent upon the member for support. In this case, Rosanna presented proof to show that she is the legitimate spouse of Pablo, that is, a copy of their marriage certificate which was verified with the civil register by petitioner. But whether or not Rosanna has sufficiently established that she was still dependent on Pablo at the time of his death remains to be resolved. Indeed, a husband and wife are obliged to support each other,51 but whether one is actually dependent for support upon the other is something that has to be shown; it cannot be presumed from the fact of marriage alone.

In a parallel case52 involving a claim for benefits under the GSIS law, the Court defined a dependent as "one who derives his or her main support from another. Meaning, relying on, or subject to, someone else for support; not able to exist or sustain oneself, or to perform anything without the will, power, or aid of someone else." It should be noted that the GSIS law likewise defines a dependent spouse as "the legitimate spouse dependent for support upon the member or pensioner." In that case, the Court found it obvious that a wife who abandoned the family for more than 17 years until her husband died, and lived with other men, was not dependent on her husband for support, financial or otherwise, during that entire period. Hence, the Court denied her claim for death benefits. The obvious conclusion then is that a wife who is already separated de facto from her husband cannot be said to be "dependent for support" upon the husband, absent any showing to the contrary. Conversely, if it is proved that the husband and wife were still living together at the time of his death, it would be safe to presume that she was dependent on the husband for support, unless it is shown that she is capable of providing for herself. Rosanna had the burden to prove that all the statutory requirements have been complied with, particularly her dependency on her husband for support at the time of his death. Aside from her own testimony, the only evidence adduced by Rosanna to prove that she and Pablo lived together as husband and wife until his death were the affidavits of Vivencia Turla and Carmelita Yangu where they made such declaration. Still, the affidavits of Vivencia and Carmelita and their testimonies before the SSC will not prevail over the categorical and straightforward testimonies of the other witnesses who testified that Rosanna and Pablo had already separated for almost six years before the latter died. Except for the bare assertion of Carmelita that the couple never separated, there was no further statement regarding the witnesses assertion in their affidavits that the couple lived together until Pablos death. On the contrary, Leticia narrated that the two separated after Jeylnns baptism as a result of an argument regarding Romeo dela Pea. According to Leticia, there was a commotion at their ancestral house because Romeo dela Pea was grumbling why Jeylnn was named after Pablo when he was the father, and as a result, Pablo drove them away. The SSCs observation and conclusion on the two baptismal certificates of Jeylnn and Jenelyn convinces this Court to further believe Leticias testimony on why Pablo and Rosanna separated. As noted by the SSC: It appears from the records that Jeylnn Aguas and Jenelyn H. dela Pea are one and the same person. Jeylnn Aguas, born on October 29, 1991 was baptized at the Metropolitan Cathedral of San Fernando, Pampanga, on November 24, 1991 as the child of Pablo Aguas and Rosanna Hernandez. Jenelyn H dela Pea, on the other hand, was born on January 29, 1992 to spouses Rosanna Hernandez and Romeo dela Pea and baptized on February 9, 1992. It will be noted that Jenelyn dela Pea was born approximately three months after the birth of Jeylnn Aguas. It is physically impossible for Rosanna to have given birth successively to two children in so short a time. x x x The testimony of Leticia Aguas-Macapinlac that Rosanna was driven away by Pablo after the baptism of Jeylnn because of the commotion that was created by Romeo dela Pea who wanted Jeylnn to be baptized using his name explains why Jeylnn was again baptized in the Parish of Sto. Nio in San Fernando using the name Jenelyn dela Pea. They changed her date of birth also to make it appear in the record of the parish that she is another child of Rosanna.53

On the other hand, Mariquita categorically affirmed that Rosanna was no longer living at Pablos house even before he died, and that she is still living with Romeo dela Pea up to the present. Mariquita testified as follows: Hearing Officer: Nagsama ba si Rosanna at Romeo? Mrs. Dizon: Ngayon at kahit na noon. Hearing Officer: Kailan namatay si Pablo? Mrs. Dizon: 1996. Hearing Officer: Noong bago mamatay si Pablo? Mrs. Dizon: Nagsasama na sila Romeo at Rosanna noon. Hearing Officer: So, buhay pa si Pablo Mrs. Dizon: . nagsasama na sila ni Romeo. Hearing Officer: Kailan nagkahiwalay si Romeo at Rosanna? Mrs. Dizon: Hindi na sila nagkahiwalay. Hearing Officer:

Hindi, ibig ko sabihin si Pablo at Rosana? Mrs. Dizon: Hindi ko alam kasi hindi ako madalas pumunta sa kanila eh, dahil namatay na yung nanay ni Kuya Pabling, yung tiyahin ko, kapatid ng nanay ko. Noon madalas ako noong buhay pa yung nanay ni Kuya Pabling dahil kami ang nag aalaga sa kanya. Hearing Officer: Bago namatay si Pablo, nagsasama ba sina Romeo at Rosanna? Mrs. Dizon: Oo. Hearing Officer: Sa ngayon, may alam ka pa ba kung nagsasama pa sila Romeo at Rosanna? Mrs. Dizon: Oo, nagsasama sila, may bahay sila. Hearing Officer: Saan naman? Mrs. Dizon: Doon sa malapit sa amin sa may riles ng tren.54 In conclusion, the Court finds that, among respondents, only Jeylnn is entitled to the SSS death benefits accruing from the death of Pablo, as it was established that she is his legitimate child. On the other hand, the records show that Janet was merely "adopted" by the spouses, but there are no legal papers to prove it; hence, she cannot qualify as a primary beneficiary. Finally, while Rosanna was the legitimate wife of Pablo, she is likewise not qualified as a primary beneficiary since she failed to present any proof to show that at the time of his death, she was still dependent on him for support even if they were already living separately. IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The Decision and Resolution of the Court of Appeals are AFFIRMED WITH MODIFICATION. Only Jeylnn H. Aguas is declared entitled to the SSS death benefits accruing from the death of Pablo Aguas. SO ORDERED.