G.R. No.

163604             May 6, 2005

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
THE HON. COURT OF APPEALS (Twentieth Division), HON. PRESIDING JUDGE
FORTUNITO L. MADRONA, RTC-BR. 35 and APOLINARIA MALINAO
JOMOC, respondents.

DECISION

CARPIO-MORALES, J.:

In "In the Matter of Declaration of Presumptive Death of Absentee Spouse Clemente P. Jomoc,
Apolinaria Malinao Jomoc, petitioner," the Ormoc City, Regional Trial Court, Branch 35,
by Order of September 29, 1999,1 granted the petition on the basis of the Commissioner’s
Report2 and accordingly declared the absentee spouse, who had left his petitioner-wife nine years
earlier, presumptively dead.

In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited Article 41, par. 2 of
the Family Code. Said article provides that for the purpose of contracting a valid subsequent
marriage during the subsistence of a previous marriage where the prior spouse had been absent
for four consecutive years, the spouse present must institute summary proceedings for the
declaration of presumptive death of the absentee spouse, without prejudice to the effect of the
reappearance of the absent spouse.

The Republic, through the Office of the Solicitor General, sought to appeal the trial court’s order
by filing a Notice of Appeal.3

By Order of November 22, 1999s,4 the trial court, noting that no record of appeal was filed and
served "as required by and pursuant to Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure,
the present case being a special proceeding," disapproved the Notice of Appeal.

The Republic’s Motion for Reconsideration of the trial court’s order of disapproval having been
denied by Order of January 13, 2000,5 it filed a Petition for Certiorari6 before the Court of
Appeals, it contending that the declaration of presumptive death of a person under Article 41 of
the Family Code is not a special proceeding or a case of multiple or separate appeals requiring a
record on appeal.

By Decision of May 5, 2004,7 the Court of Appeals denied the Republic’s petition on procedural
and substantive grounds in this wise:

At the outset, it must be stressed that the petition is not sufficient in form. It failed to
attach to its petition a certified true copy of the assailed Order dated January 13,
2000 [denying its Motion for Reconsideration of the November 22, 1999 Order
disapproving its Notice of Appeal]. Moreover, the petition questioned the [trial
court’s] Order dated August 15, 1999, which declared Clemente Jomoc presumptively
 dead, likewise for having been issued with grave abuse of discretion amounting to lack of
jurisdiction, yet, not even a copy could be found in the records. On this score alone, the
petition should have been dismissed outright in accordance with Sec. 3, Rule 46 of the
Rules of Court.

However, despite the procedural lapses, the Court resolves to delve deeper into the
substantive issue of the validity/nullity of the assailed order.

The principal issue in this case is whether a petition for declaration of the
presumptive death of a person is in the nature of a special proceeding. If it is, the
period to appeal is 30 days and the party appealing must, in addition to a notice of appeal,
file with the trial court a record on appeal to perfect its appeal. Otherwise, if the petition
is an ordinary action, the period to appeal is 15 days from notice or decision or final order
appealed from and the appeal is perfected by filing a notice of appeal (Section 3, Rule 41,
Rules of Court).

As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil action is one by which a
party sues another for the enforcement or protection of a right, or the prevention of
redress of a wrong" while a special proceeding under Section 3(c) of the same rule is
defined as "a remedy by which a party seeks to establish a status, a right or a particular
fact (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March 2, 1999).

Considering the aforementioned distinction, this Court finds that the instant petition is
in the nature of a special proceeding and not an ordinary action. The petition merely
seeks for a declaration by the trial court of the presumptive death of absentee spouse
Clemente Jomoc. It does not seek the enforcement or protection of a right or the
prevention or redress of a wrong. Neither does it involve a demand of right or a cause of
action that can be enforced against any person.

On the basis of the foregoing discussion, the subject Order dated January 13, 2000
denying OSG’s Motion for Reconsideration of the Order dated November 22, 1999
disapproving its Notice of Appeal was correctly issued. The instant petition, being in
the nature of a special proceeding, OSG should have filed, in addition to its Notice of
Appeal, a record on appeal in accordance with Section 19 of the Interim Rules and
Guidelines to Implement BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court . . .
(Emphasis and underscoring supplied)

The Republic (petitioner) insists that the declaration of presumptive death under Article 41 of the
Family Code is not a special proceeding involving multiple or separate appeals where a record
on appeal shall be filed and served in like manner.

Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the cases wherein
multiple appeals are allowed and a record on appeal is required for an appeal to be perfected. The
petition for the declaration of presumptive death of an absent spouse not being included in the
enumeration, petitioner contends that a mere notice of appeal suffices.
By Resolution of December 15, 2004,8 this Court, noting that copy of the September 27, 2004
Resolution9 requiring respondent to file her comment on the petition was returned unserved with
postmaster’s notation "Party refused," Resolved to consider that copy deemed served upon her.

The pertinent provisions on the General Provisions on Special Proceedings, Part II of the

Revised Rules of Court entitled SPECIAL PROCEEDINGS, read:

RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES

Section 1. Subject matter of special proceedings. – Rules of special proceedings are

provided for in the following:

(a) Settlement of estate of deceased persons;

(b) Escheat;

(c) Guardianship and custody of children;

(d) Trustees;

(e) Adoption;

(f) Rescission and revocation of adoption;

(g) Hospitalization of insane persons;

(h) Habeas corpus;

(i) Change of name;

(j) Voluntary dissolution of corporations;

(k) Judicial approval of voluntary recognition of minor natural children;

(l) Constitution of family home;

(m) Declaration of absence and death;

(n) Cancellation or correction of entries in the civil registry.

Sec. 2. Applicability of rules of civil actions. –  In the absence of special provisions, the
rules provided for in ordinary actions shall be, as far as practicable, applicable in special
proceedings. (Underscoring supplied)
The pertinent provision of the Civil Code on presumption of death provides:

Art. 390. After an absence of seven years, it being unknown whether or not the absentee
still lives, he shall be presumed dead for all purposes, except for those of succession.

x x x (Emphasis and underscoring supplied)

Upon the other hand, Article 41 of the Family Code, upon which the trial court anchored its grant
of the petition for the declaration of presumptive death of the absent spouse, provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent marriage,
the prior spouses had been absent for four consecutive years and the spouse present had a
well-founded belief that the absent spouses was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose pf contracting the subsequent marriage under the preceding paragraph,
the spouses present must institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee, without prejudice to the effect of a
reappearance of the absent spouse. (Emphasis and underscoring supplied)

Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court
in disapproving petitioner’s Notice of Appeal, provides:

Sec. 2. Modes of appeal. -

(a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a
notice of appeal with the court which rendered the judgment or final order appealed from
and serving a copy thereof upon the adverse party. No record on appeal shall be required
except in special proceedings and other cases of multiple or separate appeals where
the law or these Rules so require. In such cases, the record on appeal shall be filed and
served in like manner. (Emphasis and underscoring supplied)

xxx

By the trial court’s citation of Article 41 of the Family Code, it is gathered that the petition of
Apolinaria Jomoc to have her absent spouse declared presumptively dead had for its purpose her
desire to contract a valid subsequent marriage. Ergo, the petition for that purpose is a "summary
proceeding," following above-quoted Art. 41, paragraph 2 of the Family Code.

Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE
FAMILY LAW, contains the following provision, inter alia:

xxx
 Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall
apply in all cases provided for in this Codes requiring summary court proceedings.
Such cases shall be decided in an expeditious manner without regard to technical
rules. (Emphasis and underscoring supplied)

x x x,

there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary
proceeding under the Family Code, not a special proceeding under the Revised Rules of Court
appeal for which calls for the filing of a Record on Appeal. It being a summary ordinary
proceeding, the filing of a Notice of Appeal from the trial court’s order sufficed.

That the Family Code provision on repeal, Art. 254, provides as follows:

Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No.
386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17,
18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise
known as the Child and Youth Welfare Code, as amended, and all laws, decrees,
executive orders, proclamations rules and regulations, or parts thereof, inconsistent
therewith are hereby repealed, (Emphasis and underscoring supplied),

seals the case in petitioner’s favor.

Finally, on the alleged procedural flaw in petitioner’s petition before the appellate court.
Petitioner’s failure to attach to his petition before the appellate court a copy of the trial
court’s order denying its motion for reconsideration of the disapproval of its Notice of Appeal is
not necessarily fatal, for the rules of procedure are not to be applied in a technical sense. Given
the issue raised before it by petitioner, what the appellate court should have done was to direct
petitioner to comply with the rule.

As for petitioner’s failure to submit copy of the trial court’s order granting the petition for
declaration of presumptive death, contrary to the appellate court’s observation that petitioner was
also assailing it, petitioner’s 8-page petition10 filed in said court does not so reflect, it merely
having assailed the order disapproving the Notice of Appeal.

WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is hereby
REVERSED and SET ASIDE. Let the case be REMANDED to it for appropriate action in light
of the foregoing discussion.

SO ORDERED.

G.R. No. 160258             January 19, 2005

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
GLORIA BERMUDEZ-LORINO, respondent.
 DECISION

GARCIA, J.:

Via this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Republic
of the Philippines, represented by the Office of the Solicitor General (OSG), seeks the reversal
and setting aside of the decision dated September 23, 2003 of the Court of Appeals in CA-G.R.
CV No. 73884, which affirmed on appeal an earlier decision of the Regional Trial Court (RTC)
at San Mateo, Rizal in a summary judicial proceeding thereat commenced by the herein
respondent Gloria Bermudez-Lorino for the declaration of the presumptive death of her absent
spouse, Francisco Lorino, Jr., based on the provisions of Article 41 of the Family Code, for
purposes of remarriage.

The facts may be summarized, as follows:

Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her husband were married on June
12, 1987. Out of this marriage, she begot three (3) children, namely: Francis Jeno, Fria Lou and
Fatima.1a\^/phi1.net

Before they got married in 1987, Gloria was unaware that her husband was a habitual drinker,
possessed with violent character/attitude, and had the propensity to go out with friends to the
extent of being unable to engage in any gainful work.

Because of her husband’s violent character, Gloria found it safer to leave him behind and
decided to go back to her parents together with her three (3) children. In order to support the
children, Gloria was compelled to work abroad.

From the time of her physical separation from her husband in 1991, Gloria has not heard of him
at all. She had absolutely no communications with him, or with any of his relatives.

On August 14, 2000, nine (9) years after she left her husband, Gloria filed a verified petition with
the Regional Trial Court (RTC) at San Mateo, Rizal under the rules on Summary Judicial
Proceedings in the Family Law provided for in the Family Code, which petition was docketed in
the same court as Special Proceeding No. 325-00 SM.

On August 28, 2000, the RTC issued an order directing, inter alia, the publication of the petition
in a newspaper of general circulation, thus:

A verified petition was filed by herein petitioner through counsel alleging that she married
Francisco Lorino, Jr. on June 12, 1987 but because of the violent character of his husband, she
decided to go back to her parents and lived separately from her husband. After nine (9) years,
there was absolutely no news about him and she believes that he is already dead and is now
seeking through this petition for a Court declaration that her husband is judicially presumed dead
for the purpose of remarriage.
Finding the said petition to be sufficient in form and substance, the same is hereby set for hearing
before this Court on September 18, 2000 at 8:30 o’clock in the morning at which place, date and
time, any or all persons who may claim any interest thereto may appear and show cause why the
same should not be granted.

Let a copy of this Order be published in a newspaper of general circulation in this province once
a week for three (3) consecutive weeks and be posted in the bulletin boards of the Hall of Justice
and the Municipal Hall, San Mateo, Rizal, all at the expense of the petitioner.1awphi1.nét

Furnish the Office of the Solicitor General a copy of this Order together with a copy of the
petition. Further, send a copy of this Order to the last known address of Francisco Lorino, Jr. at
719 Burgos St., Sta. Elena, Marikina City.

SO ORDERED1

The evidence in support of the summary judicial proceeding are: the order of publication dated
August 28, 2000 (Exhibit "A"); affidavit of publication dated September 16, 2000 (Exhibit
"B")2 ; copies of the newspapers where the order appeared (Exhibits "C" to "E-1")3 ; a deposition
dated September 4, 2000 of Gloria taken in Hong Kong (Exhibit "G")4 ; Gloria’s affidavit dated
October 21, 1999, also executed in Hong Kong (Exhibit "G-1")5 ; and a certification by
Department of Foreign Affairs Authentication Officer, Catalina C. Gonzalez, dated November 3,
1999, therein certifying that the signature of Vice Consul Adriane Bernie C. Candolada,
appearing below the jurat in Gloria’s affidavit of October 21, 1999, is authentic (Exhibit
"G-2")6 .

In a decision dated November 7, 2001, the RTC, finding merit in the summary petition, rendered
judgment granting the same, to wit:

WHEREFORE, this Court in view of the facts and circumstances obtaining, finds the petition
with merit and hereby grants its imprimatur to the petition. Judgment is hereby rendered
declaring the presumptive death/absence of Francisco Lorino, Jr. pursuant to Art. 41 of the New
Family Code but subject to all restrictions and conditions provided therein.

SO ORDERED.7

Despite the judgment being immediately final and executory under the provisions of Article 247
of the Family Code, thus:

Art. 247. The judgment of the court shall be immediately final and executory,

the Office of the Solicitor General, for the Republic of the Philippines, nevertheless filed a
Notice of Appeal.8 Acting thereon, the RTC had the records elevated to the Court of Appeals
which docketed the case as CA-G.R. CV No. 73884.
In a decision dated September 23, 2003, the Court of Appeals, treating the case as an ordinary
appealed case under Rule 41 of the Revised Rules on Civil Procedure, denied the Republic’s
appeal and accordingly affirmed the appealed RTC decision:

WHEREFORE, based on the foregoing premises, the instant appeal is DENIED. Accordingly,
the appealed November 7, 2001 Decision of the Regional Trial Court of San Mateo, Rizal in
Spec. Proc. No. 325-00 SM is hereby AFFIRMED.

SO ORDERED.9

Without filing any motion for reconsideration, petitioner Republic directly went to this Court via
the instant recourse under Rule 45, maintaining that the petition raises a pure question of law that
does not require prior filing of a motion for reconsideration.

The foregoing factual antecedents present to this Court the following issues:

WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED JURISDICTION

OVER THE APPEAL ON A FINAL AND EXECUTORY JUDGMENT OF THE REGIONAL
TRIAL COURT; and

WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL

DECLARATION OF PRESUMPTIVE DEATH UNDER ARTICLE 41 OF THE FAMILY
CODE WERE DULY ESTABLISHED IN THIS CASE.

The Court rules against petitioner Republic.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN
THE FAMILY LAW, sets the tenor for cases covered by these rules, to wit:

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in
all cases provided for in this Code requiring summary court proceedings. Such cases shall be
decided in an expeditious manner without regard to technical rules.

Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly complied with the
above-cited provision by expeditiously rendering judgment within ninety (90) days after the
formal offer of evidence by therein petitioner, Gloria Bermudez-Lorino.

The problem came about when the judge gave due course to the Republic’s appeal upon the
filing of a Notice of Appeal, and had the entire records of the case elevated to the Court of
Appeals, stating in her order of December 18, 2001, as follows:

Notice of Appeal having been filed through registered mail on November 22, 2001 by the Office
of the Solicitor General who received a copy of the Decision in this case on November 14, 2001,
within the reglementary period fixed by the Rules, let the entire records of this case be
transmitted to the Court of Appeals for further proceedings.
SO ORDERED.10

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within
which to perfect an appeal, precisely because judgments rendered thereunder, by express
provision of Section 247, Family Code, supra, are "immediately final and executory". It was
erroneous, therefore, on the part of the RTC to give due course to the Republic’s appeal and
order the transmittal of the entire records of the case to the Court of Appeals.

An appellate court acquires no jurisdiction to review a judgment which, by express provision of

law, is immediately final and executory. As we have said in Veloria vs. Comelec,11 "the right to
appeal is not a natural right nor is it a part of due process, for it is merely a statutory privilege."
Since, by express mandate of Article 247 of the Family Code, all judgments rendered in
summary judicial proceedings in Family Law are "immediately final and executory", the right to
appeal was not granted to any of the parties therein. The Republic of the Philippines, as oppositor
in the petition for declaration of presumptive death, should not be treated differently. It had no
right to appeal the RTC decision of November 7, 2001.

It was fortunate, though, that the Court of Appeals, acting through its Special Fourth Division,
with Justice Elvi John S. Asuncion as Acting Chairman and ponente, denied the Republic’s
appeal and affirmed without modification the final and executory judgment of the lower court.
For, as we have held in Nacuray vs. NLRC :12

Nothing is more settled in law than that when a judgment becomes final and executory it
becomes immutable and unalterable. The same may no longer be modified in any respect, even if
the modification is meant to correct what is perceived to be an erroneous conclusion of fact or
law, and whether made by the highest court of the land (citing Nunal v. Court of Appeals, G.R.
No. 94005, 6 April 1993, 221 SCRA 26).

But, if only to set the records straight and for the future guidance of the bench and the bar, let it
be stated that the RTC’s decision dated November 7, 2001, was immediately final and executory
upon notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the
RTC to give due course thereto. The Court of Appeals acquired no jurisdiction over the case, and
should have dismissed the appeal outright on that ground.

This judgment of denial was elevated to this Court via a petition for review on certiorari under
Rule 45. Although the result of the Court of Appeals’ denial of the appeal would apparently be
the same, there is a big difference between having the supposed appeal dismissed for lack of
jurisdiction by virtue of the fact that the RTC decision sought to be appealed is immediately final
and executory, and the denial of the appeal for lack of merit. In the former, the supposed appellee
can immediately ask for the issuance of an Entry of Judgment in the RTC, whereas, in the latter,
the appellant can still raise the matter to this Court on petition for review and the RTC judgment
cannot be executed until this Court makes the final pronouncement.

The Court, therefore, finds in this case grave error on the part of both the RTC and the Court of
Appeals. To stress, the Court of Appeals should have dismissed the appeal on ground of lack of
jurisdiction, and reiterated the fact that the RTC decision of November 7, 2001 was immediately
final and executory. As it were, the Court of Appeals committed grave reversible error when it
failed to dismiss the erroneous appeal of the Republic on ground of lack of jurisdiction because,
by express provision of law, the judgment was not appealable.

WHEREFORE, the instant petition is hereby DENIED for lack of merit.1a\^/phi1.net No

pronouncement as to costs.

SO ORDERED.

G.R. No. 161062               July 31, 2009

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
FERVENTINO U. TANGO, Respondent.

DECISION

QUISUMBING, J.:

This is a petition for review on certiorari of the Decision1 dated November 28, 2003 of the Court
of Appeals in CA-G.R. CV No. 76387 which denied the Republic’s appeal from the Order2 dated
July 23, 2002 of the Regional Trial Court (RTC) of Ligao City, Branch 11 in Special Proceeding
No. 357. The trial court had declared the wife of respondent Ferventino U. Tango (Ferventino),
Maria Jose Villarba (Maria), presumptively dead under Article 413 of the Family Code.

The present controversy arose from the following facts:

On March 9, 1987, Ferventino and Maria were married4 in civil rites before then Mayor Ignacio
Bunye of Muntinlupa City. None of Maria’s relatives witnessed the ceremony as they were
opposed to her relationship with Ferventino. The two had only spent a night together and had
been intimate once when Maria told Ferventino that she and her family will soon be leaving for
the United States of America (USA). Maria assured Ferventino, however, that she will file a
petition so he can live with her in the USA. In the event that said petition is denied, she promised
to return to the Philippines to live with him. On March 13, 1987, Maria and her family flew to
Seattle, USA.

Ferventino alleges that Maria kept in touch for a year before she stopped responding to his
letters. Out of resentment, he burned all the letters Maria wrote him. He claims to have forgotten
her address since.

Ferventino recounts the efforts he made to find Maria. Upon inquiry from the latter’s uncle,
Antonio Ledesma, in Las Piñas, Ferventino learned that even Maria’s relatives were unaware of
her whereabouts. He also solicited the assistance of a friend in Texas, Capt. Luis Aris of the U.S.
Air Force, but to no avail. Finally, he sought the aid of his parents Antonio and Eusebia in Los
Angeles, and his aunt Anita Castro-Mayor in Seattle. Like, Ledesma though, their attempts to
find Maria proved fruitless. The next 14 years went by without any news of Maria.
On the belief that his wife had died, Ferventino filed a verified petition5 dated October 1, 2001
before the Ligao City RTC for the declaration of presumptive death of Maria within the
contemplation of Article 41 of the Family Code.

When the case was called for initial hearing on January 8, 2002, nobody entered any opposition.
On July 22, 2002, Ferventino presented evidence ex parte and testified in court about the details
of his search. On July 23, 2002, Branch 11 of the Ligao City RTC issued an Order, the
dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered, declaring MARIA JOSE V. VILLARBA, wife of

FERVENTINO U. TANGO, presumptively dead within the meaning of Article 41 of the Family
Code.

SO ORDERED. 6

This prompted the Office of the Solicitor General (OSG), for the Republic, to file a Notice of
Appeal.7 Acting thereon, Presiding Judge Romulo SG. Villanueva of the Ligao City RTC had the
records of the case transmitted to the Court of Appeals.

The Court of Appeals, treating the case as an ordinary appealed case under Rule 41 of the Rules
of Court, affirmed the RTC’s Order. It held that Maria’s absence for 14 years without
information about her location despite diligent search by Ferventino was sufficient to support a
well-founded belief of her death. The appellate court observed that neither the OSG nor the
Assistant Provincial Prosecutor objected to the evidence which Ferventino presented on trial. It
noted, in particular, that the OSG did not dispute the adequacy of Ferventino’s basis to engender
a well-founded belief that Maria is dead. Hence, in a Decision dated November 28, 2003, the
Court of Appeals denied the Republic’s appeal in this tenor:

WHEREFORE, the appeal is hereby DENIED. Accordingly, the July 23, 2002 Order of the
Regional Trial Court of Ligao City, Branch 11 in Spec. Proc. No. 357 is AFFIRMED.

SO ORDERED.8

Before us, petitioner anchors this petition for review on certiorari on the following two grounds:

I.

THE TESTIMONY OF RESPONDENT ON THE ALLEGED EFFORTS MADE BY HIS

FRIEND AND RELATIVES IN LOCATING HIS MISSING WIFE IN SEATTLE, UNITED
STATES, IS HEARSAY AND DEVOID OF PROBATIVE VALUE[; AND]

II.

EVEN ASSUMING THAT THE AFORESAID TESTIMONY MAY BE CONSIDERED IN

EVIDENCE, THE ALLEGED EFFORTS OF RESPONDENT’S FRIEND AND RELATIVES
IN LOCATING HIS MISSING WIFE IN SEATTLE, UNITED STATES, DO NOT
SUFFICIENTLY SUPPORT A "WELL-FOUNDED BELIEF" THAT RESPONDENT’S
ABSENT SPOUSE IS PROBABLY DEAD.9

Unadorned, the issues for our determination are: (1) whether the testimony of respondent
Ferventino is hearsay; and (2) whether respondent Ferventino has established a basis to form a
well-founded belief that his absent spouse is already dead.

The Republic, through the OSG, contests the appellate court’s holding that the absence of
respondent’s wife Maria for 14 years provides sufficient basis to entertain a well-founded belief
that she is dead. The OSG discounts respondent’s testimony, on the steps he took to find Maria,
as hearsay because none of the persons who purportedly helped in his search testified in court.
Notably, the OSG observes that only Capt. Aris gave a detailed account of his efforts to track
down Maria. According to Capt. Aris, he went over the Seattle phone directory for Maria’s name
and inquired about her from the registrar’s office in Seattle, but both efforts proved to be in vain.

The OSG belittles its failure to object to the admissibility of respondent’s testimony during trial.
Instead, it invokes Constitutional provisions that advocate the state policy of preserving marital
institutions.

On March 16, 2007, respondent’s counsel, Atty. Richie R. Regala, manifested to this Court his
intent to withdraw as counsel for respondent. According to Atty. Regala, he received a letter by
which respondent expressed a desire to withdraw from the proceeding.10 In view of this, the
Court issued a Resolution11 on April 21, 2008 which deemed as waived the filing of respondent’s
comment on the petition. Previously, the Court of Appeals had also issued a Resolution12 dated
October 15, 2003 submitting the case for decision and ordering its re-raffling for respondent’s
failure to file an appellee’s brief. In other words, apart from the verified petition for the
declaration of presumptive death of Maria dated October 1, 2001, which respondent filed before
the Ligao City RTC, he has not submitted any other pleading in connection with the petition.

Respondent’s apparent lack of desire to pursue the proceedings notwithstanding, the Court is
inclined to rule against the Republic.

This case presents an opportunity for us to settle the rule on appeal of judgments rendered in
summary proceedings under the Family Code and accordingly, refine our previous decisions
thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN
THE FAMILY LAW, establishes the rules that govern summary court proceedings in the Family
Code:

ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in
all cases provided for in this Code requiring summary court proceedings. Such cases shall be
decided in an expeditious manner without regard to technical rules.

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two
and three of the same title. It states:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable.
(Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately final and executory.

By express provision of law, the judgment of the court in a summary proceeding shall be
immediately final and executory. As a matter of course, it follows that no appeal can be had of
the trial court’s judgment in a summary proceeding for the declaration of presumptive death of
an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an
aggrieved party may file a petition for certiorari to question abuse of discretion amounting to
lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the
Doctrine of Hierarchy of Courts. To be sure, even if the Court’s original jurisdiction to issue a
writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain cases, such
concurrence does not sanction an unrestricted freedom of choice of court forum.13 From the
decision of the Court of Appeals, the losing party may then file a petition for review on certiorari
under Rule 45 of the Rules of Court with the Supreme Court. This is because the errors which
the court may commit in the exercise of jurisdiction are merely errors of judgment which are the
proper subject of an appeal.141avvphi1

In the case before us, petitioner committed a serious procedural lapse when it filed a notice of
appeal in the Court of Appeals instead of a petition for certiorari. The RTC equally erred in
giving due course to said appeal and ordering the transmittal of the records of the case to the
appellate court. By no means did the Court of Appeals acquire jurisdiction to review the
judgment of the RTC which, by express provision of law, was immediately final and executory.

Adding to the confusion, the Court of Appeals entertained the appeal and treated the same as an
ordinary appeal under Rule 41 of the Rules of Court. As it were, the Court of Appeals committed
grave reversible error when it failed to dismiss the erroneous appeal of the Republic on the
ground of lack of jurisdiction because, by express provision of the law, the judgment was not
appealable.15

Before us, petitioner filed a petition for review on certiorari under Rule 45 of the Rules of Court.
But, even if petitioner used the correct mode of appeal at this level, the hands of the Court are
tied. Without a doubt, the decision of the trial court had long become final.

Deeply ingrained in our jurisprudence is the principle that a decision that has acquired finality
becomes immutable and unalterable. As such, it may no longer be modified in any respect even
if the modification is meant to correct erroneous conclusions of fact or law and whether it will be
made by the court that rendered it or by the highest court of the land.16 In light of the foregoing,
it would be unnecessary, if not useless, to discuss the issues raised by petitioner.

The doctrine of finality of judgment is grounded on the fundamental principle of public policy
and sound practice that, at the risk of occasional error, the judgment of courts and the award of
quasi-judicial agencies must become final on some definite date fixed by law. The only
exceptions to the general rule are the correction of clerical errors, the so-called nunc pro tunc
entries which cause no prejudice to any party, void judgments, and whenever circumstances
transpire after the finality of the decision which render its execution unjust and
inequitable.17 None of the exceptions obtains here to merit the review sought.

WHEREFORE the instant petition is DENIED for lack of merit. No pronouncement as to costs.

SO ORDERED.