Appeal; change of theory on appeal not allowed

MILAGROS MANONGSONG, etc., et. al. vs. FELOMENA JUMAQUIO ESTIMO, et. al., G.
R. No. 136773, June 25, 2003
x x x.
Petitioners admitted before the trial court that Navarro was the mother of Guevarra.
However, petitioners denied before the Court of Appeals that Navarro was the
mother of Guevarra. We agree with the appellate court that this constitutes an
impermissible change of theory. When a party adopts a certain theory in the court
below, he cannot change his theory on appeal. To allow him to do so is not only
unfair to the other party, it is also offensive to the basic rules of fair play, justice
and due process.[35]
X x x.
Document not formally offered, per Rule 132; effect as to admissibility.
MILAGROS MANONGSONG, etc., et. al. vs. FELOMENA JUMAQUIO ESTIMO, et. al., G.
R. No. 136773, June 25, 2003
x x x.
We find no error in the Court of Appeals refusal to give any probative value to the
alleged birth certificate of Guevarra and the affidavit of Benjamin dela Cruz, Sr.
Petitioners belatedly attached these documents to their appellees brief. Petitioners
could easily have offered these documents during the proceedings before the trial
court. Instead, petitioners presented these documents for the first time on appeal
without any explanation. For reasons of their own, petitioners did not formally offer
in evidence these documents before the trial court as required by Section 34, Rule
132 of the Rules of Court.[33] To admit these documents now is contrary to due
process, as it deprives respondents of the opportunity to examine and controvert
them.
Moreover, even if these documents were admitted, they would not controvert
Navarros ownership of the Property. Benjamin dela Cruz, Sr.s affidavit stated merely
that, although he knew Navarro by name, he was not personally acquainted with
her.[34]Guevarras alleged birth certificate casts doubt only as to whether Navarro
was indeed the mother of Guevarra. These documents do not prove that Guevarra
owned the Property or that Navarro did not own the Property.
X x x.
As opposed to a disposition inter vivos by lucrative or gratuitous title, a
valid sale for valuable consideration does not diminish the estate of the
seller.

MILAGROS MANONGSONG, etc., et. al. vs. FELOMENA JUMAQUIO ESTIMO, et. al., G.
R. No. 136773, June 25, 2003
x x x.
We likewise find no basis for the trial courts declaration that the sale embodied in
the Kasulatan deprived the compulsory heirs of Guevarra of their legitimes. As
opposed to a disposition inter vivos by lucrative or gratuitous title, a valid sale for
valuable consideration does not diminish the estate of the seller. When the
disposition is for valuable consideration, there is no diminution of the estate but
merely a substitution of values,[30] that is, the property sold is replaced by the
equivalent monetary consideration.
Under Article 1458 of the Civil Code, the elements of a valid contract of sale are: (1)
consent or meeting of the minds; (2) determinate subject matter and (3) price
certain in money or its equivalent.[31] The presence of these elements is apparent
on the face of the Kasulatan itself. The Property was sold in 1957 for P250.00.[32 x x
x.]
Proof of acquisition during the marriage is an essential condition for the
operation of the presumption in favor of the conjugal partnership
MILAGROS MANONGSONG, etc., et. al. vs. FELOMENA JUMAQUIO ESTIMO, et. al., G.
R. No. 136773, June 25, 2003
x x x.
Nevertheless, the trial court held that the Kasulatan was void because the Property
was conjugal at the time Navarro sold it to Enriqueta Lopez Jumaquio. We do not
agree. The trial courts conclusion that the Property was conjugal was not based on
evidence, but rather on a misapprehension of Article 160 of the Civil Code, which
provides:
All property of the marriage is presumed to belong to the conjugal partnership,
unless it be proved that it pertains exclusively to the husband or to the wife.
As the Court of Appeals correctly pointed out, the presumption under Article 160 of
the Civil Code applies only when there is proof that the property was acquired
during the marriage. Proof of acquisition during the marriage is an essential
condition for the operation of the presumption in favor of the conjugal partnership.
[28]
There was no evidence presented to establish that Navarro acquired the Property
during her marriage. There is no basis for applying the presumption under Article

160 of the Civil Code to the present case. On the contrary, Tax Declaration No. 911
showed that, as far back as in 1949, the Property was declared solely in Navarros
name.[29] This tends to support the argument that the Property was not conjugal.
X x x.
Public document; ancient document

MILAGROS MANONGSONG, etc., et. al. vs. FELOMENA JUMAQUIO ESTIMO, et. al., G.
R. No. 136773, June 25, 2003
x x x.
The Kasulatan, being a document acknowledged before a notary public, is a public
document and prima facie evidence of its authenticity and due execution. To assail
the authenticity and due execution of a notarized document, the evidence must be
clear, convincing and more than merely preponderant.[24] Otherwise the
authenticity and due execution of the document should be upheld.[25] The trial
court itself held that (n)o countervailing proof was adduced by plaintiffs to
overcome or impugn the documents legality or its validity.[26]
Even if the Kasulatan was not notarized, it would be deemed an ancient document
and thus still presumed to be authentic. TheKasulatan is: (1) more than 30 years
old, (2) found in the proper custody, and (3) unblemished by any alteration or by
any circumstance of suspicion. It appears, on its face, to be genuine.[27]
X x x.
Burden of proof vs. burden of evidence; preponderance of evidence
MILAGROS MANONGSONG, etc., et. al. vs. FELOMENA JUMAQUIO ESTIMO, et. al., G.
R. No. 136773, June 25, 2003
x x x.
We review the factual and legal issues of this case in light of the general rules of
evidence and the burden of proof in civil cases, as explained by this Court in Jison v.
Court of Appeals :[23]
xxx Simply put, he who alleges the affirmative of the issue has the burden of proof,
and upon the plaintiff in a civil case, the burden of proof never parts. However, in
the course of trial in a civil case, once plaintiff makes out a prima facie case in his
favor, the duty or the burden of evidence shifts to defendant to controvert plaintiff's
prima faciecase, otherwise, a verdict must be returned in favor of plaintiff.
Moreover, in civil cases, the party having the burden of proof must produce a
preponderance of evidence thereon, with plaintiff having to rely on the strength of

his own evidence and not upon the weakness of the defendants. The concept of
preponderance of evidence refers to evidence which is of greater weight, or more
convincing, that which is offered in opposition to it; at bottom, it means probability
of truth.
X x x.
When may Supreme Court review factual findings

MILAGROS MANONGSONG, etc., et. al. vs. FELOMENA JUMAQUIO ESTIMO, et. al., G.
R. No. 136773, June 25, 2003
x x x.
The issues raised by petitioners are mainly factual in nature. In general, only
questions of law are appealable to this Court under Rule 45. However, where the
factual findings of the trial court and Court of Appeals conflict, this Court has the
authority to review and, if necessary, reverse the findings of fact of the lower
courts.[22] This is precisely the situation in this case.

X x x.
Bench warrant
ESTHER P. MAGLEO vs. PRESIDING JUDGE ROWENA DE JUAN-QUINAGORAN and
BRANCH CLERK OF COURT ATTY. ADONIS LAURE, BOTH OF BRANCH 166, REGIONAL
TRIAL COURT, PASIG CITY, A.M. No. RTJ-12-2336 (Formerly A.M. OCA-IPl No. 11-3695RTJ), November 12, 2014
x x x.
Claim of Violation of the Code of Judicial Conduct for issuing a Bench Warrant
It must be noted that complainant was only granted provisional liberty when she
applied for bail. Such provisional liberty could be taken away if she would violate
any of the undertakings stated therein. One of the conditions for bail is that the
accused shall appear before the proper court whenever required by the court or the
Rules of Court.
As a consequence of failing to attend the trial when so required, a bench warrant
was issued against complainant. A bench warrant is defined as a writ issued directly
by a judge to a law-enforcement officer, especially for the arrest of a person who
has been held in contempt, has disobeyed a subpoena, or has to appear for a
hearing or trial. The provision on bench warrant is expressed under Section 9, Rule

71 of the Rules of Court which states that "[w]hen a respondent released on bail
fails to appear on the day fixed for the hearing, the court may issue another order of
arrest or may order the bond for his appearance to be forfeited and confiscated, or
both." (Underscoring supplied)

Jurisprudence dictates that the primary requisite before a bench warrant shall be
issued is that the absent-party was duly informed of the hearing date but
unjustifiably failed to attend so. As stated above, complainant was undeniably
notified of the June 8, 2011 hearing but she failed to attend.

Complainant also averred that respondent judge committed erroneous conduct (1)
when she issued a bench warrant without specifically stating the amount of bail
bond and (2) for not motu proprio lifting the bail bond when complainants son and
lawyer showed their willingness to apply for bail.
According to respondent judge, the June 9, 2011 order of arrest failed to state a bail
bond because complainant jumped bail by failing to appear in court for hearing on
June 8, 2011. The Court finds this acceptable because when an accused fails to
appear in person as required, the bond shall be declared forfeited. Also, it is not
required by the Rules of Court that the amount of new bail bond be stated in the
bench warrant. The Court cannot chastise respondent judge for an act not required
by the Rules. Absent any abuse of discretion, it is sufficient that the bail bond was
fixed after complainant was arrested. Such would bethe proper time for the judge to
consider whether to increase, decrease or retain the amount of bail based on the
guidelines.
Moreover, there is nothing in the Rules which mandates a judge to motu proprio lift
the bench warrant once the accused expresses his intent to be released on bail.
Without any provision to the contrary, Section 1, Rule 15 of the Rules of Court
governs such that a motion must be filed to seek affirmative relief. In the present
case, respondent judge acted within the scope of her authority when she required
complainants son and lawyer to file an ex parte motion to lift the order of arrest.
When the motion was filed and the prosecutor did not express any objection,
respondent judge deemed it fit to impose the same amount of bail at P40,000.00.
Respondent judge immediately entertained complainants son and lawyer when
they came to her branch despite her scheduled hearing and as a result, complainant
was released on that same day.
In the absence of a showing that the acts complained of were done with malice or
intention to violate the law or disregard the Rules of Court or for some corrupt
motive, they would, at best, constitute errors of judgment which do not amount to
serious misconduct.

X x x.
Best evidence rule; secondary evidence
MCMP CONSTRUCTION CORP. vs. MONARK EQUIPMENT CORP., G.R. No. 201001,
November 10, 2014
x x x.
MCMP challenges the ruling of the CA arguing that the appellate court should have
disallowed the presentation of secondary evidence to prove the existence of the
Contract, following the Best Evidence Rule. MCMP specifically argues that based on
the testimony of Peregrino, Monark did not diligently search for the original copy of
the Contract as evidenced by the fact that: 1) the actual custodian of the document
was not presented; 2) the alleged loss was not even reported to management or the
police; and 3) Monark only searched for the original copy of the document for the
purposes of the instant case.
Petitioners contention is erroneous.
The Best Evidence Rule, a basic postulate requiring the production of the original
document whenever its contents are the subject of inquiry, is contained in Section 3
of Rule 130 ofthe Rules of Court which provides:
"Section 3. Original document must be produced; exceptions. When the subject
of inquiry is the contents of a document, no evidence shall be admissible other than
the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against
whom the evidence is offered, and the latter fails to produce it after reasonable
notice;
(c) When the original consists of numerous accounts or other documents which
cannot be examined in court without great loss of time and the fact sought to be
established from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is
recorded in a public office. (Emphasis supplied)"
Relative thereto, Sections 5 and 6 of Rule 130 provide the relevant rules on the
presentation of secondary evidence to prove the contents of a lost document:
"Section 5. When original document is unavailable. When the original document
has been lost or destroyed, or cannot be produced in court, the offeror, upon proof
of its execution or existence and the cause of its unavailability without bad faith on

his part, may prove its contents by a copy, or by a recital of its contents in some
authentic document, or by the testimony of witnesses in the order stated. (4a)
Section 6. When original document is in adverse party's custody or control. If the
document is in the custody or under the control of adverse party, he must have
reasonable notice to produce it. If after such notice and after satisfactory proof of its
existence, he fails to produce the document, secondary evidence may be presented
as in the case of its loss."
In Country Bankers Insurance Corporation v. Lagman,11 the Court set down the
requirements before a party may present secondary evidence to prove the contents
of the original document whenever the original copy has been lost:
Before a party is allowed to adduce secondary evidence to prove the contents of the
original, the offeror must prove the following: (1) the existence or due execution of
the original; (2) the loss and destruction of the original or the reason for its nonproduction in court; and (3) on the part of the offeror, the absence of bad faith to
which the unavailability of the original can be attributed. The correct order of proof
is as follows: existence, execution, loss, and contents.
In the instant case, the CA correctly ruled that the above requisites are present.
Both the CA and the RTC gave credence to the testimony of Peregrino that the
original Contract in the possession of Monark has been lost and that diligent efforts
were exerted to find the same but to no avail. Such testimony has remained
uncontroverted. As has been repeatedly held by this Court, "findings offacts and
assessment of credibility of witnesses are matters best left to the trial court."12
Hence, the Court will respect the evaluation of the trial court on the credibility of
Peregrino.
MCMP, to note, contends that the Contract presented by Monark is not the contract
that they entered into. Yet, it has failed to present a copy of the Contract even
despite the request of the trial court for it to produce its copy of the Contract.13
Normal business practice dictates that MCMP should have asked for and retained a
copy of their agreement. Thus, MCMPs failure to present the same and even explain
its failure, not only justifies the presentation by Monark of secondary evidence in
accordance with Section 6 of Rule 130 of the Rules of Court, butit also gives rise to
the disputable presumption adverse to MCMP under Section 3 (e) of Rule 131 of the
Rules of Court that "evidence willfully suppressed would be adverse if produced."
X x x.
Writ of execution; execution of judgment; sheriffs
FELICIANO O. FRANCIA vs. ROBERTO C. ESGUERRA, Sheriff IV, Regional Trial Court,
Branch 14, Davao City, A.M. No. P-14-3272 [Formerly: OCA IPI No. 14-4264-P],
November 11, 2014

x x x.
The duties of sheriffs in the implementation of writs are explicitly laid down in
Section 10, Rule 141 of the Rules of Court, as amended, which reads:
Sec. 10. Sheriffs, process servers and other persons serving processes. x x x
xxxx
With regard to sheriffs expenses in executing writs issued pursuant to court orders
or decisions or safeguarding the property levied upon, attached or seized, including
kilometrage for each kilometer of travel, guards fees, warehousing and similar
charges, the interested party shall pay said expenses in anamount estimated by the
sheriff, subject to approval of the court. Upon approval of said estimated expenses,
the interested party shall deposit such amount with the clerk of court and ex-officio
sheriff, who shall disburse the same to the deputy sheriff assigned to effect the
process, subject to liquidation within the same period for rendering a return on the
process. The liquidation shall be approved by the court. Any unspent amount shall
be refunded to the party making the deposit. A full report shall be submitted by the
deputy sheriff assigned with his return, the sheriffs expenses shall be taxed as cost
against the judgment debtor. (Emphasis supplied)
The aforesaid rule enumerated the steps to be followed in the payment and
disbursement of fees for the execution of a writ, to wit: (1) the sheriff must prepare
and submit to the court anestimate of the expenses he would incur; (2) the
estimated expenses shall be subject to court approval; (3) the approved estimated
expenses shall be deposited by the interested party with the Clerk of Court, who is
also the ex-officio sheriff; (4) the Clerk of Court shall disburse the amount to the
executing sheriff; (5) the executing sheriff shall thereafter liquidate his expenses
within the same period for rendering a return on the writ; and (6) any amount
unspent shall be returned to the person who made the deposit. It is clear from the
enumeration that sheriffs are not authorized to receive direct payments from a
winning party. Any amount to be paid for the execution ofthe writ should be
deposited with the Clerk of Court and it would be the latter who shall release the
amount to the executing sheriff. The amount deposited should be spent entirely for
the execution only and any remainder of the amount should be returned.
Respondent sheriff acknowledged his receipt of the P3,000.00 from Feliciano and
explained that it was for legal expenses. Other than his vague explanation, there
was no accounting ofthe P3,000.00 he admitted to have received. In fact, there was
also no showing that a liquidation was prepared and submitted to the court as
required under the rules.
Even if Feliciano was amenable to the amount requested or that the money was
given voluntarily, such would not absolve respondent sheriff from liability because
of his failure to secure the courts prior approval. We held in Bernabe v. Eguia8 that

acceptance of any other amount is improper, even if it were to be applied for lawful
purposes. Good faith on the part of the sheriff, or lack of it, in proceeding to
properly execute its mandate would be of no moment, for he is chargeable with the
knowledge that being the officer of the court tasked therefore, it behooves him to
make due compliances. In the implementation of the writ of execution, only the
payment of sheriffs fees may be received by sheriffs. They are not allowed to
receive any voluntary payments from parties in the course of the performance of
their duties. To do so would be inimical to the best interests of the service because
even assuming arguendo that such payments were indeed given and received in
good faith,this fact alone would not dispel the suspicion that such payments were
made for less than noble purposes. In fact, even "reasonableness" of the amounts
charged, collected and received by the sheriff is not a defense where the procedure
laid down in Section 10, Rule 141 of the Rules of Court has been clearly ignored.
The rules on sheriffs expenses are clear-cut and do not provide procedural
shortcuts. A sheriff cannot just unilaterally demand sums of money from a partylitigant without observing the proper procedural steps otherwise, it would amount to
dishonesty and extortion9 . And any amount received in violation of Section 10,Rule
141 of the Rules of Court constitutes unauthorized fees. Respondent sheriff is
charged with neglect of duty. In the implementation of writs, sheriffs are mandated
to follow the procedure under Section 14, Rule 39 of the Rules, which reads:
SEC. 14. Return of writ of execution. The writ of execution shall be returnable to
the court issuing itimmediately after the judgment has been satisfied in part or in
full. Ifthe judgment cannot be satisfied in full within thirty (30) days after his receipt
of the writ, the officer shall report to the court and state the reason therefore. Such
writ shall continue in effect during the period within which the judgment may be
enforced by motion. The officer shall make a report to the court every thirty (30)
days on the proceedings taken thereon until the judgment is satisfied in full, or its
effectivity expires. The returns or periodic reports shall set forth the whole of the
proceedings taken, and shall be filed with the court and copies thereof promptly
furnished the parties. Respondent sheriff would want us to believe that his failure to
implement the writ was brought about by circumstances beyond his control. He
maintained that the defendants wereadamant in staying in the subject property.
Thus, he had to seek police assistance which he obtained only after several months
of waiting. Respondent sheriff further alleged that he thereafter waited for Feliciano
to appear before him so that he could proceed with the implementation of the writ.
We find respondent sheriffs contention untenable. His being remiss in his duties
was underscored by the fact that a year had passed without the writ being
implemented. If his contention was true, then he could have still complied with his
duty by making a return on the writ within 30 days from his receipt thereof and
submitting periodic reports every 30 days thereafter until it was satisfied in full.
Respondentsheriff failed in accomplishing any of these. We held in Mendoza v.
Tuquero10 that sheriffs have no discretion on whether or not to implement a writ.

There is no need for the litigants to "follow-up" its implementation. When writs are
placed in their hands, it is their ministerial duty to proceed with reasonable celerity
and promptness to execute them in accordance with their mandate. Unless
restrained by a court order, they should see to it that the execution of judgments is
not unduly delayed.11 Respondent sheriffs failure to implement the writ gives rise
to presumption that he was waiting for additional financial consideration from
Feliciano or that he has already received a bribe from the losing party to stall the
writs implementation. We have previously ruled that failure of the sheriff to carry
out what is a purely ministerial duty, to follow wellestablished rules in the
implementation of court orders and writs, to promptly undertake the execution
ofjudgments, and to accomplish the required periodic reports, constitute gross
neglect and gross inefficiency in the performance of official duties.12 Records reveal
that this is not the first offense of respondent sheriff. In A.M. No. P-07-2370 dated 14
September 2007, he was suspended by the Court for one (1) month for dereliction
of duty. Records further reveal that another charge of neglect of duty (OCA IPI No.
12-3880-P) is pending before the Legal Office, OCA.13
As a final note, it cannot be over-emphasized that sheriffs are ranking officers of the
court. They play an important part in the administration of justice execution being
the fruit and end of the suit, and the life of the law. In view of their exalted position
as keepers of the faith, their conduct should be geared towards maintaining the
prestige and integrity of the court.14 Respondent sheriff failed to live up to this
standard. It is evident that he never learned from his previous infraction. Having
tarnished the good image of the judiciary, he should not be allowed to stay a minute
longer in the service.
WHEREFORE, we find respondent Roberto C. Esguerra, Sheriff IV, Regional Trial
Court, Branch 14, Davao City GUILTY of dishonesty, gross neglect of duty and gross
inefficiency in the performance of official duties. Accordingly, he is DISMISSED from
the service, with forfeiture of all his retirement benefits, except accrued leave
credits, if any, and with prejudice to re-employment in any branch or instrumentality
of the government, including government-owned or controlled corporations.
SO ORDERED.
X x x.
Demurrer to evidence
ESTHER P. MAGLEO vs. PRESIDING JUDGE ROWENA DE JUAN-QUINAGORAN and
BRANCH CLERK OF COURT ATTY. ADONIS LAURE, BOTH OF BRANCH 166, REGIONAL
TRIAL COURT, PASIG CITY, A.M. No. RTJ-12-2336 (Formerly A.M. OCA-IPl No. 11-3695RTJ), November 12, 2014
x x x.

Complainant asserts that respondent judge committed gross ignorance of the law
and evident partiality when she overturned the order granting the demurrer to
evidence because it would constitute as a violation to her constitutional right
against double jeopardy. Complainant argues that a dismissal due to such order is
considered as acquittal which bars a subsequent opening of the criminal case.
This Court is convinced that respondent judge acted in accordance with the law and
jurisprudence. It was the February 2, 2011 Omnibus Order which elucidated the
clear legal basis why respondent judge continued the criminal case despite the
earlier order granting the demurrer to evidence. Generally, if the trial court finds
that the prosecution evidence is not sufficient and grants the accused's Demurrer to
Evidence, the ruling is an adjudication on the merits of the case which is
tantamount to an acquittal and may no longer be appealed.
The current scenario, however, is an exception to the general rule. The demurrer to
evidence was premature because it was filed before the prosecution rested its case.
The RTC had not yet ruled on the admissibility of the formal offer of evidence of the
prosecution when complainant filed her demurrer to evidence. Hence, respondent
judge had legal basis to overturn the order granting the demurrer to evidence as
there was no proper acquittal. The complainant elevated the matter to the CA via a
petition for certiorari but it sustained her ruling. The CA decision reads:
Indubitably, an order granting an accuseds demurrer to evidence is a resolution of
the case on the merits, and it amounts to an acquittal. Generally, any further
prosecution of the accused after an acquittal would violate the constitutional
proscription on double jeopardy. To this general rule, however, the Court has
previously made some exceptions.
People v. Tan eruditely instructs that double jeopardy will not attach when the trial
court acted with grave abuse of discretion amounting to lack or excess of
jurisdiction, such as where the prosecution was denied the opportunity to present its
case or where the trial was a sham. In addition, in People v. Bocar,32 this Court rule
that there is no double jeopardy when the prosecution was not allowed to complete
its presentation of evidence by the trial court.
The circumstances obtaining in this controversy placed it within the realm of the
exception.
The records demonstrate that the prosecution, with respondent Oilink International
Corporation as private complainant, had not yet rested its case when the Demurrer
to Evidence was filed and eventually granted by the RTC Branch 161.
xxxx
The RTC Branch 161 should have ruled on the prosecutions Formal Offer of
Evidence before acting on petitioners Demurrer to Evidence. Having failed to do so,

there is nary a doubt that no double jeopardy attached. Petitioners blind insistence
that she is made to face trial after having been acquitted carries no conviction.
Though the CA decision has not reached finality, it only goes to show that the
respondent judge acted in good faith as she merely followed precedents.
X x x.
Notice of hearing; proofs of.
ESTHER P. MAGLEO vs. PRESIDING JUDGE ROWENA DE JUAN-QUINAGORAN and
BRANCH CLERK OF COURT ATTY. ADONIS LAURE, BOTH OF BRANCH 166, REGIONAL
TRIAL COURT, PASIG CITY, A.M. No. RTJ-12-2336 (Formerly A.M. OCA-IPl No. 11-3695RTJ), November 12, 2014
x x x.
Claim of Violation of the Code of Judicial Conduct for not serving the Notice of
Hearing.
In the February 2, 2011 Omnibus Order of respondent judge, it was stated that the
next scheduled hearing was on February 23, 2011.34 On the said date, however,
respondent judge was on leave of absence due to an illness. The Constancia, dated
February 23, 2011, stated that the trial was to resume on June 8, 2011.
Complainant asserts that she did not receive the February 23, 2011 Constancia and,
for said reason, she was not able to attend the June 8, 2011 hearing. The
respondents, however, were able to submit numerous documentary proofs stating
that complainant indeed received the notice of hearing, to wit:
(1) Certified true copy of the subject Constancia, dated February 23, 2011; together
with the two return cards pasted on the back thereof;
(2) the certified true copy of the court calendar for June 8, 2011; and
(3) the Post Office Certification that complainant and her counsel were notified
about the said hearing date.
Between the bare allegations of complainant that she did not receive the
Constancia and the substantiated claim of the respondents that the notices were
served, the Court tends tobelieve the latter.Thus, complainant has no acceptable
excuse to be absent on the June 8, 2011 hearing. Her failure to attend now seems to
be a deliberate attempt to ignore such important trial date and the consequences of
her absence are attributable to her alone.
X x x.

Under Sections 24 and 25 of Rule 132, a writing or document may be

proven as a public or official record of a foreign country by either (1) an
official publication or (2) a copy thereof attested by the officer having
legal custody of the document. If the record is not kept in the Philippines,
such copy must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service stationed in
the foreign country in which the record is kept and (b) authenticated by
the seal of his office.
EDGAR SAN LUIS VS. FELICIDAD SAN LUIS, G.R. No. 133743, FEBrUARY 6, 2007.
x x x.
Applying the above doctrine in the instant case, the divorce decree allegedly
obtained by Merry Lee which absolutely allowed Felicisimo to remarry, would have
vested Felicidad with the legal personality to file the present petition as Felicisimos
surviving spouse. However, the records show that there is insufficient evidence to
prove the validity of the divorce obtained by Merry Lee as well as the marriage of
respondent and Felicisimo under the laws of the U.S.A. In Garcia v. Recio,[70] the
Court laid down the specific guidelines for pleading and proving foreign law and
divorce judgments. It held that presentation solely of the divorce decree is
insufficient and that proof of its authenticity and due execution must be presented.
Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a
public or official record of a foreign country by either (1) an official publication or (2)
a copy thereof attested by the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be (a) accompanied by a
certificate issued by the proper diplomatic or consular officer in the Philippine
foreign service stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office.[71]
With regard to respondents marriage to Felicisimo allegedly solemnized in
California, U.S.A., she submitted photocopies of the Marriage Certificate and the
annotated text [72] of the Family Law Act of California which purportedly show that
their marriage was done in accordance with the said law. As stated in Garcia,
however, the Court cannot take judicial notice of foreign laws as they must be
alleged and proved.[73]
Therefore, this case should be remanded to the trial court for further reception of
evidence on the divorce decree obtained by Merry Lee and the marriage of
respondent and Felicisimo.
X x x.