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FAMILY CODE 1

Art. 148. In cases of cohabitation not PANGANIBAN, J.: Petitioner also assails the February 14, They then prayed that the defendants
falling under the preceding Article, only 1999 CA Resolution denying the be ordered to vacate the property in
the properties acquired by both of the Under Article 148 of the Family Code, a Motion for Reconsideration. question and to pay the stated unpaid
parties through their actual joint man and a woman who are not legally rentals, as well as to jointly pay
contribution of money, property, or capacitated to marry each other, but The Facts P30,000.00 in attorney’s fees.
industry shall be owned by them in who nonetheless live together
common in proportion to their conjugally, may be deemed co-owners The Court of Appeals narrates the facts [Petitioner] Guillerma Tumlos was the
respective contributions. In the of a property acquired during the as follows: only one who filed an answer to the
absence of proof to the contrary, their cohabitation only upon proof that each complaint. She averred therein that the
contributions and corresponding shares made an actual contribution to its [Herein respondents] were the Fernandez spouses had no cause of
are presumed to be equal. The same acquisition. Hence, mere cohabitation plaintiffs in Civil Case No. 6756, an action against her, since she is a co-
rule and presumption shall apply to without proof of contribution will not action for ejectment filed before owner of the subject premises as
joint deposits of money and evidences result in a co-ownership. Branch 82 of the MTC of Valenzuela, evidenced by a Contract to Sell wherein
of credit. Metro Manila against [herein it was stated that she is a co-vendee of
The Case Petitioner] Guillerma Tumlos, Toto the property in question together with
If one of the parties is validly married Tumlos, and Gina Tumlos. In their [Respondent] Mario Fernandez. She
to another, his or her share in the co- Before us is a Petition for Review under complaint dated July 5, 1996, the said then asked for the dismissal of the
ownership shall accrue to the absolute Rule 45 of the Rules of Court, assailing spouses alleged that they are the complaint.
community or conjugal partnership the November 19, 1998 Decision of the absolute owners of an apartment
existing in such valid marriage. If the Court of Appeals 1 (CA), which reversed building located at ARTE SUBDIVISION After an unfruitful preliminary
party who acted in bad faith is not the October 7, 1997 Order of the III, Lawang Bato, Valenzuela, Metro conference on November 15, 1996, the
validly married to another, his or her Regional Trial Court (RTC). 2 The Manila; that through tolerance they MTC required the parties to submit
shall be forfeited in the manner dispositive part of the CA Decision had allowed the defendants-private their affidavits and other evidence on
provided in the last paragraph of the reads: respondents to occupy the apartment the factual issues defined in their
preceding Article. building for the last seven (7) years, pleadings within ten (10) days from
WHEREFORE, the instant petition is since 1989, without the payment of receipt of such order, pursuant to
The foregoing rules on forfeiture shall GRANTED, and the questioned orders any rent; that it was agreed upon that section 9 of the Revised Rule on
likewise apply even if both parties are of the court a quo dated October 7, after a few months, defendant Summary Procedure. [Petitioner]
in bad faith. 1997 and November 11, 1997, are Guillerma Tumlos will pay P1,600.00 a Guillerma Tumlos submitted her
hereby REVERSED and SET ASIDE. The month while the other defendants affidavit/position paper on November
judgment of the court a quo dated June promised to pay P1,000.00 a month, 29, 1996, while the [respondents] filed
5, 1997 is hereby REINSTATED. Costs both as rental, which agreement was their position paper on December 5,
Republic of the Philippines against the private respondents.3 not complied with by the said 1996, attaching thereto their marriage
SUPREME COURT defendants; that they have demanded contract, letters of demand to the
Manila The assailed Order of the RTC disposed several times [that] the defendants . . . defendants, and the Contract to Sell
as follows: vacate the premises, as they are in over the disputed property. The MTC
THIRD DIVISION need of the property for the thereafter promulgated its judgment
Wherefore, the decision of this Court construction of a new building; and on January 22, 1997[.]
G.R. No. 137650 April 12, 2000 rendered on June 5, 1997 affirming in that they have also demanded
toto the appealed judgment of the payment of P84,000.00 from Toto and xxx xxx xxx
GUILLERMA TUMLOS, petitioner, [MTC] is hereby reconsidered and a Gina Tumlos representing rentals for
vs. new one is entered reversing said seven (7) years and payment of Upon appeal to the [RTC], [petitioner
SPOUSES MARIO FERNANDEZ and decision of the [MTC] and dismissing P143,600.00 from Guillerma Tumlos as and the two other] defendants alleged
LOURDES FERNANDEZ, respondents. the complaint in the above-entitled unpaid rentals for seven (7) years, but in their memorandum on appeal that
case. 4 the said demands went unheeded. [Respondent] Mario Fernandez and
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[Petitioner] Guillerma had an amorous Fernandez, of legal age, married to reversal, but the same was denied by fail. As [herein Respondent] Mario
relationship, and that they acquired the Lourdes P. Fernandez," should not be the [RTC]. 5 Fernandez is validly married to
property in question as their "love given credence as it was falsified to [Respondent] Lourdes Fernandez (as
nest." It was further alleged that they appear that way. According to them, As earlier stated, the CA reversed the per Marriage Contract dated April 27,
lived together in the said apartment the Contract to Sell originally named RTC. Hence, this Petition filed by 1968, p. 45, Original Record), Guillerma
building with their two (2) children for "Guillerma Fernandez" as the spouse of Guillerma Tumlos only. 6 and Mario are not capacitated to marry
around ten (10) years, and that [Respondent Mario]. As found by the each other. Thus, the property relations
Guillerma administered the property by [RTC] in its judgment, a new Contract Ruling of the Court of Appeals governing their supposed cohabitation
collecting rentals from the lessees of to Sell was issued by the sellers naming is that found in Article 148 of Executive
the other apartments, until she the [respondents] as the buyers after The CA rejected petitioner's claim that Order No. 209, as amended, otherwise
discovered that [Respondent Mario] the latter presented their marriage she and Respondent Mario Fernandez known as the Family Code of the
deceived her as to the annulment of his contract and requested a change in the were co-owners of the disputed Philippines[.]
marriage. It was also during the early name of the vendee-wife. Such facts property. The CA ruled:
part of 1996 when [Respondent Mario] necessitate the conclusion that xxx xxx xxx
accused her of being unfaithful and Guillerma was really a co-owner From the inception of the instant case,
demonstrated his baseless [jealousy]. thereof, and that the [respondents] the only defense presented by private It is clear that actual contribution is
manipulated the evidence in order to respondent Guillerma is her right as a required by this provision, in contrast
In the same memorandum, [petitioner deprive her of her rights to enjoy and co-owner of the subject property[.] to Article 147 of the Family Code which
and the two other] defendants further use the property as recognized by law. states that efforts in the care and
averred that it was only recently that xxx xxx xxx maintenance of the family and
Toto Tumlos was temporarily xxx xxx xxx household are regarded as
accommodated in one of the rooms of This claim of co-ownership was not contributions to the acquisition of
the subject premises while Gina Tumlos The [RTC], in determining the question satisfactorily proven by Guillerma, as common property by one who has no
acted as a nanny for the children. In of ownership in order to resolve the correctly held by the trial court. No salary or income or work or industry
short, their presence there [was] only issue of possession, ruled therein that other evidence was presented to (Agapay v. Palang, 276 SCRA 340). The
transient and they [were] not tenants the Contract to Sell submitted by the validate such claim, except for the said care given by one party [to] the home,
of the Fernandez spouses. Fernandez spouses appeared not to be affidavit/position paper. As previously children, and household, or spiritual or
authentic, as there was an alteration in stated, it was only on appeal that moral inspiration provided to the other,
On June 5, 1997, the [RTC] rendered a the name of the wife of [Respondent] Guillerma alleged that she cohabited is not included in Article 148
decision affirming in toto the judgment Mario Fernandez. Hence, the contract with the petitioner-husband without (Handbook on the Family Code of the
of the MTC. presented by the [respondents] cannot the benefit of marriage, and that she Philippines by Alicia V. Sempio-Diy,
be given any weight. The court further bore him two (2) children. Attached to 1988 ed., p. 209). Hence, if actual
The [petitioner and the two other ruled that Guillerma and [Respondent her memorandum on appeal are the contribution of the party is not proved,
defendants] seasonably filed a motion Mario] acquired the property during birth certificates of the said children. there will be no co-ownership and no
for reconsideration on July 3, 1997, their cohabitation as husband and wife, Such contentions and documents presumption of equal shares (Agapay,
alleging that the decision of affirmance although without the benefit of should not have been considered by supra at p. 348, citing Commentaries
by the RTC was constitutionally flawed marriage. From such findings, the court the . . . (RTC), as they were not and Jurisprudence on the Civil Code of
for failing to point out distinctly and concluded that [Petitioner] Guillerma presented in her affidavit/position the Philippines Volume I by Arturo M.
clearly the findings of facts and law on Tumlos was a co-owner of the subject paper before the trial court (MTC). Tolentino, 1990 ed., p. 500).
which it was based vis-à-vis the property and could not be ejected
statements of issues they have raised in therefrom. xxx xxx xxx In the instant case, no proof of actual
their memorandum on appeal. They contribution by Guillerma Tumlos in
also averred that the Contract to Sell The [respondents] then filed a motion However, even if the said allegations the purchase of the subject property
presented by the plaintiffs which for reconsideration of the order of and documents could be considered, was presented. Her only evidence was
named the buyer as "Mario P. the claim of co-ownership must still her being named in the Contract to Sell
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as the wife of [Respondent] Mario In contrast to the clear pronouncement ejectment resorted to by respondents. course to the Petition, pursuant to
Fernandez. Since she failed to prove of the Supreme Court, the RTC instead 8 Section 6, Rule 42 of the Rules of Court.
that she contributed money to the presumed that Guillerma and her 12
purchase price of the subject children needed support from In resolving this case, we shall answer
apartment building, We find no basis to [Respondent Mario]. Worse, it relied on two questions: (a) Is the petitioner a The CA, for its part, succinctly
justify her co-ownership with evidence not properly presented co-owner of the property? (b) Can the dismissed these arguments in this wise:
[Respondent Mario]. The said property before the trial court (MTC). claim for support bar this ejectment
is thus presumed to belong to the suit? We shall also discuss these It is too late in the day now to question
conjugal partnership property of Mario With regard to the other [defendants], preliminary matters: (a) whether the the alleged procedural error after we
and Lourdes Fernandez, it being Gina and Toto Tumlos, a close perusal CA was biased in favor of respondents have rendered the decision. More
acquired during the subsistence of of the records shows that they did not and (b) whether the MTC had importantly, when the private
their marriage and there being no file any responsive pleading. Hence, jurisdiction over the ejectment suit. respondent filed their comment to the
other proof to the contrary (please see judgment may be rendered against petition on April 26, 1998, they failed
Article 116 of the Family Code). them as may be warranted by the facts The Court’s Ruling to question such alleged procedural
alleged in the complaint and limited to error. Neither have they questioned all
The court a quo (RTC) also found that what is prayed for therein, as provided The Petition has no merit. the resolutions issued by the Court
[Respondent Mario] has two (2) for in Section 6 of the Revised Rules on after their filing of such comment. They
children with Guillerma who are in her Summary Procedure. There was no Preliminary Matters should, therefore, be now considered
custody, and that to eject them from basis for the public respondent to in estoppel to question the same. 13
the apartment building would be to run dismiss the complaint against them. 7 Petitioner submits that the CA
counter with the obligation of the (emphasis in the original) exhibited partiality in favor of herein We agree with the appellate court.
former to give support to his minor respondents. This bias, she argues, is Petitioner never raised these matters
illegitimate children, which The Issues manifest in the following: before the CA. She cannot be allowed
indispensably includes dwelling. As now to challenge its Decision on
previously discussed, such finding has In her Memorandum, petitioner 1. The CA considered the grounds of alleged technicalities being
no leg to stand on, it being based on submits the following issues for the respondents’ Petition for Review 9 belatedly raised as an afterthought. In
evidence presented for the first time consideration of the Court: despite their failure to attach several this light, she cannot invoke Solar 14
on appeal. pleadings as well as the explanation for because she never raised this issue
I. The Court of Appeals gravely the proof of service, despite the clear before the CA.
xxx xxx xxx erred and abused its discretion in not mandate of Section 11 10 of Rule 13 of
outrightly dismissing the petition for the Revised Rules of Court and despite More important, we find it quite
Even assuming arguendo that the said review filed by respondents. the ruling in Solar Team Entertainment, sanctimonious indeed on petitioner’s
evidence was validly presented, the Inc. v. Ricafort. 11 part to rely, on the one hand, on these
RTC failed to consider that the need for II. The Court of Appeals erred in procedural technicalities to overcome
support cannot be presumed. Article finding that petitioner is not the co- 2. It allowed respondents to the appealed Decision and, on the
203 of the Family Code expressly owner of the property in litis. submit the pleadings that were not other hand, assert that the RTC may
provides that the obligation to give attached. consider the new evidence she
support shall be demandable from the III. Corollary thereto, the Court of presented for the first time on appeal.
time the person who has a right to Appeals erred in applying Art. 148 of 3. It considered respondents' Such posturing only betrays the futility
receive the same needs it for the Family Code in the case at bar. Reply dated May 20, 1998, which had of petitioner's assertion, if not its
maintenance, but it shall not be paid allegedly been filed out of time. absence of merit.
except from the date of judicial or IV. The Court of Appeals erred in
extrajudicial demand. . . .1âwphi1.nêt disregarding the substantive right of 4. It declared that the case was One other preliminary matter.
support vis-à-vis the remedy of submitted for decision without first Petitioner implies that the court of
determining whether to give due origin, the Municipal Trial Court (MTC),
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did not have jurisdiction over the because they had not been submitted Petitioner Not a Co-Owner Under Art. 144 of the Civil Code applies only
"nature of the case," alleging that the before the MTC. Hence, the appellate to a relationship between a man and a
real question involved is one of court concluded that "[t]he claim of co- Article 144 of the Civil Code woman who are not incapacitated to
ownership. Since the issue of ownership was not satisfactorily proven marry each other, 22 or to one in which
possession cannot be settled without . . ." 18 Even considering the evidence the marriage of the parties is void 23
passing upon that of ownership, she presented before the MTC and the RTC, from the beginning. 24 It does not
maintains that the MTC should have We agree with the petitioner that the we cannot accept petitioner's apply to a cohabitation that amounts to
dismissed the case. RTC did not err in considering the submission that she is a co-owner of adultery or concubinage, for it would
evidence presented before it. the disputed property pursuant to be absurd to create a co-ownership
This contention is erroneous. The issue Nonetheless, we reject her claim that Article 144 of the Civil Code. 20 As where there exists a prior conjugal
of ownership may be passed upon by she was a co-owner of the disputed correctly held by the CA, the applicable partnership or absolute community
the MTC to settle the issue of property. law is not Article 144 of the Civil Code, between the man and his lawful wife.
possession. 15 Such disposition, but Article 148 of the Family Code 25
however, is not final insofar as the issue Evidence Presented on which provides:
of ownership is concerned, 16 which Based on evidence presented by
may be the subject of another Appeal Before the RTC Art. 148. In cases of cohabitation not respondents, as well as those
proceeding brought specifically to falling under the preceding Article,21 submitted by petitioner herself before
settle that question. In ruling that the RTC erred in only the properties acquired by both of the RTC, it is clear that Mario
considering on appeal the evidence the parties through their actual joint Fernandez was incapacitated to marry
Having resolved these preliminary presented by petitioner, the CA relied contribution of money, property, or petitioner because he was legally
matters, we now move on to on the doctrine that issues not raised industry shall be owned by them in married to Lourdes Fernandez. It is also
petitioner’s substantive contentions. during trial could not be considered for common in proportion to their clear that, as readily admitted by
the first time during appeal. 19 respective contributions. In the petitioner, she cohabited with Mario in
First Issue: absence of proof to the contrary, their a state of concubinage. Therefore,
We disagree. In the first place, there contributions and corresponding shares Article 144 of the Civil Code is
Petitioner as Co-owner were no new matters or issues are presumed to be equal. The same inapplicable.
belatedly raised during the appeal rule and presumption shall apply to
Petitioner’s central theory and main before the RTC. The defense invoked by joint deposits of money and evidences As stated above, the relationship
defense against respondents' action for petitioner at the very start was that she of credit. between petitioner and Respondent
ejectment is her claim of co-ownership was a co-owner. To support her claim, Mario Fernandez is governed by Article
over the property with Respondent she presented a Contract to Sell dated If one of the parties is validly married 148 of the Family Code. Justice Alicia V.
Mario Fernandez. At the first instance November 14, 1986, which stated that to another, his or her share in the co- Sempio-Diy points out 26 that "[t]he
before the MTC, she presented a Mario Fernandez was legally married to ownership shall accrue to the absolute Family Code has filled the hiatus in
Contract to Sell indicating that she was her. The allegation that she was community or conjugal partnership Article 144 of the Civil Code by
his spouse. The MTC found this cohabiting with him was a mere existing in such valid marriage. If the expressly regulating in its Article 148
document insufficient to support her elaboration of her initial theory. party who acted in bad faith is not the property relations of couples living
claim. The RTC, however, after validly married to another, his or her in a state of adultery or concubinage.
considering her allegation that she had In the second place, procedural rules share shall be forfeited in the manner
been cohabiting with Mario Fernandez are generally premised on provided in the last paragraph of the Hence, petitioner’s argument — that
as shown by evidence presented before considerations of fair play. Respondents preceding Article. the Family Code is inapplicable because
it, 17 ruled in her favor. never objected when the assailed the cohabitation and the acquisition of
evidence was presented before the The foregoing rules on forfeiture shall the property occurred before its
On the other hand, the CA held that RTC. Thus, they cannot claim unfair likewise apply even if both parties are effectivity — deserves scant
the pieces of evidence adduced before surprise or prejudice. in bad faith. consideration. Suffice it to say that the
the RTC could no longer be considered law itself states that it can be applied
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retroactively if it does not prejudice Likewise, her claim of having based merely on their
vested or acquired rights. 27 In this administered the property during the tolerance.1âwphi1.nêt
case, petitioner failed to show any cohabitation is unsubstantiated. In any
vested right over the property in event, this fact by itself does not justify Moreover, Respondent Mario
question. Moreover, to resolve similar her claim, for nothing in Article 148 of Fernandez' alleged failure to repudiate
issues, we have applied Article 148 of the Family Code provides that the petitioner's claim of filiation is not
the Family Code retroactively. 28 administration of the property relevant to the present case. Indeed, it
amounts to a contribution in its would be highly improper for us to rule
No Evidence of Actual Joint acquisition. on such issue. Besides, it was not
properly taken up below. 30 In any
Contribution Clearly, there is no basis for petitioner’s event, Article 298 31 of the Civil Code
claim of co-ownership. The property in requires that there should be an
Another consideration militates against question belongs to the conjugal extrajudicial demand. 32 None was
petitioner’s claim that she is a co- partnership of respondents. Hence, the made here. The CA was correct when it
owner of the property. In Agapay, 29 MTC and the CA were correct in said:
the Court ruled: ordering the ejectment of petitioner
from the premises. Even assuming arguendo that the said
Under Article 148, only the properties evidence was validly presented, the
acquired by both of the parties through Second Issue: RTC failed to consider that the need for
their actual joint contribution of support cannot be presumed. Article
money, property or industry shall be Support versus Ejectment [298] of the [New Civil Code] expressly
owned by them in common in provides that the obligation to give
proportion to their respective Petitioner contends that since support shall be demandable from the
contributions. It must be stressed that Respondent Mario Fernandez failed to time the person who has a right to
the actual contribution is required by repudiate her claim regarding the receive the same need it for
this provision, in contrast to Article 147 filiation of his alleged sons, Mark Gil maintenance, but it shall not be paid
which states that efforts in the care and and Michael Fernandez, his silence on except from the date of judicial and
maintenance of the family and the matter amounts to an admission. extrajudicial demand. 33
household, are regarded as Arguing that Mario is liable for support,
contributions to the acquisition of she advances the theory that the WHEREFORE, the Petition is DENIED
common property by one who has no children’s right to support, which and the appealed Decision AFFIRMED.
salary or income or work or industry. If necessarily includes shelter, prevails Costs against petitioner.
the actual contribution of the party is over the right of respondents to eject
not proved, there will be no co- her. SO ORDERED.
ownership and no presumption of
equal shares. (emphasis ours) We disagree. It should be emphasized
that this is an ejectment suit whereby
In this case, petitioner fails to present respondents seek to exercise their
any evidence that she had made an possessory right over their property. It
actual contribution to purchase the is summary in character and deals
subject property. Indeed, she anchors solely with the issue of possession of
her claim of co-ownership merely on the property in dispute. Here, it has
her cohabitation with Respondent been shown that they have a better
Mario Fernandez. right to possess it than does the
petitioner, whose right to possess is