FIRST DIVISION
[G.R. No. 235363. January 31, 2018.]
FLORDELIS A. ARANAS, FOR HERSELF AND FOR AND IN BEHALF OF HER PRINCIPALS, NAMELY: FRANCISCO T. ALZATE AND WILSON ALZATE, petitioners,vs. HON. COURT OF APPEALS, CAGAYAN DE ORO CITY, SERGIO T. ALZATE AND WILMAR T. ALZATE, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedJanuary 31, 2018, which reads as follows: ISHCcT
"G.R. No. 235363 — FLORDELIS A. ARANAS, FOR HERSELF AND FOR AND IN BEHALF OF HER PRINCIPALS, NAMELY: FRANCISCO T. ALZATE AND WILSON ALZATE, Petitioners, v. HON. COURT OF APPEALS, CAGAYAN DE ORO CITY, SERGIO T. ALZATE and WILMAR T. ALZATE, Respondents.
The Court resolves to DISMISS the instant Petition for Certiorari filed under Rule 65 of the Rules of Court for being a wrong remedy under the Rules and evidently used as a substitute for the lost remedy of appeal and for lack of verification of the petition. Neither did the present petition sufficiently show that the Court of Appeals committed any grave abuse of discretion amounting to lack or excess of jurisdiction in affirming the Decision dated September 23, 2015 of the Regional Trial Court, Branch 16, Kabacan, Cotabato.
On the technical grounds for dismissal, petitioners did not file a motion for reconsideration with the Court of Appeals nor did they file a Petition for Review with this Court within the 15-day reglementary period from notice of the September 22, 2017 Decision of the Court of Appeals on October 3, 2017 and instead filed a Petition for Certiorari by registered mail on November 17, 2017, or 45 days after notice. Section 1, Rule 65, of the Rules of Court requires for the filing of a certiorari petition that there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. A motion for reconsideration with the Court of Appeals and/or a Petition for Review with this Court are both plain, speedy, and adequate remedies which petitioners failed to avail.
As for the merits, even if the Court were to overlook the procedural lapses committed by petitioners, their resort to the remedy of certiorari is improper as the Court of Appeals did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in finding that the issue of violating Article 158 of the Family Code 1 was raised for the first time on appeal. It is elementary that "points of law, theories, issues and arguments not brought to the attention of the trial court will not be and ought not to be considered by a reviewing court, as these cannot be raised for the first time on appeal. Basic consideration of due process impels this rule." 2 CAacTH
In any event, we are unconvinced by petitioners' argument. Article 158 provides:
Article 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide.
Other relevant provisions of the Family Code on the family home provide:
ARTICLE 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated.
ARTICLE 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law.
ARTICLE 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of a family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. IAETDc
ARTICLE 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an unmarried head of a family on his or her own property.
Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home.
ARTICLE 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law.
In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation.
For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas.
The foregoing provisions demonstrate that in order to prove that a house and lot has been constituted as a family home, petitioners should have presented sufficient evidence: (1) that it was occupied as a family residence at the time of its constitution and that any of its beneficiaries continue to actually reside therein at the time of the donation; (2) that it is part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent; (3) on the identity and age of the beneficiaries of the family home at the time of the donation (to determine whether a majority of the beneficiaries of legal age consented to the donation); and (4) that the actual value of the family home does not exceed, at the time of its constitution, the amount of three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law. The mere mention of the words "ancestral home" in the complaint and the testimony of the complainant that she resided in the subject property since birth are therefore insufficient to allege and prove the foregoing matters. The complainant's testimony that she resided therein only until she got married is likewise inconsistent with the premise that she continues to be a beneficiary of the family home at the time of the donation. DcHSEa
Neither do we see any reason to reverse the factual determination of the Court of Appeals and the Regional Trial Court that the supposed intercalation in the Joint Deed of Donation with Usufruct did not alter the tenor or terms of the donation and simply clarified in terms of numbers the particular area donated. To be sure, the petition improperly raises factual and evidentiary matters to this Court which is not a trier of facts.
Sergio T. Alzate and Wilmar T. Alzate are hereby IMPLEADED as party respondents in this case, being the defendants-appellees in the Court of Appeals proceedings.
SO ORDERED."
Very truly yours,
(SGD.) LIBRADA C. BUENADeputy Division Clerk of Court
Footnotes
1. Executive Order No. 209, July 6, 1987.
2.Calanasan v. Dolorito, 722 Phil. 1, 7 (2013).