THIRD DIVISION
[G.R. No. 180226. April 26, 2017.]
DINA MARIE LOMONGO PATERNO, petitioner,vs. JUDGE EVELYN ARCAYA-CHUA, PRESIDING JUDGE OF THE RTC MAKATI, BRANCH 144, and SIMON PATERNO, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedApril 26, 2017, which reads as follows: SDAaTC
"G.R. No. 180226 — DINA MARIE LOMONGO PATERNO, Petitioner, v. JUDGE EVELYN ARCAYA-CHUA, PRESIDING JUDGE OF THE RTC MAKATI, BRANCH 144, and SIMON PATERNO, Respondents.
This case concerns the rights of former spouses to property acquired by one or the other after the declaration of the nullity of their marriage.
The wife hereby appeals the adverse decision promulgated on August 28, 2007, 1 whereby the Court of Appeals (CA) affirmed the orders issued on November 22, 2006 and February 9, 2007 by the Regional Trial Court, Branch 144, in Makati City (RTC) respectively holding that Article 147 of the Family Code only applied to property acquired during the couple's period of cohabitation, and denying her motion for reconsideration.
The CA recited the factual and procedural antecedents of the case as follows:
The spouses Simon Paterno and Dina Marie Lomongo had been living together for more or less ten years until Mr. Paterno left the family home in June 1998, Ms. Lomongo alleging that he abandoned her for another woman. Two years after, the husband filed a case for the declaration of absolute nullity of his marriage and this was granted on March 11, 2005 by Branch 144 of RTC Makati, adjudging Simon Paterno and Dina Marie Lomongo Paterno to be both psychologically incapacitated to fulfill their marital obligations to each other. The decision attained finality, leaving the issue regarding the liquidation, partition, and distribution of the properties of the union as well as the delivery of their daughters' presumptive legitime to be tackled.
While Ms. Lomongo testified on the assets she and Mr. Paterno had accumulated during the 10 years that they were together in one roof, i.e., from 1988 to 1998, she wanted her ex-husband to testify on his other alleged possessions and earnings since 1998 until the formal severance of their marital ties. Thus, she requested the court to issue a subpoena duces tecum and subpoena ad testificandum for him to appear as hostile witness on September 26, 2006, so that he may testify and present the documents that mostly reflect his salaries and acquired properties during the years of their de facto separation. The court granted this prayer.
Mr. Paterno absented himself on the scheduled date claiming that he had to attend to a work-related matter, and neither did he produce the documents sought by his ex-wife. He moved instead to quash the subpoena averring that his testimony and the documents demanded are either inexistent or irrelevant to the subject of the case. As regards the latter defense, he mainly posited that the wages/properties he gained subsequent to his separation from his former spouse are not part of the common properties for liquidation. Ms. Lomongo retaliated by orally moving for a declaration of contempt against her ex-husband for not complying with the subpoena. The court thereafter required the parties to answer each other's motions which resulted in several exchanges of pleadings, citing and interpreting a catena of cases to bolster their respective claims on what properties should be included in the dissolution.
Thereafter, RTC Judge Evelyn Arcaya-Chua issued her November 22, 2006 Order in favor of Mr. Paterno's stance, holding that Article 147 is only limited to the couple's period of cohabitation. She refused to hold Mr. Paterno in contempt and recalled the subpoena duces tecum and ad testificandum. Citing Valdes vs. RTC and Gomez-Valdes, the court relied on the principle upheld therein that 'in a void marriage, regardless of the cause thereof, the property relations of the parties during the period of cohabitation is governed by the provisions of Article 147 or Article 148, as the case may be of the Family Code,' saying that this principle has been reiterated in a subsequent string of cases, namely Cariño vs. Cariño, Mercado-Fehr vs. Fehr, Buenaventura vs. CA, and Gonzales vs. Gonzales.
Finding that Article 147 applies in the case at bar (the couple being capacitated to marry at the time they lived together), which is a remake of Article 144 of the 1950 Civil Code, the court found it necessary how Article 144 was applied back then, and found the ruling in Aznar vs. Garcia as the answer as to when the cohabitation ceases and what properties are part of co-ownership to apply it by analogy to the situation of the then Paterno spouses. The court, quoting Aznar, ruled thus that when a couple who are both capacitated to marry live together as husband and wife, an informal civil partnership is formed, and that 'there being no provision of law governing the cessation of such informal civil partnership . . . same may be considered terminated upon their separation or desistance to continue said relations," and therefore, each of them has an interest only in the properties acquired during the union.
Over the vehement objections and reasonings by Ms. Lomongo in her Motion for Reconsideration that the cases relied upon were inappropriately applied to her circumstance and that there is a huge difference between the legal effects of the separation of common-law spouses as against those under marriages declared void, the lower court still remained firm in its judgment and slapped her with a denial of her motion dated February 9, 2007. 2
The petitioner filed a petition for certiorari in the CA in order to annul and set aside the orders of the RTC, claiming said orders to have been issued in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. 3
On August 28, 2007, however, the CA dismissed the petition for certiorari, disposing: acEHCD
WHEREFORE, premises considered, the Petition contesting the Orders dated November 22, 2006 and February 9, 2007 is accordingly, DISMISSED. No costs.
SO ORDERED.4
The CA later denied the petitioner's motion for reconsideration.
Hence, this appeal, with the petitioner maintaining that the CA erred: (a) in refusing to acknowledge that all properties acquired by the spouses prior to the judicial declaration of the nullity of the marriage under Article 36 of the Family Code were co-owned by them pursuant to Article 147 of the Family Code; (b) in holding that properties acquired by the spouses in a void marriage under Article 36 of the Family Code after their separation de facto were solely owned by the earning spouse; (c) in applying the ruling in Aznar v. Garcia to marriages declared void under Article 36 of the Family Code; and (d) in failing to require the respondent to expose the truth regarding the properties acquired prior to the judicial declaration of nullity of their marriage under Article 36 of the Family Code. 5
The respondent counters in his comment 6 that the CA correctly dismissed the petition for certiorari. He denies the petitioner's claim that the properties acquired by the spouses subsequent to their separation de facto and prior to the judicial declaration of nullity of their marriage under Article 36 of the Family Code were owned in common by them. He posits that the doctrine of operative fact had no application to cases of declaration of nullity of marriage; that the Family Code Committee deliberations pointed to the inescapable and glaring fact that the co-ownership under Article 147 of the Family Code was intended to apply only to properties acquired by the parties during their cohabitation or the period of living together; that the opinions of prominent authorities and authors in family law were to the effect that in the application of Article 147 of the Family Code, only wages and salaries and properties acquired by the spouses during the period of their cohabitation or living together were to be considered as co-owned; and that no error or abuse of discretion could be imputed to the RTC's quashal of the subpoena duces tecum and ad testificandum, and to the upholding by the CA of the quashal, which were in accord with law, the rules of procedure and jurisprudence. 7
The petitioner's reply essentially reiterates the arguments of her petition. 8
Ruling of the Court
The appeal lacks merit.
Article 147 of the Family Code provides:
Article 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a)
The petitioner did not discharge her burden of showing in this appeal that the CA committed reversible error in applying Article 147 of the Family Code to the case. In disposing of the issues raised for its consideration and resolution, the CA correctly applied the law and its relevant jurisprudence, as the following exposition clearly indicates:
The parties do not argue that co-ownership of properties acquired during the union governs them under Article 147 of the Family Code. This was declared in the Valdes case. As explained in that case:
This peculiar kind of co-ownership applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38" of the Code.
Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party's "efforts" consisted in the care and maintenance of the family household."
So what are the common properties included in the dissolution of the co-ownership?
Petitioner's argument implies that despite already being separated de facto, as long as a couple remains married (in paper), pending a court declaration of nullity of their union, all the properties gained by each in the meantime before the judicial declaration will be included in the co-ownership regime.
Petitioner however should be reminded of the legal effect of a confirmation of a void ab initio marriage: it is retroactive to the time when the marriage ceremony transpired. In short, after the trial court declared her marriage to Mr. Paterno void in 2005 because of both parties' psychological incapacity, the marriage ceremony on December 27, 1987 was invalidated as if no marriage took place. This means then that during their ten-year cohabitation, Ms. Lomongo and Mr. Paterno lived together merely as common-law spouses. This is where Article 147 comes in, dealing with those "properties acquired while they lived together . . . obtained by their joint efforts, work or industry. . ." and the joint effort includes "the care and maintenance of the family and of the household." SDHTEC
Her insistence of the common ownership of the moneys and properties accumulated subsequent to the de facto separation would have been correct if the properties had to be liquidated (such as in a spouse's death) and an official declaration of nullity n of marriage was never secured. Her stand would have been supported by the case of Cariño vs. Cariño wherein two women were fighting over the government death benefits of the man they married. The first wife was married to the deceased in 1969 but in 1992, without having his previous marriage nullified for lack of a marriage license, the husband still married another woman with whom he cohabited in 1982. The High Court refused to award the death benefits to the second wife and gave the monetary benefits to the first one. Although Article 147 applies to the first wife, the Court awarded the benefits to her in full because the presumption of a valid marriage stood in her favor by reason of a lack of a judicial declaration of nullity. To stress, in the case at bar, there was a judicial declaration of nullity, and Cariño cannot apply to her.
As adverted to earlier, after the judicial declaration, Petitioner and Private respondent's relationship has relegated to a common-law marriage, and their cohabitation, i.e., living together exclusively as husband and wife, was only for a period of ten years. Obviously, the 'cohabitation' of the parties will definitely not include the years since Mr. Paterno n left Ms. Lomongo and the family home. The period of cohabitation of a couple without the benefit of marriage or under a void marriage has been sufficiently explained and has been applied by the Supreme Court in the case of Aznar, a case involving a woman who lived exclusively with a man without marriage for 30 years and claimed half of the share of the estate upon his death. Expounding on Article 144 of the Civil Code, the provision which Article 147 of the Family Code is based, the Court said:
It must be noted that such form of co-ownership requires that the man and the woman thus living together must not in any way be incapacitated to contract marriage and that the properties realized during their cohabitation be acquired through the work, industry, employment or occupation of both or either of them. And the same thing maybe said of those whose marriages are by provision of law declared void ab initio. While it is true that these requisites are fully met and satisfied in the case at bar, We must remember that the deceased and herein appellee were already estranged as of March, 1950. There being no provision of law governing the cessation of such informal civil partnership, if it ever existed, same may be considered terminated upon their separation or desistance to continue said relations.
Finally, We see no error on the part of the court a quo when it cited the cases of Fehr, Buenaventura, and Gonzales to justify its assailed Orders, for all these cases exemplify the application of Article 147 to all properties that have been acquired during the period of cohabitation of couples whose marriages have been declared void under Article 36. 9
Considering that the issues and arguments raised in this appeal are a mere rehash of those raised and already determined by the CA, and there being nothing new or compelling to justify varying from the determination by the CA, the Court affirms the CA's decision.
WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the decision promulgated on August 28, 2007; and ORDERS the petitioner to pay the costs of suit. (Jardeleza, J., no part, due to his prior action as Solicitor General; Peralta, J., designated additional Member per Raffle dated March 20, 2017)
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 46-59; penned by Associate Justice Mariano C. Del Castillo (now a member of this Court) with the concurrence of Associate Justice Arcangelita Romilla Lontok and Associate Justice Romeo F. Barza.
2.Id. at 48-52.
3.Id. at 107-130.
4.Id. at 58.
5.Id. at 15-16.
6.Id. at 137-213.
7.Id. at 150-153.
8.Id. at 222-258.
9.Id. at 54-58.
n Note from the Publisher: Written as "nullitty" in the official document.
n Note from the Publisher: Written as "Pateno" in the official document.