G.R. No. 152716 :
ELNA MERCADO-FEHR, Petitioner, v. BRUNO FEHR, Respondent.
D E C I S I O N
This case arose from a petition for declaration of nullity of marriage on the ground of psychological incapacity to comply with the essential marital obligations under Article 36 of the Family Code filed by petitioner Elna Mercado-Fehr against respondent Bruno Fehr before the Regional Trial Court of Makati in March 1997.1cräläwvirtualibräry
After due proceedings, the trial court declared the marriage
between petitioner and respondent void ab
initio under Article 36 of the Family Code and ordered the dissolution of
their conjugal partnership of property.2 The dispositive portion of the Decision dated
WHEREFORE, in the light of the foregoing, the marriage between Elna
D. Mercado and Bruno F. Fehr on
Accordingly, the conjugal partnership of property existing between the parties is dissolved and in lieu thereof, a regime of complete separation of property between the said spouses is established in accordance with the pertinent provisions of the Family Code, without prejudice to the rights previously acquired by creditors.
Custody over the two minor children, MICHAEL BRUNO MERCADO FEHR and PATRICK FRANZ FEHR, is hereby awarded to petitioner, she being the innocent spouse.
Let a copy of this Decision be duly recorded in the proper civil and property registries in accordance with Article 52 of the Family Code.
x x x
After a careful scrutiny of the inventory of properties submitted by both parties, the Court finds the following properties to be excluded from the conjugal properties, namely:
a) the Bacolod property covered by Transfer Certificate of Title No. T-137232, considering that the same is owned by petitioners parents, Herminio Mercado and Catalina D. Mercado xxx and
b) Suite 204 of the LCG
Condominium covered by Condominium Certificate of Title No. 14735, considering
that the same was purchased on installment basis by respondent with his
exclusive funds prior to his marriage, as evidenced by a Contract to Sell dated
Accordingly, the conjugal properties of the petitioner and respondent shall be distributed in the following manner:
TO PETITIONER ELNA MERCADO:
a. Ground Floor, LCG Condominium, with an area of 671.84 sq. m., covered by Condominium Certificate of Title No. 14734; and
b. Tamaraw FX (1995 model)
TO RESPONDENT BRUNO FRANZ FEHR:
a. Upper Basement, LCG Condominium, with an area of 180.81 sq. m. and covered by Condominium Certificate of Title No. 14733; and
b. Nissan Sentra with Plate No. FDJ-533 (1994 model)
Anent the monthly rentals prior to the issuance of this Order of the subject properties, namely the Ground Floor Front (Fridays Club), Ground Floor Rear Apartment and Upper Basement at LGC Condominium, all leased by Bar 4 Corporation, the same shall be shared by the parties in common, in proportion to one-half each or share and share alike, after deducting all expenses for Income Taxes, Business Permits, Realty Taxes, Municipal License fees, clearances, etc. Accordingly, petitioner is hereby directed to deliver to respondent the following: a) the balance of his share of the monthly rentals from February 1998 to May 1998; and b) his one-half share (1/2) of the monthly rentals of the aforesaid properties from June 1998 up to this date. Thereafter, the parties shall own and enjoy their respective share of the monthly rentals derived from the properties adjudicated to them as stated above.
The Petitioner and Respondent are further enjoined to jointly support their minor children, Michael and Patrick Fehr, for their education, uniforms, food and medical expenses.5cräläwvirtualibräry
Petitioner filed a motion for reconsideration of said Order with
respect to the adjudication of
Resolving said motion, the trial court held in an Order dated
The Court of Appeals, in its Decision dated
Petitioner filed a motion for reconsideration of said Decision, which was also denied by the appellate court.13cräläwvirtualibräry
Hence this petition. Petitioner raises the following arguments:
1) Petitioner correctly filed a petition for certiorari and prohibition against the Regional Trial Court of Makati, Branch 149 in the Court of Appeals in view of the fact that the questioned orders were issued with grave abuse of discretion amounting to excess of or lack of jurisdiction.
2) The Court of Appeals erred in ruling that the questioned orders were errors of judgment and not of jurisdiction.14cräläwvirtualibräry
We shall first address the procedural issue, whether the Court of Appeals erred in dismissing the special civil action for certiorari filed by petitioner.
Petitioner argues that the filing of a petition for certiorari with the Court of Appeals was
proper because the trial court committed grave abuse of discretion in the
issuance of its Order dated
Respondent, on the other hand, contends that petitioner may no
longer avail of any remedy, whether an appeal or a petition for certiorari, as she had lost all the
right to appeal from the time the Decision of
A petition for certiorari is the proper remedy when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction and there is no appeal, nor any plain speedy, and adequate remedy at law. Grave abuse of discretion is defined as the capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. As a general rule, a petition for certiorari will not lie if an appeal is the proper remedy such as when an error of judgment or procedure is involved. As long as a court acts within its jurisdiction and does not gravely abuse its discretion in the exercise thereof, any supposed error committed by it will amount to nothing more than an error of judgment reviewable by a timely appeal and not assailable by a special civil action of certiorari. However, in certain exceptional cases, where the rigid application of such rule will result in a manifest failure or miscarriage of justice, the provisions of the Rules of Court which are technical rules may be relaxed. Certiorari has been deemed to be justified, for instance, in order to prevent irreparable damage and injury to a party where the trial judge has capriciously and whimsically exercised his judgment, or where there may be danger of clear failure of justice, or where an ordinary appeal would simply be inadequate to relieve a party from the injurious effects of the judgment complained of.17cräläwvirtualibräry
The exception applies to the case at bar. We reject respondents submission that all
the appellate remedies of petitioner have been foreclosed when the Decision
We now go to the substantive issues. The crux of the petition is the ownership of
It appears from the facts, as found by the trial court, that in
March 1983, after two years of long-distance courtship, petitioner left Cebu
City and moved in with respondent in the latters residence in Metro
Manila. Their relations bore fruit and
their first child, Michael Bruno Fehr, was born on
In light of these facts, we give more credence to petitioners
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 to the acquisition thereof if the formers efforts consisted in the care and maintenance of their 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. (emphasis supplied)
Article 147 applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void,20 as in the case at bar. This provision creates a co-ownership with respect to the properties they acquire during their cohabitation.
We held in Valdes vs. Regional Trial Court, Br. 102, Quezon City:21cräläwvirtualibräry
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 Article 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 partys efforts consisted in the care and maintenance of the family household.
Thus, for Article 147 to operate, the man and the woman: (1) must be capacitated to marry each other; (2) live exclusively with each other as husband and wife; and (3) their union is without the benefit of marriage or their marriage is void. All these elements are present in the case at bar. It has not been shown that petitioner and respondent suffered any impediment to marry each other. They lived exclusively with each other as husband and wife when petitioner moved in with respondent in his residence and were later united in marriage. Their marriage, however, was found to be void under Article 36 of the Family Code because of respondents psychological incapacity to comply with essential marital obligations.
The disputed property,
As regards the settlement of the common properties of petitioner and respondent, we hold that the Civil Code provisions on co-ownership should apply. There is nothing in the records that support the pronouncement of the trial court that the parties have agreed to divide the properties into three1/3 share each to the petitioner, the respondent and their children. Petitioner, in fact, alleges in her petition before this Court that the parties have agreed on a four-way division of the properties1/4 share each to the petitioner and the respondent, and 1/4 share each to their two children. Moreover, respondents argument that the three-way partition is in accordance with Articles 50 and 51 of the Family Code does not hold water as said provisions relate only to voidable marriages and exceptionally to void marriages under Article 40 of the Family Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void.22cräläwvirtualibräry
In sum, we rule in favor of the petitioner. We hold that
IN VIEW WHEREOF, the petition is GRANTED. The case is hereby REMANDED to the Regional Trial Court of Makati, Branch 149 for liquidation of the properties of petitioner and respondent in accordance with this Courts ruling.
Panganiban, Sandoval-Gutierrez, and Corona, JJ., concur.
Carpio-Morales, J., no part.
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