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[ G.R. No. 136179. January 20, 1999]

BONIFACIO CLAMOR vs. ARNEL C. VICENCIO.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 20, 1999.

G.R. No. 136179 (Bonifacio Clamor vs. Arnel C. Vicencio.)

At bar is a petition which seeks to set aside the decision of the Court of Appeals in CA-G.R. No. CV-53815 dated August 25, 1998 and its resolution denying petitioner's motion for reconsideration.

The factual backdrop of the instant petition is as follows:

Sometime in May 1993, petitioner Bonifacio Clamor, a former live-in partner of a certain Gilda Camus, who was the registered owner of the two parcels of land which are now the subject of the dispute, filed a Complaint for Petition before the Regional Trial Court of Tagaytay City. Prior to her death, Gilda had been legally married but separated de facto from her husband, Salvador Vicencio. However, Gilda and Vicenci have a son, Arnel Vicencio, the respondent in this case.

Petitioners avers that he and Gilda had been cohabiting a husband and wife since 1985 and that at the time of their cohabitation, both of them were not incapacitated to marry each other because he, petitioner, was still single while the marriage of Gilda, he had been told, had already been annulled prior to their cohabitation. Petitioner further alleged that it was during their cohabitation that the disputed parcels of land were acquired by both of them through their common industry and effort. Thus, he prayed for a partition between him and the legitimate son of Gilda, Arnel Vicencio. Trial on the merits ensued, with the trial court ordering the partition between the then plaintiff, Bonifacio Clamor, and then defendant, Arnel Vicencio, in equal shares. Disposed thus the trial court:

WHEREFORE, judgment is hereby rendered ordering the partition between plaintiff Bonifacio Clamor and defendant Arnel C. Vicencio, in equal shares of the properties covered by TCT Nos. T-25660 and T-24309 as well as the residential house constructed on the land covered by TCT No. T-24309, and ordering the defendant to pay plaintiff the sum of P50,000.00, as and for attorney's fees and costs of suit.

The expenses incident to the partition of the properties in question shall be borne by all the parties hereto, share alike.

SO ORDERED. (p. 10, Rollo.)

Undaunted, respondent appealed to the Court of Appeals which reversed. The case was remanded for appropriate proceedings.

Following the denial of his motion for reconsideration, the instant petition was resorted to.

Petitioner contends that the Court of Appeals erred in holding that the pieces of property in question were solely owned by the late Gilda Camus and that there was no sufficient evidence to show that petitioner actually contributed to the acquisition of the disputed parcels of land. It also argued that the Court of Appeals erred when it applied the provisions of Article 148 of the Family Code, instead of Article 147 of the same Code. Petitioners posit the view that Article 147, and not Article 148 should be the applicable law since at the time of their cohabitation, both he and Gilda were not incapacitated to marry each other. The Court of Appeals believed otherwise. It ruled that Article 147 is inapplicable since petitioner was not able to prove that both he and Gilda suffered no legal impediment to marrying each other at the time of their cohabitation. In fact, no evidence was presented to conclusively prove the fact that the marriage of Gilda Camus with her first husband had been annulled. Thus, the Court of Appeals concluded that it is Article 148 which should govern. The law is clear and needs no interpretation. Under Article 148 of the Family Code, no presumption as to the contribution to the acquisition shall exist, thus proof of the actual contribution should be given. That much is clear. Thus, in cases of cohabitation not falling under Article 147, only the property acquired by both parties through their actual joint contribution shall be owned by them. In its decision, the Court of Appeals took note of the fact that no sufficient evidence was presented by petitioner to show that such actual contribution indeed exists. Moreover, no convincing proof was offered that petitioner has the capacity to contribute to the acquisitioned property.

WHEREFORE, petition is denied.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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