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[G.R. No. 162189. July 19, 2004]

GAN vs. PONDEVIDA

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 19 2004 .

G.R. No. 162189 (Augustus Caesar R. Gan v. Francheska Joy S. Pondevida, assisted by Bernadette S. Pondevida.)

Petitioner Augustus Caesar Gan filed a Motion for Reconsideration of this Court's Resolution dated 17 May 2004, dismissing his Petition for Certiorari. Petitioner averred that the Court of Appeals committed grave abuse of discretion when it denied his Motion to Direct Parties to Submit to DNA Testing, claiming that said denial was "incorrect, superficial, whimsical and arbitrary."

It appears that petitioner failed to file his Answer to the Complaint for Support filed against him by the respondents, thus the latter were allowed to present evidence ex-parte. The trial court ruled that respondents had sufficiently established Francheska's illegitimate filiation based on the relationship of the petitioner and Bernadette Pondevida from May 1987 to July 1994; photographs and letters circa 1987, 1988 and 1990; and Bernadette Pondevida's testimony that petitioner impregnated her and that she had no other affair with any man except petitioner before and during the conception of Francheska.

While the appeal was pending in the Court of Appeals, petitioner filed a Motion to Direct Parties to Submit to DNA Testing, invoking the landmark case of People. v. Vallejo [1] cralaw wherein the Supreme Court recognized the acceptability and conclusiveness of DNA testing and analysis. Claiming that since the issue of support hinges on the determination of the principal issue of paternity, the Court of Appeals would be in a better position to decide the appeal and obviate any possible error in awarding or not awarding the support prayed for by Francheska. Petitioner prayed that the resolution of the appeal be held in abeyance until the results of the DNA testing are submitted for the appellate Court's evaluation.

The Court of Appeals, in a Resolution dated April 11, 2003, denied petitioner's Motion, ratiocinating that petitioner has long been declared in default, since he failed to file his Answer to the Complaint for Support. Having been declared as such, he forfeited his right to be heard and present evidence in his favor. Citing Capuz v. Court of Appeals [2] cralaw the Court of Appeals stated that in an appeal from a judgment in default, the party in default can only question the decision in the light of the evidence on record; thus in the instant case, petitioner can no longer adduce his own evidence on appeal.

Clearly, no grave abuse of discretion can be imputed to the Court of Appeals. A party who defaults effectively waives his right to be heard and present evidence to support his allegations. [3] cralaw As properly stated by the Court of Appeals, in view of petitioner's default, he is precluded from adducing evidence on appeal.

Accordingly, the Court RESOLVES to DENY petitioner's Motion for Reconsideration dated 17 June 2004 with FINALITY.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court

Endnotes:

^[1] cralaw G.R. No. 144656, 382 SCRA 192 (2002).

^[2] cralaw G.R. No. 112795, 233 SCRA 471 (1994).

^[3] cralaw Heirs of Anastacio Fabela v. Court of Appeals, G.R. No. 142546, 362 SCRA 531, 540 (2001), citing Vlason Enterprises Corporation v. Court of Appeals, G.R. No. 121662-64, 310 SCRA 26 (1999).

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