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[ G.R. No. 145471. November 27, 2000]

ZENAIDA BASA-BOUKAERT vs. ANTOINE ARTHUR BOUCHAERT, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your Information, is a resolution of this Court dated NOV 27 2000.

G.R. No. 145471 (Zenaida Basa-Boukaert vs. Antoine Arthur Georges Urbaine Marie Bouchaert, et al.)

Petitioner assails the decision of the Court of Appeals setting aside the order issued by the regional trial court denying private respondent's notice of appeal. In consequence, this ordered the regional trial court to take cognizance of an give due course to private respondent's notice of appeal on the ground that the same was filed within the reglementary period.

On January 10, 1997, private respondent filed a Petition For Declaration Of Nullity Of Marriage on the ground of psychological incapacity.

On July 29, 1998, petitioner filed an application for support pendente lite which was granted by the trial court in the order dated September 30, 1998.

On February 19, 1999, petitioner filed a motion for execution and to cite private respondent for contempt relative to the granted support pendente lite which private respondent failed to deliver.

On March 23, 1999, the trial court issued a writ of execution of the order awarding petitioner support.

Then, finally, on May 21, 1999, the trial court issued an order dismissing the case for failure to prosecute.

However, on September 15, 1999, the trial court issued another order granting the petition for annulment, this time based on petitioner Zenaida Basa-Bouckaert's counterclaim. Likewise, said order included an award of damages. Private respondent was further ordered to immediately annul the transfer and to reconvey to petitioner full ownership of the property at Ayala Alabang, Muntinlupa City, and the condominium Unit at Pacific Place, Ortigas City and to immediately remit support in the total amount of P1,040,000.00 at P80,000.00 per month since September 1998.

On November 3, 1999, private respondent filed his Notice of Appeal, now subject of the present controversy, appearing the abovementioned resolution.

On November 17, 1999, the trial court issued an order dismissing said notice of appeal.

Private respondent's motion for reconsideration likewise failed hence, he elevated the matter to the Court of Appeals which issued the above assailed decision.

Thus, the instant petition.

In dismissing the subject notice of appeal, the trial court declared thusly:

This Court decided the case on September 15, 1999 thru its Resolution of even date. It is this decision which disposed of the case that petitioner may appeal from. Unfortunately, in his new NOTICE OF APPEAL dated October 29, 1999, Petitioner again appealed both the ORDER of May 21, 1999, and the RESOLUTION of September 15, 1999. Therefore, his appeal is not particular as to the judgment he is appealing from. It would now appear that Petitioner has now filed two Notices of Appeal: the first dated May 31, 1999, appealing from an interlocutory Order, the second filed on November 3, 1999, appealing both from the dismissal order of May 21, 1999 and the Resolution of September 15, 1999, granting the annulment and the division of their properties. The September 15, 1999 Resolution finally terminated the trial of this case.

However, as correctly ruled by the Court of Appeals, private respondent is appealing the September 15, 1999 resolution and not the May 21, 1999 order. It is clear that the typing of the date May 21, 1999 was a clerical error. Moreover, private respondent actually quoted the September 15, 1999 resolution in the subject notice of appeal. Hence, the intention of private respondent to assail the September 15, 1999 resolution was clear and such said notice of appeal was filed within the reglementary period.

The Court, therefore, finds no error committed by the Court of Appeals in rendering the above assailed order.

WHEREFORE, petition is denied due course.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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