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[G. R. No. 144810.
CERVANTES vs. ANTONIO
THIRD DIVISION
Gentlemen:
Quoted hereunder, for
your information, is a resolution of this Court dated
G. R. No. 144810(Elmer F. Cervantes vs. Pilar Antonio.)
Being assailed in the present petition for review on certiorari is the August 9, 2000 Decision of the Court of Appeals dismissing petitioner's petition for certiorari, thus upholding the August 4, 1999 Resolution [1] cralaw and March 17, 2000 Writ of Execution [2] cralaw issued by the Muntinlupa City Regional Trial Court (RTC), Branch 276.
Petitioner filed on
After receiving petitioner's evidence following respondent's
failure to file her answer despite receipt of summons, Br. 276 of the
Muntinlupa RTC (the trial court) rendered a Resolution
[4]
cralaw
of
Upon motion of respondent,
[5]
cralaw
the trial court, by Order
[6]
cralaw
of
To the Order of February 12, 1997, petitioner filed a Motion for Reconsideration [7] cralaw and Supplemental Motion for Reconsideration [8] cralaw praying that (1) said Order be set aside, (2) the Resolution of December 13, 1996 be affirmed in its entirety, (3) respondent and her counsel be cited for contempt for fraudulent representations and disregard of her visitation rights, and (4) said visitation rights be modified or set aside.
By Order of October 10, 1997, [9] cralaw the trial court affirmed its Resolution of December 13, 1996 granting the annulment of the marriage of the parties on the ground of respondent's psychological incapacity and giving custody of the minor children to petitioner, and directed the parties to submit an inventory of their conjugal assets which should thereafter be divided and partitioned equally between them.
Respondent submitted an inventory of conjugal assets which included their Ayala Alabang Village house and lot. Petitioner took exception to the inclusion of this house and lot which he claimed should go to him as all their minor children live with him, following Article 129 of the Family Code.
By Resolution
[10]
cralaw
of
This Court is not prepared to deny to Respondent her one-half share of their Ayala Alabang residence, for the singular reason that the children are with their father Petitioner. The children have not made the choice to be with their father but their being with him is purely for their convenience as they go to school in an institution near this residence (art. 129, no. 6 Family Code). In fact, if granted their choice, the children would have chosen to be with their mother. But Respondent mother has spared them the pain of making a Solomonic choice with whom to live between their parents, while Respondent has not insisted in taking custody of them. Therefore we cannot grant the denial of respondent's share, on the opposition by Petitioner. [11] cralaw
The trial court, by the same Resolution of August 4, 1999, thus
ordered that the conjugal properties which should be sold, the proceeds of
which would be divided equally between the parties, are (1) the house and lot
located at Ayala Alabang Village valued at not less than P25,000,000.00,
the prevailing market value, (2) the Ayala Alabang Country Club Certificate of
Stock No. 2519 valued at P4,200,000.00, and (3) one motor vehicle.
On
On November18, 1999, petitioner, who received a copy of the August 4, 1999 Resolution on October 13, 1999, [13] cralaw filed on November 18, 1999 [14] cralaw a Motion for Reconsideration [15] cralaw of said Resolution, which was in effect denied when the trial court declared by Order of March 15, 2000 [16] cralaw that said August 4, 1999 Resolution had become final. By the same Order, the trial court granted the Motion for Execution.
A Writ of Execution was accordingly issued on
Petitioner thus filed on
By the assailed Decision of August 9, 2000, the Court of Appeals
dismissed petitioner's petition for certiorari, holding that the August 4, 1999
Resolution of the trial court had long become final and executory for failure
of petitioner to file a timely motion for reconsideration or appeal. The
appellate court explained that the August 4, 1999 Resolution of the trial
court, though not captioned as a decision, "was a disposition of the case on
the merits as it was in the nature of a judgment upon the issues invoked by
petitioner,"
[19]
cralaw
hence, it was not an interlocutory order, as petitioner claimed. Petitioner's
motion for reconsideration was likewise denied by the Court of Appeals by
Resolution of
Hence, the present petition which raises the following assignment of errors, quoted verbatim:
I.
THE HONORABLE COURT OF
APPEALS COMMITTED SERIOUS [ERROR] AND DEFIED LAW AND JURISPRUDENCE THEREON IN
FINDING THAT THE RESOLUTION OF THE TRIAL COURT DATED
II.
THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR AND THEREBY DEFIED LAW AND JURISPRUDENCE ON THE MATTER WHEN IT RULED THAT THE RESOLUTION OF THE TRIAL COURT DATED AUGUST 4, 1999, ANNEX C, AND THE WRIT OF EXECUTION DATED MARCH 17, 2000, ANNEX D, WERE NOT ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION.
The petition fails.
Granted that the August 4, 1999 Resolution was assailable by certiorari, the petition petitioner filed for the purpose before the Court of Appeals on April 5, 2000 was filed beyond the 60-day reglementary period, he having received a copy of the resolution on October 13, 1999. Petitioner cannot reckon the 60-day period from March 29, 2000 when he received a copy of the March 15, 2000 Order denying his Motion for Reconsideration because such motion was belatedly filed and, therefore, as the trial court held, the August 4, 1999 Order had become final. It is in this light that this Court affirms the dismissal by the Court of Appeals of petitioner's petition for certiorari.
WHEREFORE, the present petition is hereby DENIED for lack of merit.
SO ORDERED.
Very truly yours,
(Sgd.)JULIETA Y. CARREON
Clerk of Court
Endnotes:
[1] cralaw Annex "C" to Petition for Review on Certiorari, Rollo, pp. 48-50.
[2] cralaw Annex "D", id., pp. 51-52.
[3] cralaw Annex "E", id., pp. 53-55.
[4] cralaw Annex "F", id., pp. 56-60.
[5] cralaw Annex "G", id., pp. 61-65.
[6] cralaw Annex "H", Id., pp. 66.
[7] cralaw Annex "I", id.. pp. 67-71.
[8] cralaw Annex "J', id., pp. 72-75.
[9] cralaw Annex "K", id., pp. 76-79.
[10] cralaw Annex "C", id., pp. 48-50.
[11] cralaw Annex "C", id., p. 50.
[12] cralaw Annex "W", Rollo, pp. 112-113.
[13] cralaw Rollo, p. 48; Records, pp. 403-405.
[14] cralaw Id., p. 106; Id., p. 421.
[15] cralaw Annex "V" to Petition for Review on Certiorari, id., pp. 106-111.
[16] cralaw Records, p. 437.
[17] cralaw Annex "Z" to Petition for Review on Certiorari, Rollo, pp. 118-119.
[18] cralaw Annex "CC", id., p. 124.
[19] cralaw Id, p. 42.
[20] cralaw Annex "B", Id., p. 46.
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