"x x x.
1. On whether the CA seriously erred in dismissing the Petition on the ground that the Decision of the RTC in a summary proceeding for the declaration of presumptive death is immediately final and executory upon notice to the parties and, hence, is not subject to ordinary appeal
In the assailed Resolution dated 23 January 2009, the CA dismissed the Petition assailing the RTC’s grant of the Petition for Declaration of Presumptive Death of the absent spouse under Article 41 of the Family Code. Citing Republic v. Bermudez-Lorino,[5] the appellate court noted that a petition for declaration of presumptive death for the purpose of remarriage is a summary judicial proceeding under the Family Code. Hence, the RTC Decision therein is immediately final and executory upon notice to the parties, by express provision of Article 247 of the same Code. The decision is therefore not subject to ordinary appeal, and the attempt to question it through a Notice of Appeal is unavailing.
We affirm the CA ruling.
Article 41 of the Family Code provides:
Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (Underscoring supplied.)
Clearly, a petition for declaration of presumptive death of an absent spouse for the purpose of contracting a subsequent marriage under Article 41 of the Family Code is a summary proceeding “as provided for” under the Family Code.
Further, Title XI of the Family Code is entitled “Summary Judicial Proceedings in the Family Law.” Subsumed thereunder are Articles 238 and 247, which provide:
Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules.
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Art. 247. The judgment of the court shall be immediately final and executory.
Further, Article 253 of the Family Code reads:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable.
Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that since a petition for declaration of presumptive death is a summary proceeding, the judgment of the court therein shall be immediately final and executory.
In Republic v. Bermudez-Lorino,[6] the Republic likewise appealed the CA’s affirmation of the RTC’s grant of respondent’s Petition for Declaration of Presumptive Death of her absent spouse. The Court therein held that it was an error for the Republic to file a Notice of Appeal when the latter elevated the matter to the CA, to wit:
In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect an appeal, precisely because judgments rendered thereunder, by express provision of Section 247, Family Code, supra, are “immediately final and executory.”
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But, if only to set the records straight and for the future guidance of the bench and the bar, let it be stated that the RTC’s decision dated November 7, 2001, was immediately final and executory upon notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court of Appeals acquired no jurisdiction over the case, and should have dismissed the appeal outright on that ground.
Justice (later Chief Justice) Artemio Panganiban, who concurred in the result reached by the Court in Republic v. Bermudez-Lorino, additionally opined that what the OSG should have filed was a petition for certiorari under Rule 65, not a petition for review under Rule 45.
In the present case, the Republic argues that Bermudez-Lorino has been superseded by the subsequent Decision of the Court in Republic v. Jomoc,[7] issued a few months later.
In Jomoc, the RTC granted respondent’s Petition for Declaration of Presumptive Death of her absent husband for the purpose of remarriage. Petitioner Republic appealed the RTC Decision by filing a Notice of Appeal. The trial court disapproved the Notice of Appeal on the ground that, under
the Rules of Court,[8] a record on appeal is required to be filed when appealing special proceedings cases. The CA affirmed the RTC ruling. In reversing the CA, this Court clarified that while an action for declaration of death or absence under Rule 72, Section 1(m), expressly falls under the category of special proceedings, a petition for declaration of presumptive death under Article 41 of the Family Code is a summary proceeding, as provided for by Article 238 of the same Code. Since its purpose was to enable her to contract a subsequent valid marriage, petitioner’s action was a summary proceeding based on Article 41 of the Family Code, rather than a special proceeding under Rule 72 of the Rules of Court. Considering that this action was not a special proceeding, petitioner was not required to file a record on appeal when it appealed the RTC Decision to the CA.
the Rules of Court,[8] a record on appeal is required to be filed when appealing special proceedings cases. The CA affirmed the RTC ruling. In reversing the CA, this Court clarified that while an action for declaration of death or absence under Rule 72, Section 1(m), expressly falls under the category of special proceedings, a petition for declaration of presumptive death under Article 41 of the Family Code is a summary proceeding, as provided for by Article 238 of the same Code. Since its purpose was to enable her to contract a subsequent valid marriage, petitioner’s action was a summary proceeding based on Article 41 of the Family Code, rather than a special proceeding under Rule 72 of the Rules of Court. Considering that this action was not a special proceeding, petitioner was not required to file a record on appeal when it appealed the RTC Decision to the CA.
We do not agree with the Republic’s argument that Republic v. Jomoc superseded our ruling inRepublic v. Bermudez-Lorino. As observed by the CA, the Supreme Court in Jomoc did not expound on the characteristics of a summary proceeding under the Family Code. In contrast, the Court in Bermudez-Lorino expressly stated that its ruling on the impropriety of an ordinary appeal as a vehicle for questioning the trial court’s Decision in a summary proceeding for declaration of presumptive death under Article 41 of the Family Code was intended “to set the records straight and for the future guidance of the bench and the bar.”
At any rate, four years after Jomoc, this Court settled the rule regarding appeal of judgments rendered in summary proceedings under the Family Code when it ruled in Republic v. Tango:[9]
This case presents an opportunity for us to settle the rule on appeal of judgments rendered in summary proceedings under the Family Code and accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern summary court proceedings in the Family Code:
ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules.
In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and three of the same title. It states:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable. (Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
ART 247. The judgment of the court shall be immediately final and executory.
By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and executory. As a matter of course, it follows that no appeal can be had of the trial court's judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an unrestricted freedom of choice of court forum. From the decision of the Court of Appeals, the losing party may then file a petition for review on certiorari under Rule 45 of the Rules of Court with the Supreme Court. This is because the errors which the court may commit in the exercise of jurisdiction are merely errors of judgment which are the proper subject of an appeal.
In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for the declaration of presumptive death may file a petition for certiorari with the CA on the ground that, in rendering judgment thereon, the trial court committed grave abuse of discretion amounting to lack of jurisdiction. From the decision of the CA, the aggrieved party may elevate the matter to this Court via a petition for review on certiorari under Rule 45 of the Rules of Court.
Evidently then, the CA did not commit any error in dismissing the Republic’s Notice of Appeal on the ground that the RTC judgment on the Petition for Declaration of Presumptive Death of respondent’s spouse was immediately final and executory and, hence, not subject to ordinary appeal.
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