ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C. PACETE AND EDUARDO C. PACETE, PETITIONERS, VS. HON. GLICERIO V. CARRIAGA, JR. AND CONCEPCION (CONCHITA) …

The issue in this
petition for certiorari is whether or not the Court of First
Instance (now Regional Trial Court) of Cotabato, Branch I, in Cotabato City,
gravely abused its discretion in denying petitioners’ motion for
extension of time to file their answer in Civil Case No. 2518, in declaring petitioners in default and in rendering
its decision of 17 March 1980 which, among other things, decreed the legal
separation of petitioner Enrico L. Pacete and private respondent Concepcion
Alanis and held to be null and void ab initio the marriage of
Enrico L. Pacete to Clarita de la Concepcion.

On 29 October 1979, Concepcion Alanis filed with the court below
a complaint for the declaration of nullity of the marriage between her
erstwhile husband Enrico L. Pacete and one Clarita de la Concepcion, as well as
for legal separation (between Alanis and Pacete), accounting and separation of
property. In her complaint, she averred
that she was married to Pacete on 30 April 1938 before the Justice of the Peace
of Cotabato, Cotabato; that they had a child named Consuelo who was born on 11
March 1943; that Pacete subsequently contracted (in 1948) a second marriage
with Clarita de la Concepcion in Kidapawan, North Cotabato; that she learned of
such marriage only on 01 August 1979; that during her marriage to Pacete, the
latter acquired vast property consisting of large tracts of land, fishponds and
several motor vehicles; that he fraudulently placed the several pieces of
property either in his name and Clarita or in the names of his children with
Clarita and other “dummies;” that Pacete ignored overtures for an
amicable settlement; and that reconciliation between her and Pacete was
impossible since he evidently preferred to continue living with Clarita.

The defendants were each served with summons on 15 November
1979. They filed a motion for an
extension of twenty (20) days from 30 November 1979 within which to file an answer. The court granted the motion. On 18 December 1979, appearing through a new counsel, the defendants
filed a second motion for an extension of another thirty (30) days from 20
December 1979. On 07 January 1980, the
lower court granted the motion but only for twenty (20) days to be counted from
20 December 1979 or until 09 January 1980. The Order of the court was mailed to defendants’ counsel on 11 January
1980. Likely still unaware of the court
order, the defendants, on 05 February 1980, again filed another motion (dated
18 January 1980) for an extension of “fifteen (15) days counted from the
expiration of the 30-day period previously sought” within which to file an
answer. The following day, or on 06
February 1980, the court denied this last motion on the ground that it was
“filed after the original period given x x x as first extension had
expired.”^[1]

The plaintiff thereupon
filed a motion to declare the defendants in default, which the court forthwith
granted. The plaintiff was then
directed to present her evidence.^[2] The court received plaintiff’s evidence
during the hearings held on 15, 20, 21 and 22 February 1980.

On 17 March 1980, the
court^[3] promulgated the herein questioned decision,
disposing of the case, thus –

“WHEREFORE, order is hereby issued ordering:

“1. The issuance of a Decree of Legal Separation of the marriage between, the
plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants,
Enrico L. Pacete, in accordance with the Philippine laws and with consequences,
as provided for by our laws;

“2. That the following properties are hereby
declared as the conjugal properties of the partnership of the plaintiff,
Concepcion (Conchita) Alanis Pacete and the defendant, Enrico L. Pacete, half
and half, to wit:

“1. The parcel
of land covered by TCT No. V-815 which is a parcel of land situated in the
barrio of Langcong, Municipality of Matanog (previously of Parang), province of
Maguindanao (previously of Cotabato province) with an area of 45,256 square
meters registered in the name of Enrico Pacete, Filipino, of legal age, married
to Conchita Alanis as shown in Exhibits ‘B’ and ‘B-1’ for the plaintiff.

“2. A parcel of land covered by Transfer
Certificate of Title No. T-20442, with an area of 538 square meters and covered
by Tax Declaration No. 2650 (74) in the name of Enrico Pacete, situated in the Poblacion of Kidapawan, North
Cotabato, together with all its improvements, which parcel of land, as shown by
Exhibits ‘K-1’ was acquired by way of absolute deed of sale executed by Amrosio
Mondog on January 14, 1965.

“3. A parcel of land covered by Transfer
Certificate of Title No. T-20424 and covered by Tax Declaration No. 803 (74),
with an area of 5.1670 hectares, more or less, as shown by Exhibit ‘R’, the
same was registered in the name of Enrico Pacete and the same was acquired by
Enrico Pacete last February 17, 1967 from Ambag Ampoy, as shown by Exhibit
‘R-1’, situated at Musan, Kidapawan, North Cotabato.

“4. A parcel of land situated at Lanao,
Kidapawan, North Cotabato, with an area of 5.0567 hectares, covered by Tax
Declaration No. 4332 (74), as shown by Exhibit ‘S’, and registered in the name
of Enrico Pacete.

“5. A parcel of land covered by Transfer
Certificate of Title No. T-9750, situated at Lika, Mlanng, North Cotabato, with
an area of 4.9841 hectares and the same is covered by Tax Declaration No. 803
(74) and registered in the name of Enrico Pacete and which land was acquired by
Enrico Pacete from Salvador Pacete on September 24, 1962, as shown by Exhibit
‘Q-1’.

“6. A parcel of land covered by Transfer
Certificate of Title No. T-9944, with an area of 9.9566 and also covered by Tax
Declaration No. 8608(74) and registered in the name of the defendant Enrico L.
Pacete which Enrico L. Pacete acquired from Sancho Balingcos last October 22,
1962, as shown by Exhibit ‘L-1’ and which parcel of land is situated at (Kialab),
Kiab, Matalam, North Cotabato.

“7. A parcel of land covered by Transfer
Certificate of Title No. T-9227, situated at Kiab, Matalam, North Cotabato,
with an area of 12.04339 hectares, more or less, and also covered by Tax
Declaration No. 8607(74) both in the name of the defendant Enrico L. Pacete
which he acquired last October 15, 1962 from Minda Bernardino, as shown by
Exhibit ‘M-1’.

“8. A parcel of land covered by Transfer
Certificate of Title No. T-9228, situated at Kiab, Matalam, North Cotabato,
with an area of 10.8908 hectares, registered in the name of Enrico Pacete and
also covered by Tax Declaration No. 5781 (74) in the name of Enrico Pacete and
which parcel of land he acquired last September 25, 1962 from Conchita dela
Torre, as shown by Exhibit ‘P-1’.

“9. A parcel of land covered by Transfer
Certificate of Title No. T-10301, situated at Linao, Matalam, North Cotabato,
with an area of 7.2547 hectares, registered in the name of Enrico Pacete and
also covered by Tax Declaration No. 8716(74) also in the name of Enrico Pacete
which Enrico Pacete acquired from Agustin Bijo last July 16, 1963, as shown by
Exhibit ‘N-1’.

“10. A parcel of
land covered by Transfer Certificate of Title No. 12728 in the name of the
defendant, Enrico L. Pacete, with an area of 10.9006 hectares, situated at
Linao, Matalam, North Cotabato and is also covered by Tax Declaration No.
5745(74) in the name of Enrico Pacete, as shown on Exhibit ‘O’ and which Enrico
Pacete acquired last December 31, 1963 from Eliseo Pugni, as shown on Exhibit
‘O-1’.

“3. Ordering the Cancellation of Original
Certificate of Title No. P-34243 covering Lot No. 1066, issued in the name of
Evelina Pacete, situated at Kiab, Matalam, North Cotabato, and ordering the
registration of the same in the joint name of Concepcion (Conchita) Alanis
Pacete and Enrico L. Pacete as their conjugal property, with address on the
part of Concepcion (Conchita) Alanis Pacete at Parang, Maguindanao and on the
part of Enrico L. Pacete at Kidapawan, North Cotabato.

“4. Ordering likewise the cancellation of
Original Certificate of Title No. V-20101, covering Lot No. 77, in the name of
Eduardo C. Pacete, situated at New Lawaan, Mlang, North Cotabato, and the
issuance of a new Transfer Certificate of Title in the joint name of (half and
half) Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete.

“5. Ordering likewise the cancellation of
Original Certificate of Title No. P-29890, covering Lot 1068, situated at Kiab,
Matalam, North Cotabato, with an area of 12.1031 hectares, in the name of
Emelda C. Pacete, and the issuance of a new Transfer Certificate of Title in
the joint name (half and half) of Concepcion (Conchita) Alanis Pacete and
Enrico L. Pacete; and declaring that the fishpond situated at Barrio Tumanan,
Bislig, Surigao Del Sur, with an area of 48 hectares and covered by Fishpond
Lease Agreement of Emelda C. Pacete, dated July 29, 1977 be cancelled and in
lieu thereof, the joint name of Concepcion (Conchita) Alanis Pacete and her
husband, Enrico L. Pacete, be registered as their joint property, including the
50 hectares fishpond situated in the same place, Barrio Timanan, Bislig,
Surigao del Sur.

“6. Ordering the following motor vehicles to be the
joint properties of the conjugal partnership of Concepcion (Conchita) Alanis
Pacete and Enrico L. Pacete, viz:

“a. Motor
vehicle with Plate No. T-RG?783; Make, Dodge; Motor No. T137-20561;
Chassis No. 83920393, and Type,
Mcarrier;

“b. Motor
vehicle with Plate No. T-RG?784; Make, Dodge; Motor No. T214-229547;
Chassis No. 10D-1302-C; and Type, Mcarrier;

“c. Motor
vehicle with Plate No. J-PR­-818;
Make, Ford; Motor No. GPW-116188;
Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;

“d. Motor
vehicle with Plate No. TH-5J?583;
Make, Ford; Motor No. F70MU5-11111; Chassis No. HOCC-GPW-116188-G; Type, Stake;

“e. Motor
vehicle with Plate No. TH-5J?584; Make, Hino; Motor No. ED300-45758;
Chassis No. KB222-22044; Type, Stake; and

“f. Motor vehicle with Plate No. TH-5J?585;
Make, Ford; Motor No. LTC-780-Dv; Chassis No. 10F-13582-K; Type, Stake.

“7. Ordering the defendant Enrico L. Pacete to
pay the plaintiff the sum of P46,950.00 which is the share of the plaintiff in
the unaccounted income of the ricemill
and corn sheller for three years from 1971 to 1973.

“8. Ordering the defendant, Enrico L. Pacete, to
reimburse the plaintiff the monetary equivalent of 30% of whatever the
plaintiff has recovered as attorney’s fees;

“9. Declaring the subsequent marriage between
defendant Enrico L. Pacete and Clarita de la Concepcion to be void ab initio;
and

“10. Ordering the defendants to pay the costs of
this suit.”^[4]

Hence, the instant
special civil action of certiorari.

Under ordinary
circumstances, the petition would have outrightly been dismissed, for, as also
pointed out by private respondents, the proper remedy of petitioners should
have instead been either to appeal from the judgment by default or to file a
petition for relief from judgment.^[5] This rule, however, is not inflexible; a
petition for certiorari
is allowed when the default
order is improperly declared, or even when
it is properly declared,
where grave abuse of discretion attended such declaration.^[6] In these exceptional instances, the special
civil action of certiorari to declare the nullity of a judgment
by default is available.^[7] In the case at bench, the default order
unquestionably is not legally sanctioned. The Civil Code provides:

“Art. 101. No decree
of legal separation shall be promulgated upon a stipulation of facts or by
confession of judgment.

“In case of non-appearance of the defendant, the court shall
order the prosecuting attorney to inquire whether or not a collusion between
the parties exists. If there is no
collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff
is not fabricated.”

The provision
has been taken from Article 30 of the California Civil Code,^[8] and it is, in substance, reproduced in
Article 60 of the Family Code.^[9]

Article 101 reflects the
public policy on marriages, and it should easily explain the mandatory tenor of
the law. In Brown v. Yambao,^[10] the Court has observed:

“The policy of Article 101 of the new Civil Code, calling for
the intervention of the state attorneys in case of uncontested proceedings for
legal separation (and of annulment of marriages, under Article 88), is to
emphasize that marriage is more than a mere contract; that it is a social
institution in which the state is vitally interested, so that its continuation
or interruption can not be made to depend upon the parties themselves (Civil
Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil.
855; Goitia v. Campos, 35 Phil. 252). It is consonant with this policy that the inquiry by the Fiscal should
be allowed to focus upon any relevant matter that may indicate whether the
proceedings for separation or annulment are fully justified or not.”

Article 103 of the Civil
Code, now Article 58 of the Family Code, further mandates that an action for
legal separation must “in no case be tried before six months shall have
elapsed since the filing of the petition,” obviously in order to provide
the parties a “cooling-off” period. In this interim, the court should take steps toward getting the parties
to reconcile.

The significance of the
above substantive provisions of the law is further underscored by the inclusion
of the following provision in Rule 18 of the Rules of Court:

“SEC. 6. No defaults
in actions for annulments of marriage
or for legal separation. – If the defendant in an action for annulment of marriage or
for legal separation fails to answer, the court shall order the prosecuting
attorney to investigate whether or not
a collusion between the parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the evidence submitted is
not fabricated.”

The special proscriptions
on actions that can put the integrity of marriage to possible jeopardy are
impelled by no less than the State’s interest in the marriage relation and its
avowed intention not to leave the matter within the exclusive domain and the
vagaries of the parties to alone dictate.

It is clear that the
petitioner did, in fact, specifically pray for legal separation.^[11] That other remedies, whether principal or
incidental, have likewise been sought in the same action cannot dispense, nor
excuse compliance, with any of the statutory requirements aforequoted.

WHEREFORE, the petition for certiorari is hereby
GRANTED and the proceedings below, including the Decision of 17 March 1980
appealed from, are NULLIFIED and SET ASIDE. No costs.

SO ORDERED.

Feliciano, (Chairman), Bidin, Romero, and Melo, JJ., concur.

^[1]
Rollo, p. 49.

^[2]
Ibid., p. 50.

^[3]
Presided by Judge Glicerio V. Carriaga, Jr.

^[4]
Rollo, pp. 55-60.

^[5]
Rollo, pp. 192-193.

^[6]
Lina vs. Court of
Appeals, 135 SCRA 637; Garcia vs. Court of Appeals, 209 SCRA 732;
Dimayacyac v. Court of Appeals,
93 SCRA 265.

^[7]
Pioneer Insurance & Surety Corp. vs. Hontanosas, 78 SCRA 447;
Dimayacyac vs. Court of Appeals, 93 SCRA 265; Zenith Insurance Corp. vs.
Purisima, 114 SCRA 62 citing Omico Mining & Industrial Corp. vs.
Vallejos, 63 SCRA 285.

^[8]
Tolentino, Civil Code of the Philippines, 1968 ed., Vol. I, p. 299.

^[9]
“ART. 60. No decree of legal
separation shall be based upon a stipulation of facts or a confession of
judgment.

“In any
case, the court shall order the prosecuting attorney or fiscal assigned to it
to take steps to prevent
collusion between the parties and to take care that the evidence is not
fabricated or suppressed.”

^[10]
102 Phil. 168, 172.

^[11]
Rollo, p. 95.