G.R. No.

210580

REPUBLIC OF THE PHILIPPINES, Petitioner

vs
LUDYSON C. CATUBAG, Respondent

DECISION

REYES, JR., J.:

Nature of the Petition

Challenged before this Court via Petition for Review on Certiorari1 under Rule 45 of the Rules of
Court are the Resolutions2 of the Court of Appeals (CA) in CA-G.R. SP. No. 131269 dated
September 3, 2013 3 and December 6, 2013.4 The assailed Resolutions denied the petition
for certiorari filed by petitioner for failure to file a motion for reconsideration.

Likewise challenged is the Decision5 dated May 23, 2013 of the Regional Trial Court (RTC) of
Tuao, Cagayan, Branch 11, declaring Ludyson C. Catubag's (private respondent) spouse,
Shanaviv G. Alvarez-Catubag (Shanaviv), as presumptively dead.

The Antecedent Facts

Prior to the celebration of their marriage in 2003, private respondent and Shanaviv had been
cohabiting with each other as husband and wife. Their union begot two (2) children named Mark
Bryan A. Catubag and Rose Mae A. Catubag, both of whom were born on May 18, 2000 and
May 21, 2001, respectively.6

In 2001, in order to meet the needs of his family, private respondent took work overseas.
Meanwhile, Shanaviv stayed behind in the Philippines to tend to the needs of their children.7

On June 26, 2003, private respondent and Shanaviv tied the knot in Rizal, Cagayan. The
marriage was solemnized by Honorable Judge Tomas D. Lasam at the Office of the Municipal
Judge, Rizal, Cagayan.8

Sometime in April 2006, private respondent and his family were able to acquire a housing unit
located at Rio del Grande Subdivision, Enrile Cagayan. Thereafter, private respondent returned
overseas to continue his work. While abroad, he maintained constant communication with his
family.9

On July 12, 2006, while working abroad, private respondent was informed by his relatives that
Shanaviv left their house and never returned. In the meantime, private respondent's relatives
took care of the children. 10

Worried about his wife's sudden disappearance and the welfare of his children, private
respondent took an emergency vacation and flew back home. Private respondent looked for his
wife in Enrile Cagayan, but to no avail. He then proceeded to inquire about Shanaviv's
whereabouts from their close friends and relatives, but they too could offer no help. Private
respondent travelled as far as Bicol, where Shanaviv was born and raised, but he still could not
locate her.11

Private respondent subsequently sought the help of Bombo Radyo Philippines, one of the more
well-known radio networks in the Philippines, to broadcast the fact of his wife's disappearance.
Moreover, private respondent searched various hospitals and funeral parlors in Tuguegarao and
in Bicol, with no avail. 12

On May 4, 2012, after almost seven (7) years of waiting, private respondent filed with the RTC a
petition to have his wife declared presumptively dead. 13

On May 23, 2013, the RTC rendered its Decision granting the Petition. The dispositive portion of
the decision which reads:

WHEREFORE, the petition is GRANTED. SHANAVIV G. ALVAREZ-CATUBAG is hereby

adjudged PRESUMPTIVELY DEAD only for the purpose that petitioner LUDYSON C.
CATUBAG may contract a marriage subsequent to what he had with SHANAVIV G. ALVAREZ-
CATUBAG without prejudice to the reappearance of the latter.

SO ORDERED. 14

On August 5, 2013, petitioner, through the Office of the Solicitor General (OSG), elevated the
judgment of the RTC to the CA via a Petition for Certiorari under Rule 65 of the Revised Rules
of Court. Petitioner's main contention is that private respondent failed to establish a "well-
founded belief' that his missing wife was already dead. 15

In its Resolution16 dated September 3, 2013, the CA dismissed the petition because no motion
for reconsideration was filed with the court a quo. The CA ruled that such defect was fatal and
warranted the immediate dismissal of the petition. The dispositive portion of the CA decision
reads:

WHEREFORE, premises considered, the instant petition for certiorari is DISMISSED.

SO ORDERED.17

On September 18, 2013, petitioner filed a Motion for Reconsideration, but the same was denied
by the CA in its Resolution 18 dated December 6, 2013. Hence, this Petition for Review
on Certiorari under Rule 45 of the Rules of Court.

The Issues

The petitioner anchors its plea for the annulment of the assailed resolutions and the denial of
private respondent's petition to declare his wife presumptively dead on the following grounds:

I. THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE PETITION FOR

CERTIORARI ON THE GROUND THAT PETITIONER DID NOT PREVIOUSLY FILE A
MOTION FOR RECONSIDERATION BEFORE THE COURT A QUO.
II. THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE PETITION FOR
[CERTIORARI] ON THE GROUND THAT PETITIONER FAILED TO ATTACH THERETO
COPIES OF ALL PERTINENT AND RELEVANT DOCUMENTS AND PLEADINGS.

III. PRIVATE RESPONDENT HAS NOT ESTABLISHED A WELLFOUNDED BELIEF THAT HIS
WIFE IS PRESUMPTIVELY DEAD.

IV. PRIVATE RESPONDENT FAILED TO PROVE HIS INTENTION TO RE-MARRY. 19

In sum, the instant petition rests on the resolution of two issues: (1) whether or not petitioner's
resort to a Petition for Certiorari under Rule 65 to challenge the decision of the RTC declaring
Shanaviv presumptively dead was proper; and (2) whether or not private respondent complied
with the essential requisites of a petition for declaration of presumptive death under Article 41 of
the Family Code.

The Court's Ruling

The petition is impressed with merit.

Basic is the rule that the nature of the proceeding determines the appropriate remedy or
remedies available. Hence, a party aggrieved by an action of a court must first correctly
determine the nature of the order, resolution, or decision, in order to properly assail it.20

Since what is involved in the instant case is a petition for declaration of presumptive death, the
relevant provisions of law are Articles 41, 238, and 253 of the Family Code. These provisions
explicitly provide that actions for presumptive death are summary in nature. Article 41 provides:

Article 41. A marriage contracted by any person during 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. (Emphasis supplied)

Likewise, Article 238 in relation to Article 253, under Title XI: SUMMARY JUDICIAL
PROCEEDINGS IN THE FAMILY LAW, of the Family Code provides:

Article 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.

xxxx
Article 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)

Consequently, parties cannot seek reconsideration, nor appeal decisions in summary judicial
proceedings under the Family Code because by express mandate of law, judgments rendered
thereunder are immediately final and executory.21 As explained by the Court in Republic of the
Phils. vs. Bermudez-Lorino,22 citing Atty. Veloria vs. Comelec:23

[T]he right to appeal is not a natural right nor is it a part of due process, for it is merely a
statutory privilege. Since, by express mandate of Article 24 7 of the Family Code, all judgments
rendered in summary judicial proceedings in Family Law are "immediately final and executory,"
the right to appeal was not granted to any of the parties therein. The Republic of the Philippines,
as oppositor in the petition for declaration of presumptive death, should not be treated
differently. It had no right to appeal the RTC decision of November 7, 2001.24

Further, it is well settled in our laws and jurisprudence that a decision that has acquired finality
becomes immutable and unalterable. As such, it may no longer be modified in any respect even
if the modification is meant to correct erroneous conclusions of fact or law and whether it will be
made by the court that rendered it or by the highest court of the land. 25

While parties are precluded from filing a motion for reconsideration or a notice of appeal, in a
petition for declaration of presumptive death, they may challenge the decision of the court a
quo through a petition for certiorari to question grave abuse of discretion amounting to lack of
jurisdiction.26

In Republic vs. Sarenogon, Jr., 27 the Court outlined the legal remedies available in a summary
proceeding for the declaration of presumptive death. If aggrieved by the decision of the RTC,
then filing with the CA a Petition for Certiorari under Rule 65 would be proper. Any subsequent
decision by the CA may then be elevated to the Court via a Petition for Review
on Certiorari under Rule 45. 28

Considering the foregoing, the Court finds that petitioner's resort to certiorari under Rule 65 of
the Rules of Court to challenge the RTC's Order declaring Shanaviv presumptively dead was
proper.

Having determined the propriety of petitioner's mode of challenging the RTC's Order, the Court
shall now proceed to tackle the issue of whether or not private respondent has sufficiently
complied with the essential requisites in a petition for declaration of presumptive death.

Prevailing jurisprudence has time and again pointed out four (4) requisites under Article 41 of
the Family Code that must be complied with for the declaration of presumptive death to prosper:
first, the absent spouse has been missing for four consecutive years, or two consecutive years if
the disappearance occurred where there is danger of death under the circumstances laid down
in Article 391 of the Civil Code.29 Second, the present spouse wishes to remarry. Third, the
present spouse has a well-founded belief that the absentee is dead. Fourth, the present spouse
files for a summary proceeding for the declaration of presumptive death of the absentee. 30

In seeking a declaration of presumptive death, it is the present spouse who has the burden of
proving that all the requisites under Article 41 of the Family Code are present. In the instant
case, since it is private respondent who asserts the affirmative of the issue, then it is his duty to
substantiate the same. He who alleges a fact has the burden of proving it and mere allegations
will not suffice.31

Notably, the records reveal that private respondent has complied with the first, second, and
fourth requisites. Thus, what remains to be resolved is whether or not private respondent
successfully discharged the burden of establishing a well-founded belief that his wife, Shanaviv,
is dead.

The Court in Cantor,32 pointed out that the term, "well-founded belief' has no exact definition
under the law. In fact, the Court notes that such belief depends on the circumstances of each
particular case. As such, each petition must be judged on a case-to-case basis. 33

This is not to say, however, that there is no guide in establishing the existence of a well-founded
belief that an absent spouse is already dead. In Republic vs. Orcelino-Villanueva,34 the Court,
through Justice Mendoza, provided that such belief must result from diligent efforts to locate the
absent spouse. Such diligence entails an active effort on the part of the present spouse to
locate the missing one. The mere absence of a spouse, devoid of any attempt by the present
spouse to locate the former, will not suffice. The Court expounded on the required diligence, to
wit:

The well-founded belief in the absentee's death requires the present spouse to prove that
his/her belief was the result of diligent and reasonable efforts to locate the absent spouse and
that based on these efforts and inquiries, he/she believes that under the circumstances, the
absent spouse is already dead. It necessitates exertion of active effort (not a mere passive one).
Mere absence of the spouse (even beyond the period required by law), lack of any news that
the absentee spouse is still alive, mere failure to communicate, or general presumption of
absence under the Civil Code would not suffice. The premise is that Article 41 of the Family
Code places upon the present spouse the burden of complying with the stringent requirement of
"well-founded belief' which can only be discharged upon a showing of proper and honest-to-
goodness inquiries and efforts to ascertain not only the absent spouse's whereabouts but, more
importantly, whether the absent spouse is still alive or is already dead.35(Citations omitted)

Furthermore, jurisprudence is replete with cases which help determine whether belief of an
absent spouses' death is well-founded or not.1âwphi1 A perusal of the cases of Republic vs.
Granada,36 Cantor,37 and Orcelino-Villanueva38 reveal the circumstances which do not meet the
Court's standards in establishing a "well-founded belief."

In Granada,39 the present spouse alleged that she exerted efforts in locating her absent spouse
by inquiring from the latter's relatives regarding his whereabouts. The Court ruled against the
present spouse and stated that the mere act of inquiring from relatives falls short of the
diligence required by law. It pointed out that the present spouse did not report to the police nor
seek the aid of mass media. Even worse, the present spouse did not even bother to present any
of the absent spouses' relatives to corroborate her allegations.40

Similarly in Cantor,41 the present spouse alleged that she exerted "earnest efforts" in attempting
to locate her missing husband. She claimed that she made inquiries with their relatives,
neighbors, and friends as to his whereabouts. She even stated that she would take the time to
look through the patient's directory whenever she would visit a hospital.42
Despite these alleged "earnest efforts," the Court still ruled otherwise. It held that the present
spouse engaged in a mere "passive-search" Applying the "stringent-standards" and degree of
diligence required by jurisprudence, the Court pointed out four acts of the present spouse which
contradict the claim of a diligent and active search, 43 to wit:

First, the respondent did not actively look for her missing husband. It can be inferred from the
records that her hospital visits and her consequent checking of the patients' directory therein
were unintentional. She did not purposely undertake a diligent search for her husband as her
hospital visits were not planned nor primarily directed to look for him. This Court thus considers
these attempts insufficient to engender a belief that her husband is dead.

Second, she did not report Jerry's absence to the police nor did she seek the aid of the
authorities to look for him. While a finding of well-founded belief varies with the nature of the
situation in which the present spouse is placed, under present conditions, we find it proper and
prudent for a present spouse, whose spouse had been missing, to seek the aid of the
authorities or, at the very least, report his/her absence to the police.

Third, she did not present as witnesses Jerry's relatives or their neighbors and friends, who can
corroborate her efforts to locate Jerry. Worse, these persons, from whom she allegedly made
inquiries, were not even named. As held in Nolasco, the present spouse's bare assertion that he
inquired from his friends about his absent spouse's whereabouts is insufficient as the names of
the friends from whom he made inquiries were not identified in the testimony nor presented as
witnesses.

Lastly, there was no other corroborative evidence to support the respondent's claim that she
conducted a diligent search. Neither was there supporting evidence proving that she had a well-
founded belief other than her bare claims that she inquired from her friends and in-laws about
her husband's whereabouts.44 (Citations omitted)

The foregoing conduct of the present spouse led the Court to conclude that her efforts in
searching for her absent spouse were insincere. Ultimately, the Courts considered these
attempts insufficient to comply with the requirement of conducting a reasonable, diligent, and
active search.45

In Orcelino-Villanueva, the Court likewise ruled that the present spouse failed to prove that she
had a well-founded belief that her absent spouse was already dead. In said case, the present
spouse began her "search" by returning home from her work overseas to look for her missing
husband. She then inquired from her in-laws and common friends as to his whereabouts. The
present spouse even went as far as Negros Oriental, where the absent spouse was born.
Additionally, the present spouse claimed that fifteen (15) years have already lapsed since her
husband's disappearance.46

In that case, the Court held that the factual circumstances were very similar to the two
aforementioned cases. It further held that it was erroneous for the lower courts to grant the
petition for declaration of presumptive death. The Court explained why the present spouse's
allegations should not have been given credence, to wit:

Applying the standard set forth by the Court in the previously cited cases,
particularly Cantor, Edna's efforts failed to satisfy the required well-founded belief of her absent
husband's death.
Her claim of making diligent search and inquiries remained unfounded as it merely consisted of
bare assertions without any corroborative evidence on record. She also failed to present any
person from whom she inquired about the whereabouts of her husband. She did not even
present her children from whom she learned the disappearance of her husband. In fact, she was
the lone witness. Following the basic rule that mere allegation is not evidence and is not
equivalent to proof, the Court cannot give credence to her claims that she indeed exerted
diligent efforts to locate her husband. 47 (Citations omitted)

Having laid out the foregoing jurisprudential guidelines in determining the existence of a "well-
founded belief," the Court now shifts focus to the specific circumstances surrounding the current
case. In the case at bar, private respondent first took a leave of absence from his work in the
United Arab Emirates and returned to the Philippines to search for Shanaviv. He then
proceeded to inquire about his wife's whereabouts from their friends and relatives in Cagayan
and Bicol. Next, private respondent aired over Bombo Radyo Philippines, a known radio station,
regarding the fact of disappearance of his wife. Finally, he claims to have visited various
hospitals and funeral parlors in Tuguegarao City and nearby municipalities.48

Applying the foregoing standards discussed by the Court in Cantor,49 Granada,50 and Orcelino-
Villanueva,51 the Court finds that private respondent's efforts falls short of the degree of
diligence required by jurisprudence for the following reasons:

First, private respondent claims to have inquired about his missing wife's whereabouts from both
friends and relatives. Further, he claims to have carried out such inquiries in the place where
they lived and in the place where his wife was born and raised. However, private respondent
failed to present any of these alleged friends or relatives to corroborate these "inquiries."
Moreover, no explanation for such omission was given. As held in the previous cases, failure to
present any of the persons from whom inquiries were allegedly made tends to belie a claim of a
diligent search.

Second, private respondent did not seek the help of other concerned government agencies,
namely, the local police authorities and the National Bureau of Investigation (NBI).
In Cantor, the Court reasoned that while a finding of well-founded belief varies with the nature of
the situation, it would still be prudent for the present spouse to seek the aid of the authorities in
searching for the missing spouse. Absent such efforts to employ the help of local authorities, the
present spouse cannot be said to have actively and diligently searched for the absentee
spouse. 52

Finally, aside from the certification of Bombo Radyo's manager, private respondent bases his
"well-founded belief' on bare assertions that he exercised earnest efforts in looking for his wife.
Again, the present spouse's bare assertions, uncorroborated by any kind of evidence, falls short
of the diligence required to engender a well-founded belief that the absentee spouse is dead.

Taken together, the Court is of the view that private respondent's efforts in searching for his
missing wife, Shanaviv, are merely passive. Private respondent could have easily convinced the
Court otherwise by providing evidence which corroborated his "earnest-efforts." Yet, no
explanation or justification was given for these glaring omissions. Again, he who alleges a fact
has the burden of proving it by some other means than mere allegations.

Stripped of private respondent's mere allegations, only the act of broadcasting his wife's alleged
disappearance through a known radio station was corroborated.53 This act comes nowhere
close to establishing a well-founded belief that Shanaviv has already passed away. At most, it
just reaffirms the unfortunate theory that she abandoned the family.

To accept private respondent's bare allegations would be to apply a liberal approach in

complying with the requisite of establishing a well-founded belief that the missing spouse is
dead. In Republic vs. Court of Appeals (Tenth Div.),54the Court cautioned against such a liberal
approach. It opined that to do so would allow easy circumvention and undermining of the Family
Code. The Court stated:

There have been times when Article 41 of the Family Code had been resorted to by parties
wishing to remarry knowing fully well that their alleged missing spouses are alive and well. It is
even possible that those who cannot have their marriages x x x declared null and void under
Article 36 of the Family Code resort to Article 41 of the Family Code for relief because of the x x
x summary nature of its proceedings.

Stated otherwise, spouses may easily circumvent the policy of the laws on marriage by simply
agreeing that one of them leave the conjugal abode and never return again. Thus, there is a
need for courts to exercise prudence in evaluating petitions for declaration of presumptive death
of an absent spouse. A lenient approach in applying the standards of diligence required in
establishing a "well-founded belief' would defeat the State's policy in protecting and
strengthening the institution of marriage.55

On this basis, it is clear that private respondent failed to fulfill the requisite of establishing a well-
founded belief that the absentee spouse is dead. Thus, the RTC should have denied private
respondent's petition for declaration of presumptive death.

In fine, having determined the propriety of petitioner's resort to a petition for certiorari and
private respondent's failure to meet the stringent standard and degree of due diligence required
by jurisprudence to support his claim of a "well-founded belief' that his wife, Shanaviv, is already
dead, it is proper for the Court to grant the petition. Consequently, the other issues raised by the
petitioner need not be discussed further.

WHEREFORE the petition is GRANTED. Accordingly, the Decision dated May 23, 2013 of the
Regional Trial Court of Tuao, Cagayan, Branch 11 and the Resolutions dated September 3,
2013 and December 6, 2013 rendered by the Court of Appeals in CA-G.R. S.P. No. 131269 are
hereby ANNULED and SET ASIDE. Consequently, the petition of private respondent Ludyson
C. Catubag to have his wife, Shanaviv G. Alvarez-Catubag, declared presumptively dead
is DENIED.

SO ORDERED.

ANDRES B. REYES, JR.

Associate Justice