56. Republic vs. Fenol proved futile.

She also proceeded to Reneto's relatives in Cayawan,

Davao del Norte only to find out that they have no knowledge of his
[G.R. No. 212726. June 10, 2020.]
whereabouts either. Sometime in 2004, she applied for employment
abroad and worked overseas, but she still failed to find Reneto until she
REPUBLIC OF THE returned to the Philippines in 2008. 7
PHILIPPINES, petitioner, vs. LEILANIE DELA CRUZ
FENOL, respondent. The RTC Ruling
On April 15, 2011, the RTC declared Reneto presumptively dead
subject to the restrictions and conditions imposed in Article 41 of
DECISION the Family Code. The RTC reasoned:
Taking into consideration the circumstances of the
absence of the [respondent]'s husband, the Court is
J.C. REYES, JR., J  : p convinced that he may be declared as presumptively dead.
From the time [respondent]'s husband left the conjugal
Assailed in this Petition for Review on Certiorari 1 are the
dwelling for Manila in January of 2001, purposely to apply
Decision 2 dated November 28, 2013 and the Resolution 3 dated May 26,
for work abroad, his whereabouts became unknown. From
2014 of the Court of Appeals-Cagayan De Oro City (CA) in CA-G.R. SP the time the whereabouts of [respondent]'s husband became
No. 05084[-MIN] affirming in toto the Decision 4 dated April 15, 2011 unknown since he left the conjugal dwelling in 2001, up to
of the Regional Trial Court of Kabacan, Cotabato, Branch 41 (RTC) in the time that the [respondent] testified in 2010, the
Spl. Proc. No. 09-22 declaring Reneto Alilongan Suminguit (Reneto) [respondent]'s husband has been absent for more than nine
presumptively dead under Article 41 of the Family Code. (9) years and his whereabouts unknown. And for purposes
The Antecedents of re-marriage, a period of only four (4) years is required
by law. The loss of a loved one is saddening but what is
On July 8, 2000, Leilanie Dela Cruz Fenol (respondent) married more saddening is a loved one whose whereabouts has been
Reneto in Kidapawan City. Out of this union, they begot a child named unknown for a long time. His absence or his presence
Loren Jade Fenol Suminguit. 5 cannot be determined, to the extent that the family left
Sometime in January 2001, Reneto left the conjugal dwelling in could not move on with their lives, as in this case.
Malayan, M'lang, Cotabato and went to Manila to apply for work abroad. In sum, the well-founded belief being required of
Since then, he has not come back to his family and his whereabouts have under the Family Code has been preponderantly established
been unknown for a continuous period of more than eight years. Thus, by the [respondent] because although there were no
respondent filed a Petition for Declaration of Presumptive Death of concrete documentary evidences presented by her in Court
Reneto Alilongan Suminguit dated November 16, 2009 before the RTC to justify the declaration of [Reneto] as presumptively dead,
of Kabacan, Cotabato. 6 the circumstances of the case would point to the fact that
the [respondent]'s husband has already been absent for
In the petition, respondent alleged that she exerted earnest efforts
more than nine (9) years. And to allow the [respondent] to
to locate the whereabouts of her husband. She went to Manila sometime wait a little longer, to await her husband's return, without
in 2002 and stayed there for seven months to find Reneto, but the same
Page 1 of 5
 certainty, would be unfair to the [respondent] and to her It asserts that respondent's efforts did not generate a well-founded belief
daughter, who already have suffered so much when the that her husband Reneto was already dead.
[respondent]'s husband left them way back in 2001. 8
The procedural aspect of the case is governed by Article 41 in
The Republic of the Philippines, through the Office of the relation to Articles 238, 247 and 253 of the Family Code. The provisions
Solicitor General (OSG), moved for reconsideration of the RTC read:
Decision, but the same was denied in an Order dated May 31, 2012.
ART. 41. A marriage contracted by any person
The CA Ruling during the subsistence of a previous marriage shall be null
and void, unless before the celebration of the subsequent
In its Decision dated November 28, 2013, the CA denied the
marriage, the prior spouse had been absent for four
OSG's appeal. It held that respondent exerted efforts to locate Reneto,
consecutive years and the spouse present had a well-
but she still failed to find him. It agreed with the RTC that respondent
founded belief that the absent spouse was already dead. In
was able to prove a well-founded belief that Reneto was already dead. It
case of disappearance where there is danger of death under
enunciated that the Decision of the RTC is already final and executory
the circumstances set forth in the provisions of Article 391
and can no longer be modified or reversed since a petition for declaration of the Civil Code, an absence of only two years shall be
of presumptive death is a summary judicial proceeding under the Family sufficient.
Code. 9
For the purpose of contracting the subsequent
The OSG filed a motion for reconsideration of the CA Decision marriage under the preceding paragraph the spouse present
which was denied in a Resolution dated May 26, 2014. must institute a summary proceeding as provided in this
Hence, this petition. Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of
Issues the absent spouse. (Underscoring supplied)
The OSG claims that the conclusions of the RTC and the CA are xxx xxx xxx
not in accordance with law and jurisprudence. It maintains that while the
TITLE XI
Decision of the RTC is immediately final and executory and not
SUMMARY JUDICIAL PROCEEDING
appealable, it may still be reviewed via petition for certiorari under Rule
IN THE FAMILY LAW
65 of the Rules of Court. It argues that, contrary to the findings of the
courts below, the efforts of respondent in locating her husband were not Chapter 1. Scope of the Application
sufficient to form a well-founded belief that he is already dead. ART. 238. Until modified by the Supreme Court,
The Court's Ruling the procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court
The petition is granted. proceedings. Such cases shall be decided in an expeditious
The OSG raises procedural and substantive issues in its petition. manner, without regard to technical rules.
Procedurally, it imputes error on the part of the CA for dismissing its Chapter 2. Separation in Fact between
petition for certiorari for being the wrong remedy. Substantively, it Husband and Wife
questions the factual bases of the RTC in granting respondent's petition.
Page 2 of 5
 xxx xxx xxx judgment. In declaring that the OSG resorted to a wrong remedy by filing
ART. 247. The judgment of the court shall a petition for certiorari, the CA had been unmindful of our consistent
be immediately final and executory. (Underscoring pronouncement that "certiorari lies to challenge the decisions, judgments
supplied) or final orders of trial courts in a summary proceeding for the declaration
of presumptive death under the Family Code." 13 We held in Republic v.
xxx xxx xxx
Narceda: 14
Chapter 4. Other Matters Subject
As explained in Republic v. Tango, the remedy of a
to Summary Proceedings
losing party in a summary proceeding is not an ordinary
ART. 253. The foregoing rules in Chapters 2 and 3 appeal, but a petition for certiorari, to wit:
hereof shall likewise govern summary proceedings filed
By express provision of law, the judgment of the
under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as
court in a summary proceeding shall be immediately final
they are applicable. (Underscoring supplied)
and executory. As a matter of course, it follows that no
Nothing could be clearer from the above legal provisions than appeal can be had of the trial court's judgment in a
that a petition for declaration of presumptive death of an absent spouse summary proceeding for the declaration of presumptive
for the purpose of contracting a subsequent marriage under Article 41 of death of an absent spouse under Article 41 of the Family
the Family Code involves a proceeding that is summary in nature, the Code. It goes without saying, however, that an aggrieved
judgment of the court therein shall be immediately final and party may file a petition for  certiorari to question abuse of
executory. 10 Consequently, a judicial declaration of presumptive death discretion amounting to lack of jurisdiction. Such petition
cannot be a proper subject of an appeal and the filing of a motion for should be filed in the Court of Appeals in accordance with
reconsideration or a notice of appeal is a procedural misstep which the Doctrine of Hierarchy of Courts. To be sure, even if the
Court's original jurisdiction to issue a writ of certiorari is
warrants an outright denial or dismissal. The final and executory nature
concurrent with the RTCs and the Court of Appeals in
of the judgment in a petition for declaration of presumptive death renders
certain cases, such concurrence does not sanction an
the court's dispositions and conclusions therein immutable and
unrestricted freedom of choice of court forum. From the
unalterable not only as against the parties, but even as against the
decision of the Court of Appeals, the losing party may then
courts. 11 Hence, except for correction of clerical errors, the courts are
file a petition for review on certiorari under Rule 45 of
barred from modifying or altering a definitive final judgment, such as the the Rules of Court with the Supreme Court. This is because
one assailed in the case, even if the modification is intended to correct the errors which the court may commit in the exercise of
erroneous conclusion of fact or law. 12 jurisdiction are merely errors of judgment which are the
But the losing party in a summary court proceeding is not left proper subject of an appeal. (Underscoring supplied)
without a legal recourse. When the present spouse successfully obtains a There is, thus, no doubt that the OSG availed of the correct
judicial declaration of his/her spouse's presumptive death, the OSG may remedy when it filed a petition for certiorari before the CA.
properly bring an original action for certiorari under Rule 65 of
the Rules of Court, as it actually did in this case, before the appellate Going into the merits of the case, we find that the respondent
court on the ground that the RTC committed grave abuse of discretion failed to satisfy the "well-founded belief" requirement in Article 41 of
amounting to lack or excess of jurisdiction when it rendered its the Family Code.

Page 3 of 5
 In Republic v. Tampus, 15 the Court clarified the scope and extent In this case, the RTC and the CA were in unison in holding that
of the present spouse's duty before he/she can obtain a judicial the efforts exerted by the respondent are adequate to substantiate her
declaration of spouse's presumptive death, viz.: belief that Reneto was already dead. But a careful examination of the
records proved otherwise.
The "well-founded belief" in the absentee's death
requires the present spouse to prove that his/her belief was Respondent's so-called "earnest efforts" only consisted of two
the result of diligent and reasonable efforts to locate the instances: (1) from Cotabato, respondent went to Manila and stayed there
absent spouse and that based on these efforts and inquiries, for seven months to look for Reneto; and (2) respondent went to Davao
he/she believes that under the circumstances, the absent del Norte, Reneto's birthplace, to inquire about her husband's
spouse is already dead. It necessitates exertion of active whereabouts from his family and relatives. When Reneto's family
effort, not a passive one. As such, the mere absence of the members denied knowing his whereabouts, respondent took it as gospel
spouse for such periods prescribed under the law, lack of truth without even bothering to inquire from the neighbors or other
any news that such absentee spouse is still alive, failure to
disinterested persons as to the veracity of their narrative. She heavily
communicate, or general presumption of absence under the
relied on the uncorroborated and naturally biased statement of her
Civil Code would not suffice. The premise is that Article 41
husband's relatives. Interestingly, respondent did not present Reneto's
of the Family Code places upon the present spouse the
family and relatives who could have attested that she personally inquired
burden of complying with the stringent requirement of
from them about Reneto's whereabouts and that she exerted active efforts
"well-founded belief" which can only be discharged upon a
to ascertain his location and status. Time and again, we have held that the
showing of proper and honest-to-goodness inquiries and
efforts to ascertain not only the absent spouse's present spouse's bare assertion that he inquired from his friends or from
whereabouts, but more importantly, whether the latter is the relatives of his absent spouse about the latter's whereabouts is
still alive or is already dead. (Underscoring supplied) insufficient especially when the names of the persons from whom he
made inquiries were not identified in the testimony nor presented as
Clearly, it is not enough that the present spouse holds a firm witnesses, 17 as in this case.
conviction that his/her spouse is already dead and alleges the same in
his/her petition. Belief is a state of the mind which may only be It bears stressing that other than the above "earnest efforts,"
established by direct evidence or circumstantial evidence that tends, even respondent made no further attempt to find her husband. The fact that
in a slight degree, to elucidate the inquiry or assist to a determination respondent worked abroad does not even bolster her claim that she
probably founded in truth. 16 At the same time, the law does not demand extended her search for Reneto since it cannot be determined from her
positive certainty of the absent spouse's death, for to do so would run allegations that she purposely went to the country where her husband was
counter to the very essence of a petition for declaration of presumptive deployed to look for him. All that she stipulated in her petition was that
death. Thus, to meet the requirement of the law, the present spouse must she went abroad in 2004 and returned in the Philippines in 2008 without
allege and prove that his/her belief is the result of proper and honest-to- any information as to Reneto's whereabouts.
goodness inquiries and efforts to locate the absent spouse and determine Furthermore, it perplexes the court that notwithstanding Reneto's
whether he/she is still alive or not. The term "proper and honest-to- absence for years, respondent never reported the matter to the local
goodness inquiries and efforts" is tantamount to diligent and reasonable police or local government unit and sought its help in looking for her
inquiries and search to ascertain the absent spouse's whereabouts. husband. When she was still working abroad, respondent did not
coordinate with the Philippine consul office to express her serious
Page 4 of 5
concern for the safety and welfare of her missing husband and ask for its
assistance. Respondent did not even offer plausible explanation as to why
she failed to secure the assistance of the authorities which a person of
ordinary prudence would have done under a similar circumstance.
A claim of a diligent search cannot be given
credence sans evidentiary support. Basic is the rule that one who alleges
a fact has the burden of proving it and mere allegation is not
evidence; 18 thus, respondent should prove her allegation that she
exercised the degree of diligence required for the search of her missing
husband. Lamentably, respondent failed to discharge this burden.
There being no basis of respondent's "well-founded belief" that
Reneto is already dead, the petition for declaration of presumptive death
must perforce be denied.
WHEREFORE, the petition is GRANTED. The Decision dated
November 28, 2013 and the Resolution dated May 26, 2014 of the Court
of Appeals-Cagayan de Oro City in CA-G.R. SP No. 05084[-MIN]
are REVERSED and SET ASIDE. The petition of respondent Leilanie
Dela Cruz Fenol to have her husband, Reneto Alilongan Suminguit,
declared presumptively dead is DENIED.
SO ORDERED.

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