Tumlos vs. Spouses Fernandez

A cohabitant who is not legally capacitated to marry the other, and who fails to prove actual joint contribution of money, property, or industry to the acquisition of property, is not a co-owner under Article 148 of the Family Code; mere cohabitation or administration of the property does not suffice. A claim for support does not bar an ejectment suit where no extrajudicial demand for support has been made and the ejectment action is summary and solely for possession.

Respondents Spouses Mario and Lourdes Fernandez claimed ownership of an apartment building in Valenzuela. Petitioner Guillerma Tumlos occupied the property and asserted co-ownership with Mario based on a Contract to Sell and an alleged cohabitation. Mario was validly married to Lourdes, making him legally incapacitated to marry petitioner; the property relations of petitioner and Mario therefore fell under Article 148 of the Family Code, which regulates couples living in adultery or concubinage, rather than Article 144 of the Civil Code. The case also involved the summary procedure governing ejectment and the demand requirement for support.

Respondents Spouses Mario and Lourdes Fernandez filed a complaint dated July 5, 1996 for ejectment before Branch 82 of the Municipal Trial Court of Valenzuela, Metro Manila, docketed as Civil Case No. 6756, against Guillerma Tumlos, Toto Tumlos, and Gina Tumlos. They alleged that they were the absolute owners of an apartment building located at ARTE SUBDIVISION III, Lawang Bato, Valenzuela, Metro Manila; that through tolerance they had allowed the defendants to occupy the building for seven years since 1989 without payment of rent; that it was agreed that after a few months Guillerma would pay P1,600.00 a month while Toto and Gina promised to pay P1,000.00 a month as rental; that the agreement was not complied with; and that demands to vacate the premises, as respondents needed the property for a new building, and to pay P84,000.00 from Toto and Gina and P143,600.00 from Guillerma as unpaid rentals for seven years went unheeded. Respondents prayed that the defendants be ordered to vacate, to pay the stated rentals, and to pay P30,000.00 in attorney's fees.

Guillerma was the only defendant who filed an answer. She averred that the Fernandez spouses had no cause of action against her because she was a co-owner of the premises, as evidenced by a Contract to Sell stating that she was a co-vendee with Mario Fernandez, and asked for dismissal of the complaint. After an unfruitful preliminary conference on November 15, 1996, the MTC required the parties to submit their affidavits and other evidence within ten days under Section 9 of the Revised Rule on Summary Procedure. Guillerma submitted her affidavit/position paper on November 29, 1996, while respondents filed their position paper on December 5, 1996, attaching their marriage contract, letters of demand, and the Contract to Sell over the disputed property. The MTC thereafter promulgated its judgment on January 22, 1997.

On appeal to the RTC, Guillerma and her co-defendants alleged in their memorandum that Mario Fernandez and Guillerma had an amorous relationship and acquired the property as their "love nest." They alleged that they lived together in the apartment building with their two children for around ten years, and that Guillerma administered the property by collecting rentals from the lessees of the other apartments until she discovered that Mario had deceived her as to the annulment of his marriage. They also alleged that during the early part of 1996 Mario accused her of being unfaithful and demonstrated baseless jealousy. In the same memorandum, they averred that Toto Tumlos had only been temporarily accommodated in one of the rooms while Gina Tumlos acted as a nanny for the children, so their presence was transient and they were not tenants of the Fernandez spouses.

On June 5, 1997, the RTC rendered a decision affirming in toto the MTC judgment. Guillerma and her co-defendants filed a motion for reconsideration on July 3, 1997, alleging that the RTC decision was constitutionally flawed for failing to point out distinctly and clearly the findings of facts and law on which it was based vis-à-vis the issues raised in their memorandum on appeal. They also challenged the Contract to Sell presented by respondents, which named the buyer as "Mario P. Fernandez, of legal age, married to Lourdes P. Fernandez," claiming it was falsified to appear that way; according to them, the Contract originally named "Guillerma Fernandez" as the spouse of Mario. As found by the RTC in its judgment, a new Contract to Sell was issued by the sellers naming respondents as the buyers after respondents presented their marriage contract and requested a change in the name of the vendee-wife.

In resolving the question of ownership to determine possession, the RTC ruled that the Contract to Sell submitted by the Fernandez spouses appeared not to be authentic because there was an alteration in the name of Mario's wife, and therefore could not be given weight. The RTC further ruled that Guillerma and Mario acquired the property during their cohabitation as husband and wife without the benefit of marriage, and concluded that Guillerma was a co-owner of the subject property and could not be ejected. The Court of Appeals, on the other hand, found that Guillerma's claim of co-ownership was not satisfactorily proven, that no proof of actual contribution by her to the purchase of the subject property was presented, and that Mario was validly married to Lourdes Fernandez as shown by a Marriage Contract dated April 27, 1968. It also found that the evidence on Guillerma's cohabitation with Mario, her children, and their need for support was presented for the first time on appeal.

• Procedural Bias and Due Course: Petitioner argued that the CA exhibited partiality by considering respondents' Petition for Review despite failure to attach several pleadings and the explanation for proof of service required by Section 11, Rule 13, and despite Solar Team Entertainment, Inc. vs. Ricafort; by allowing respondents to submit the unattached pleadings; by considering respondents' Reply dated May 20, 1998 allegedly filed out of time; and by declaring the case submitted for decision without first determining whether to give due course under Section 6, Rule 42.
• MTC Jurisdiction: Petitioner maintained that the MTC did not have jurisdiction over the nature of the case because the real question involved ownership and the issue of possession could not be settled without passing upon ownership, so the MTC should have dismissed the case.
• Co-ownership: Petitioner claimed that she was a co-owner of the property with Mario Fernandez, as evidenced by the Contract to Sell naming her as his spouse and by their cohabitation; she argued that the CA erred in finding otherwise.
• Applicable Law and Retroactivity: Petitioner argued that the CA erred in applying Article 148 of the Family Code, and that the Family Code was inapplicable because the cohabitation and acquisition of the property occurred before its effectivity.
• Evidence on Appeal: Petitioner asserted that the RTC did not err in considering the evidence she presented before it on appeal, including evidence of her cohabitation with Mario and their children.
• Support versus Ejectment: Petitioner contended that Mario's failure to repudiate her claim regarding the filiation of their alleged sons, Mark Gil and Michael Fernandez, amounted to an admission; that Mario was liable for support; and that the children's right to support, which necessarily includes shelter, prevailed over respondents' right to eject her.

• Procedural Bias and Due Course: Whether the Court of Appeals exhibited partiality and erred in not outrightly dismissing respondents' Petition for Review and in considering the case without first determining whether to give due course.
• MTC Jurisdiction: Whether the MTC had jurisdiction over the ejectment suit where the issue of ownership was raised and possession could not be resolved without deciding ownership.
• Evidence on Appeal: Whether the RTC erred in considering evidence presented for the first time on appeal before it.
• Co-ownership: Whether petitioner Guillerma Tumlos was a co-owner of the disputed property.
• Applicable Law: Whether Article 148 of the Family Code, rather than Article 144 of the Civil Code, governed the property relations of petitioner and Mario Fernandez.
• Retroactivity: Whether Article 148 of the Family Code could be applied retroactively to the cohabitation and acquisition of property occurring before its effectivity.
• Support versus Ejectment: Whether the claim for support for petitioner's alleged children barred the ejectment suit.

• Procedural Bias and Due Course: No. Petitioner never raised the alleged procedural defects before the CA and could not belatedly challenge the CA Decision on those technical grounds; she was considered estopped.
• MTC Jurisdiction: No. The MTC may pass upon ownership to settle possession in an ejectment case, although such determination is not final on the issue of ownership.
• Evidence on Appeal: No. The RTC did not err in considering the evidence because no new issue was raised; the co-ownership defense was invoked from the start, and respondents did not object to the evidence.
• Co-ownership: No. Under Article 148 of the Family Code, actual joint contribution of money, property, or industry must be proved; mere cohabitation and unsubstantiated administration do not establish co-ownership.
• Applicable Law: Article 148 of the Family Code, not Article 144 of the Civil Code. Article 144 applies only where the parties are not incapacitated to marry or their marriage is void from the beginning; Mario was validly married to Lourdes, and petitioner admitted concubinage.
• Retroactivity: Yes. Article 148 may be applied retroactively if it does not prejudice vested or acquired rights; petitioner showed no vested right.
• Support versus Ejectment: No. Ejectment is summary and deals solely with possession; the filiation and support issues were not properly raised below, and no extrajudicial demand for support was made as required by Article 298 of the Civil Code.

• Procedural Bias and Due Course: The CA dismissed petitioner's procedural objections as belated. The Supreme Court agreed: petitioner never raised these matters before the CA; she could not challenge the Decision on technicalities as an afterthought. She could not invoke Solar Team Entertainment, Inc. vs. Ricafort because she never raised the issue before the CA. The Court also noted the inconsistency in petitioner relying on procedural technicalities while asserting that the RTC could consider new evidence first presented on appeal. Thus, no bias or reversible error was shown.
• MTC Jurisdiction: The contention that the MTC lacked jurisdiction because the real issue was ownership was erroneous. Under Section 33 of B.P. 129 and Section 16, Rule 70 of the 1997 Revised Rules of Civil Procedure, the MTC may resolve the issue of ownership when raised as a defense in an ejectment case, but only to determine the issue of possession. Such determination is not final on ownership and may be the subject of another proceeding. Hence, the MTC properly took cognizance of the case.
• Evidence on Appeal: The CA erred in saying the RTC could not consider evidence presented before it. There were no new matters or issues belatedly raised on appeal; petitioner's defense from the start was co-ownership, and her allegation of cohabitation was a mere elaboration of that theory. Procedural rules are based on fair play; respondents never objected when the evidence was presented before the RTC, so they could not claim unfair surprise or prejudice.
• Co-ownership: Even considering all evidence, petitioner was not a co-owner. Article 144 of the Civil Code did not apply because it governs only a man and woman not incapacitated to marry each other or whose marriage is void from the beginning; it does not apply to cohabitation amounting to adultery or concubinage, as it would be absurd to create co-ownership where a prior conjugal partnership or absolute community exists. Mario was validly married to Lourdes, and petitioner admitted cohabiting with him in concubinage. Thus, Article 148 of the Family Code governed. Under Article 148, only properties acquired through actual joint contribution of money, property, or industry are owned in common in proportion to contributions; actual contribution must be proved, unlike Article 147 where care and maintenance of the family and household count. If actual contribution is not proved, there is no co-ownership and no presumption of equal shares. Petitioner presented no evidence of actual contribution to the purchase; her claim rested on cohabitation and unsubstantiated administration, and administration is not a contribution under Article 148. The property therefore belonged to the conjugal partnership of Mario and Lourdes. The MTC and CA correctly ordered ejectment.
• Applicable Law: Article 144 inapplicable; Article 148 applies. The Family Code filled the hiatus in Article 144 by expressly regulating property relations of couples in adultery or concubinage. Petitioner's argument that the Family Code could not apply because the cohabitation and acquisition occurred before its effectivity was rejected; Article 256 allows retroactive application if it does not prejudice vested or acquired rights, and petitioner showed no vested right. The Court had applied Article 148 retroactively in similar cases.
• Retroactivity: Article 256 of the Family Code permits retroactive application if it does not prejudice vested or acquired rights. Petitioner failed to show any vested right over the property. Moreover, the Court had applied Article 148 retroactively to resolve similar issues. Thus, the CA did not err in applying Article 148.
• Support versus Ejectment: The support claim did not bar ejectment. The action was an ejectment suit, summary in character, dealing solely with possession. Respondents showed a better right to possess; petitioner's right was based merely on tolerance. Mario's alleged failure to repudiate petitioner's claim of filiation was not relevant and was not properly taken up below. In any event, Article 298 of the Civil Code requires extrajudicial demand for support; none was made. The need for support cannot be presumed. Article 203 of the Family Code substantially reproduces Article 298. Thus, the CA correctly held that the support issue could not defeat the ejectment.

• Co-ownership under Article 148 of the Family Code — In cases of cohabitation not falling under Article 147, such as adultery or concubinage, only properties acquired by both parties through their actual joint contribution of money, property, or industry are owned in common in proportion to their respective contributions. Actual contribution must be proved; mere cohabitation, care, administration, or moral and spiritual inspiration does not suffice. If actual contribution is not proved, there is no co-ownership and no presumption of equal shares. The Court applied this doctrine to deny petitioner's claim because she failed to prove any actual contribution to the purchase of the disputed property.
• Inapplicability of Article 144 of the Civil Code to Adulterous or Concubinage Cohabitation — Article 144 of the Civil Code applies only to a relationship between a man and a woman who are not incapacitated to marry each other, or to one in which the marriage is void from the beginning. It does not apply to a cohabitation that amounts to adultery or concubinage, because it would be absurd to create a co-ownership where a prior conjugal partnership or absolute community exists between the man and his lawful wife. The Court applied this doctrine because Mario was validly married to Lourdes and petitioner admitted cohabiting with him in concubinage.
• Retroactive Application of Article 148 of the Family Code — The Family Code may be applied retroactively if it does not prejudice vested or acquired rights. The Court applied Article 148 retroactively because petitioner failed to show any vested right over the property, and prior jurisprudence had applied Article 148 retroactively to resolve similar issues.
• MTC Jurisdiction over Ejectment and the Defense of Ownership — In an ejectment case, the MTC may pass upon the issue of ownership when it is raised as a defense and the question of possession cannot be resolved without deciding ownership, but such determination is only for the purpose of resolving possession and is not final on the issue of ownership. The Court applied this doctrine to uphold the MTC's jurisdiction.
• Support Demandability and Ejectment — The obligation to give support is demandable from the time the person entitled to receive it needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand. An ejectment suit is summary in character and deals solely with possession; a claim for support cannot bar it. The Court applied this doctrine because no extrajudicial demand for support was made, and the filiation and support issues were not properly raised below.
• Evidence on Appeal and Fair Play — Issues not raised during trial generally cannot be considered for the first time on appeal, but this rule does not apply where no new issue is raised, the evidence merely elaborates on a defense invoked from the start, and the opposing party did not object to its presentation. Procedural rules are premised on fair play. The Court applied this doctrine to hold that the RTC did not err in considering petitioner's evidence on appeal.

• "Under Article 148 of the Family Code, a man and a woman who are not legally capacitated to marry each other, but who nonetheless live together conjugally, may be deemed co-owners of a property acquired during the cohabitation only upon proof that each made an actual contribution to its acquisition. Hence, mere cohabitation without proof of contribution will not result in a co-ownership." — This is the Court's opening statement of the controlling rule, framing the co-ownership issue and the necessity of proving actual contribution.
• "Under Article 148, only the properties acquired by both of the parties through their actual joint contribution of money, property or industry shall be owned by them in common in proportion to their respective contributions. It must be stressed that the actual contribution is required by this provision, in contrast to Article 147 which states that efforts in the care and maintenance of the family and household, are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry. If the actual contribution of the party is not proved, there will be no co-ownership and no presumption of equal shares." — Quoting Agapay vs. Palang, this passage states the requisites for co-ownership under Article 148 and the consequence of failure to prove actual contribution.
• "It should be emphasized that this is an ejectment suit whereby respondents seek to exercise their possessory right over their property. It is summary in character and deals solely with the issue of possession of the property in dispute." — This passage defines the limited scope of the ejectment action and explains why the support and filiation claims could not be resolved therein.
• "In any event, Article 298 of the Civil Code requires that there should be an extrajudicial demand. None was made here." — This passage states the demand requirement for support and the factual basis for rejecting petitioner's support-based defense to ejectment.

• Agapay vs. Palang, 276 SCRA 340 (July 28, 1997) — Controlling precedent on Article 148 of the Family Code; held that actual contribution is required, that care and maintenance of family and household are not included, and that absent proof of actual contribution there is no co-ownership and no presumption of equal shares. Also cited for retroactive application of Article 148.
• Solar Team Entertainment, Inc. vs. Ricafort, 293 SCRA 661 (August 5, 1998) — Cited by petitioner on service and filing requirements; the Court held petitioner could not invoke it because the issue was never raised before the CA.
• Juaniza vs. Jose, 89 SCRA 306 (March 30, 1979) — Cited for the rule that Article 144 of the Civil Code applies only to a relationship between a man and a woman who are not incapacitated to marry each other.
• Refugia vs. CA, 258 SCRA 347 (July 5, 1996) — Cited for the rule that the MTC may pass upon ownership in an ejectment case only to determine possession, and such determination is not final on ownership.
• Dizon vs. CA, 264 SCRA 391 (November 19, 1996) — Cited to the same effect on the MTC's limited ownership determination in ejectment.
• Solid Homes, Inc. vs. CA, 275 SCRA 267 (July 8, 1997) — Cited for the doctrine that issues not raised during trial cannot be considered for the first time on appeal; also cited in connection with matters not properly taken up below.
• Roman Catholic Archbishop of Manila vs. CA, 269 SCRA 145 (March 3, 1997) — Cited to the same effect on raising issues for the first time on appeal.
• Jocson vs. The Empire Insurance Company, 103 Phil. 580 (April 30, 1958) — Cited for the requirement of extrajudicial demand before support may be claimed.

• Article 148, Family Code — Governs property relations in cases of cohabitation not falling under Article 147. Only properties acquired through actual joint contribution of money, property, or industry are owned in common in proportion to contributions; if one party is validly married to another, his or her share accrues to the conjugal partnership or absolute community. Applied to deny petitioner's co-ownership claim because she proved no actual contribution.
• Article 147, Family Code — Provides that when a man and a woman are capacitated to marry each other and live exclusively as husband and wife without marriage or under a void marriage, their wages and salaries are owned in equal shares and property acquired through their work or industry is governed by co-ownership; efforts in care and maintenance of family and household count as contributions. Held inapplicable because Mario and petitioner were not capacitated to marry.
• Article 144, Civil Code — Governs property acquired by a man and a woman living together as husband and wife but not married, or whose marriage is void from the beginning, through their work or industry or wages and salaries under co-ownership rules. Held inapplicable to concubinage or adultery.
• Article 256, Family Code — Allows retroactive application of the Family Code if it does not prejudice vested or acquired rights. Applied to allow Article 148 to govern the parties' property relations despite the cohabitation and acquisition occurring before the Family Code's effectivity.
• Article 116, Family Code — Cited by the CA for the presumption that property acquired during the marriage belongs to the conjugal partnership in the absence of proof to the contrary. Applied to hold the disputed property belonged to the conjugal partnership of Mario and Lourdes.
• Article 298, Civil Code — Provides that the obligation to give support is demandable from the time the recipient needs it for maintenance but shall not be paid except from the date of judicial or extrajudicial demand. Applied to reject the support defense because no extrajudicial demand was made.
• Article 203, Family Code — Substantially reproduces Article 298 of the Civil Code on support demandability. Cited by the CA in rejecting the RTC's presumption of need for support.
• Section 33, B.P. 129 — Grants MTCs exclusive original jurisdiction over forcible entry and unlawful detainer cases; when ownership is raised and possession cannot be resolved without deciding ownership, the issue of ownership shall be resolved only to determine possession. Applied to uphold MTC jurisdiction.
• Section 16, Rule 70, 1997 Revised Rules of Civil Procedure — Provides that when defendant raises ownership in ejectment and possession cannot be resolved without deciding ownership, the ownership issue shall be resolved only to determine possession. Applied with B.P. 129.
• Section 11, Rule 13, Revised Rules of Court — Requires personal service and filing whenever practicable and a written explanation for resort to other modes; violation may cause the paper not to be filed. Invoked by petitioner but not applied because the objection was belated.
• Section 6, Rule 42, Rules of Court — Allows the CA to give due course to a petition if it finds prima facie that the lower court committed reversible error. Invoked by petitioner but not applied because the objection was belated.
• Section 9, Revised Rule on Summary Procedure — Required the parties in the MTC to submit affidavits and other evidence within ten days. Applied in the MTC proceedings.
• Section 6, Revised Rules on Summary Procedure — Provides that judgment may be rendered against defendants who fail to file a responsive pleading as warranted by the facts alleged in the complaint and limited to what is prayed for. Applied by the CA to Toto and Gina Tumlos.

Melo (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur. Vitug, J., was abroad on official business. No separate concurring opinions are summarized in the text.