288

SUPREMECOURTREPORTSANNOTATED
MercadoFehr vs. Fehr
*

G.R.No.152716.October23,2003.

ELNA MERCADOFEHR, petitioner, vs. BRUNO FEHR,

respondent.
Remedial Law; Certiorari; A petition for certiorari is the proper
remedy when any tribunal, board or officer exercising judicial or
quasijudicial functions has acted without or in excess of its
jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction and there is no appeal, nor any plain speedy,
and adequate remedy at law; Definition of Grave Abuse of
Discretion.Apetitionforcertiorariistheproperremedywhenany
tribunal, board or officer exercising judicial or quasijudicial
functions has acted without or in excess of its jurisdiction, or with
graveabuseofdiscretionamountingtolackorexcessofjurisdiction
andthereisnoappeal,noranyplainspeedy,andadequateremedy
at law. Grave abuse of discretion is defined as the capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction.Asageneral rule,apetitionforcertiorariwillnotlieif
anappealistheproperremedysuchaswhenanerrorofjudgment
or procedure is involved. As long as a court acts within its
jurisdictionanddoesnotgravelyabuseitsdiscretionintheexercise
thereof,anysupposederrorcommittedbyitwillamounttonothing
morethananerrorofjudgmentreviewablebyatimelyappealand
not assailable by a special civil action of certiorari. However, in
certain exceptional cases, where the rigid application of such rule
will result in a manifest failure or miscarriage of justice, the
provisions of the Rules of Court which are technical rules may be
relaxed.Certiorarihasbeendeemedtobejustified,forinstance,in
order to prevent irreparable damage and injury to a party where
the trial judge has capriciously and whimsically exercised his
judgment,orwheretheremaybedangerofclearfailureofjustice,
orwhereanordinaryappealwouldsimplybeinadequatetorelieve
apartyfromtheinjuriouseffectsofthejudgmentcomplainedof.
Same; Same; Where a rigid application of the rule that
certiorari cannot be a substitute for appeal will result in a manifest
failure or miscarriage of justice, the provisions of the Rules of Court
which are technical rules may be relaxed.Theissueonthevalidity
of the marriage of petitioner and respondent has long been settled
in the main Decision and may no longer be the subject of review.
There were, however, incidental matters that had to be addressed
regardingthedissolutionofthepropertyrelationsofthepartiesasa
resultofthedeclarationofnullityoftheirmarriage.Thequestioned
Order pertained to the division and distribution of the common
propertiesofpetitionerandrespondent,pursuanttothe
_______________

* THIRDDIVISION.

289

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MercadoFehr vs. Fehr

courts directive in its main decision to dissolve the conjugal
partnership.SaidOrderisafinalOrderasitfinallydisposesofthe
issues concerning the partition of the common properties of
petitioner and respondent, and as such it may be appealed by the
aggrieved party to the Court of Appeals via ordinary appeal.
However,consideringthemeritsofthecase,theCourtbelievesthat
a blind adherence to the general rule will result in miscarriage of
justice as it will divest the petitioner of her just share in their
common property, and thus, deprive her of a significant source of
income to support their children whom the court had entrusted to
her care. We have held that where a rigid application of the rule
that certiorari cannot be a substitute for appeal will result in a
manifestfailureormiscarriageofjustice,theprovisionsoftheRules
ofCourtwhicharetechnicalrulesmayberelaxed.
Civil Law; Family Code; Elements for Article 147 to
Operate.For Article 147 to operate, the man and the woman: (1)
must be capacitated to marry each other; (2) live exclusively with
eachotherashusbandandwife;and(3)theirunioniswithoutthe
benefitofmarriageortheirmarriageisvoid.Alltheseelementsare
presentinthecaseatbar.

PETITIONforreviewoncertiorariofadecisionoftheCourt
ofAppeals.
ThefactsarestatedintheopinionoftheCourt.
Delos Angeles, Aguirre, Olaguer & Sto. Domingo for
petitioner.
Ramel A. Aguinaldoforrespondent.
PUNO,J.:
Thiscasearosefromapetitionfordeclarationofnullityof
marriage on the ground of psychological incapacity to
complywiththeessentialmaritalobligationsunderArticle
36 of the Family Code filed by petitioner Elna Mercado
Fehr against respondent Bruno Fehr
before the Regional
1
TrialCourtofMakatiinMarch1997.
After due proceedings, the trial court declared the
marriagebetweenpetitionerandrespondentvoidab initio
under Article 36 of the Family Code and ordered the
dissolutionoftheirconjugal
_______________
1DocketedasCivilCaseNo.97573,OriginalRecords,pp.110.

290

290

SUPREMECOURTREPORTSANNOTATED
MercadoFehr vs. Fehr
2

partnership of property. The dispositive portion of the

DecisiondatedJanuary30,1998states:
WHEREFORE,inthelightoftheforegoing,themarriagebetween
Elna D. Mercado and Bruno F. Fehr on March 14, 1985 is hereby
declarednullandvoidonthegroundofpsychologicalincapacityon
the part of respondent to perform the essential obligations of
marriageunderArticle36oftheFamilyCode.
Accordingly, the conjugal partnership of property existing
between the parties is dissolved and in lieu thereof, a regime of
complete separation of property between the said spouses is
established in accordance with the pertinent provisions of the
FamilyCode,withoutprejudicetotherightspreviouslyacquiredby
creditors.
Custody over the two minor children, MICHAEL BRUNO
MERCADO FEHR and PATRICK FRANZ FEHR, is hereby
awardedtopetitioner,shebeingtheinnocentspouse.
Let a copy of this Decision be duly recorded in the proper civil
and property registries in accordance with Article 52 of the Family
Code.
3
SOORDERED.

On August 24, 1999, the trial

court issued an Order
4
resolvingthevariousmotions filedbyrespondentafterthe
case had been decided. The Order pertained to the
propertiesheldbytheparties,thus:
xxxxxxxxx
Afteracarefulscrutinyoftheinventoryofpropertiessubmitted
by both parties, the Court finds the following properties to be
excludedfromtheconjugalproperties,namely:
a) theBacolodpropertycoveredbyTransferCertificateofTitle
No. T137232, considering that the same is owned by
petitioners parents, Herminio Mercado and Catalina D.
Mercadoxxxand
b) Suite 204 of the LCG Condominium covered by
Condominium Certificate of Title No. 14735, considering
thatthesamewaspurchasedon
_______________
2

Decision dated January 30, 1998 penned by Judge Josefina Guevara

Salonga,OriginalRecords,pp.138144.
3Id.,pp.143144.
4

Respondent filed the following motions: (1) Motion for Approval of

Inventory of Property of the Petitioner and Respondent; (2) Motion for

Distribution of Rental Income; and (3) Motion to Deposit Rentals in Court,
whichwereallopposedbypetitioner.

291

VOL.414,OCTOBER23,2003

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MercadoFehr vs. Fehr

installment basis by respondent with his exclusive funds

prior to his marriage, as evidenced by a Contract to Sell

datedJuly26,1983.xxx
Accordingly, the conjugal properties of the petitioner and
respondentshallbedistributedinthefollowingmanner:
TOPETITIONERELNAMERCADO:
a. Ground Floor, LCG Condominium, with an area of 671.84
sq. m., covered by Condominium Certificate of Title No.
14734;and
b. TamarawFX(1995model)
TORESPONDENTBRUNOFRANZFEHR:
a. Upper Basement, LCG Condominium, with an area of
180.81 sq. m. and covered by Condominium Certificate of
TitleNo.14733;and
b. NissanSentrawithPlateNo.FDJ533(1994model)
Furthermore, Suite 204, LCG Condominium with an area of
113.54 sq. m. and covered by Condominium Certificate of Title No.
14735 is hereby declared the EXCLUSIVE PROPERTY of
respondent, BRUNO FRANZ FEHR. Accordingly, petitioner is
hereby directed to transfer ownership of Suite 204 in the name of
respondent,coveredbyCondominiumCertificateofTitleNo.14735,
being respondents exclusive property, acquired prior to his
marriage.
AnentthemonthlyrentalspriortotheissuanceofthisOrderof
the subject properties, namely the Ground Floor Front (Fridays
Club),GroundFloorRearApartmentandUpperBasementatLGC
Condominium, all leased by Bar 4 Corporation, the same shall be
sharedbythepartiesincommon,inproportiontoonehalfeachor
share and share alike, after deducting all expenses for Income
Taxes, Business Permits, Realty Taxes, Municipal License fees,
clearances, etc. Accordingly, petitioner is hereby directed to deliver
to respondent the following: a) the balance of his share of the
monthlyrentalsfromFebruary1998toMay1998;andb)hisone
half share (1/2) of the monthly rentals of the aforesaid properties
from June 1998 up to this date. Thereafter, the parties shall own
andenjoytheirrespectiveshareofthemonthlyrentalsderivedfrom
thepropertiesadjudicatedtothemasstatedabove.
The Petitioner and Respondent are further enjoined to jointly
support their minor children, Michael and Patrick Fehr, for their
5
education,uniforms,foodandmedicalexpenses.

Petitioner filed a motion for reconsideration of said Order

with respect to the adjudication of Suite 204, LCG
Condominium and the support of the children. Petitioner
allegedthatSuite204was
_______________
5OriginalRecords,pp.325326.

292

292

SUPREMECOURTREPORTSANNOTATED
MercadoFehr vs. Fehr

purchasedoninstallmentbasisatthetimewhenpetitioner
and respondent were living exclusively with each other as
husbandandwifewithoutthebenefitofmarriage,hencethe
rules on coownership should apply in accordance with
Article 147 of the Family Code. Petitioner further claimed
that it would not be in the best interests of the children if
shewouldbemadetodemandperiodicallyfromrespondent
his share in the support of the children. She instead
proposedthattheUpperBasementandtheLowerGround
Floor of the LCG Condominium be adjudicated to her so
that she could use the income from
the lease of said
6
premisesforthesupportofthechildren.
Resolving said motion, the trial court held in an Order
dated October 5, 2000 that since the marriage between
petitioner and respondent was declared void ab initio, the
rules on coownership should apply in the liquidation and
partitionofthepropertiestheyownincommonpursuantto
Article 147 of the Family Code. The court, however, noted
that the parties have already agreed in principle to divide
the properties and/or proceeds from the sale thereof
proportionately among them and their children as follows:
1/3forpetitioner,1/3forrespondentand1/3forthechildren.
It also affirmed its previous ruling that Suite 204 of LCG
Condominium was acquired prior to the couples
7
cohabitationandthereforepertainedsolelytorespondent.
OnNovember28,2000,petitionerfiledanoticeofappeal8
questioning the October 5, 2000 Order of the trial court.
9
RespondentfiledanOppositiontotheNoticeofAppeal. On
10
January12,2001,petitionerwithdrewthenoticeofappeal
andinsteadfiledonthefollowingdayaspecialcivilaction
for certiorari and prohibition with the Court of Appeals,
questioningthefindingsofthetrialcourtinitsOrderdated
11
October5,2000.
The Court of Appeals, in its Decision dated October 26,
2001,dismissedthepetitionforcertiorariforlackofmerit.
The appellate court stated that petitioner has not shown
anyreasontowarranttheissuanceofawritofcertiorarias
theerrorssheraisedwere
_______________
6Id.,atpp.381387.
7Id.,atpp.576577.
8Id.,atpp.578.
9Id.,atpp.581584.
10Id.,atp.608.
11CARollo,pp.214.

293

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293

MercadoFehr vs. Fehr

mereerrorsofjudgmentwhichwerethepropersubjectofan
12
ordinaryappeal,notapetitionforcertiorari.
Petitioner filed a motion for reconsideration of13 said
Decision,whichwasalsodeniedbytheappellatecourt.
Hence this petition. Petitioner raises the following

arguments:
1) Petitionercorrectlyfiledapetitionforcertiorariand
prohibition against the Regional Trial Court of
Makati,Branch149intheCourtofAppealsinview
of the fact that the questioned orders were issued
withgraveabuseofdiscretionamountingtoexcess
oforlackofjurisdiction.
2) The Court of Appeals erred in ruling that the
questionedorderswereerrorsofjudgmentandnotof
14
jurisdiction.
We shall first address the procedural issue, whether the
CourtofAppealserredindismissingthespecialcivilaction
forcertiorarifiledbypetitioner.
Petitioner argues that the filing of a petition for
certiorariwiththeCourtofAppealswasproperbecausethe
trial court committed grave abuse of discretion in the
issuanceofitsOrderdatedOctober5,2000,andtherewere
no other speedy and adequate remedies available. She
asserts that the trial court committed grave abuse of
discretion when it held that Suite 204 of the LCG
Condominium was the exclusive property of respondent,
although it was established that they lived together as
husband and wife beginning March 1983, before the
execution of the Contract to Sell on July 26, 1983.
Furthermore, the trial courts ruling dividing their
properties into three, instead of two as provided under
Article147oftheFamilyCode,orfour,asallegedlyagreed
bythepartiesduringaconferencewiththetrialcourtjudge
15
onMay3,2000,alsoconstitutedgraveabuseofdiscretion.
Respondent,ontheotherhand,contendsthatpetitioner
maynolongeravailofanyremedy,whetheranappealora
petitionforcertiorari,asshehadlostalltherighttoappeal
fromthetimetheDecisionofJanuary30,1998becamefinal
and executory. He argues that the Order of the trial court
datedOctober5,2000isnolongerassailablebecauseitwas
merelyissuedtoexecutethefinal
_______________
12Id.,atpp.124129.
13Id.,atp.153.
14Petition,Rollo,pp.1920.
15Id.,atpp.1427.

294

294

SUPREMECOURTREPORTSANNOTATED
MercadoFehr vs. Fehr

and executory Decision of January 30, 1998. He also

submitsthatthedivisionofthepropertiesintothreeandthe
distribution of 1/3 share each to the petitioner, the
respondent, and their children was proper, in accordance
with Articles 50, 51, 147 and 148 of the Family Code
mandating the delivery of the presumptive legitime of the
common children upon dissolution of the property regime.

RespondentfurtherclaimsSuite204ofLCGCondominium
tobehisexclusivepropertyasitwasacquiredonJuly26,
16
1983,priortotheirmarriageonMarch14,1985.
A petition for certiorari is the proper remedy when any
tribunal,boardorofficerexercisingjudicialorquasijudicial
functionshasactedwithoutorinexcessofitsjurisdiction,or
withgraveabuseofdiscretionamountingtolackorexcessof
jurisdiction and there is no appeal, nor any plain speedy,
and adequate remedy at law. Grave abuse of discretion is
defined as the capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. As a
general rule,apetitionforcertiorariwillnotlieifanappeal
istheproperremedysuchaswhenanerrorofjudgmentor
procedure is involved. As long as a court acts within its
jurisdictionanddoesnotgravelyabuseitsdiscretioninthe
exercise thereof, any supposed error committed by it will
amount to nothing more than an error of judgment
reviewable by a timely appeal and not assailable by a
special civil action of certiorari. However, in certain
exceptional cases, where the rigid application of such rule
willresultinamanifestfailureormiscarriageofjustice,the
provisions of the Rules of Court which are technical rules
mayberelaxed.Certiorarihasbeendeemedtobejustified,
for instance, in order to prevent irreparable damage and
injurytoapartywherethetrialjudgehascapriciouslyand
whimsicallyexercisedhisjudgment,orwheretheremaybe
danger of clear failure of justice, or where an ordinary
appealwouldsimplybeinadequatetorelieveapartyfrom
17
theinjuriouseffectsofthejudgmentcomplainedof.
The exception applies to the case at bar. We reject
respondents submission that all the appellate remedies of
petitioner have been foreclosed when the Decision dated
January 30, 1998 became final and executory. What is
beingquestionedinthispetitionisnotthe
_______________
16Comment,Rollo,pp.147158.
17Estate

of Salud Jimenez vs. Philippine Export Processing Zone, 349

SCRA240(2001).
295

VOL.414,OCTOBER23,2003

295

MercadoFehr vs. Fehr

January 30, 1998 Decision of the trial court declaring the
marriagebetweenpetitionerandrespondentvoidab initio
onthegroundofpsychologicalincapacity,buttheOrderof
the trial court dated October 5, 2000 dividing the common
properties of petitioner and respondent into three1/3 to
petitioner, 1/3 to respondent and 1/3 to their children, and
affirming its previous ruling that Suite 204 of LCG
Condominiumistheexclusivepropertyofrespondent.The
issue on the validity of the marriage of petitioner and
respondenthaslongbeensettledinthemainDecisionand
may no longer be the subject of review. There were,
however, incidental matters that had to be addressed

regarding the dissolution of the property relations of the

parties as a result of the declaration of nullity of their
marriage. The questioned Order pertained to the division
anddistributionofthecommonpropertiesofpetitionerand
respondent, pursuant to the courts directive in its main
decisiontodissolvetheconjugalpartnership.SaidOrderisa
finalOrderasitfinallydisposesoftheissuesconcerningthe
partition of the common properties of petitioner and
respondent, and as such it may be appealed by the
aggrievedpartytotheCourtofAppealsviaordinaryappeal.
However, considering the merits of the case, the Court
believes that a blind adherence to the general rule will
resultinmiscarriageofjusticeasitwilldivestthepetitioner
of her just share in their common property, and thus,
depriveherofasignificantsourceofincometosupporttheir
childrenwhomthecourthadentrustedtohercare.Wehave
heldthatwherearigidapplicationoftherulethatcertiorari
cannot be a substitute for appeal will result in a manifest
failureormiscarriageofjustice,theprovisionsoftheRules
18
ofCourtwhicharetechnicalrulesmayberelaxed.
We now go to the substantive issues. The crux of the
petitionistheownershipofSuite204ofLCGCondominium
and how the properties acquired by petitioner and
respondentshouldbepartitioned.
Itappearsfromthefacts,asfoundbythetrialcourt,that
in March 1983, after two years of longdistance courtship,
petitionerleftCebuCityandmovedinwithrespondentin
thelattersresidenceinMetroManila.Theirrelationsbore
fruitandtheirfirstchild,MichaelBrunoFehr,wasbornon
December3,1983.The
_______________
18BF

Corporation vs. Court of Appeals,288SCRA267(1998);Seealso

Caraan vs. Court of Appeals,289SCRA579(1998).

296

296

SUPREMECOURTREPORTSANNOTATED
MercadoFehr vs. Fehr

couple got married on March 14, 1985. In the meantime,

they purchased on installment a condominium unit, Suite
204, at LCG Condominium, as evidenced by a Contract to
Sell dated July 26, 1983 executed by respondent as the
buyer and J.V. Santos Commercial Corporation as the
seller.Petitioneralsosignedthecontractaswitness,using
the name Elna Mercado Fehr. Upon completion of
payment, the title to the
condominium unit was issued in
19
thenameofpetitioner.
In light of these facts, we give more credence to
petitionerssubmissionthatSuite204wasacquiredduring
thepartiescohabitation.Accordingly,underArticle147of
the Family Code, said property should be governed by the
rulesoncoownership.TheFamilyCodeprovides:
Article 147. When a man and a woman who are capacitated to
marry each other, live exclusively with each other as husband and

wife without the benefit of marriage or under a void marriage, their

wages and salaries shall be owned by them in equal shares and the
property acquired by both of them through their work or industry
shall be governed by the rules on coownership.
In the absence of proof to the contrary, properties acquired while
they lived together shall be presumed to have been obtained by their
joint efforts, work or industry, and shall be owned by them in equal
shares. For purposes of this Article, a party who did not participate
in the acquisition by the other party of any property shall be deemed
to have contributed jointly to the acquisition thereof if the formers
efforts consisted in the care and maintenance of their family and of
the household.
Neitherpartycanencumberordisposebyactsinter vivos of his
or her share in the property acquired during cohabitation and
ownedincommon,withouttheconsentoftheother,untilafterthe
terminationoftheircohabitation.
Whenonlyoneofthepartiestoavoidmarriageisingoodfaith,
the share of the party in bad faith in the coownership shall be
forfeitedinfavoroftheircommonchildren.Incaseofdefaultofor
waiver by any or all of the common children or their descendants,
each vacant share shall belong to the respective surviving
descendants.(emphasis supplied)

Article 147 applies to unions of parties who are legally

capacitated and not barred by any impediment to contract
marriage,but
_______________
19SeeDecision,CivilCaseNo.97573,pp.14.

297

VOL.414,OCTOBER23,2003

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MercadoFehr vs. Fehr

20

whosemarriageisnonethelessvoid, asinthecaseatbar.
This provision creates a coownership with respect to the
propertiestheyacquireduringtheircohabitation.
We held 21
in Valdes vs. Regional Trial Court, Br. 102,
Quezon City:
This peculiar kind of coownership applies when a man and a
woman, suffering no legal impediment to marry each other, so
exclusively live together as husband and wife under a void
marriageorwithoutthebenefitofmarriage.Thetermcapacitated
intheprovision(inthefirstparagraphofthelaw)referstothelegal
capacityofapartytocontractmarriage,i.e.,anymaleorfemaleof
the age of eighteen years or upwards not under any of the
impedimentsmentionedinArticles37and38oftheCode.
Under this property regime, property acquired by both spouses
throughtheirworkandindustryshallbegovernedbytheruleson
equal coownership. Any property acquired during the union is
prima facie presumed to have been obtained through their joint
efforts. A party who did not participate in the acquisition of the
property shall still be considered as having contributed thereto
jointlyifsaidpartyseffortsconsistedinthecareandmaintenance
ofthefamilyhousehold.

Thus,forArticle147tooperate,themanandthewoman:(1)
mustbecapacitatedtomarryeachother;(2)liveexclusively
witheachotherashusbandandwife;and(3)theirunionis
withoutthebenefitofmarriageortheirmarriageisvoid.All
these elements are present in the case at bar. It has not
been shown that petitioner and respondent suffered any
impediment to marry each other. They lived exclusively
witheachotherashusbandandwifewhenpetitionermoved
inwithrespondentinhisresidenceandwerelaterunitedin
marriage. Their marriage, however, was found to be void
underArticle36oftheFamilyCodebecauseofrespondents
psychological incapacity to comply with essential marital
obligations.
Thedisputedproperty,Suite204ofLCGCondominium,
waspurchasedoninstallmentbasisonJuly26,1983,atthe
time when petitioner and respondent were already living
together. Hence, it should be considered as common
propertyofpetitionerandrespondent.
_______________
20Cario

vs. Cario,351SCRA127(2001).

21260SCRA221(1996).

298

298

SUPREMECOURTREPORTSANNOTATED
MercadoFehr vs. Fehr

As regards the settlement of the common properties of

petitioner and respondent, we hold that the Civil Code
provisions on coownership should apply. There is nothing
in the records that support the pronouncement of the trial
court that the parties have agreed to divide the properties
intothree1/3shareeachtothepetitioner,therespondent
andtheirchildren.Petitioner,infact,allegesinherpetition
beforethisCourtthatthepartieshaveagreedonafourway
division of the properties1/4 share each to the petitioner
and the respondent, and 1/4 share each to their two
children. Moreover, respondents argument that the three
waypartitionisinaccordancewithArticles50and51ofthe
Family Code does not hold water as said provisions relate
only to voidable marriages and exceptionally to void
marriages under Article 40 of the Family Code, i.e., the
declaration of nullity of a subsequent marriage contracted
by a spouse of a prior22void marriage before the latter is
judiciallydeclaredvoid.
Insum,weruleinfavorofthepetitioner.Weholdthat
Suite 204 of LCG Condominium is a common property of
petitioner and respondent and the property regime of the
partiesshouldbedividedinaccordancewiththelawonco
ownership.
IN VIEW WHEREOF, the petition is GRANTED. The
caseisherebyREMANDEDtotheRegionalTrialCourtof
Makati, Branch 149 for liquidation of the properties of
petitioner and respondent in accordance with this Courts
ruling.
SOORDERED.

 Panganiban, SandovalGutierrez and Corona, JJ.,

concur.
CarpioMorales, J.,Nopart.
Petition granted, case remanded to trial court.
Note.Before certiorari could lie, all the remedies
available in the trial court should have first been
exhausted. (Colarina vs. Court of Appeals, 303 SCRA 647
[1999])
o0o
_______________
22Valdes

vs. Regional Trial Court, Br. 102, Quezon City,supra.

299

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