SECOND DIVISION

[G.R. No. 116607. April 10, 1996]

EMILIO TUASON, petitioner, vs. COURT OF APPEALS and MARIA VICTORIA L.

TUASON, respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; RELIEF FROM JUDGMENT; ALLOWED ONLY IN
EXCEPTIONAL CASES WHERE THERE IS NO OTHER AVAILABLE OR ADEQUATE
REMEDY. - A petition for relief from judgment is an equitable remedy; it is allowed only in
exceptional cases where there is no other available or adequate remedy. When a party has
another remedy available to him, which may be either a motion for new trial or appeal from an
adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or
excusable negligence from filing such motion or taking such appeal, he cannot avail himself of
this petition. Indeed, relief will not be granted to a party who seeks avoidance from the effects
of the judgment when the loss of the remedy at law was due to his own negligence; otherwise
the petition for relief can be used to revive the right to appeal which have been lost thru
inexcusable negligence.
2. ID.; ID.; ID.; WHEN AVAILED MUST BE BASED ON THE GROUND OF FRAUD, ACCIDENT,
MISTAKE OR EXCUSABLE NEGLIGENCE AND THAT IT IS SHOWN THAT PETITIONER
HAS A GOOD, SUBSTANTIAL AND MERITORIOUS DEFENSE OR CAUSE OF ACTION.
- A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of
Court. A final and executory judgment or order of the Regional Trial Court may be set aside on
the ground of fraud, accident, mistake or excusable negligence. In addition, the petitioner must
assert facts showing that he has a good, substantial and meritorious defense or cause of
action. If the petition is granted, the court shall proceed to hear and determine the case as if a
timely motion for new trial had been granted therein.
3. ID.; ID.; ID.; NOTICES SENT TO COUNSEL OF RECORD, BINDING UPON THE
CLIENT. The failure of petitioners counsel to notify him on time of the adverse judgment to
enable him to appeal therefrom is negligence which is not excusable. Notice sent to counsel of
record is binding upon the client and the neglect or failure of counsel to inform him of an
adverse judgment resulting in the loss of this right to appeal is not a ground for setting aside a
judgment valid and regular on its face.
4. ID.; ID.; ID.; COUNSEL REQUIRED TO INFORM THE TRIAL COURT THE REASON FOR
HIS CLIENTS NON-APPEARANCE AT THE SCHEDULED HEARINGS. - Similarly
inexcusable was the failure of his former counsel to inform the trial court of petitioners
confinement and medical treatment as the reason for his non-appearance at the scheduled
hearings. Petitioner has not given any reason why his former counsel, intentionally or
unintentionally, did not inform the court of this fact. This led the trial court to order the case
deemed submitted for decision on the basis of the evidence presented by the private
respondent alone. To compound the negligence of petitioners counsel, the order of the trial
court was never assailed via a motion for reconsideration.
5. ID.; EVIDENCE; CREDIBILITY OF WITNESSES; FACTUAL FINDINGS OF THE TRIAL
COURT UPHELD ABSENT PROOF THAT THE WITNESSES TESTIMONIES ARE
CLEARLY AND MANIFESTLY ERRONEOUS. - Suffice it to state that the finding of the trial
court as to the existence or non-existence of petitioners psychological incapacity at the time of
the marriage is final and binding on us. Petitioner has not sufficiently shown that the trial
 courts factual findings and evaluation of the testimonies of private respondents witnesses vis-
a-vis petitioners defenses are clearly and manifestly erroneous.
6. CONSTITUTIONAL LAW; BILL OF RIGHTS; PROCEDURAL DUE PROCESS; NOT
VIOLATED IF PETITIONER WAS GIVEN OPPORTUNITY TO BE HEARD. - Petitioner
cannot now claim that he was deprived of due process. He may have lost his right to present
evidence but he was not denied his day in court. As the records show, petitioner, through
counsel, actively participated in the proceedings below. He filed his answer to the petition,
cross-examined private respondents witnesses and even submitted his opposition to private
respondents motion for dissolution of the conjugal partnership of gains.
7. CIVIL LAW; FAMILY CODE; ANNULMENT, DECLARATION OF NULLITY AND LEGAL
SEPARATION; PROSECUTING ATTORNEY OR FISCAL MAY BE ORDERED BY THE
COURT TO INTERVENE ON BEHALF OF THE STATE TO PREVENT COLLUSION
BETWEENce is not suppressed or fabricated. Petitioners vehement opposition to the
annulment proceedings negates the conclusion that collusion existed between the
parties. There is no allegation by the petitioner that evidence was suppressed or
fabricated by any of the parties. Under these circumstances, we are convinced that the
non-intervention of a prosecuting attorney to assure lack of collusion between the
contending parties is not fatal to the validity of the proceedings in the trial court.
APPEARANCES OF COUNSEL
Seguion Reyna, Montecillo & Ongsiako for petitioner.
Salonga, Hernandez & Allado for private respondent.

DECISION
PUNO, J.:

This petition for review on certiorari seeks to annul and set aside the decision dated
July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying petitioners appeal
from an order of the Regional Trial Court, Branch 149, Makati in Civil Case No. 3769.
This case arose from the following facts:
In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional Trial
Court, Branch 149, Makati a petition for annulment or declaration of nullity of her marriage
to petitioner Emilio R. Tuason. In her complaint, private respondent alleged that she and
petitioner were married on June 3, 1972 and from this union, begot two children; that at the
time of the marriage, petitioner was already psychologically incapacitated to comply with
his essential marital obligations which became manifest afterward and resulted in violent
fights between husband and wife; that in one of their fights, petitioner inflicted physical
injuries on private respondent which impelled her to file a criminal case for physical
injuries against him; that petitioner used prohibited drugs, was apprehended by the
authorities and sentenced to a one-year suspended penalty and has not been rehabilitated;
that petitioner was a womanizer, and in 1984, he left the conjugal home and cohabited with
three women in succession, one of whom he presented to the public as his wife; that after
he left the conjugal dwelling, petitioner gave minimal support to the family and even
refused to pay for the tuition fees of their children compelling private respondent to accept
donations and dole-outs from her family and friends; that petitioner likewise became a
spendthrift and abused his administration of the conjugal partnership by alienating some
of their assets and incurring large obligations with banks, credit card companies and other
financial institutions, without private respondents consent; that attempts at reconciliation
were made but they all failed because of petitioners refusal to reform. In addition to her
prayer for annulment of marriage, private respondent prayed for powers of administration
to save the conjugal properties from further dissipation. [1]
 Petitioner answered denying the imputations against him. As affirmative defense, he
claimed that he and private respondent were a normal married couple during the first ten
years of their marriage and actually begot two children during this period; that it was only
in 1982 that they began to have serious personal differences when his wife did not accord
the respect and dignity due him as a husband but treated him like a persona non grata; that
due to the extreme animosities between them, he temporarily left the conjugal home for a
cooling-off period in 1984; that it is private respondent who had been taking prohibited
drugs and had a serious affair with another man; that petitioners work as owner and
operator of a radio and television station exposed him to malicious gossip linking him to
various women in media and the entertainment world; and that since 1984, he experienced
financial reverses in his business and was compelled, with the knowledge of his wife, to
dispose of some of the conjugal shares in exclusive golf and country clubs. Petitioner
petitioned the court to allow him to return to the conjugal home and continue his
administration of the conjugal partnership.
After the issues were joined, trial commenced on March 30, 1990. Private respondent
presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law expert and
marriage counselor of both private respondent and petitioner; Ms. Adelita Prieto, a close
friend of the spouses, and Any. Jose F. Racela IV, private respondents counsel.Private
respondent likewise submitted documentary evidence consisting of newspaper articles of
her husbands relationship with other women, his apprehension by the authorities for illegal
possession of drugs; and copies of a prior church annulment decree.  The parties marriage
[2]

was clerically annulled by the Tribunal Metropolitanum Matrimoniale which was affirmed by
the National Appellate Matrimonial Tribunal in 1986.[3]

During presentation of private respondents evidence, petitioner, on April 18, 1990, filed
his Opposition to private respondents petition for appointment as administratrix of the
conjugal partnership of gains.
After private respondent rested her case, the trial court scheduled the reception of
petitioners evidence on May 11, 1990.
On May 8, 1990, two days before the scheduled hearing, a counsel for petitioner moved
for a postponement on the ground that the principal counsel was out of the country and
due to return on the first week of June.  The court granted the motion and reset the hearing
[4]

to June 8, 1990.
[5]

On June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the
court declared petitioner to have waived his right to present evidence and deemed the case
submitted for decision on the basis of the evidence presented.
On June 29, 1990, the trial court rendered judgment declaring the nullity of private
respondents marriage to petitioner and awarding custody of the children to private
respondent. The court ruled:

WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L.

Tuason and Emilio R. Tuason on June 3, 1972 is declared null and void oh initio on the
ground of psychological incapacity on the part of the defendant under Sec. 36 of the
Family Code. Let herein judgment of annulment be recorded in the registry of
Mandaluyong, Metro Manila where the marriage was contracted and in the registry of
Makati, Metro Manila where the marriage is annulled.

The custody of the two (2) legitimate children of the plaintiff and the defendant is
hereby awarded to the plaintiff.
The foregoing judgment is without prejudice to the application of the other effects of
annulment as provided for under Arts. 50 and 51 of the Family Code of the Philippines. [6]
 Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal
was taken from the decision.
On September 24, 1990, private respondent filed a Motion for Dissolution of Conjugal
Partnership of Gains and Adjudication to Plaintiff of the Conjugal Properties. Petitioner
[7]

opposed the motion on October 17, 1990 [8]

Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the
trial court a petition for relief from judgment of the June 29, 1990 decision.
The trial court denied the petition on August 8, 1991. [9]

Petitioner appealed before the Court of Appeals the order of the trial court denying his
petition for relief from judgment. On July 29, 1994, the Court of Appeals dismissed the
appeal and affirmed the order of the trial court. [10]

Hence this petition.

The threshold issue is whether a petition for relief from judgment is warranted under
the circumstances of the case.
We rule in the negative.
A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised
Rules of Court which provides:

Section 2. Petition to Court of First Instance for relief from judgment or other proceedings
thereof. - When a judgment or order is entered, or any other proceeding is taken, against a
party in a court of first instance through fraud, accident, mistake, or excusable negligence,
he may file a petition in such court and in the same cause praying that the judgment, order
or proceeding be set aside.

Under the rules, a final and executory judgment or order of the Regional Trial Court
may be set aside on the ground of fraud, accident, mistake or excusable negligence.  In
addition, the petitioner must assert facts showing that he has a good, substantial and
meritorious defense or cause of action.  If the petition is granted, the court shall proceed
[11]

to hear and determine the case as if a timely motion for new trial had been granted therein.
[12]

In the case at bar, the decision annulling petitioners marriage to private respondent had
already become final and executory when petitioner failed to appeal during the
reglementary period. Petitioner however claims that the decision of the trial court was null
and void for violation of his right to due process. He contends he was denied due process
when, after failing to appear on two scheduled hearings, the trial court deemed him to have
waived his right to present evidence and rendered judgment on the basis of the evidence
for private respondent. Petitioner justifies his absence at the hearings on the ground that
he was then confined for medical and/or rehabilitation reasons.  In his affidavit of merit
[13]

before the trial court, he attached a certification by Lt. Col. Plaridel F. Vidal, Director of the
Narcotics Command, Drug Rehabilitation Center which states that on March 27, 1990
petitioner was admitted for treatment of drug dependency at the Drug Rehabilitation Center
at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of the Philippine Constabulary-
Integrated National Police.  The records, however, show that the former counsel of
[14]

petitioner did not inform the trial court of this confinement. And when the court rendered
its decision, the same counsel was out of the country for which reason the decision
became final and executory as no appeal was taken therefrom. [15]

The failure of petitioners counsel to notify him on time of the adverse judgment to
enable him to appeal therefrom is negligence which is not excusable. Notice sent to
counsel of record is binding upon the client and the neglect or failure of counsel to inform
him of an adverse judgment resulting in the loss of his right to appeal is not a ground for
setting aside a judgment valid and regular on its face. [16]

Similarly inexcusable was the failure of his former counsel to inform the trial court of
petitioners confinement and medical treatment as the reason for his non-appearance at the
scheduled hearings. Petitioner has not given any reason why his former counsel,
intentionally or unintentionally, did not inform the court of this fact. This led the trial court
to order the case deemed submitted for decision on the basis of the evidence presented by
the private respondent alone. To compound the negligence of petitioners counsel, the
order of the trial court was never assailed via a motion for reconsideration.
Clearly, petitioner cannot now claim that he was deprived of due process. He may have
lost his right to present evidence but he was not denied his day in court.  As the records
show, petitioner, through counsel, actively participated in the proceedings below. He filed
his answer to the petition, cross-examined private respondents witnesses and even
submitted his opposition to private respondents motion for dissolution of the conjugal
partnership of gains. [17]

A petition for relief from judgment is an equitable remedy; it is allowed only in

exceptional cases where there is no other available or adequate remedy. When a party has
another remedy available to him, which may be either a motion for new trial or appeal from
an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake
or excusable negligence from filing such motion or taking such appeal, he cannot avail
himself of this petition.  Indeed, relief will not be granted to a party who seeks avoidance
[18]

from the effects of the judgment when the loss of the remedy at law was due to his own
negligence; otherwise the petition for relief can be used to revive the right to appeal which
had been lost thru inexcusable negligence. [19]

Petitioner also insists that he has a valid and meritorious defense. He cites the Family
Code which provides that in actions for annulment of marriage or legal separation, the
prosecuting officer should intervene for the state because the law looks with disfavor upon
the haphazard declaration of annulment of marriages by default. He contends that when he
failed to appear at the scheduled hearings, the trial court should have ordered the
prosecuting officer to intervene for the state and inquire as to the reason for his non-
appearance. [20]

Articles 48 and 60 of the Family Code read as follows:

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court
shall order the prosecution attorney or fiscal assigned to it to appear on behalf of the State
to take steps to prevent collusion between the parties and to take care that evidence is not
fabricated or suppressed.

In the cases referred to in the preceding paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment.

x x x x x x x x x

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. [21]

A grant of annulment of marriage or legal separation by default is fraught with the

danger of collusion.  Hence, in all cases for annulment, declaration of nullity of marriage
[22]
and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of
the state for the purpose of preventing any collusion between the parties and to take care
that their evidence is not fabricated or suppressed. If the defendant spouse fails to answer
the complaint, the court cannot declare him or her in default but instead, should order the
prosecuting attorney to determine if collusion exists between the parties.  The prosecuting
[23]

attorney or fiscal may oppose the application for legal separation or annulment through the
presentation of his own evidence, if in his opinion, the proof adduced is dubious and
fabricated.  Our Constitution is committed to the policy of strengthening the family as a
[24]

basic social institution.  Our family law is based on the policy that marriage is not a mere
[25]

contract, but a social institution in which the state is vitally interested. The state can find
no stronger anchor than on good, solid and happy families. The break up of families
weakens our social and moral fabric and, hence, their preservation is not the concern alone
of the family members.
The facts in the case at bar do not call for the strict application of Articles 48 and 60 of
the Family Code. For one, petitioner was not declared in default by the trial court for failure
to answer. Petitioner filed his answer to the complaint and contested the cause of action
alleged by private respondent. He actively participated in the proceedings below by filing
several pleadings and cross-examining the witnesses of private respondent. It is crystal
clear that every stage of the litigation was characterized by a no-holds barred contest and
not by collusion.
The role of the prosecuting attorney or fiscal in annulment of marriage and legal
separation proceedings is to determine whether collusion exists between the parties and to
take care that the evidence is not suppressed or fabricated. Petitioners vehement
opposition to the annulment proceedings negates the conclusion that collusion existed
between the parties. There is no allegation by the petitioner that evidence was suppressed
or fabricated by any of the parties. Under these circumstances, we are convinced that the
non-intervention of a prosecuting attorney to assure lack of collusion between the
contending parties is not fatal to the validity of the proceedings in the trial court.
Petitioner also refutes the testimonies of private respondents witnesses, particularly
Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and hearsay. Petitioner
alleges that if he were able to present his evidence, he could have testified that he was not
psychologically incapacitated at the time of the marriage as indicated by the fact that
during their first ten years, he and private respondent lived together with their children as
one normal and happy family, that he continued supporting his family even after he left the
conjugal dwelling and that his work as owner and operator of a radio and television
corporation places him in the public eye and makes him a good subject for malicious
gossip linking him with various women. These facts, according to petitioner, should
disprove the ground for annulment of his marriage to petitioner.
Suffice it to state that the finding of the trial court as to the existence or non-existence
of petitioners psychological incapacity at the time of the marriage is final and binding on
us.  Petitioner has not sufficiently shown that the trial courts factual findings and
[26]

evaluation of the testimonies of private respondents witnesses vis-a-vis petitioners

defenses are clearly and manifestly erroneous. [27]

IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of the
Court of Appeals in CA-G.R. CV No. 37925 is affirmed.
SO ORDERED.
Regalado (Chairman), Romero, and Mendoza, JJ., concur.
Torres, Jr., J., on leave.