G.R. No. 132592 & 133628; January 23, 2002
AIDA P. BAÑEZ, petitioner, vs. GABRIEL B. BAÑEZ, respondent.

FACTS

The Regional Trial Court (RTC) decreed the legal separation of spouses Aida and Gabriel Bañez, ordered the dissolution and division of their conjugal assets, and forfeited Gabriel’s share in favor of the children. Post-judgment, Aida filed an urgent ex-parte motion to modify the decision, which the RTC granted, approving a 5% attorney’s fee for her counsel chargeable against Gabriel’s share and authorizing an advance payment of ₱100,000. Aida also filed a motion for execution pending appeal, which the RTC granted, ordering Gabriel to vacate a house and surrender a vehicle. Gabriel filed a Notice of Appeal and a petition for certiorari with the Court of Appeals (CA) challenging the RTC’s post-judgment orders.
The CA set aside the RTC’s orders authorizing the ₱100,000 advance attorney’s fees and the execution pending appeal. Meanwhile, the main case records were elevated to the CA upon Gabriel’s ordinary appeal. Aida moved to dismiss this appeal, arguing Gabriel failed to file a Record on Appeal. The CA denied her motion, holding a Record on Appeal was unnecessary. Aida elevated both the certiorari decision and the denial of her motion to dismiss the appeal to the Supreme Court via these consolidated petitions.

ISSUE

The primary issues are: (1) Whether the CA correctly annulled the RTC’s orders for advance payment of attorney’s fees and execution pending appeal; and (2) Whether the CA correctly denied Aida’s motion to dismiss Gabriel’s ordinary appeal for lack of a Record on Appeal.

RULING

The Supreme Court denied the petitions and affirmed the CA. On the first issue, the RTC’s orders were correctly annulled. The award of attorney’s fees as a percentage of the conjugal assets was improper because the conjugal partnership had already been dissolved by the legal separation decree. At that point, the assets were held in co-ownership pending final partition; thus, fees could not be charged against a specific, unliquidated share. The execution pending appeal was also improper for lacking good reasons, as the RTC’s justification was vague and the bond required was insufficient to cover potential damages.
On the second issue, the CA correctly ruled that a Record on Appeal was not required for Gabriel’s ordinary appeal. Under Section 2(a), Rule 41 of the 1997 Rules of Civil Procedure, a Record on Appeal is necessary only in special proceedings and other cases of multiple or separate appeals. An ordinary appeal from a judgment in a civil action for legal separation does not fall under these exceptions. Therefore, Gabriel’s filing of a Notice of Appeal within the reglementary period was sufficient to perfect his appeal, and the CA was correct in not dismissing it.