G.R. No. 148510 ; July 21, 2004
Alberto Lopez a.k.a. Cesar A. Lopez, petitioner, vs. Hon. Court of Appeals, Hon. Benjamin Antonio, Presiding Judge of RTC, Branch 170, Malabon, Metro Manila and Cherry Pie Lopez, respondents.

FACTS

The Regional Trial Court of Malabon rendered a decision on June 15, 2000, declaring the nullity of the marriage between Cherry Pie Lopez and Alberto Lopez. This decision became final and executory. Alberto Lopez, however, filed a motion for reconsideration concerning the support aspect of the decision, which was denied. He subsequently filed a Notice of Appeal and paid only P60.00 in docket fees to the RTC, failing to pay the full required amount of P520.00.
The Court of Appeals dismissed his appeal via a Resolution dated March 19, 2001, due to this failure to pay the full docket fees. Petitioner filed a Motion for Reconsideration of this dismissal, but the appellate court denied it by Resolution dated April 26, 2001. The court cited that the motion lacked a mandatory affidavit or proof of service and did not state the material dates to determine its timeliness. Petitioner then filed a second Motion for Reconsideration, which was denied by Resolution dated June 8, 2001, as a second motion for reconsideration is generally prohibited.

ISSUE

Whether the Court of Appeals committed grave abuse of discretion in dismissing the petitioner’s appeal and in denying his motions for reconsideration.

RULING

The Supreme Court dismissed the petition. The Court first noted a fatal procedural error: the petitioner assailed final resolutions of the Court of Appeals via a petition for certiorari under Rule 65. The proper remedy was a petition for review on certiorari under Rule 45. On this ground alone, the petition was dismissible.
Even if the Court were to overlook this procedural lapse and treat the petition under Rule 65, it was still filed out of time. The petitioner’s first Motion for Reconsideration of the March 19, 2001 Resolution was defective for lacking the required affidavit or proof of service and for not stating material dates. Consequently, under established jurisprudence, this motion was considered a mere scrap of paper that did not toll the running of the reglementary period to file the petition. The 60-day period to file a Rule 65 petition, counted from notice of the March 19 Resolution, had therefore lapsed by the time the petition was filed on July 4, 2001.
The Court concluded by noting that the dismissal of the petition did not leave the petitioner without recourse regarding the support award. Since a judgment for support is always subject to modification based on changed circumstances, he could file a motion for modification directly with the trial court.