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Republic of the Philippines

REGIONAL TRIAL COURT


9th Judicial Region
Branch 15
Zamboanga City
TINA W. DICAPRIO,
129908
Plaintif,

CIVIL CASE NO.

-versus- -forJUSTINE R. DICAPRIO


OF NULLITY
Defendant
SUPPORT

DECLARATION
OF MARRIAGE WITH

MOTION TO DISMISS
COME NOW, DEFENDANT, by counsel and unto this Honorable Court, most
respectfully move for the dismissal of the above-captioned case upon ground that
THIS HONORABLE COURT HAS NO JURISDICTION OVER THE PERSON OF THE
DEFENDANT.
DISCUSSION
SUMMONS WAS NOT SERVED UPON JUSTINE R. DICAPRIO AS MANDATED BY THE
RULES. HENCE, THIS HONORABLE COURT HAS NO JURISDICTION OVER ITS PERSON.
1. A.M. No. 02-11-10-SC is the applicable rule governing such actions,
Section 1 thereof provides:
Section 1. Scope - This Rule shall govern petitions for declaration of
absolute nullity of void marriages and annulment of voidable marriages
under the Family Code of the Philippines.

The Rules of Court shall apply suppletorily.


2. Section 6 of A.M. No. 02-11-10-SC provides:
Section 6. Summons. - The service of summons shall be governed by
Rule 14 of the Rules of Court and by the following rules:
Pursuant to Rule 14 of the Rules of Court, the rule gives primacy to the
manner of service by service in person on defendant(Section 6), but if the
defendant cannot be served in under Section 6 then by substituted

service(Section 7), and if it cannot be served in the manner under Sections


6 and 7, Section 6 of A.M. No. 02-11-10-SC further provides:
(1) Where the respondent cannot be located at his given address or
his whereabouts are unknown and cannot be ascertained by diligent
inquiry, service of summons may, by leave of court, be effected upon
him by publication once a week for two consecutive weeks in a
newspaper of general circulation in the Philippines and in such places
as the court may order In addition, a copy of the summons shall be
served on the respondent at his last known address by registered mail
or any other means the court may deem sufficient.
3. In the case at bar, there is no showing that summons was served on
defendant JUSTINE R. DICAPRIO either under the manner provided in
Sections 6 and 7 of the Rules of Court or that, at least, efforts were made to
serve the summons through publication pursuant to Section 6 of A.M. No.
02-11-10-SC upon said defendant .
4. Rule 14 of the 1997 Rules of Court and Section 6 of A.M. No. 02-1110-SC provides the different modes by which service of summons may be
made on a particular defendant. Such modes must be complied with because
the manner in which service of summons should be effected is jurisdictional
in character and its proper observance is what dictates the courts ability to
take cognizance of the litigation before it.
5. There being no service of summons upon defendant JUSTINE R. DICAPRIO
in accordance with the requirement of the rules, it follows that this Honorable
Court has not acquired jurisdiction over said defendants person.