Republic of the Philippines REGIONAL TRIAL COURT BRANCH 911 Quezon City

KARENINA B. LAGO, Plaintiff, -versusCIVIL CASE NO. 911

DARIUS J. SANTOS, Respondent. x-------------------------------------------------------------------------x MEMORANDUM

COME NOW PLAINTIFF, through the undersigned counsel, unto this Honorable Court most respectfully submit and present this Memorandum in the above-titled case and aver that:

THE PARTIES 1. Plaintiff, Karenina B. Lago, Filipino, of legal age, residing at 1234 Mapayapa Street, Sampaloc Manila, where she may be served with legal processes and notices issued by this Honorable Court; 2. Defendant, Darius J. Santos, Filipino, of legal age, residing at 1864 J. Vargas Street, Quezon City, and may be served with legal processes and other judicial notices thereto.

I.

FACTUAL BACKGROUND

1. The plaintiff, while his ex-husbands petition for annulment was still pending, had a relationship with the respondent who had two previous marriages. Respondent Santos first marriage from 1988 to 1992 soured and his wife, Carol Exconde filed an annulment case which was dismissed due to disinterest. Thereafter, she filed for divorce upon migrating in between 2004 to 2005 to California where she subsequently got married to an American. In his first marriage, Santos has three children. Santos then lived with Milette Torres from 1998 to 2002 wherein they contracted marriage on in 2001. 2. The plaintiff already had started their affair with the respondent even during the latters cohabitation with Torres. Santos claimed that he eventually left Torres which the plaintiff discovered to be false. Due to plaintiffs attempt to terminate their relationship, the respondent promised to leave Torres for good. Then they stayed in Darius condominium in Quezon City just about the time the plaintiff was establishing her practice. The two have three children: in 2003, Cora in 2004, and Carlo in 2009. 3. The plaintiff and the respondent pooled all their funds. The plaintiff did most of the accounting and diligently allotted for all bills. From 2002 to 2006, she did not make much money as an accountant but she gave to their family everything she earned. Nonetheless, she was making more already from 2006 as she started her accounting firm wherein she gave everything to their pooled funds. 4. During their cohabitation, respondent Santos acquired a lot in Alabang Hills in 2003 although he claimed that he placed the plaintiff as co-owner. Nevertheless, the plaintiff alleged that she never signed anything. He also got Toyota Innova and in 2006 a motorcycle where there are no proofs of plaintiffs participation in the payments. They were also able to acquire many home appliances which are in Santos name. Santos used his credit cards for large purchases so he had all proofs of payments. Last year, both bought a Ford Escape upon payment of Php 120,000 for downpayment, half of which came from the pooled funds while the other half from the sale of Darius old Lancer car. The car loan was from BPI, and new car was placed in the plaintiffs name. The plaintiff owns 100 shares of stock in San Miguel Corporation but the respondent took her attach case where all the important documents were stored and refused to return the same. 5. Respondent Santos was a very controlling, dominant, and verbally abusive mate. The verbal abuses would come in the form of curses and demeaning remarks. He had a temper problem also. The plaintiff basically followed everything that the respondent would say. During their cohabitation, the plaintiff suffered three (3) counts of physical violence, from which she sustained bruises and wounds. Worse, their children witnessed the violent incidents. Santos former wife, Exconde even alleged that she suffered a lot of physical assaults from him.

6. Three (3) months ago, they got into a nasty fight. Santos then said that he was going to leave the house and would find another place to stay but due to insufficient funds to rent a new dwelling, he lingered in their house. During those weeks that he spent in the house, things got more complicated. He got himself an armalite in good condition which scared the plaintiff because he sometimes brandished it in front of her. Before he finally left in August, horrible confrontations ensued as they tried to settles issues about bills and Santos time with the kids at his new place. The respondent told the plaintiff about his plans to stay away indefinitely and probably find women to have affairs with. He said a lot of hurtful things about the separation. He hit the plaintiff twice before finally storming out of the house. 7. Darius is openly talking to people about thier separation and is declaring himself single and available. He told the plaintiff that he could not give the latter anything for the children. He took the plaintiffs laptop, their 32-inch Bravia flat screen television and their Canon EOS camera. He also threatened to get the new car, insisting that the plaintiff could not have bought it without his help. 8. The plaintiff is filing this appropriate action against Darius J. Santos to protect her rights before the courts of law.

II. A) B) C) D)

ISSUES OF THE CASE

What property regime governs the respondent and the plaintiff? Who owns the subject properties? Whether the respondent may be compelled to support their children. Whether the plaintiff may sue the respondent for damages.

III.

ARGUMENTS

A) The Property Regime of Unions Without Marriage set forth by Article 148 by the Family Code governs the property relation between the plaintiff and the respondent as both of them are incapacitated to marry each other. B) Most of the subject properties are owned by the plaintiff. C) The respondent may be compelled to support their children. D) The plaintiff may sue the respondent for damages.

IV.

DISCUSSION

A) Article 148 of the Family Code applies to cohabitation not falling under Article 147 which governs property relations of couples who are not capacitated to marry each other, live exclusively with each other as husband and wife without benefit of marriage. 1 The plaintiff and the respondent are both incapacitated to marry each other. The plaintiff is still presumed to be validly married to her ex-husband since there is no final judgment declaring such the absolute nullity of their marriage. This is in line with the mandatory provision of Article 40 of the Family Code stating that for purposes of remarriage The absolute nullity of a previous marriage may be invokedon the basis solely of a final judgment declaring such previous marriage void. The incapacity to marry is also suffered by the respondent. Although respondents wife, Carol Exconde migrated to United States, filed a petition for divorce and presumed to have obtained the same since she was allowed to marry an American citizen, Article 26 of the Family Code states Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. Clearly, when Exconde is presumed to have obtained divorce as may be implied from her marriage with an American, there is no proof that at the time of the acquisition of such divorce, Exconde had already become a foreigner whose national law grants her a decree of divorce. Consequently, the respondent and Exconde are still in a valid marriage which then incapacitates the former to marry the plaintiff. B) Article 148 of the Family Code states only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. As ruled in Rivera v. Heirs of Romualdo Villanueva2, In such relationship, no co-ownership exists between the parties. It is necessary for each of the partners to prove his or her actual contribution to the acquisition of property in order to be able to lay claim to any portion of it. If there is a proof contrary to actual joint contributions, the contributions and the corresponding shares of the plaintiff and the respondent are not equal. As stated, the plaintiff did most of the accounting and diligently allotted for all bills especially that from 2006 she was already earning a lot as she started her accounting firm. With this, the plaintiff has more right to the ownership of Ford Escape since she had shares of the
1 2

FAMILY CODE, Art. 147. Rivera v. Heirs of Romualdo Villanueva, July 21, 2006, 496 SCRA 135.

pooled funds paying half of the downpayment, did diligently allotted for the bills of installments and that the car is registered under her name especially as to the BPI loan. Respondents proof of contribution is only a share such pooled funds and the payment of half of the downpayment. Thus, the installment payments made by the plaintiff have most of the percentage of the payment. As to the home appliances including the 38-inch Bravia television, the plaintiff has also more right to ownership. As held in Borromeo v. Descallar3, It is settled that registration is not a mode of acquiring ownership.It is only a means of confirming the fact of its existence with notice to the world at large. Certificates of title are not a source of right. The mere possession of a title does not make one the true owner of the property. Thus, the mere fact that respondent has the titles of the disputed properties in her name does not necessarily, conclusively and absolutely make her the owner. As stated, the respondent used his credit cards for large purchases so he had all proofs of payments. Nevertheless, the payment of the debt arising from the use of such credit cards was diligently made by the plaintiff. Hence, the real payment of such appliances is from the plaintiffs pocket. This is supported by the fact that since 2006, the plaintiff has been making more money due to her accounting firm. Thus, the same case of Borromeo v. Descallar4 has ruled that ownership belongs to the one who made the actual payment. As ruled in Mallilin v. Castillo (G.R. No. 136803, June 16, 2000), under the said article, Property solely acquired by funds of any of the parties belongs to such party. It is conceded that the condominium, Toyota Innova and the motorcycle belong to the respondent since there are no proofs of payment contributed by the plaintiff. On the other hand, the laptop and the 100 shares of stocks in San Miguel Corporation solely belong to the plaintiff since there are no proofs of respondents participation or payment in the acquisition of such properties. C) As stated, the respondent told the plaintiff that he could not give anything for the children and that he planned to stay away indefinitely and probably find women to have affairs with. These abhorrent gestures cannot be allowed for the respondent is obligated to support their children although the latter are illegitimate since Children conceived and born outside a valid marriage are illegitimate 5 The Family Code states:
Article 195the following are obliged to support each other to the whole extent set forth in the preceding article: (4)Parents and their illegitimate children and the legitimate and illegitimate children of the latter; Article 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.
3 4

Borromeo v. Descallar, G.R. No. 159310, February 24, 2009. Ibid. 5 FAMILY CODE, Art. 165.

Basing from the foregoing, the respondent is left with no choice but to be compelled in supporting his children with the plaintiff. D) R.A. 9262 otherwise known as "Anti-Violence Against Women and Their Children Act of 2004" punishes a man who shall inflict physical harm and emotional suffering due to intimidation and repeated verbal abuse to a woman with whom he has a common child. This violation had been clearly made by the respondent. As stated, the respondent was a very controlling and verbally abusive mate to the plaintiff. The plaintiff even suffered three (3) counts of physical violence from the respondent where the former sustained bruises and wounds. And even before finally leaving their conjugal dwelling, he hit the plaintiff twice. It can even be presumed that their common children may be suffering from emotional stress for witnessing such violent incidents. By being so, the respondent further violates said Act. Article 20 of the Civil Code states that Every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the damage. As ruled in Albenson Enterprises Corp. v. Court of Appeals 6, under such article, an act which causes injury to another may be made the basis for an award of damages. With the respondents violation of the law due to the physical injuries and emotional suffering sustained by the plaintiff, the respondent is liable to indemnify the plaintiff, without prejudice to the proper criminal charges that may be instituted.

PRAYER

WHEREFORE, premise considered, it respectfully prayed for that this Honorable Court to: declare the Plaintiff to be the rightful owner of the subject properties claimed herein; order the Respondent to return the properties so declared to be owned by the Plaintiff; order the Respondent to give support to their children a monthly allowance of Php 15,000.00 each and payment of education expenses; and order the Respondent to indemnify the Plaintiff for damages of Php 100,000.00 and payment of Attorneys fees. Other just and equitable relief under the foregoing are likewise being prayed for. Respectfully submitted. Quezon City for Quezon City, Philippines. April 18, 2012.

217 SCRA 16

OMAR-RAZDAWIE S. SAHIBBIL Counsel for Plaintiff Sahibbil Law Office, 701 7th Floor, Philippine Bank of Commerce Tower Ayala Avenue, Makati City

By: ATTY. BENIGNO SIMEON CORONA IBP Lifetime No. 00170; 5/10/2005 PTR No. 55481; 1/10/2011 Roll of Attorney No. 2007-001023 MCLE Compliance No. III 000811 Copy Furnished: ATTY. GLORIA AQUINO Counsel for Petitioner 456 Time Street Quezon City