LAPUZ, JESUS ROS

CASES:

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1.10 PROPERTY REGIME

DAVID A. NOVERAS, petitioner, vs. LETICIA T. NOVERAS, respondent.

G.R. No. 188289. August 20, 2014

Doctrine: Having established that Leticia and David had actually separated for at
least one year, the petition for judicial separation of absolute community of
property should be granted.

FACTS: David and Leticia are (former Filipino) US citizens who own properties in
the USA and in the Philippines. Leticia obtained a decree of divorce from the
Superior Court of California in June 2005 wherein the court awarded all the
properties in the USA to Leticia. With respect to their properties in the Philippines,
Leticia filed a petition for judicial separation of conjugal properties.

ISSUE: Whether facts in the case give ground to grant a decree of judicial separation
of property of the spouses.

HELD: YES. Having established that Leticia and David had actually separated for at
least one year, the petition for judicial separation of absolute community of
property should be granted.

RATIO:

1. As a general rule, any modification in the marriage settlements must be made

before the celebration of marriage. An exception to this rule is allowed provided
that the modification is judicially approved and refers only to the instances provided
in Articles 66,67, 128, 135 and 136 of the Family Code. Leticia anchored the filing of
the instant petition for judicial separation of property on paragraphs 4 and 6 of

Article 135 of the Family Code, to wit: Art. 135. Any of the following shall be
considered sufficient cause for judicial separation of property: (1) That the spouse
of the petitioner has been sentenced to a penalty which carries with it civil
interdiction; (2) That the spouse of the petitioner has been judicially declared an
absentee; (3) That loss of parental authority ofthe spouse of petitioner has been
decreed by the court; (4) That the spouse of the petitioner has abandoned the latter
or failed to comply with his or her obligations to the family as provided for in Article
101; (5) That the spouse granted the power of administration in the marriage
settlements has abused that power; and (6) That at the time of the petition, the
spouses have been separated in fact for at least one year and reconciliation is highly
improbable.

In the cases provided for in Numbers (1), (2), and (3), the presentation of the final
judgment against the guilty or absent spouse shall be enough basis for the grant of
the decree of judicial separation of property.

2. The trial court had categorically ruled that there was no abandonment in this case
to necessitate judicial separation of properties under paragraph 4 of Article 135 of
the Family Code. The trial court ratiocinated: Moreover, abandonment, under Article
101 of the Family Code quoted above, must be for a valid cause and the spouse is
deemed to have abandoned the other when he/she has left the conjugal dwelling
without intention of returning. The intention of not returning is prima facie
presumed if the allegedly abandoning spouse failed to give any information as to his
or her whereabouts within the period of three months from such abandonment.

3. In the instant case, the petitioner knows that the respondent has returned to and
stayed at his hometown in Maria Aurora, Philippines, as she even went several times
to visit him there after the alleged abandonment. Also, the respondent has been
going back to the USA to visit her and their children until the relations between
them worsened. The last visit of said respondent was in October 2004 when he and
the petitioner discussed the filing by the latter of a petition for dissolution of
marriage with the California court. Such turn for the worse of their relationship and
the filing of the saidpetition can also be considered as valid causes for the
respondent to stay in the Philippines. Separation in fact for one year as a ground
to grant a judicial separation of property was not tackled in the trial courts
decision because, the trial court erroneously treated the petition as
liquidation of the absolute community of properties.

4. The records of this case are replete with evidence that Leticia and David had
indeed separated for more than a year and that reconciliation is highly
improbable. First, while actual abandonment had not been proven, it is undisputed
that the spouses had been living separately since 2003 when David decided to go
back to the Philippines to set up his own business. Second, Leticia heard from her
friends that David has been cohabiting with Estrellita Martinez, who represented
herself as Estrellita Noveras. Editha Apolonio, who worked in the hospital where
David was once confined, testified that she saw the name of Estrellita listed as the
wife of David in the Consent for Operation form. Third and more significantly, they
had filed for divorce and it was granted by the California court in June 2005.

5. Having established that Leticia and David had actually separated for at least
one year, the petition for judicial separation of absolute community of
property should be granted. The grant of the judicial separation of the absolute
community property automatically dissolves the absolute community regime, as
stated in the 4th paragraph of Article 99 ofthe Family Code, thus: Art. 99. The
absolute community terminates: (1) Upon the death of either spouse; (2) When
there is a decree of legal separation; (3) When the marriage is annulled or declared
void; or (4) In case of judicial separation of property during the marriage under
Articles 134 to 138.

6. Under Article 102 of the same Code, liquidation follows the dissolution of the
absolute community regime and the following procedure should apply:

Art. 102. Upon dissolution of the absolute community regime, the following
procedure shall apply:
(1) An inventory shall be prepared, listing separately all the properties of the
absolute community and the exclusive properties of each spouse.
(2) The debts and obligations of the absolute community shall be paid out of
its assets. In case of insufficiency of said assets, the spouses shall be solidarily
liable for the unpaid balance with their separate properties in accordance
with the provisions of the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the spouses shall
thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute community shall
constitute its net assets, which shall be divided equally between husband and
wife, unless a different proportion or division was agreed upon in the
marriage settlements, or unless there has been a voluntary waiver of such
share provided in this Code. For purposes of computing the net profits
subject to forfeiture in accordance with Articles 43, No. (2) and 63, No.
(2),the said profits shall be the increase in value between the market value of
the community property at the time of the celebration of the marriage and
the market value at the time of its dissolution.
(5) The presumptive legitimes of the common children shall be delivered
upon partition, in accordance with Article 51.
(6) Unless otherwise agreed upon by the parties, in the partition of the
properties, the conjugal dwelling and the lot on which it is situated shall be
adjudicated tothe spouse with whom the majority of the common children
choose to remain. Children below the age of seven years are deemed to have
chosen the mother, unless the court has decided otherwise. In case there is
no such majority, the court shall decide, taking into consideration the best
interests of said children. At the risk of being repetitious, we will not remand
the case to the trial court. Instead, we shall adopt the modifications made by
the Court of Appeals on the trial courts Decision with respect to liquidation.

Philippine courts did not acquire jurisdiction over the California properties of David
and Leticia. Indeed, Article 16 of the Civil Code clearly states that real property as
well as personal property is subject to the law of the country where it is situated.
Thus, liquidation shall only be limited to the Philippine properties.
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7. PARENTAL AUTHORITY

Infant JULIAN YUSAY CARAM, represented by his mother, MA. CHRISTINA

YUSAY CARAM, petitioner, vs. Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN,
VILMA B. CABRERA, and CELIA YANGCO, respondents

G.R. No. 193652. August 5, 2014

Doctrine: Since what is involved is the issue of child custody and the exercise of
parental rights over a child, who, for all intents and purposes, has been legally
considered a ward of the State, the Amparo rule cannot be properly applied.

FACTS:
Petitioner Christina had an amorous relationship with Marcelino and
eventually became pregnant with the latters child without the benefit of marriage.
After getting pregnant, Christina misled Marcelino into believing that she had an
abortion when in fact she proceeded to complete the term of her pregnancy. During
this time, she intended to have the child adopted through Sun and Moon Home for
Children in Paraaque City.
On July 26, 2009, Christina gave birth to Baby Julian at Amang Rodriguez
Memorial Medical Center, Marikina City. Sun and Moon shouldered all the hospital
and medical expenses. On August 13, 2009, Christina voluntarily surrendered Baby
Julian by way of a Deed of Voluntary Commitment to the DSWD.
On November 27, 2009, the DSWD, a certificate was issued declaring Baby
Julian as Legally Available for Adoption. On February 5, 2010, Baby Julian was
matched with Spouses Medina and supervised trial custody was then commenced.
On May 5, 2010, Christina who had changed her mind about the adoption,
wrote a letter to the DSWD asking for the suspension of Baby Julians adoption
proceedings. She also said she wanted her family back together.
On May 28, 2010, the DSWD, through respondent Atty. Segui, sent a
Memorandum to DSWD Assistant Secretary Cabrera informing her that the
certificate declaring Baby Julian legally available for adoption had attained finality
on November 13, 2009, or three months after Christina signed the Deed of
Voluntary Commitment which terminated her parental authority and effectively
made Baby Julian a ward of the State.
On July 27, 2010, Christina filed a petition for the issuance of a writ of
amparo before the RTC seeking to obtain custody of Baby Julian from DSWD.

ISSUE:
Whether or not a petition for a writ of amparo is the proper recourse for
obtaining parental authority and custody of a minor child.

HELD:
 The Court held that the availment of the remedy of writ of amparo is not
proper as there was no enforced disappearance in this case.
As to what constitutes enforced disappearance, the Court in Navia v.
Pardico enumerated the elements constituting enforced disappearances as the
term is statutorily defined in Section 3(g) of R.A. No. 9851 to wit:

1 That there be an arrest, detention, abduction or any form of deprivation of liberty;

2 That it be carried out by, or with the authorization, support or acquiescence of,
the State or a political organization;
3 That it be followed by the State or political organizations refusal to acknowledge
or give information on the fate or whereabouts of the person subject of the
amparo petition; and,
4 That the intention for such refusal is to remove subject person from the
protection of the law for a prolonged period of time.

The Court held that there was no enforced disappearance because the
respondent DSWD officers never concealed Baby Julians whereabouts. In fact,
Christina obtained a copy of the DSWDs Memorandum explicitly stating that Baby
Julian was in the custody of the Medina Spouses when she filed her petition before
the RTC. Besides, she even admitted in her petition that the respondent DSWD
officers presented Baby Julian before the RTC during the hearing. There is therefore,
no enforced disappearance as used in the context of the Amparo rule as the third
and fourth elements are missing.
Christinas directly accusing the respondents of forcibly separating her from
her child and placing the latter up for adoption, supposedly without complying with
the necessary legal requisites to qualify the child for adoption, clearly indicates that
she is not searching for a lost child but asserting her parental authority over the
child and contesting custody over him.
Since it is extant from the pleadings filed that what is involved is the issue of
child custody and the exercise of parental rights over a child, who, for all intents and
purposes, has been legally considered a ward of the State, the Amparo rule cannot
be properly applied.

PERSONS 2008 BAR QUESTIONS

Capacity: Juridical Capacity (2008)

No. II. At age 18, Marian found out that she was pregnant. She insured her own
life and named her unborn child as her sole beneficiary. When she was already
due to give birth, she and her boyfriend Pietro, the
father of her unboarn child, were kidnapped in a resort in Bataan where they
were vacationing. The military gave chase and after one week, they were found
in an abandoned hut in Cavite. Marian and Pietro were hacked with bolos.
Marian and the baby delivered were both found dead, with the baby's umbilical
cord already cut. Pietro survived.
(A). Can Marian's baby be the beneficiary of the insurance taken on the life of the
mother? (2%)

SUGGESTED ANSWER:

Yes, the baby can be the beneficiary of the life insurance of Marian. Art. 40 NCC
provides that "birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided that it be born
later with the conditions specified in Art. 41. Article 41 states that "for civil
purposes, the fetus shall be considered born if it is alive at the time it is
completely delivered from the mother's womb. However, if the fetus had an intra-
uterine life of less than seven months, it is not deemed born if it dies within
twenty-four (24) hours after its complete delivery from the maternal womb. The
act of naming the unborn child as sole beneficiary in the insurance is favorable to
the conceived child and therefore the fetus acquires presumptive
or provisional personality. However, said presumptive personality only becomes
conclusive if the child is born alive. The child need not survive for twenty-four
(24) hours as required under Art. 41 of the Code because "Marian was already
due to give birth," indicating that the child was more than seven months old.

Correction of Entries; Clerical Error Act (2008)

No. IV. Gianna was born to Andy and Aimee, who at the time Gianna's birth were
not married to each other. While Andy was single at the time, Aimee was still in
the process of securing a judicial declaration of nullity on her marriage to her ex-
husband.
Gianna's birth certificate, which was signed by both Andy and Aimee, registered
the status of Gianna as "legitimate", her surname carrying that of Andy's and that
her parents were married to each other.

(A). Can a judicial action for correction of entries in Gianna's birth certificate be
successfully maintained to:

a). Change her status from "legitimate" to "illegitimate" (1%);

the Rules of Court because said changes are substantive corrections.

and

b). Change her surname from that of Andy's to Aimee's maiden surname? (1%)

SUGGESTED ANSWER:

Yes, a judicial action for correction of entries in Gianna's birth certificate can be
successfully maintained to change (a) her status from "legitimate" to
"illegitimate," and (b) her surname from that of Andy's to Aimee's maiden
surname in accordance with Rule 108 of the Rules of Court because said
changes are substantive corrections.

(B). Instead of a judicial action, can administrative proceedings be brought for the
purpose of making the above corrections? (2%)

SUGGESTED ANSWER:

No. An administrative proceeding cannot be brought for the purpose of making

the above corrections. R.A. 9048, otherwise known as the Clerical Error Act,
which authorizes the city or municipal civil registrar or the consul general to
correct a clerical or typographical error in an entry and/or change the first name
or nickname in the civil register without need of a judicial order. Errors that
involve the change of nationality, age, status, surname or sex of petitioner are
not included from the coverage of the said Act (Silverio v. Republic, G.R. No.
174689, 22 Oct., 2007).