petition for memorandum

7/27/2019 Petition for Memorandum

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Republic of the Philippines

SUPREME COURT

Manila City

SAM JULIAN represented byTESSIE JULIAN,

Plaintiff

-versus- CIVIL CASE NO. L144234

For : Support with support pendente-lite

REY GUZMAN

Respondent

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MEMORANDUM

COME NOW PLAINTIFF, through the undersigned counsel, unto this Honorable Supreme

Court most respectfully submit and present this Memorandum in the above-titled case and aver

that:

THE PARTIES

1. Plaintiff Sam Dela Cruz as represented by Tessie Dela Cruz, of legal age, Filipino,

residing at 1234 Balik Balik Street, Baguio City, where she may be served with legal

processes and notices issued by this Honorable Court;

2. Defendants Abe Dela Cruz and Rey Guzman, both of legal ages,, Filipinos, resident of

Baguio City and Nueva Ecija, respectively and may be served with legal processes

and judicial notices thereto.

FACTUAL BACKGROUND

Two years ago, Abe (a lawyer) and Tessie (a nurse) were introduced to each other by a

mutual friend. Tessie was a single parent with a two-year old son named Sam. She was a nurse

at the Baguio General Hospital. Abe and Tessie were married last year .

Prior to their marriage, Tessie and Abe owned separate homes. Before the wedding

ceremony, Tessie sold her home and kept the proceeds of the sale in a separate bank account.


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Tessie and Sam moved into Abes home. After they moved in, she and Abe remodeled Abes

house. The remodeling efforts increased the value of the home by P500, 000.00

Immediately after the marriage, Abe, with Tessies consent filed a petition to adopt Sam.

Sams birth certificate identified Rey as the Father. When Sam was a baby, Rey denied paternity

and left the Philippines and his whereabouts were unknown to Tessie, The court granted theadoption. Once the adoption was complete, Tessie quit her job to become a housewife at Abes

insistence.

Abe recently decided that he no longer wanted to be married. Abe told Tessie to leave,

but that he wanted custody of his adopted son, Sam. Tessie, however, took Sam and moved in

with her mother, Tessie applied for a position at BGH where she worked prior to her marriage

to Abe, but all the positions were taken. The hospital promised to let her know if a position

becomes available. In the meantime, Tessie stayed home to take care of Sam.

Abe soon filed for declaration of nullity of marriage under Article 36 of the Family Code.

Abe seeks half of the proceeds from the sale of Tessies home. Abe requests that he be allowed

to keep his home worth approximately P1.5 million, including the increase in the value after

remodeling. Abe also requests that he be allowed to keep the following property: The proceeds

of a joint savings account totaling P100, 000 and some stocks he acquired prior to the marriage.

Abe also seeks sole custody of Sam.

Shortly after the filing of Abes petition, Rey returned. He has informed Tessie that he

never should have left. With Tessies consent, a paternity test is performed that establishes that

Sam is indeed Reys son. Rey argues that the adoption was not valid and he intends to assert his

paternity rights.

THE ISSUES

(1)

How will be the properties be distributed?

(2) Is the adoption of Sam by Abe valid?

(3)Who should be granted the custody of Sam?

(4)Does Tessie have a claim for Child support from Abe or Rey or Both?

CONCLUSION

(1) There will be no properties to be distributed since the marriage of Tessie and Abe is not yet

annulled, their ties as a lawful wedded couple still binds them. In order that their properties will

be distributed, the court must grant Abes petitionin order that dissolution of properties will

prosper. But in case the Annulment of Tessie to Abe is granted by the court, the scenario will


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not be the same there will be a distribution of property. Since there is no marriage settlement

and the annulment case is on the basis of Article 36 the distribution of property will be on

Absolute Community.

Article 36 states that : A marriage contracted by any party who, at the time of the

celebration, was psychologically incapacitated to comply with the essential marital

obligations of marriage, shall likewise be void even if such incapacity becomes manifest

only after its solemnization.

Tessie and Abe do not have any marriage settlement in the case stated above. The Absolute

Community will govern the distribution of property upon newly wedded couples who doesnt

have marriage settlement. Thus, married couples who dont have any marriage settlement will

be governed by Article 75. Article 75 of the Family Code stated as follows:

Art. 75.The future spouses may, in the marriage settlements, agree upon the regime of

absolute community, conjugal partnership of gains, complete separation of property, or

any other regime. In the absence of a marriage settlement, or when the regime agreed

upon is void, the system of absolute community

This is one of the regimes or systems of property relations between the spouses and the default

system in the absence of a prenuptial agreement or when the agreed system is null and void.

This system commences at the precise moment that the marriage is celebrated, and any

stipulation for the commencement of the community regime at any other time is void.

In a nutshell, the husband and the wife are considered as co-owners of all properties they bring

into the marriage (those that they owned before the marriage), as well as the properties

acquired during the marriage, except for certain properties express excluded by law (listed

below). The rule on co-ownership applies in all matters not provided under the Family Code.

(Retrieved from: JIP law by Atty. Fred)

(2) The adoption of Sam by Abe is invalid.

RA 8552 does provide that an unwed mother can adopt her own child to raise the childs status

to that of a legitimate child. But the biological fathers consent is necessary. The issue of

consent most often arises when the mother gets married and her husband wants to adopt her

child. In this situation, courts require that the prospective adopter present the notarized

affidavit of consent of the biological father.

Under Section 9 (b) of RA 8552 states that the written consent of the biological parent(s) is

necessary in order that such adoption would be valid. And Under Section 7(ii) of RA 8552, that


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it should be the LEGITIMATE son/daughter of his/her Filipino spouse to be adopted and not the

ILLEGITIMATE son/daughter.

(3) The custody of Sam will be granted depending on her age. If Sam is below 7 years of age,

then she will be automatically in the custody of her mother except upon compelling

circumstances. The general rule is that a child under seven years of age shall not be separated

from his mother, which is based on the basic need of a child for his mothers loving care. Article

213 of the Family Code provides that child under seven years of age shall be separated from

the mother, unless the court finds compelling reasons to order otherwise. This is more

pronounced in case of illegitimate children, as the law expressly provides that illegitimate

children shall be under the parental authority of their mother.

Compelling circumstances such as: Instances of unsuitability are neglect, abandonment,

unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the

child, insanity, and affliction with a communicable illness. Negligent and careless failure toperform the duties of parenthood is a significant element of abandonment, regardless of actual

intention. A strong basis for a finding of the parents abandonment of his or her child is found in

the case where the parent has left the child permanently or indefinitely in the care of others,

given it to another, or surrendered it entirely.

(5) Does Tessie have a claim for Child support from Abe or Rey or Both? None.

Sam has the right to get such support to his biological father Rey. Since the adoption of Abe to

Sam is invalid, therefore Sam cant ask for support to Abe.

Under Article 194 of the Family Code, Support comprises everything indispensable for

sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping

with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph

shall include his schooling or training for some profession, trade or vocation, even beyond the

age of majority. Transportation shall include expenses in going to and from school, or to and

from place of work. (290a)

Tessie as the mother of Sam can represent her daughter to file a petition of support in an open

court in order to get support from her father Rey. Tessie and Rey are not legally married,therefore only their daughter Sam has the capacity to ask for support from her biological

father.

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