[LEE, CHRISTIAN GERARD G.

]
[gerardlee21@yahoo.com]

MEMORANDUM

Re: Support, Exclusive Properties and Payments.

Date: October 15, 2015

I. Facts

Butch Cruz is the father of the 7-month-old child of Kim Rosa. Butch left Kim
three months ago and she wants to demand the return of certain items from
her apartment, namely: electric fan, mini refrigerator and her brother’s pair
of slippers. Kim is asking butch a sum of twenty one thousand pesos for her
apartment rental fee that has accumulated for three months. Also, Butch is
trying to recover the pearl earrings that he gave Kim during their anniversary
that cost twelve thousand pesos. After her separation to Mr. Butch Cruz, Kim
found out that he was already married. Kim also stated that she and Mr. Cruz
bought a car worth nine hundred thousand pesos while the two of them are
still living together. Both of them have no agreement as to who will pay and
owns the car but nevertheless equally paid down payment and shared with
the monthly amortizations depending on how much money the two of them
could spare. The car is already fully paid and is currently in Kim’s possession.

II. Issues

A. Is Mr. Butch liable to provide support for Kim’s 7-month-old child? Can
Ms. Rosa demand seven thousand pesos for support plus half of the
expenses from childbirth from Mr. Butch Cruz?

B. Can Ms. Rosa demand the return of her exclusive property from Mr.
Butch?

C. Can Ms. Rosa claim for half of the payment for 3 months of rent Mr.
Butch Cruz agreed to pay?

D. Can Mr. Butch Cruz regain possession of the twelve thousand peso
earrings he gave Ms. Rosa?

E. Can Ms. Rosa be entitled to claim ownership of the car which is

registered under Mr. Butch Cruz name?
 F. Can Mr. Butch Cruz file a counter charge on Ms. Rosa?

II. Resolution and Discussion

A. Yes, Mr. Butch Cruz is liable for the support of Ms. Kim Rosa’s child. Since it was
already established in the facts that he is the child’s father, he must provide for
the sustenance of the child that Ms. Rosa is bearing because it is already entitled
for support under “The Child and Youth Welfare Code”, or Presidential Decree
No. 603. Which provides that every parent has the duty for the child of support.
But what Ms. Kim Rosa needs to know is that upon the birth of her child, it
would be already regarded as illegitimate since according to Article 165 of the
civil code, children conceived and born outside a valid marriage are considered
illegitimate, unless otherwise provided. 1 Even so, this does not prejudice her or
her conceived child because under the law on support, the parents are obliged
to render support to their children and their grand children whether legitimately
or illegitimately related to their legitimate children, vice versa 2 provided by
Article 195. Mr. Butch Cruz has the mandatory obligation to give the support to
his child with Ms. Kim Rosa. What Ms. Rosa can’t do is to specify an amount of
compensation, since the amount on support shall be in proportion to the
resources or means of the giver and to the necessities of the recipient. 3

More over, applying the case of Quimiguing v. Icao 34 SCRA 132, although the
child is yet to be born, the law grants him already a civil personalty for all the
purpose favorable to it, provided in Article 40 of the Civil Code of the
Philippines.4 The child mentioned has a right to support from its parents.
Therefore, Ms. Rosa can demand support from Mr. Butch Cruz for the child that
she is bearing.

B. Yes, Ms. Rosa can demand for the return of the items, namely: Electric Fan and
Mini Refrigerator provided that she can prove that it was not acquired through
joint efforts with Mr. Butch Cruz during the subsistence of their cohabitation.
She should be able to prove that she exclusively used her own fund in acquiring
such property. 5 Article 148 provides that property acquired by either of the
parties exclusively by his or her own fund belongs to such party provided that
there is a proof that he or she acquired it by exclusive funds. 6 It shall also be
noted that her action to demand the return of such items must be brought
within 5 years from the time the right action accrues 7 as stated under Article
1149 of the Civil Code of the Philippines. As for the slippers borrowed by Mr.
Cruz, It must be taken into account that Ms. Rosa do not have any legal standing

16
THE REVISED RULES ON CRIMINAL PROCEDURE, rule.110.
 CASTILLO LAMAN TAN PANTALEON & SAN JOSE LAW OFFICES MEMORANDUM

to demand the return of the item since her brother is the owner and is the only
one given the legal standing to initiate the return of such item.

C. Yes, Ms. Rosa can demand the twenty one thousand pesos rental payment
according to Art. 1318 which states that there is a contract so long as the three
requisites are complied with, namely: (1) Consent of the contracting parties, (2)
Object certain which is the subject matter of the contract and (3) Cause of the
obligation which is established. 8 There was a meeting of the mind between two
parties that they both agreed to share the payment of the monthly rental fees.
Failure on the part of Mr. Butch Cruz to provide payment, which is his obligation
to Ms. Rosa, makes him liable for a breach of contract. 9 Article 1170 states that
those who in the performance of their obligations are guilty of fraud, negligence,
or delay, and those who in any manner contravene the tenor thereof, are liable
for damages. Mr. Butch Cruz has an obligation to pay a sum of twenty one
thousand pesos to Ms. Rosa for their monthly rental fees. 10

D. No, Mr. Butch Cruz cannot claim the pearl earrings given to Ms. Rosa provided
that she can prove that the earrings given is as a moderate gift and is within the
financial capacity of Mr. Cruz to provide at the time of the donation. Article 87 of
the Family Code provides that every donation or grant of gratuitous advantage,
direct or indirect, between the spouses during the marriage shall be void, except
moderate gifts, which the spouses may give each other on the occasion of any
family rejoicing. The prohibition shall also apply to persons living together as
husband and wife without a valid marriage. 11 Also, the gift was accepted in good
faith not knowing that Mr. Butch Cruz was already married upon the receipt of
the earrings. Article 525 of the Civil Code of the Philippines explicitly states that
he is a deemed possessor in good faith who is not aware that exists in his title or
mode of acquisition any flaw that invalidates it. 12

E. Yes, Ms. Rosa is also entitled in the car ownership. It is governed by Article 148
which provides the rules of limited co-ownership. It states that there must
be sufficient proof that the both parties actually contributed in the payment
of the property.13 Failure to give proof of on the actual contribution will
render the presumption that there is no ownership acquired through joint
efforts 14 and the car may accrue to the absolute community or the
conjugal partnership existing in such valid marriage of Mr. Butch Cruz and
his wife. 15 The car is governed by the property regime of limited co-
ownership under said article because both of them equally paid down
payment and shared with monthly amortizations depending on how much
money they could acquire.

7
CIVIL CODE, art. 1149. 8 CIVIL CODE, art. 1318. 9 CIVIL CODE,
art. 1319. 10 CIVIL CODE, art. 1170. 11 FAMILY CODE, art. 87.
12
CIVIL CODE, art. 525. 13 FAMILY CODE, art. 148. 14 Villanueva v.
Court of Appeals 496 SCRA 135. 15 FAMILY CODE, art. 148.
 F. No, Mr. Butch Cruz does not have any legal standing to file a counter charge on
Ms. Rosa. The law grants such power only to the offended spouse. 16 In the case
provided, Mr. Butch Cruz cohabited with Ms. Kim Rosa disregarding his civil
status as a married man, making him the offending party in this case. As for
Adultery, the case cannot prosper against Ms. Rosa since she was acting under
mistake of fact. To validly use mistake of fact as a defense, the three requisites
shall be satisfied, namely: (1) The act done would have been lawful had the facts
been as the accused believed them to be. (2) The intention of the accused in
performing the act should be lawful. (3) The mistake must be without fault or
carelessness on the part of the accused. [ ] Applying the requisites to the case
provided, Ms. Rosa’s cohabitation with Mr. Butch Cruz would have been legal if
Mr. Butch Cruz wasn’t married at all. Mr. Butch Cruz concealed his civil status to
Ms. Rosa during the subsistence of their cohabitation. Ms. Rosa did not intend to
cohabit with a married man for she did not know that he is already married. It is
not in her best intention to proceed to such relationship. Also, she is also
without fault since she was in good faith when they contracted the adulterous
relationship. It is not Ms. Rosa but Mr. Butch Cruz who contracted the
relationship in bad faith. He should be liable for concubinage which is considered
as a crime against chastity and is punishable under the Revised Penal Code. [ ]

III. Recommended Action

Action for Child Support which would include expenses to be incurred during
child birth can be initiated by Kim Rosa to take care of the well being of their child. Action
to Recover Personal Property can also be initiated by Kim Rosa to recover properties
burrowed by Butch Cruz. Action to demand compensation can also be initiated by Kim
Rosa to cover Butch Cruz’s share in the rental payment during their cohabitation.

Revised Rules on Criminal Procedure, rule. 110.

16
THE REVISED RULES ON CRIMINAL PROCEDURE, rule.110.