G.R. No.

163604 May 6, 2005

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
THE HON. COURT OF APPEALS (Twentieth Division), HON. PRESIDING JUDGE
FORTUNITO L. MADRONA, RTC-BR. 35 and APOLINARIA MALINAO
JOMOC, respondents.

FACTS:

A petition for the Declaration of Presumptive Death of Absentee Spouse Clemente P. Jomoc, filed
by petitioner Apolinaria Malinao Jomoc for purposes of contracting a valid subsequent marriage
pursuant to Article 41, par (2) of the Family Code was granted by the RTC.

The Republic, through the OSG, sought to appeal the trial court’s order by filing a Notice of
Appeal.

The RTC denied the petition on the ground that no record of appeal was filed and served is
required pursuant to Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure, the present case
being a special proceeding.

The Republic filed an appeal before the CA, contending that the petition for the declaration of
presumptive death of a person under Article 41 of the Family Code is not a special proceeding or
a case of multiple or separate appeals requiring a record on appeal.

The CA held that the present petition is a special proceeding as defined under Section 3(c) of the
same rule is defined as "a remedy by which a party seeks to establish a status, a right or a
particular fact. Thus, the RTC did not err when it dismissed.

Hence, the instant petition.

STOLICH CORONADO 1.4A

ISSUE:
WON a petition for the declaration of presumptive death of a person under Article 41 of the
Family Code is not a special proceeding which does not require the filing of a record of appeal.

RULING:

Yes, a petition for the declaration of presumptive death of a person under Article 41 of the Family
Code is not a special proceeding which does not require the filing of a record of appeal.

Article 41 paragraph 2 of the Family Code provides to wit:

For the purpose of contracting the subsequent marriage under the preceding paragraph, the
spouses present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of a reappearance
of the absent spouse.

In the case at bar, the petition for the declaration of presumptive death of a person was filed for
the purpose of contracting a valid subsequent marriage pursuant to Article 41 of the Family Code
and not under Article 390 of the Civil Code which is a special proceeding governed under the
Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. Thus, being a
summary proceeding, the filing of a Notice of Appeal from the trial court’s order sufficed.

Therefore, a petition for the declaration of presumptive death of a person under Article 41 of the
Family Code is not a special proceeding which does not require the filing of a record of appeal.

STOLICH CORONADO 1.4A STOLICH CORONADO 1.4A