CASE DIGEST | Case #1: Republic v CA

Digested by: Joahna G. Goyagoy | Spec Pro

FACTS: Apolinaria Malinao filed a petition before the Ormoc Regional Trial Court for the Declaration
of Presumptive Death of her Absentee Spouse Clemente P. Jomoc. The petition was thereafter granted
by the trial court. The Republic, through the Office of the Solicitor General, filed a Notice of Appeal.
The trial court disapproved the Notice of Appeal on the ground that the present case is a special
proceeding which requires that a record of appeal be filed and served pursuant to Section 2 (a) Rule
41 of the 1997 Rules of Civil Procedure. The Republic filed a Petition for Certiorari before the Court
of Appeals contending that the declaration of presumptive death of a person under Article 41 of the
Family Code is not a special proceeding. The CA affirmed the trial court‘s decision.

ISSUE: Whether or not a petition for declaration of the presumptive death of a person is in the nature
of a special proceeding.

HELD: For the purpose of contracting the subsequent marriage under Article 41, the spouses present
must institute a summary proceeding as provided in the Family Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of a reappearance of the absent
spouse.

By the trial court’s citation of Article 41 of the Family Code, it is gathered that the petition of
Apolinaria Jomoc to have her absent spouse declared presump
tively dead had for its purpose her desire to contract a valid subsequent marriage. Ergo, the petition
for that purpose is a "summary proceeding”.

Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW contains
Article 238 which provides that, “unless modified by the Supreme Court, the procedural rules in the
said Title shall apply in all cases provided for in the Code requiring summary court proceedings. Such
cases shall be decided in an expeditious manner without regard to technical rules.”

The petition of Apolinaria Jomoc required and is therefore, a summary proceeding under the Family
Code as her purpose was to contract a valid subsequent marriage, not a special proceeding under the
Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. It being a summary
ordinary proceeding, the filing of a Notice of Appeal from the trial court‘s order sufficed.