Republic of the Philippines v.

Tampus
GR 214243, March 16, 2016
(Article 41)
FACTS:

Respondent Nilda B. Tampus was married to Dante L. Del Mundo on November 29,
1975. Three days thereafter, or on December 2, 1975, Dante, a member of the AFP, left
respondent, and went to Jolo, Sulu where he was assigned. The couple had no children. Since
then, Nilda heard no news from Dante. She tried everything to locate him, but her efforts proved
futile. On April 14, 2009, she filed before the RTC a petition to declare Dante as presumptively
dead for the purpose of remarriage, alleging that after the lapse of thirty-three (33) years without
any kind of communication from him. She exerted efforts to look for Dante by inquiring his
parents, relatives and neighbors who were also not aware of his whereabouts. Thus she firmly
believes that he is already dead.

ISSUE:

Whether or not Dante should be declared presumptively dead.

RULING:

Before a judicial declaration of presumptive death can be obtained, it must be shown that
the prior spouse had been absent for four consecutive years and the present spouse had a well-
founded belief that the prior spouse was already dead. Under Article 41 of the Family Code of
the Philippines (Family Code), there are four (4) essential requisites for the declaration of
presumptive death: (1) that the absent spouse has been missing for four (4) consecutive years, or
two (2) consecutive years if the disappearance occurred where there is danger of death under
the circumstances laid down in Article 391 of the Civil Code; (2) that the present spouse wishes
to remarry; (3) that the present spouse has a well-founded belief that the absentee is dead; and
(4) that the present spouse files a summary proceeding for the declaration of presumptive death
of the absentee. The well-founded belief in the absentee's death requires the present spouse to
prove that his/her belief was the result of diligent and reasonable efforts to locate the absent
spouse and that based on these efforts and inquiries, he/she believes that under the
circumstances, the absent spouse is already dead. It necessitates exertion of active effort, not a
passive one. As such, the mere absence of the spouse for such periods prescribed under the law,
lack of any news that such absentee spouse is still alive, failure to communicate, or general
presumption of absence under the Civil Code would not suffice.

In this case, Nilda testified that after Dante's disappearance, she tried to locate him by
making inquiries with his parents, relatives, and neighbors as to his whereabouts, but
unfortunately, they also did not know where to find him. Other than making said inquiries,
however, Nilda made no further efforts to find her husband. She could have called or proceeded
to the AFP headquarters to request information about her husband, but failed to do so. She did
not even seek the help of the authorities or the AFP itself in finding him. Considering her own
pronouncement that Dante was sent by the AFP on a combat mission to Jolo, Sulu at the time of
his disappearance, she could have inquired from the AFP on the status of the said mission, or
from the members of the AFP who were assigned thereto. To the Court's mind, therefore, Nilda
failed to actively look for her missing husband, and her purported earnest efforts to find him by
asking Dante's parents, relatives, and friends did not satisfy the strict standard and degree of
diligence required to create a "well-founded belief of his death”.

Hence, Dante cannot be declared presumptively dead.

RAMIL A. ESCASO
Reporter
 HERALD BLACK DACASIN v. SHARON DEL MUNDO DACASIN
G.R. 168785, February 5, 2010
(Article 213)

FACTS:

Petitioner Herald Dacasin (petitioner), American, and respondent Sharon Del Mundo
Dacasin (respondent), Filipino, were married in Manila in April 1994. They have one daughter,
Stephanie, born on 21 September 1995. In June 1999, respondent sought and obtained from the
Circuit Court, 19th Judicial Circuit, Lake County, Illinois (Illinois court) a divorce decree against
petitioner. In its ruling, the Illinois court dissolved the marriage of petitioner and respondent,
awarded to respondent sole custody of Stephanie and retained jurisdiction over the case for
enforcement purposes. 
On 28 January 2002, petitioner and respondent executed in Manila a contract
(Agreement) for the joint custody of Stephanie. The parties chose Philippine courts as exclusive
forum to adjudicate disputes arising from the Agreement. Respondent undertook to obtain from
the Illinois court an order "relinquishing" jurisdiction to Philippine courts. 
In 2004, petitioner sued respondent in the Regional Trial Court of Makati City, Branch 60
(trial court) to enforce the Agreement. Petitioner alleged that in violation of the Agreement,
respondent exercised sole custody over Stephanie. 

ISSUE:

Whether or not the trial court can enforce the Agreement on the joint custody of the
parties’ child.

RULING:

The trial court cannot enforce the Agreement which is contrary to law.
Article 213 of the Family Code provides that “in case of separation of the parents,
parental authority shall be exercised by the parent designated by the court. The court shall take
into account all relevant considerations, especially the choice of the child over seven years of
age, unless the parent chosen is unfit.” Provided further that “no child under seven years of age
shall be separated from the mother unless the court finds compelling reasons to order otherwise.”
Here, at the time the parties executed the Agreement on 28 January 2002, two facts are
undisputed: (1) Stephanie was under seven years old (having been born on 21 September 1995);
and (2) petitioner and respondent were no longer married under the laws of the United States
because of the divorce decree. Clearly then, the Agreement’s object to establish a post-divorce
joint custody regime between respondent and petitioner over their child under seven years old
contravenes Philippine law. The Agreement is not only void ab initio for being contrary to law, it
has also been repudiated by the mother when she refused to allow joint custody by the father.
The Agreement would be valid if the spouses have not divorced or separated because the law
provides for joint parental authority when spouses live together. However, upon separation of the
spouses, the mother takes sole custody under the law if the child is below seven years old and
any agreement to the contrary is void. Thus, the law suspends the joint custody regime for (1)
children under seven of (2) separated or divorced spouses. Simply put, for a child within this age
bracket (and for commonsensical reasons), the law decides for the separated or divorced parents
how best to take care of the child and that is to give custody to the separated mother. Indeed, the
separated parents cannot contract away the provision in the Family Code on the maternal custody
of children below seven years any more than they can privately agree that a mother who is
unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable
disease will have sole custody of a child under seven as these are reasons deemed compelling to
preclude the application of the exclusive maternal custody regime under the second paragraph of
Article 213.
This case was remanded to the trial court. Why?
RAMIL A. ESCASO
 Reporter
ENRICO S. EULOGIO v. BELL CHILDREN
GR 186322, July 8, 2015
(Article 160)

FACTS:

The Bell siblings are the unmarried children of respondent Spouses Paterno C. Bell and
Rogelia Calingasan-Bell sought the annulment of the contract of sale executed by Spouses Bell
over their 329-square-meter residential house and lot, as well as the cancellation of the title
obtained by petitioners (Eulogio) by virtue of the Deed for being violative of Chapter 2 Title 4 of
the Family Code. The RTC, as also affirmed by CA, granted respondents' prayers, but declared
Spouses Bell liable to petitioners in the amount of one million pesos plus 12% interest per
annum. Spouses Bell later brought the case to this Court to question their liability to petitioners
in the amount of P1 million plus interest.

ISSUE:

Whether or not the respondents' family home may be sold on execution under Article 160
of the Family Code.

RULING:

Respondents' family home cannot be sold on execution under Article 160 of the Family
Code. Unquestionably, the family home is exempt from execution as expressly provided for in
Article 153 of the Family Code. It has been said that the family home is a real right that is
gratuitous, inalienable and free from attachment. Any subsequent improvement or enlargement
of the family home by the persons constituting it, its owners, or any of its beneficiaries will still
be exempt from execution, forced sale or attachment provided the following conditions obtain:
(a) the actual value of the property at the time of its constitution has been determined to fall
below the statutory limit; and (b) the improvement or enlargement does not result in an increase
in its value exceeding the statutory limit. Otherwise, the family home can be the subject of a
forced sale, and any amount above the statutory limit is applicable to the obligations under
Articles 155 and 160. To warrant the execution sale of respondents' family home under Article
160, petitioners needed to establish these facts: (1) there was an increase in its actual value; (2)
the increase resulted from voluntary improvements on the property introduced by the persons
constituting the family home, its owners or any of its beneficiaries; and (3) the increased actual
value exceeded the maximum allowed under Article 157.

In the instant case, none of those facts was alleged - much less proven - by petitioners
during the execution proceedings. The sole evidence presented was the Deed of Sale, but the trial
court had already determined with finality that the contract was null, and that the actual
transaction was an equitable mortgage. Evidently, when petitioners and spouses Bells executed a
Deed of sale in 1990, the price stated therein was not the actual value of the property in dispute.

Hence, respondents' family home cannot be sold on execution under Article 160 of the
Family Code since the property was a family home and there is no proof that the value had
increased beyond the statutory limit due to voluntary improvements.

RAMIL A. ESCASO
Reporter