IN RE PETITION FOR JUDICIAL AUTHORITY TO BE DECLARED AS THE SOLE ADMINISTRATOR OF THE ABSOLUTE COMMUNITY OF PROPERTY

Maria Sinukwan-Penduko, Petitioner, v. Pedro Penduko, Respondent.

BRIEF OF RESPONDENT On response for the petition Judicial Authority to be declared as the Sole Administrator of the Absolute Community of Property

STATEMENT OF THE ISSUES

1. Whether or not the Honorable Court can declare the petition, MARIA SINUKWAN-PENDUKO, as the sole administrator of the spouses absolute community of properties, specifically the house and lot located at No. 1 Abakada Street, Villa-Pampang Subdivision, Angeles City. 2. Whether or not the Special Power of Attorney can be annulled. 3. Whether or not the Contract of Lease can be annulled. STATEMENT OF THE FACTS Petitioner is a Filipino of legal age, married to Pedro Penduko, with residence and postal address at Barangay Turu, Magalang, Pampanga, Philippines. She is married to Pedro Penduko in civil rites on October 23, 1990, by Hon. Jaime Valderama, Presiding Judge of the Municipal Trial Court of Arayat, Pampanga at that time. Petitioners husband brought into the marriage a parcel of land situated in Barangay Sto. Rosario, in Angeles City and located at No. 1 Abakada Street, Villa-Pampang Subdivision, Angeles City, covered by Transfer Certificate of Title No. 01234 registered with the Registry of Deeds of Angeles City. Petitioner and her husband bore a child Tinkerbelle Sinukwan Penduko, on December 25, 1992 in Magalang, Pampanga. Sometime in January 1993, petitioners husband went to Japan and since then, he had not gone home to the Philippines. In 2001, petitioner and her husband both contributed for the construction of their house built on the said parcel of land. In the absence of the husband, petitioner took charge of the said construction. Petitioner and her child lived in the said house while petitioners husband regularly send financial support to his family. Petitioners husband suddenly stopped sending financial support in January 2007. Sometime in April 2007, petitioner decided to lease the said house and lot in order to derive income. She and her daughter them moved to an apartment located at 123 ABC

Street, Magiting Subdivision, in Angeles City, and later transferred to their current address, where they have stayed until this time. In August 2007, the relatives of petitioners husband demanded from petitioners tenants to vacate the subject house and lot. Petitioners husband issued a Special Power of Attorney on July 31, 2007 in favour of his brother-in-law, a certain Peter Pan, authorizing the latter to manage the said property since he is abroad, separated from the petitioner and abandoned the petitioner and their daughter. Petitioners tenants vacated the subject premises and Peter Pan took over in managing the said property against the petitioners will. In September 2007, Peter Pan entered into a Contract of Lease with a third party in good faith. Petitioner filed a petition to be declared as the sole administrator of the absolute community of property. Thus, this response.

ARGUMENT I. The Honorable Court cannot declare the petitioner, MARIA SINUKWANPENDUKO, as the sole administrator of the spouses absolute community of properties.

A. The petitioner abandoned the property in question. Pedro Penduko can sought relief for the abandonment of his wife. And being the injured party, he can make the petitioner comply with measure that may be proper. And not making her the sole administrator of the property is proper in this case. Basis of this referred below: Art. 116. When one of the spouses neglects his or her duties to the conjugal union or brings danger, dishonour or material injury upon the other, the injured party may apply to the court for relief. The court may counsel the offender to comply with his or her duties, and take such measures as may be proper. (n) RULE ON PROVISIONAL ORDERS (Supreme Court En Banc Resolution A.M. 02-11-12-SC) SECTION 8. Administration of Common Property. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the court may, upon application of the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precautionary conditions it may impose. The receiver or administrator may not dispose of or encumber any common property or specific separate

property of either spouse without prior authority of the court. The provisional order issued by the court shall be registered in the proper Register of Deeds and annotated in all titles of properties subject of the receivership or administration.

B. The petitioner cannot be declared as sole administrator. As the general rule, Maria Sinukwan-Penduko can be made administrator of the conjugal dwelling and the lot in which it is situated. But being the party who abandons the common property, the following rules applies: RULE ON PROVISIONAL ORDERS (Supreme Court En Banc Resolution A.M. 02-11-12-SC) SECTION 8. Administration of Common Property. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the court may, upon application of the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precautionary conditions it may impose. The receiver or administrator may not dispose of or encumber any common property or specific separate property of either spouse without prior authority of the court. The provisional order issued by the court shall be registered in the proper Register of Deeds and annotated in all titles of properties subject of the receivership or administration. II. Whether or not the Special Power of Attorney can be annulled.

A. The offender can appoint any one and use Art 253 of the Family code. Base on Art 252-254, Family Code, Pedro Penduko has not the capacity to appoint an administrator being the offender in the case. Art. 252. The Court of First Instance may, upon application of any member of the family, a relative, or a friend, appoint a family council, whose duty it shall be to advise the court, the spouses, the parents, guardians and the family on important family questions. Art. 253. The family council shall be composed of five members, who shall be relatives of the parties concerned. But the court may appoint one or two friends of the family.

Art. 254. The family council shall elect its chairman, and shall meet at the call of the latter or upon order of the court. B. The SPA cannot be annulled. Pedro has abandoned the wife for more than a year already, Part of the SPA can serve as his intention to petition to the court for a separation of property and giving Peter Pan the authority to administer while no judicial proceedings. Art 178 states (3) If the husband has abandoned the wife without just cause for at least one year, she may petition the court for a receivership, or administration by her of the conjugal partnership property, or separation of property. (n) III. Whether or not the Contract of Lease can be annulled.

A. The contract of lease cannot be annulled. Based on relativity of contracts, a contract can only bind the parties who had entered into it or their successors who have assumed their personality or their judicial position, and that as a consequence, such contract can neither favour nor prejudice a third person. As a general rule. Contracts cannot produce any effect whatsoever as far as third person who acted in good faith. Art. 1311. Contract take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. Thus , the contract of lease between Peter Pan (with SPA) and third person who acted in good faith cannot be prejudice. The contract is binding to both of them. B. The court cannot refund rental fees. By way of a valid contracts, the court cannot refund rental fees until it has been proven that there were defects on the said contracts. For the case at bar the contract is valid and binding with Peter Pan having authority given by Pedro Penduko. In Art 1317, Art. 1317. No one may contract in the name of another withour being authorized by the latter, or unless he has by law a right to represent him. A contract entered into in the name of another by one who has no authority or legal representation, or who has acted beyong his powers, shall be unenforceable, unless it is ratified, expressly or impliedly, by the person on whose behalf it has been executed, before it is revoked by the other contracting party.

For this case Pedro Penduko is bound not only to the fulfilment but also to all consequences which is to the rental fees brought about by the contracts. In Art 1315, Art. 1315. Contracts perfected by mere consent, and from that moment the parties are bound not only to the fulfilment of what has been expressly stipulated but also to all the consequences which, according to the nature, may be in keeping with good faith, usage and law. CONCLUSION

For the foregoing reasons, the petition should not be granted. Respectfully submitted this 12th of February, 2013. ______________________________________ JASMINDA B. ALAPAG Respondent Lawyer