Republic of the Philippines

Regional Trial Court

Baguio City

TESSIE
Defendant-Petitioner

-versus-

ABE
Plaintiff-Respondent
x-------------------------------------------------------x

MEMORANDUM
COMES NOW THE DEFENDANT-PETITIONER, through the undersigned
counsel, unto this Honorable Court most respectfully submit and present this
Memorandum in the above-titled case and aver that:
THE PARTIES
A. Petitioner Tessie is of legal age, where she may be served with legal processes
and notices issued by this Honorable Court;
B. Respondent Abe is of legal age, and may be served with legal processes and
other judicial notices thereto.
FACTUAL BACKGROUND
1. Prior to their marriage, the Defendant-Petitioner and the respondent owned
separate homes. Before the wedding ceremony, Tessie sold her home and kept the
proceeds of the sale in the separate bank account. Tessie and Sam moved into Abes
home. After they moved in, she and Abe remodeled Abes house. The remodeling
efforts increased the value of the home by 500,000 Pesos;
2. Immediately after the marriage, Plaintiff-Respondent, with DefendantPetitioners consent, filed a petition to adopt Sam. Sams birth certificate identified Rey
as the father, which Rey denied paternity and left the Philippines and his whereabouts
were unknown to by the Defendant-Petitioner (the mother of Sam). Once the adoption
was complete, Tessie quit her job to become a housewife at Abes insistence;
3. Plaintiff-Respondent recently decided that he no longer wanted to be married.
Plaintiff-Respondent told Defendant-Petitioner to leave, but that he wanted the custody
of his adopted son, Sam. The Defendant-Petitioner, however, took Sam and moved in
with her mother, The Defendant-Petitioner applied for a position at BGH where she

worked prior to her marriage to the Plaintiff-Respondent, but all the positions were
taken;
4. The Plaintiff-Respondent soon filled for declaration of nullity of marriage under
Article 36 of the Family Code. Plaintiff-Respondent seeks half of the proceeds from the
sale of the Defendant-Petitioners home. Plaintiff-Respondent request that he be
allowed to keep his home worth approximately 1.5 million pesos, including the increase
in the value after remodeling. Plaintiff-Respondent also requests that he be allowed to
keep the following property: the proceeds of a joint savings account totaling P100,000
and some stocks he acquired prior to the marriage. Plaintiff-Respondent also seeks sole
custody of Sam;
5. After the filling of Plaintiff-Respondents petition, Rey returned. He has
informed the Defendant-Petitioner that he never should have left. With PlaintiffRespondents consent, a paternity test is performed that establisher that Sam is indeed
Reys son. Rey argues that the adoption was not valid and he intends to assert his
paternity rights.
ISSUES OF THE CASE
A. WHETHER OR NOT THE PROPERTIES WILL BE DISTRIBUTED ON THE
PART OF THE PLAINTIFF-RESPONDENT CLAIMING THE PROPERTIES;
B. WHETHER OR NOT THE HONORABLE COURT ACTED CORRECTLY IN
GRANTING ADOPTION TO THE PLAINTIFF-RESPONDENT;
C. WHETHER OR NOT SHOULD BE GRANTED CUSTODY OF SAM;
D. WHETHER OR NOT DEFENDANT-PETITIONER TESSIE HAVE A CLAIM FOR
CHILD SUPPORT FROM RESPONDENT ABE OR REY OR BOTH.
ARGUMENTS
A. The properties will be distributed equally by both spouses and shall be subject
to an inventory base on the absolute community property under the provision on Article
102 of the Family Code of the Philippines.
B. The Court committed an error in granting adoption to Plaintiff-Respondent Abe
since the mother of the adopted child is not his legitimate child, for being conceive and
born outside the wedlock of his parents under the Family Code of the Philippines.
C. Defendant-Petitioner Tessie should be granted the custody of Sam under
Article 185 of the Family Code of the Philippines, since the adoption is not valid.
D. Defendant-Petitioner Tessie have a claim for child support from Rey only,
since he is the father of Sam and he even asserts his paternity rights to Sam (his son).
DICSUSSION
A. In the absence of a marriage settlement providing for another kind of
matrimonial property regime, the spouses shall be governed by the absolute community
regime under Article 88 of the Family Code of the Philippines.
It is clearly stated in the facts that the Defendant-Petitioner sold her home before
the wedding ceremony. Under the provision of Article 88 on the system of Absolute
Community Property, it clearly states that, the absolute community of property between
spouses shall commence at the precise moment that the marriage is celebrated.
Therefore the Plaintiff-Respondent cannot avail half of the proceeds from the sale
Defendant-Petitioners home.
When it talks to the distribution of the properties, under Article 102 paragraph 1
of the Family Code of the Philippines, which states that:

An inventory shall be prepared, listing separately all the properties of the

absolute community and the exclusive properties of each spouse.
C. The adoption is not valid, Plaintiff-Respondent cannot seek the custody is Sam,
under Article 185 of the Family Code of the Philippines which states that:
Husband and wife must jointly adopt, except in the following case: (1) When one
spouse seeks to adopt his own illegitimate child; or (2) When one spouse seeks
to adopt the legitimate child of the other.
In the case of Defendant-Petitioner, the latter is not her legitimate son because
Sam was born outside the wedlock of the Defendant-petitioner and Rey, because under
Article 164 of the Family Code states that, Children conceived or born during the
marriage of the parents are legitimate.
C. Plaintiff-Respondent should be granted the full custody of Sam (her son), for
being the natural child of the Plaintiff-Respondent. Article 176 of the Family Code of the
Philippines states that:
Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with the
Family Code. The legitime of each illegitimate child shall consist of one-half of
the legitime of the child.
D. Since the adoption made by Plaintiff-Respondent is not valid, the DefendantPetitioner cannot claim for support when it comes to her son (Sam). In the case of
Defendant-Petitioner when it talks about child support to Rey, by the time Sam was
born, Defendant-Petition may claim for child support under Article 195 of the Family
Code of the Philippines.
The ruling of Artemio Ilano v. CA may be used as a basis for this argument. It
was stated that after the great flood, man was commanded to go forth, be fertile,
multiply, and fill the earth. Others did not heed the sequence of this command because
they multiply first and then go. Corollary, it is now common place for an abandoned
illegitimate offspring to sue her father for recognition and support. As a necessary
consequence of the finding that private respondent is the spurious child of the petitioner,
she is entitled to support. Thus, in awarding support to her, respondent court took into
account the following: The obligation to give support shall be demandable from the time
the person who has a right to recover the same needs it for maintenance, but it shall not
be paid except from the date of judicial or extra-judicial demand.
There is indubitable proof that Defendant-Petitioner can claim for child support to
Rey because the Sam is his own spurious child and since he asserts his paternity
rights.

PRAYER
WHEREFORE, premise considered, it is most respectfully prayed before this
Honorable Court that the Defendant-Petitioner be granted the custody of Sam, the equal
distribution of their properties and to be supported Sam from his father Rey.

Respectfully submitted,
Baguio City, Philippines. October 27, 2014

ATTY. HANDSOME PEIG

Counsel for Defendant-Petioner
Unit 12345, Doon Building,
Baguio City