G.R. No. 163604 - Republic vs. Court of Appeals

Apolinaria Malinao Jomoc filed a petition for declaration of presumptive death of her absentee spouse, Clemente P. Jomoc, who had left her nine years earlier.
The Ormoc City Regional Trial Court (RTC), Branch 35, granted the petition on September 29, 1999, based on the Commissioner’s Report, declaring Clemente as presumptively dead pursuant to Article 41, paragraph 2 of the Family Code.
Article 41 provides that where a prior spouse has been absent for four consecutive years, the spouse present may institute summary proceedings for the declaration of presumptive death to enable a valid subsequent marriage.

The Republic of the Philippines, through the Office of the Solicitor General (OSG), filed a Notice of Appeal from the RTC's order.
On November 22, 1999, the RTC disapproved the Notice of Appeal on the ground that no record on appeal was filed and served as required under Section 2(a), Rule 41 of the 1997 Rules of Civil Procedure for special proceedings.
The Republic moved for reconsideration, which was denied by the RTC on January 13, 2000.
Subsequently, the Republic filed a Petition for Certiorari before the Court of Appeals (CA), contending that the declaration of presumptive death under Article 41 is not a special proceeding and thus does not require a record on appeal.

The CA denied the Petition for Certiorari by its May 5, 2004 Decision, citing procedural lapses: failure to attach the order denying the motion for reconsideration and failure to submit a copy of the order declaring Clemente presumptively dead.
On substantive grounds, the CA ruled that the petition for declaration of presumptive death is a special proceeding, requiring a period of 30 days to appeal and the filing of a record on appeal in addition to a notice of appeal.
The CA applied definitions under Rule 1, Sections 3(a) and 3(c), distinguishing ordinary civil actions and special proceedings, and held that the petition sought to establish a status (presumptive death), not enforcement of a right, thus making it a special proceeding.

The Republic argued that the petition for declaration of presumptive death under Article 41 of the Family Code is a summary proceeding, not a special proceeding, and pointed to the absence of such cases in Rule 109 of the Revised Rules of Court which enumerates cases requiring a record on appeal.
The Republic also invoked Rule 72 of the Revised Rules of Court defining the subject matter of special proceedings, where declaration of absence and death is listed, contending that the Family Code’s summary proceedings rules apply.
The Supreme Court notified the respondent to file comment, which went unserved due to refusal to accept the copy.

Whether a petition for declaration of presumptive death under Article 41 of the Family Code is a special proceeding requiring the filing of a record on appeal in addition to a notice of appeal.
Whether the Court of Appeals correctly disapproved the Notice of Appeal for failure to file a record on appeal.
Whether the procedural lapses alleged by the Court of Appeals regarding the attachments to the Petition for Certiorari justify outright dismissal.