legal Free Legal Advice

[b_9904]

^tol!

 

i love you!

 

hehehehehe

[b_9904]

Guys,

 

teka may tanong lang ako regarding Republic Act No. 9255.

 

does it mean na yung mga batang pwedeng mag change ng name eh yung mga recognized by the father?

 

papaano kung after ng isang civil suit eh napatunayang anak ng tatay yung bata, mag aaply pa din ba yung Republic Act No. 9255?

 

if mag-aaply man, do you know any cases ng supreme court na ganito ang situation?

 

may friend kasi ako na ganito ang situation eh.

[b_9904]

see full text of the decision below. but please check again if you got the correct citation. thanks.

925 S.W.2d 232

 

Court of Appeals of Tennessee,

Middle Section, at Nashville.

Albert Lee CRAIN, Plaintiff/Appellee,

v.

Velma Christine CRAIN, Defendant/Appellant.

 

Feb. 14, 1996.

Permission to Appeal Denied by the

Supreme Court July 8, 1996.

 

Husband filed for divorce, and wife counterclaimed for divorce and requested alimony pendente lite. The Chancery Court, Maury County, Jim T. Hamilton, J., declared parties divorced and determined that wife would not be paid further spousal support. Wife appealed. The Court of Appeals, Koch, J., held that record contained no grounds for concluding that trial court misapplied factors influencing decision of whether wife should receive rehabilitative alimony.

Affirmed and remanded.

 

*232 Thomas L. Whiteside, Fowlkes & Whiteside, Nashville, for appellant.

Barbara J. Walker, Columbia, for appellee.

OPINION

KOCH, Judge.

This appeal involves the dissolution of a 27-month marriage. After declaring the parties divorced pursuant to Tenn.Code Ann. § 36-4-129( (1991), the Chancery Court for Maury County awarded the parties the property held in their separate names and declined to award the wife rehabilitative spousal support. The wife now takes issue with the trial court's denial of her request for rehabilitative spousal support. We have determined that the wife is not entitled to spousal support under the facts of this case and, therefore, affirm the judgment.

*233 I.

 

Velma Christine Crain and Albert Lee Crain were first married in 1949. They divorced in 1973, and Mr. Crain remarried shortly thereafter. Mr. Crain was a radio engineer in the business of owning and constructing radio stations. He was quite successful with his business after his divorce in 1973. Mr. Crain began visiting the first Ms. Crain every weekend after separating from his second wife in April 1991. Mr. Crain eventually divorced his second wife in April 1992.

The Crains married for the second time in July 1992. Mr. Crain moved from Mississippi to Columbia where Ms. Crain owned a home. Ms. Crain had been working for the Veterans Administration Hospital in Nashville for approximately five years. She managed the eye clinic and earned approximately $16,000 per year. Shortly after the marriage, Ms. Crain retired from the Veterans Administration because she expected to become a homemaker and to travel with Mr. Crain on his business trips.

After the marriage, Mr. Crain bought Ms. Crain a new $18,000 automobile and helped her refinance her home mortgage to reduce the interest rate from 11% to 7.5% and to shorten the term of the loan from fifteen to ten years. He provided Ms. Crain with $1,500 per month for her personal and household needs, including her mortgage payments. Mr. Crain also opened a joint checking account, and both parties liberally withdrew funds from this account for personal and marital expenses.FN1 Ms. Crain, for example, used funds from the account to pay for eye-lid surgery that had been performed before the marriage.

 

FN1. The parties disagreed concerning the amount of their withdrawals from this account. Mr. Crain insisted that Ms. Crain withdrew $48,000 for her personal use; while Ms. Crain accused Mr. Crain of placing $35,000 in a separate account. The trial court did not attempt to resolve these disputes, and we need not do so here.

The Crains' marriage was short-lived. Mr. Crain moved out of the house after only twenty months and filed for divorce in March 1994. Ms. Crain counterclaimed for divorce and requested alimony pendente lite. The trial court directed Mr. Crain to pay Ms. Crain $2,000 per month until the date of the hearing on their divorce. Shortly after a hearing in October 1994, the trial court entered an order declaring the parties to be divorced without regard to fault and directing that the parties should retain the property presently held in their own names. The trial court also terminated Ms. Crain's alimony pendente lite and determined that Mr. Crain would not be required to pay Ms. Crain further spousal support of any sort. Ms. Crain has appealed from this decision.

II.

 

Ms. Crain insists that the trial court misapplied the statutory factors when it denied her request for rehabilitative spousal support. She asserts that the trial court did not give appropriate weight to her age, her limited employment prospects, Mr. Crain's superior earning capacity, and her contributions as a homemaker during the marriage. Mr. Crain responds that Ms. Crain's post-divorce finances are better than her pre-divorce finances, that she obtained many new assets during the marriage, and that Ms. Crain is able to work but has not seriously pursued a job.

[1] [2] [3] There are no hard and fast rules for determining whether a spouse should be required to support a former spouse. Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn.Ct.App.1989). These decisions are heavily fact-dependent and require the careful balancing of many factors, including those identified in Tenn.Code Ann. § 35-5-101(d)(1) (Supp.1995). Hawkins v. Hawkins, 883 S.W.2d 622, 625 (Tenn.Ct.App.1994); Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn.Ct.App.1993). Appellate courts give wide latitude to trial courts' spousal support and maintenance decisions. Jones v. Jones, 784 S.W.2d 349, 352 (Tenn.Ct.App.1989). These decisions are, however, subject to appellate review. We will scrutinize them to determine whether they reflect a proper application of the relevant legal principles and whether they are supported by a preponderance of the evidence. Cranford v. Cranford, 772 S.W.2d at 50.

*234 [4] [5] The most common factors influencing spousal support decisions are the need of the spouse requesting support, the fault of the obligor spouse, and the ability of the obligor spouse to provide support. Hawkins v. Hawkins, 883 S.W.2d at 625; Bull v. Bull, 729 S.W.2d 673, 675 (Tenn.Ct.App.1987). In the case of marriages of short duration, the justification for spousal support is diminished when the spouse seeking support has contributed little, directly or indirectly, to the marriage. Flanagan v. Flanagan, 656 S.W.2d 1, 3-4 (Tenn.Ct.App.1983) (spousal support limited to $750 when the parties' second marriage lasted only thirteen months); Spencer v. Spencer, App. No. 01-A-01-9109-CV-00328, slip op. at 7-8, 17 T.A.M. 43-16, 7 T.F.L.L. 1-16, 1992 WL 247641 (Tenn.Ct.App. Oct. 2, 1992) (no spousal support needed following the dissolution of a short-term marriage).

[6] This record contains no grounds for concluding that the trial court misapplied the factors influencing whether Ms. Crain should receive rehabilitative alimony. As a result of the marriage, she has received an $18,000 automobile, funds to pay a pre-existing medical bill, and assistance in obtaining a more favorable mortgage on her home. She has also made liberal use of the funds Mr. Crain placed in their joint account as well as $8,000 in alimony pendente lite. The value of these items offsets the value of her contributions to the marriage.

Ms. Crain retired from the Veterans Administration because she anticipated that Mr. Crain would support her for the rest of her life. Mr. Crain did not object to her early retirement but did not demand it either. While her marriage to Mr. Crain played a significant role in her decision to stop working at the age of sixty-three, it would be unfair to find that Mr. Crain was solely responsible for this decision. Ms. Crain must also accept part of this responsibility.

Even though Ms. Crain was sixty-five years old at the time of the hearing, her age and physical condition do not disqualify her from seeking employment. She has held several types of jobs during her career. She requested rehabilitative support but never described what additional training or education she intended to pursue or how this training would enhance her employability. The most significant barrier to her re-employment appears to be her lack of motivation to look for work. Since the separation, she has done little more than “accumulating information concerning return to federal employment.” She has not pursued private sector jobs because she favors the government's benefits and because she would “rather not work at McDonald's.” Balancing all the equities in this case, Mr. Crain should not be required to pay Ms. Crain rehabilitative spousal support simply because she decided to retire from the Veterans Administration when she married Mr. Crain.

III.

 

We affirm the judgment and remand the case to the trial court for whatever other proceedings may be required. We also tax the costs of this appeal to Velma Christine Crain and her surety for which execution, if necessary, may issue.

 

TODD, P.J., (M.S.) and CANTRELL, J., concur.

 

yup, tama yung citation crain vs. crain, 37 alr 4th 15.

 

kaso yung post mo is not about the hla test.

 

o well.

 

ty pa din sobra tol

[Terranboy]

Help, my internet explorer always hang up......

 

Di ko makalipat from one page to another, lalo na pag naka log ako sa MTC.....

[rocco69]

A reading of RA9255 would show that it applies only to cases where the illegitimate child "has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father."

 

It seems that the law applies only to cases where the father has voluntarily recognized the child, not to cases where the father has been forcibly made to recognize the child, as in your example.

 

Thus, it is my opinion that in a situation where the father was made to recognize the child by virtue of a civil case, di puwedeng gamitin nung bata yung kanyang apelyido. Likewise, the IRR also requires the submission of "an admission [of filiation] in a public document or private handwritten instrument made by the father." Kung civil case lang ang recognition, walang ganitong dokumento kaya di rin mag-aaplay ang 9255.

 

 

Guys,

 

teka may tanong lang ako regarding Republic Act No. 9255.

 

does it mean na yung mga batang pwedeng mag change ng name eh yung mga recognized by the father?

 

papaano kung after ng isang civil suit eh napatunayang anak ng tatay yung bata, mag aaply pa din ba yung Republic Act No. 9255?

 

if mag-aaply man, do you know any cases ng supreme court na ganito ang situation?

 

may friend kasi ako na ganito ang situation eh.

[b_9904]

^but is there anyway para magamit ang pangalan ng tatay pag hindi ninya nirerecognize ang child and filiation has been established through a suit?

[_Pabling]

Help, my internet explorer always hang up......

 

Di ko makalipat from one page to another, lalo na pag naka log ako sa MTC.....

 

sir baka may spyware? na scan mo na? or try disabling 3rd party browser extensions under internet properties under advanced tab.

 

for screen shot click here. hth

[Dr_PepPeR]

now maybe its my turn to ask here.

 

1. FAMILY leased a condo unit from OWNER COMPANY for a term of one year, renewable.

 

2. BANK filed case against OWNER COMPANY and subsequently foreclosed the condo unit including the one leased by FAMILY.

 

3. MTC ordered OWNER COMPANY to vacate and turn over premises to BANK.

 

4. BANK now wants to cancel lease contract of FAMILY (month 7) and impose a new lease contract.

 

Question: [without regard to the provisions of the lease]

 

1. Substantive

- is the contract of lease between FAMILY and OWNER COMPANY automatically terminated by reason of the foreclosure such that BANK may now disregard the lease contract?

 

2. Procedural

- if the FAMILY has a cause of action against BANK and/or OWNER COMPANY, (a) what is it? and ( what will be the procedural remedy that FAMILY may avail to enforce such cause of action? © should it be enforced in the same case (mere motion to intervene) or an independent action?

 

TIA!!!

 

I have to make an assumption here, which is that the condo unit was mortgaged to the BANK. If in fact this is the case, a mortgage contract drawn up by the BANK will usually prohibit the lease of the premises unless a) the business of the Mortgagor involves the lease of the properties mortgaged there is prior written consent by the BANK. In any case, the registration of the mortgage by annotation in the Registry of Deeds constitutes a notice to the whole world that the property is subject to an encumbrance and therefore any subsequent dealings on the property, especially with respect to the exercise of rights of ownership, should consider the terms of the annotated real estate mortgage. Therefore, the terms of the lease are always subject to the exercise of the rights of the BANK as a foreclosing mortgagee.

 

With the caveat that I am not a practicing lawyer, the FAMILY's cause of action I guess would be to compel the enforcement of the lease contract on the BANK and the OWNER COMPANY. As I've said, I believe that the lease contract is inferior to the mortgage contract, due to the registration and annotation of the mortgage. The remedy would be first to compel compliance with the lease contract, then if this cannot be done, damages against the OWNER COMPANY. I think it will be proper to intervene in the same case since the FAMILY is an interested party in the property subject of litigation.

Edited October 11, 2006 by Dr_PepPeR

[fauxhead]

I have to make an assumption here, which is that the condo unit was mortgaged to the BANK. If in fact this is the case, a mortgage contract drawn up by the BANK will usually prohibit the lease of the premises unless a) the business of the Mortgagor involves the lease of the properties mortgaged there is prior written consent by the BANK. In any case, the registration of the mortgage by annotation in the Registry of Deeds constitutes a notice to the whole world that the property is subject to an encumbrance and therefore any subsequent dealings on the property, especially with respect to the exercise of rights of ownership, should consider the terms of the annotated real estate mortgage. Therefore, the terms of the lease are always subject to the exercise of the rights of the BANK as a foreclosing mortgagee.

 

I beg to disagree.

 

You have to correlate the civil code provisions on contracts, lease, and mortgage with the appropriate provisions of the Rules of Court on foreclosure.

 

First, basic is the principle that contracts bind not only the parties thereto but also their assigns and heirs. As such, the bank is obliged to observe the lease contract made by the company with the family.

 

Second, foreclosure per se does not give title to the purchaser. Thus, it cannot automatically rescind the lease contract. In fact, the Rules of Court Rule 39 Section 32 says that the rent, income and earnings of the property subject to redemption pertain to the judgment obligor until the expiration of his redemption period, whether equity of redemption or right of redemption.

 

Third, a mortgage does not vest any real rights to the mortgagee. It is merely a contract of security. In fact, a mortgage that prohibits the alienation of the subject property is absolutely prohibited.

 

In the instant case, there is no mention whether the redemption period has already expired. Redemption periods for foreclosure sales vary if it was made judicially or extrajudicially.

 

Assuming that such has expired and the bank has already perfected the action for consolidation which was given due course by the court (as shown by the court's order for the company to vacate the premises, which if the preceding sentence was not observed, i.e. that the redemption period has expired and the judgment obligee has moved for consolidation - the court gravely abused its discretion), go back to the first. It is bound by the lease contract executed by the company and the family.

 

Fourth, unless and until the bank successfully ejects them from the property, the family has no cause of action. If the bank insists on making a new contract and refuses the payment of rent under the old contract, the family can consign the payment with the courts. The bank has to file an ejectment suit to regain possession of the property. The grounds for ejectment of a lessee are the following:

 

Art. 1673. The lessor may judicially eject the lessee for any of the following causes:

 

(1) When the period agreed upon, or that which is fixed for the duration of leases under Articles 1682 and 1687, has expired;

 

(2) Lack of payment of the price stipulated;

 

(3) Violation of any of the conditions agreed upon in the contract;

 

(4) When the lessee devotes the thing leased to any use or service not stipulated which causes the deterioration thereof; or if he does not observe the requirement in No. 2 of Article 1657, as regards the use thereof.

 

Reviewing the circumstances, such an action should fail.

[rocco69]

Kausapin yung ama na mag-execute ng affidavit to allow his child to use his surname, otherwise wala ka nang remedy, kasi nga ang general rule ay - illegitimate child uses the surname of the mother. Or, kung hindi pa rehistrado yung bata, irehistro sunod sa pangalan ng ama. Pag lumabas na yung birth certificate yun na ang kailangang sundin.

 

 

^but is there anyway para magamit ang pangalan ng tatay pag hindi ninya nirerecognize ang child and filiation has been established through a suit?

[Dr_PepPeR]

I beg to disagree.

 

You have to correlate the civil code provisions on contracts, lease, and mortgage with the appropriate provisions of the Rules of Court on foreclosure.

 

First, basic is the principle that contracts bind not only the parties thereto but also their assigns and heirs. As such, the bank is obliged to observe the lease contract made by the company with the family.

 

Second, foreclosure per se does not give title to the purchaser. Thus, it cannot automatically rescind the lease contract. In fact, the Rules of Court Rule 39 Section 32 says that the rent, income and earnings of the property subject to redemption pertain to the judgment obligor until the expiration of his redemption period, whether equity of redemption or right of redemption.

 

Third, a mortgage does not vest any real rights to the mortgagee. It is merely a contract of security. In fact, a mortgage that prohibits the alienation of the subject property is absolutely prohibited.

 

In the instant case, there is no mention whether the redemption period has already expired. Redemption periods for foreclosure sales vary if it was made judicially or extrajudicially.

 

Assuming that such has expired and the bank has already perfected the action for consolidation which was given due course by the court (as shown by the court's order for the company to vacate the premises, which if the preceding sentence was not observed, i.e. that the redemption period has expired and the judgment obligee has moved for consolidation - the court gravely abused its discretion), go back to the first. It is bound by the lease contract executed by the company and the family.

 

Fourth, unless and until the bank successfully ejects them from the property, the family has no cause of action. If the bank insists on making a new contract and refuses the payment of rent under the old contract, the family can consign the payment with the courts. The bank has to file an ejectment suit to regain possession of the property. The grounds for ejectment of a lessee are the following:

 

Art. 1673. The lessor may judicially eject the lessee for any of the following causes:

 

(1) When the period agreed upon, or that which is fixed for the duration of leases under Articles 1682 and 1687, has expired;

 

(2) Lack of payment of the price stipulated;

 

(3) Violation of any of the conditions agreed upon in the contract;

 

(4) When the lessee devotes the thing leased to any use or service not stipulated which causes the deterioration thereof; or if he does not observe the requirement in No. 2 of Article 1657, as regards the use thereof.

 

Reviewing the circumstances, such an action should fail.

 

Yes, you're quite correct. Based on my experiences with REMs prepared by banks, the REM has a clause that a lease, particularly one that is long term, requires consent of the mortgagee. Since the REM is registered, and the registration constitutes notice on the whole world, the lessee is considered to have known the restrictions on the use of the property. I also assumed that there was a court order already to vacate, so it seems that possession has already been ruled on. Thanks for your input, I learned a few things.

[jake_roxas]

^tol!

 

i love you!

 

hehehehehe

 

hahaha. i love u too.

[jake_roxas]

Thank you for your insight Dr. P. I admit that i have overlooked this angle. Thanks again.

 

 

I have to make an assumption here, which is that the condo unit was mortgaged to the BANK. If in fact this is the case, a mortgage contract drawn up by the BANK will usually prohibit the lease of the premises unless a) the business of the Mortgagor involves the lease of the properties mortgaged there is prior written consent by the BANK. In any case, the registration of the mortgage by annotation in the Registry of Deeds constitutes a notice to the whole world that the property is subject to an encumbrance and therefore any subsequent dealings on the property, especially with respect to the exercise of rights of ownership, should consider the terms of the annotated real estate mortgage. Therefore, the terms of the lease are always subject to the exercise of the rights of the BANK as a foreclosing mortgagee.

 

With the caveat that I am not a practicing lawyer, the FAMILY's cause of action I guess would be to compel the enforcement of the lease contract on the BANK and the OWNER COMPANY. As I've said, I believe that the lease contract is inferior to the mortgage contract, due to the registration and annotation of the mortgage. The remedy would be first to compel compliance with the lease contract, then if this cannot be done, damages against the OWNER COMPANY. I think it will be proper to intervene in the same case since the FAMILY is an interested party in the property subject of litigation.

[jake_roxas]

Thanks Bro for your answer. A big help indeed.

 

You have to correlate the civil code provisions on contracts, lease, and mortgage with the appropriate provisions of the Rules of Court on foreclosure.

 

First, basic is the principle that contracts bind not only the parties thereto but also their assigns and heirs. As such, the bank is obliged to observe the lease contract made by the company with the family.

 

Second, foreclosure per se does not give title to the purchaser. Thus, it cannot automatically rescind the lease contract. In fact, the Rules of Court Rule 39 Section 32 says that the rent, income and earnings of the property subject to redemption pertain to the judgment obligor until the expiration of his redemption period, whether equity of redemption or right of redemption.

 

Third, a mortgage does not vest any real rights to the mortgagee. It is merely a contract of security. In fact, a mortgage that prohibits the alienation of the subject property is absolutely prohibited.

 

In the instant case, there is no mention whether the redemption period has already expired. Redemption periods for foreclosure sales vary if it was made judicially or extrajudicially.

 

Assuming that such has expired and the bank has already perfected the action for consolidation which was given due course by the court (as shown by the court's order for the company to vacate the premises, which if the preceding sentence was not observed, i.e. that the redemption period has expired and the judgment obligee has moved for consolidation - the court gravely abused its discretion), go back to the first. It is bound by the lease contract executed by the company and the family.

 

Fourth, unless and until the bank successfully ejects them from the property, the family has no cause of action. If the bank insists on making a new contract and refuses the payment of rent under the old contract, the family can consign the payment with the courts. Reviewing the circumstances, such an action should fail.

[moichi]

yup thats right, "animo disponendi", or the absence/lack of it, is the biggest obstacle this theory would have to hurdle considering the pro-forma nature of these SPAs. but i am still interested in how the SPAs were actually worded.

 

 

Guys,

 

here's the edited version of the spa. (without the names, addresses & other info)

 

SPECIAL POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS:

 

I, ____ Filipino, of legal age, with address at ____, do hereby name, constitute and appoint _____, Filipino, of legal age and with address at ______, to be my true and lawful attorney, for me and in my name, place and stead, manage, administer, build or improve on, lease and collect rent payments under any such lease contracts, sign and execute any and all necessary documents including contracts, application for permits and licenses relative to the foregoing purposes, with respect to the following described real property, to wit:

 

A parcel of land (--- description of property follows ---)

 

of which I am the registered owner as evidenced by Transfer Certificate of Title No.___ the Registry of Deeds of ___; and all its improvements therein;

 

HEREBY GIVING AND GRANTING unto my said attorney full powers and authority to do and perform all and every act requisite or necessary to carry into effect the foregoing authority, as fully to all intents and purposes as I might or could lawfully do if personally present, and hereby ratifying and confirming all that my said attorney shall lawfully do or cause to be done by virtue hereof.

 

IN WITNESS WHEREOF, I have hereunto set my hand this __ day of ___, 2001, in ____, Philippines.

 

 

is this helpful?