Case For Increase Of Alimony – The Fact That The Non-Applicant Father, In Addition To Meeting The Expenses Of The Plaintiff, Pays Alimony For The Other Common Child, Whose Custody Is With The Defendant
T.C. JUDICIARY
3rd Civil Chamber
Main: 2016/5899
Decision: 2016/10153
Decision Date: 27.06.2016
CASE FOR INCREASE OF ALIMONY – THE FACT THAT THE FATHER PAYS ALIMONY FOR THE OTHER JOINT CHILD ECE, WHOSE CUSTODY IS WITH THE DEFENDANT, IN ADDITION TO MEETING THE EXPENSES OF THE PLAINTIFF – REVERSAL OF THE JUDGMENT
SUMMARY: The court should award an appropriate alimony for the benefit of the plaintiff, taking into account the actual economic and social situation of the parties, the nature of the alimony, the income status of the defendant, the needs of the plaintiff, the fact that the father of the plaintiff pays the participation alimony for the other common child Ece, whose custody is with the defendant, the purchasing power of the money, the economic conditions of the day, the principle of equity regulated in the article of the TMK. It was not deemed correct for the court to make a judgment by making a mistake in the evaluation of the evidence, and it required a reversal.
(4721 S. Code Art. 4, 364, 365)
Case: As a result of the trial of the lawsuit for the increase of the alimony between the parties, the judgment for the dismissal of the lawsuit was appealed by the plaintiff’s attorney within the time limit; after the decision was taken to accept the appeal petition, the papers in the file were read and considered accordingly:
The plaintiff’s attorney, with the petition; claiming that the plaintiff is a student, the defendant’s mother, who is a teacher, is not supportive, the plaintiff’s father, who meets the expenses of the plaintiff, is obliged to take care of his elderly mother and his wife, who is a housewife; requested and sued for a monthly alimony of 900.00.- TL.
The defendant’s attorney, with his reply petition, requested the dismissal of the lawsuit.
The court decided to dismiss the lawsuit on the grounds that the plaintiff’s expenses are covered by his father, the plaintiff can work, and the defendant has undertaken the expenses of the other child; the judgment was appealed by the plaintiff’s attorney.
According to Article 364/1 of the Civil Code; “Everyone is obliged to provide alimony to his/her descendants and siblings who will fall into poverty if he/she does not help them”.
Article 365/2 of the Civil Code reads as follows: “The lawsuit consists of a request for assistance necessary for the plaintiff’s livelihood and in accordance with the financial power of the other party”.
In the decision of the General Assembly of Civil Chambers dated 07.06.1998 and numbered ….; it is emphasized that “…those who do not have enough income to meet the expenses that are deemed compulsory and necessary to develop the material existence of the individual such as food, clothing, shelter, health, transportation, culture (education) should be considered poor…”.
Alimony is a kind of social assistance to save family members from poverty and destitution, and it is a duty obliged by moral rules and traditions. The fact that the person requesting alimony has fallen into a needy situation due to the fault of the person requesting alimony does not relieve the obligor from his/her obligation. The weakening of family ties for any reason is also not regulated as a reason that removes the obligation. For these reasons, the legislator has not left alimony to the conscience of the individual and society, but has regulated it as a legal duty.
However, it is essential that the persons who will be obliged to pay this alimony should not be put into financial difficulties. For this reason, the alimony should be determined in a way that is necessary for the plaintiff’s livelihood and proportional to the income of the alimony obligor, taking into account the principle of equity in Article 4 of the Civil Code.
In the concrete case; it is understood that the plaintiff’s parents divorced on 14/09/2010, the plaintiff stayed with his father, the mother was given the custody of the other common child of the parents, born on 25/10/2005 …, and the father married on 18/10/2013 and had a child with his new wife on 24/06/2014. From the information in the file, it is understood that the defendant mother is a teacher, receives a salary of 2.380.00 TL, stays with her daughter, pays rent of 1.250.00 TL, owns a house and a vehicle; the father is a teacher, receives a salary of 2.500.00 TL, stays in his own house, remarried; the plaintiff was born on 12/09/1994, studied in the department of… and stayed with his father. The father pays a monthly maintenance of 350.00 TL for his child Ece, who is a partner with the defendant.
In this case, the court should award an appropriate alimony for the benefit of the plaintiff, taking into consideration the actual economic and social situation of the parties, the nature of the alimony, the income status of the defendant, the needs of the plaintiff, the fact that the father pays alimony for the other joint child Ece, whose custody is with the defendant, the purchasing power of the money, the economic conditions of the day, the principle of equity regulated in Article 4 of the TMK.
The court has made a mistake in the evaluation of the evidence and it has not been deemed correct to form a written judgment and it has required a reversal.
Conclusion Since the appellate objections are appropriate for these reasons, it was decided unanimously on 27.06.2016 that the judgment shall be reversed in accordance with Article 428 of the Code of Civil Procedure and the prepaid appeal fee shall be refunded to the appellant upon request.
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