Children Awarded Alimony Must Reside With The Creditor
Republic of Turkey
COURT OF CASSATION
8th CIVIL CHAMBER
E. 2015/15599
K. 2018/332
T. 15.1.2018
Following the trial in the case between the parties described above,
the Court decided to dismiss the case. Upon appeal of the judgment by the plaintiff,
the Chamber reviewed the file and considered the matter:
DECISION: The debtor’s attorney stated that enforcement proceedings had been initiated against his client based on a maintenance claim judgment, but that the maintenance payments had been made regularly and that the children had been living with his client since June 2013, requesting that the enforcement proceedings be terminated with regard to the TL 6,000.00
TL in joint alimony, including interest, be dismissed.
The court ruled that the decision to change custody became final on October 1, 2014, and that since the court decision regarding the change of custody did not include a request or ruling to terminate the joint alimony, the alimony continued until October 1, 2014, and the claim in the enforcement proceedings pertained to the period prior to that date, and therefore the objection was rejected.
The judgment was appealed by the debtor’s attorney.
In the consistent case law of the Court of Cassation, it has been established that in order for the debtor to be held liable for paying alimony in favor of the child, the child must be residing with the creditor, and if the debtor claims that the child is residing with him/her,
this claim can be proven by any evidence, including witnesses.
In the present case, the basis for the enforcement is … The decision of the 2nd Family Court dated 20.01.2012, Case No. 2012/25, Decision No. 2012/22, awarded joint child support of TL 250.00 each for two children after the decision became final, and the decision became final on 27.02.2012. The creditor’s
… 4. In the enforcement file numbered 2014/10726 of the Enforcement Office, with the enforcement request dated 08.22.2014, the maintenance and alimony receivables for the period between 08.27.2013 and 07.27.2014 were requested.
… … The 1st Family Court, in its decision dated 03.06.2014, Case No. 2014/31, Decision No. 2014/294, awarded custody of the joint children to the father, and the decision became final on 01.10.2014. For the debtor to be held liable for paying alimony
to the children in favor of whom alimony was awarded, the child must be residing with the creditor. The debtor argues the contrary, claiming that the joint children have been residing with him since June 2013,
and this claim can be proven by any evidence. The debtor relied on witness evidence. Accordingly, it is inappropriate for the Court to rule without hearing the debtor’s witnesses regarding the joint children staying with their father since June 2013.
CONCLUSION: The debtor’s counsel’s appeal objections are accepted, and the Court’s decision is overturned for the reasons stated above.
CONCLUSION: With the acceptance of the debtor’s attorney’s appeal, the Court’s decision is REVERSED in accordance with Articles 366 of the ÎİK and 428 of the HUMK for the reasons stated above. Pursuant to Article 366/3 of the İİK, the parties may request a correction of the decision within 10
and that the advance fee shall be refunded to the appellant if requested. This decision was made unanimously on January 15, 2018.