TC
YÜCE
Law Office
E. 2015/15599
K. 2018/332
T. 15.1.2018
Following the trial between the parties in the aforementioned case,
the case was dismissed and the plaintiff’s
appeal against this decision was rejected. The Chamber reviewed the file and found it necessary to:
DECISION:
A conditional enforcement proceeding was initiated based on the debtor’s attorney’s statement regarding the maintenance claim against the client,
but since the maintenance was paid regularly, and as of June 2013,
the minor children were residing with the client, the attorney requested the cancellation of the enforcement proceeding regarding the maintenance claim of 6,000.00 TL
TL in maintenance, including interest.
The court’s decision to change custody became final on October 1, 2014,
and a lawsuit was filed requesting the removal of maintenance in the court decision regarding the change of custody,
and since no ruling was made, the maintenance continued until October 1, 2014. The appeal request was rejected on the grounds that the maintenance sought in the case
pertained to the period prior to this date, and
the ruling was appealed by the debtor’s attorney.
>In the consistent case law of the Court of Cassation,
for the debtor to be held liable for alimony payments in favor of the recipient,
the debtor must prove that the child is residing with them if they claim that the child is residing with them.
In this case, the rule that this claim can be proven by any evidence, including witness testimony, has been adopted.
>In the present case, the basis for the enforcement is … 2. The decision of the Family Court dated January 20, 2012, and numbered 2012/25
2012/22, which became final upon the decision regarding the two children,
ordered the payment of TL in child support, and the decision became final on February 27, 2012.
On behalf of the creditor, … 4. In the enforcement file dated August 22, 2014, and numbered 2014/10726 of the Enforcement Directorate,
the enforcement of maintenance and poverty allowance claims
for the period from August 27, 2013, to July 27, 2014, was requested. …
According to the decision of the 1st Family Court dated June 3, 2014, numbered 2014/31 2014/294,
joint custody of the children was granted to the father, and the decision became final on October 1, 2014. For the debtor to be held liable for child support payments in favor of the children,
the child must be residing with the creditor. If the debtor
disputes this, they claim that the child has been residing with them since June 2013
and that this claim can be proven with any evidence. The debtor’s testimony.
The evidence is based on this. Accordingly, the Court determined that, as of June 2013, the joint children
had been residing with the father since the decision to separate was made without hearing the debtor’s witnesses,
which was deemed inappropriate.
CONCLUSION:
The court decision regarding the acceptance of the appeal filed by the debtor’s representative is based on Article 366 of the Enforcement and Bankruptcy Code and Article 428 of the Code of Civil Procedure.
In accordance with the exemption provisions, the parties
pursuant to Article 366/3 of the Enforcement and Bankruptcy Code. Pursuant to Article 10 of the Court of Cassation’s decision against the return, it was unanimously decided on January 15, 2018, that a request for correction could be made within one day from the date of notification
and that the appeal fee would be returned to the appellant if a deposit was requested.