Supreme Court of Appeals
Main Number:
Decision Number:
“Text of Justice”
COURT: Family Court
Following the trial concerning the “mutual divorce based on the foundation of the marriage union” between the parties, upon the appeal of the plaintiff-defendant’s attorney, the Supreme Court of Appeals 2nd Civil Chamber reviewed the case and overturned the decision of the Eskişehir 3rd Family Court regarding the acceptance of the original and consolidated case. The court resisted the Special Chamber’s decision to overturn.
The plaintiff-defendant’s attorney objected to the decision to resist.
Pursuant to the second paragraph of Article 438 of the Code of Civil Procedure No. 1086, which entered into force in accordance with the transitional Article 3 of the Code of Civil Procedure, as of the date of the decision to resist, by the General Assembly of Civil Procedure, Since no hearing could be held during the appeal review before the amendment made by Law No. 5236 dated 26.09, the plaintiff-defendant female lawyer’s request was rejected, and the documents in the file were examined, and the necessity was discussed.
I. TRIAL PROCESS
Request of the Plaintiff-Defendant Female Lawyer:
In her petition, the plaintiff-defendant female lawyer stated that the defendant-defendant female lawyer threatened to kill her client, kicked her out of the house, and pressured her client, requesting the divorce of the parties, 1,000.00 TL in precautionary measures-poverty alimony, 150,000.00 TL in material damages, and 150,000.00 TL in moral damages.
The defendant-counterclaimant female lawyer’s response:
In the response petition, the defendant-joint plaintiff male lawyer stated that the plaintiff-joint defendant woman wanted his client to return to Kuşadası and live there again, that she later left the house, that she did not care about the cosmetic surgery performed without his client’s knowledge, that the allegations were not true, that the case was dismissed for the reasons stated, He claimed that provisional maintenance of TL 1,000.00 was ordered, and otherwise, he demanded TL 1,000.00 in poverty maintenance, TL 150,000.00 in material damages, and TL 150,000.00 in moral damages.
First Instance Court Decision:
With the decision of the Eskişehir 3rd Family Court dated 12.12.2013 and numbered 2012/860 E., 2013/884 K.; it was alleged that the plaintiff-intervening defendant woman was disturbed by the defendant-intervening plaintiff man and wanted to go back to Kuşadası and live there despite the family’s financial difficulties, that there was a dispute between the parties over the division of property, that the defendant-intervening plaintiff man made threatening remarks to his wife, and that the parties were going to divorce.
Although both cases were accepted and the parties divorced due to mutual fault in the events leading to the divorce, the parties’ claims and the plaintiff-respondent woman’s alimony claims were rejected. It was alleged that the defendant-joined plaintiff man had a pension of 1,000.00 TL and rental income of 1,200.00 TL, but that he had paid the rent for three years in advance. Considering that the defendant-joined plaintiff woman receives a monthly pension of 600.00 TL, that the plaintiff-joined defendant woman has a large amount of property after deductions, that her rental income is over 10,000 TL, and that the defendant-joined plaintiff man’s situation is temporary, it was decided to pay 800 TL per month in favor of the defendant-joined plaintiff, 00 TL in provisional alimony, and 20,000.00 TL in lump sum alimony.
Special Chamber Decision:
With the decision of the 2nd Civil Chamber of the Court of Cassation dated 22.09.2014 and numbered 2014/6826 E., 2014/18019 K.;
“… The judgment was appealed by the plaintiff-defendant’s attorney in terms of the man’s joint divorce case, the provisional and alimony awarded in favor of the man, and the woman’s rejected compensation and alimony claims;
1- The court accepted that “the marriage union was fundamentally shaken to the extent that the parties could not be expected to live together, and that this result arose from the joint fault of the parties,” and accepted the divorce case of both parties, thereby deciding to grant the divorce. the examination and evidence gathered reveal that the defendant-plaintiff husband threatened to “kill” his wife and cursed her “to believe in his religion.” No fault or behavior on the part of the plaintiff-defendant wife that would undermine the foundation of the marriage has been proven. In this case, the joint divorce petition filed by the husband should have been dismissed, but it was accepted due to insufficient grounds.
2- It is understood that the evidence gathered shows that the defendant-plaintiff husband is retired, has a steady and regular income, and also receives rental income. Pursuant to Article 169 of the Turkish Civil Code, there is no place for a temporary measure decision to provide for the husband’s “livelihood.” The good financial situation of the plaintiff-defendant wife does not justify the determination of alimony in favor of the husband. Without taking this into account, the determination of alimony in favor of the husband and the discretion were not appropriate…” It was unanimously decided to overturn the decision.
Decision to Resist:
Eskişehir 3rd Family Court’s decision dated 26.02.2015 and numbered 2015/21 E., 2015/156 K. (after the grounds were given in the decision prior to cancellation); TMK
Since the man’s alimony obligation has ceased to exist, the woman can also be held responsible for alimony like the man. Considering the difference in the parties’ incomes, there is no error in calculating alimony in favor of the man. The plaintiff-joint defendant is avoiding a shared life by requesting that her husband return to Kuşadası. T he plaintiff-joint defendant woman underwent facelift and nose surgery, which can be considered luxury procedures, while going through a difficult economic period, which will also cause fault. The defendant-joint defendant man also made threatening and insulting remarks to his wife.
Both parties are jointly at fault. Since the divorce case filed by the woman under the Turkish Commercial Code has been finalized, there is no need to rule on the divorce as it is not the subject of the consolidated divorce case. The parties’ claims for compensation and the plaintiff-joint defendant woman’s claims for alimony have been rejected. It has been decided that the defendant-joint defendant-plaintiff consolidated man shall pay monthly alimony of TL 800.00. A decision to uphold the appeal was made on the grounds of a total alimony award of 20,000.00 TL.
Objection to the Decision to Resist:
The plaintiff-defendant woman’s lawyer objected to the decision to resist within the legal time limit.
II. DISAGREEMENT
The dispute brought before the General Assembly of the Court of Appeals through resistance; in this specific case, whether the plaintiff-defendant woman was at fault, whether the defendant-plaintiff man should accept the joint divorce case depending on the outcome, and whether the conditions of Article 169 of the Turkish Civil Code were met in favor of the defendant-plaintiff man.
III. PRELIMINARY QUESTION
During the deliberations of the 11th General Assembly of the Court of Appeals, the preliminary question discussed was whether the decision constituted a new ruling based on new grounds and, depending on the outcome reached here, whether the appeal review should be conducted by the General Assembly of the Court of Appeals or by the Special Chamber.
IV. REASON
As is known, for a decision of resistance to exist, the court must base its decision on the evidence before gathering new evidence inspired by the reversal decision; even if it can expand the reasoning of its previous decision, it must not change it (Article 429 of the Code of Civil Procedure No. 1086).
If the court decides based on new information, documents, and evidence, or by changing the reasoning of the reversal decision, or by evaluating a matter it did not previously examine, it cannot be said that there is a decision to uphold the original ruling by changing the legal facts on which the original decision was based.
In the specific case, in the decision dated 12.12.2013 prior to the reversal decision, the plaintiff-intervening defendant woman requested that her husband return to Kuşadası and continue living there, the defendant-intervening plaintiff man threatened his wife, and despite the decision to accept the divorce cases filed against each other due to equal fault on the part of the parties, in the decision to uphold the decision; the plaintiff-respondent woman requested that her husband return to Kuşadası and continue living there, she made extravagant expenditures during a period of economic hardship for the family, and the defendant-plaintiff man threatened and insulted his wife, it was accepted that both parties were equally at fault.
As can be seen, in the decision issued under the name of resistance, unlike the previous reasoning, the plaintiff-respondent woman was accused of making luxury expenditures during a period when the family was going through a difficult economic period, while the defendant-plaintiff man was accused of insulting his wife.
In light of these explanations, it was accepted that the decision subject to appeal, referred to by the court as resistance, was not a genuine resistance decision in terms of procedural law, but rather a new ruling due to the change in the reasoning of the previous decision regarding fault.
In this case, the task of re-examining this decision on appeal based on the new reasoning belongs to the Special Chamber, not the General Assembly of the Court of Appeals.
Therefore, the file must be sent to the Special Chamber for the examination of the objections made against the new decision.
V. CONCLUSION:
For the reasons explained above;
it has been decided that the file should be sent to the 2nd LEGAL OFFICE for the examination of the appeals filed by the plaintiff-defendant female lawyer against the new decision, but since the decision is subject to correction, the court should first carry out these procedures. Pursuant to Article 440, applied in accordance with Provisional Article 3 of the Code of Civil Procedure No. 1086, it was unanimously decided to send the case to the Chamber on January 16, 2020, with the possibility of correcting the decision within fifteen days from the date of notification of the decision.