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Nutrition for an adult child for studies – No. 11478/2022 Decision of the Court of First Instance of Thessaloniki

The Single-member Court of First Instance of Thessaloniki, on a case handled by our office, eKAn adult child's Insurance Application for studies is not accepted, with which she requested that the defendant be obliged to pay temporary maintenance in money, claiming that she cannot support herself, due to her disability and inability to work, which is due to her educational needs, while her father is able to meet her nutritional needs. 

The Court held that: "her similar maintenance of an adult child who lacks sufficient property income and does not yet have the obligation to work, because he intends to study, includes not only the expenditure on food, shelter and everything else necessary for his survival, but and the expenditure for his theoretical or technical professional education, at any level, including university and postgraduate studies (AP 212/1999, AP 67/1999, Hellenic Law 40.1043 and 1592, respectively). If the adult wishes to continue his studies in higher education or vocational education, then he is entitled to maintenance from the persons defined in article 1485 of the Civil Code, if he has no property, but in this case the studies of the adult child up to now are taken into account in relation to his ability to work. The child's status as a student usually implies that he is not able to practice any profession or work at the same time without harming his health and successfully dealing with his studies. Taking into account the performance of the beneficiary, i.e. his ability to meet the requirements of a certain degree and level of studies. Yes, Frthe nutritional claim of the adult child must be recognized even after the end of his studies, if it becomes impossible to find a suitable job, which is why his further training continues (eg postgraduate studies at home or abroad, obtaining a doctorate, obtaining a second degree ), if this is justified by his previous performance and the prevailing conditions and perceptions in general in the branch of science he follows. In order to cover the maintenance costs of the child, in the above sense, both parents are responsible, each of whom is obliged to cover a percentage of the child's needs, depending on his financial capabilities, which come from income or his resources or the debtor's property, which is taken into account, if the income from it is insufficient (AP 1060/1993 HellDni 35.1292, EfPir 432/2016 public LAW)

Therefore, he partially accepted the application and ordered the defendant to pay to the applicant on the first day of each month as temporary maintenance in money the amount of 800.00 euros.


THE RELATED DECISION IS ATTACHED


DECISION 11478/2022

THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF THESSALONIKI

SAFEGUARDS PROCEDURE

CONSTITUTED by Judge Sofia Antoniadou, President of First Instance, who was appointed by lottery, in accordance with the law, without the involvement of the Secretary.

MEETED in public, in his audience, on June 7, 2022, to hear the application numbered ext. deposit, with the object of maintenance of an adult child, between:

OF THE APPLICANT: ………………………………………. of ……………., TIN………………….., presented by the lawyer’s attorney, Thomas Kalokiri (AM DSTH 11982), who filed a memo.

  OF THE APPLICANT: ………………………… of………………….., ……………….., TIN ……………………., presented after the representative of the lawyer, ……………………… (AM DSTH ………………), who filed a note.

DURING the discussion of the case, the attorneys of the parties orally developed their claims and requested that what is mentioned in the notes they filed be accepted.

AFTER STUDYING THE LITIGATION

CONSIDERED ACCORDING TO THE LAW

From the provisions of articles 1485 et seq. of the Civil Code, the maintenance obligation between anions and cations is regulated. In particular, with the provision of article 1486 of the Civil Code, it is defined that the right to maintenance has, except for the minor and the adult child, since the latter cannot support himself from his property or from work suitable for his age, the situation of the his health and his other living conditions, in view of the possible needs of his education. This alimony, in accordance with article 1493 of the Civil Code, includes everything necessary for the maintenance of the beneficiary and, in addition, the expenses for his upbringing as well as his professional and general education. Finally, according to the provision of article 1489 par.2 of the Civil Code, parents have an obligation to support their child jointly, each according to their abilities. From the above provisions, it follows that the proportionate maintenance of an adult child who lacks sufficient property income and does not yet have an obligation to work, because he intends to study, includes not only the expenditure on food, shelter and everything else necessary for his survival, but also the expenditure for his theoretical or technical professional education, at any level, including university and postgraduate studies (AP 212/1999, AP 67/1999, Greek Law 40.1043 and 1592, respectively). If the adult wishes to continue his studies in higher education or vocational education, then he is entitled to maintenance from the persons defined in article 1485 of the Civil Code, if he has no property, but in this case the studies of the adult child up to now are taken into account in relation to his ability to work. The child's status as a student usually implies that he is not able to practice any profession or work at the same time without harming his health and successfully dealing with his studies. Taking into account the performance of the beneficiary, i.e. his ability to meet the requirements of a certain degree and level of studies. In fact, the nutritional claim of the adult child must be recognized even after the end of his studies, if it becomes impossible to find a suitable job, which is why his further training continues (eg postgraduate studies at home or abroad, obtaining a doctorate, obtaining second degree), if this is justified by his previous performance and the prevailing conditions and perceptions in general in the branch of science he follows. In order to cover the maintenance costs of the child, in the above sense, both parents are responsible, each of whom is obliged to cover a percentage of the child's needs, depending on his financial capabilities, which come from income or his resources or the debtor's property, which is taken into account, as long as the income from it is insufficient (AP 1060/1993 Hellenic Republic 35.1292, EfPeir 432/2016 public LAW). From the above, it is clearly concluded that, if the adult child, who is entitled to maintenance, turns against only one parent, he is entitled to appeal, according to article 262 of the Civil Code, that the other parent also has the financial capacity, in relation with his own and in combination with his other obligations, to cover part of the corresponding maintenance of the minor. The proof of this claim, which is not an element of the lawsuit (and thus the adult plaintiff is not required to state in the lawsuit document the financial capabilities of the other parent as well), has the consequence of limiting the defendant parent's liability by the amount corresponding to on the financial ability of the other and on the basis of this his obligation to contribute (EfPir 432/2016 pub. TNP LAW, EfAth 4291/1999 HellDni 42.1368, EfAth 6827/1999 HellDni 1947.887). Moreover, the court is not obliged ex officio to investigate the financial strength of the child's mother, in order to divide the maintenance obligation between his two parents, in order to limit the obligation of the defendant for the corresponding maintenance of his child during the an amount that may correspond to the financial resources of his mother (AP 804/1994 HellDni 37.98, AP 2197/1984 NoB 33.182, EfLar 16/2005 Litigation 2005.458, EfThes 1705/2003 Arm 2004.75).

   With her considered application, the applicant, an adult child of her father, to pay her the amount of 1,450 euros per month, as temporary maintenance in cash, in advance on the first day of each calendar month, with the legal interest from delay in payment of each monthly installment until payment, claiming that she cannot support herself, due to her disability and her inability to work, which is due to the needs of her education, while the defendant has the possibility as stated in particular in the application to meet her nutritional needs, as she specifically identifies them. She also requests that the defendant be ordered to pay her court costs. 

    With this content and request, the application, competent and admissible, is brought before this Court during the present procedure of interim measures (articles 39A and 6866 ff. of the Civil Code), and it is clear, definite and legal, based on the provisions of articles 1485, 1486,1489,1493, 1496 ed. a', 1298, 340, 345, 346 of the Civil Code, 176, 688 par. 1, 728, 729 and 730 of the Civil Code, containing the facts required for its foundation, rejecting the objection of indeterminacy, which was admissibly raised by the defendant . The substantive merits of the application must therefore be further investigated.

   According to the public order provision of art. 1507 AK, parents and children owe each other mutual help, affection and respect. Manifestation of the above elements is the desire of one to communicate with the other, to offer support and assistance in good or bad moments of the other's life and to show respect for his personality, and in the same context one is entitled and the other is obliged to support the other, when there is reason for this. Therefore, in the event that the maintenance applicant acts contrary to the provisions of art. 1507 of the Civil Code, his obligations, it is possible to raise against the maintenance action the objection of abusive exercise of a right (art. 281 Civil Code). In order to establish it, however, it is necessary to show and prove special incidents, which in a specific case demonstrate an obvious overstepping of the limits of good faith or common morals or of the social or economic purpose of the right to maintenance, during its exercise by the plaintiff at the expense of of the defendant. Such incidents, which justify the judgment of abusive exercise of the nutritional claim, are for example the voluntary change of surname of the beneficiary, because in this way a clear and categorical declaration by the latter that there is no longer any emotional bond between the parent and him, apart from the that this action of the child shows contempt for the defendant father and a lack of love and respect for him (EfThes 1439/2005, EfPir 3/1996 טים TNP LAW). On the contrary, the adult child's refusal to communicate with his defendant father or addressing the latter by his first name instead of ``father'' do not constitute an abusive exercise of the nutritional claim, because in these cases it is indicated a relaxation of the emotional bond that is imposed to exist between parents and children, but it is not shown by extreme incidents of ingratitude or insult to the person of the obligee, which could establish the objection of the abusive exercise of the nutritional claim (EfPeir 407/2015, EfPeir 537/2015, EfAth 2564/2011 municipal TNP LAW). 

  The defendant, during the oral discussion of the case in the audience, with a statement of the lawyer's attorney, which he repeats in his written note, denies the application as to the amount of maintenance requested for the adult child, and put forward the claim that he is obliged to participate in his maintenance and his mother with her income, exposing her powers suitable for maintenance, which, according to the aforementioned in the main opinion, is a legal objection which must be examined further, in terms of the essential its validity. He also put forward the claim that if he is forced to pay the requested amount as alimony for his applicant, his own alimony will be at risk. This claim is a legal and permissible objection to jeopardizing his own maintenance, as it is the maintenance of an adult child, in which the parent can raise the objection of jeopardizing his own maintenance, without having to plead that this child can turn against another debtor or that he can be supported from his property (article 1487 AK, see also Vathrakoili, The New Family Law, ed. 2000, in article 1487 par. 10, pp. 723, 724 and the references there in the jurisprudence). Therefore, it needs to be further investigated as to its substantive validity. Also, against the maintenance claim of the applicant - his adult child, the defendant legally raised the objection of abusive exercise of the legal application (art. 281 Civil Code) invoking that there is a case of application of article 1507 Civil Code since, although he himself tried all these years of helping the applicant in her every venture, she saw him not as her father but as a financial supporter, she does not answer his phone calls and systematically avoids him having decided to stop all communication with him. This objection is illegitimate and rejected because, the alleged facts and true assumptions, as mentioned in the main opinion, do not constitute an abusive exercise of a right. 

  From the affidavits of the witnesses that were examined in the audience of this Court, custody of the applicant and the defendant of the application, ………………………………… and …………………………… ..., respectively, from the documents submitted and relied upon by the parties, including the documents submitted by the applicant in an official translation from English to Greek, according to article 454 of the Civil Code, without taking into account the applicant's letter addressed to this Court, which is not a means of evidence, and what was developed orally in the audience and repeated with the notes submitted by their attorneys, the following facts were presumed: The applicant is the child of the defendant and the witness examined in the audience, ……………, who celebrated a legal civil marriage on …………………… at the Town Hall …………………… N……………………, which, subsequently, was canonized according to the rules of the Eastern Orthodox Church in I.N. …………………………… …………………………………, on ………………………………… From this marriage they had one child, the applicant, who was born on …. and she is now an adult. The marriage of the applicant's parents was irrevocably dissolved with the no. ... decision of this Court (special procedure for disputes from family, marriage and cohabitation). During the 2017-2018 academic year, the applicant began her university studies studying …… in England in the scientific subject ……. After receiving her degree, in order to have her foreign three-year study degree recognized as equivalent by DOATAP with her home country four-year study degrees and to obtain a master's degree, she enrolled in September 2021 in …… in city of Brussels in the postgraduate study program “………” with a duration of study of one year. Due to the needs of her studies, she lives in a rented apartment in the city of Brussels, paying a rent of 350 euros per month, plus an amount of 50 euros per month to cover the operating costs of this house. To repay the tuition fees, he received a student loan, amounting to 23,000 euros, lasting 8 years, with monthly installments until February of the year 2022 amounting to 146.25 euros, increasing from March to May of the year 2022 to the amount of 207.50 euros and from May to September of the year 2022 in the amount of 216.25 euros. It should be noted that since the successful completion of her undergraduate studies, it is likely that the applicant demonstrates diligence and interest in her studies. Furthermore, the applicant is healthy, but due to her above-mentioned studies, which require full and continuous monitoring, she cannot work in order to meet her living expenses, which are the usual ones of her interlocutors, while it was not suspected that she has property or income from any other source. Thus, the applicant, due to her above-mentioned studies, which are necessary in order to obtain the required formal qualifications to claim a position in the labor market commensurate with her parents' economic and social status as described below, cannot support herself for a period of and is entitled to receive alimony, in money, paid in advance per month, from their liable parents, who are involved according to their financial strength. From the same evidence above, it was presumed that her father is …….. with a monthly salary of ……euro approximately. He is the owner of …… from the rental of which he receives a monthly sum of approximately Euros. He resides in ..., as a result of which he is not burdened with housing costs, except for the operating costs of this residence (expenses for electricity, water supply, heating, etc.) which are attributable to him. Other income or resources from any other source were not presumed to be available to the defendant and he is not burdened by law with the maintenance of other persons, except for his legal obligation to contribute to the maintenance of the applicant. Pays for mortgage repayment, ……. It should be noted that the sums paid by the defendant for his loan and financial obligations are not pre-deducted from his income, when determining his financial strength for the calculation of the proportion he bears in his participation in the maintenance of his child , but they are taken into account as an additional vital need and as a defining element of his living conditions (see decree AP 230/2012, AP 680/2012 div. TNP Law, Eflar 650/2012 div. TNP ISOKRATES). The applicant's mother is …. and works with a monthly salary of ………. about. He resides... and is not charged with housing costs, but is charged with the operating costs of this residence (cost of electricity, water supply, heating, etc.). Other property or income from any source is not suspected to have and is not burdened by law with the maintenance of other persons, except for its legal obligation to contribute to the maintenance of the applicant. Based on the above mentioned financial capabilities of her parents, the applicant's monthly needs, as derived from the aforementioned living conditions and corresponding to the necessary costs of food, clothing, medical care and entertainment, etc. amount to 1,300 euros. From this amount, her father is in a position, based on his aforementioned financial capacity, in relation to his mother's corresponding financial capacity, to pay part of her maintenance, amounting to 800 euros per month, without risking his own alimony, dismissed as unfounded in substance of the relevant objection he raised, while the remaining amount necessary for the maintenance of the applicant, an amount, is borne by her mother, in proportion to her income, upon acceptance of the legal related objection raised by respectively. Therefore, given that it has been assumed that there is an urgent case and an imminent risk for the granting of the requested insurance measure, which concerns the nutritional needs of the applicant, rejected as unfounded the relevant objection that was legally raised by the defendant of the application, he must be obliged to pays the applicant the above-mentioned amount on the first day of each calendar month, with the legal interest from the delay in payment of each monthly installment, until payment.

      In view of the above, the considered application must be partially accepted as well-founded and in substance, as specifically mentioned above and in the operative part of the present. Court costs must be offset in their entirety between the parties, due to their relatedness (Article 179 of the Civil Code).

FOR THOSE REASONS 

JUDGE objection of the parties.

ACCEPTED partially the application.

ORDERS the defendant to pay the applicant on the first day of each month as temporary maintenance in money the amount of 800 euros, with the legal interest from the delay in payment of each monthly installment until the payment.

AVOIDS in full the legal costs between the parties.

ADJUDGED and decided on September 8, 2022.

The Judge

(SIGNATURE)

PUBLISHED at an extraordinary public meeting in his audience, in Thessaloniki, on September 8, 2022, without the presence of the parties and their attorneys, with the presence of the Secretary ……………………. and was considered the same day.

THE JUDGE THE SECRETARY

(SIGNATURE) (SIGNATURE)


Thomas Steph. Summer 

MDE lawyer 

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