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PATRICIA MÉNDEZ GÓMEZ - JUEZ/A DECISOR/A
It is thus justified that the father has a duty to provide support (manutención) to his minor sons and daughters even if he does not have a salary. Secondly, it is a matter of record that the defendant possesses assets, that is, he has an estate and therefore, a capacity to pay. Although the defendant points out that he is not the one receiving the rental income from the farm of which he is the usufructuary (usufructuario), the law provides that the usufructuary is the holder of the right to use and enjoy another's property, whose ownership belongs to the bare owner (nudo propietario), that is, we are dealing with a highly personal right. In other words, a usufruct (usufructo) is a right that provides a third party the possibility of using and enjoying a good that does not belong to them and grants them the possibility of keeping the fruits it produces, specifically civil fruits, that is, those arising from transactions involving money. In this regard, numeral 341 of the Civil Code (Código Civil) establishes: \"The usufructuary may enjoy, by himself or through others, the thing over which his right is constituted, and dispose of it freely, by all means the law permits, but with the precise limitation for the time the usufruct lasts\". Thus, if the defendant allows another person to appropriate his property rights, that decision could never prejudice the child support rights of his daughter. It should be noted that he did not clarify the reasons why it is his mother who benefits from that money, a situation that is in any case contrary to logic when the defendant is aware that he has a daughter and that it is his duty to attend to her needs jointly with the mother, since as a minor she depends absolutely on her parents.
Regarding the property (niche), it is also not appropriate to consider that its ownership is only a formality, because that interpretation is not justified in light of the Best Interests of the Child (Interés Superior del Niño) or the Best Interest of the person entitled to support. In any case, the sum is reasonable and proportional, since in this case it barely represents a daily amount of two thousand five hundred colones per day, with which, it is difficult to meet ALL the needs of a ten-year-old person, that is, a pre-adolescent person, who due to their stage of growth faces constant physical, emotional, and mental changes.
Finally, it is necessary to warn that the aim of the appeal is more directed at not setting a support payment (cuota alimentaria) given that the defendant is deprived of liberty, which is not appropriate, because as indicated, he has assets from which he can profit to honor his paternal duty.
Therefore, the appeal is denied.
THEREFORE:
The appeal is denied. Let it be known. MSc. Patricia Méndez Gómez, Family Judge.
\n\nAMENDEZG \n| \n
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EXP: 23-001318-0172-PA
\nI Circuito Judicial de San José, Edificio Tribunales, Primer Piso. Teléfonos: 2295-3473. Fax: 2295-3627.
\n\n**\"III.- RESOLUTION OF THE CASE:** From the study of the case file, it is observed that the first-instance judge did not assess the testimonial evidence (prueba confesional) provided by the defendant, which constitutes grounds for nullity; however, the undersigned judge leans toward the application of the Principle of Preservation of Acts (Principio de Conservación de los Actos), since although said evidentiary element was not assessed, it does not change the decision adopted by the first instance. As stated in Article 338 of the Civil Procedure Code (Código Procesal Civil), Law 7130, in force for family matters pursuant to Law 9621 of October 3, 2018, testimonial evidence is indivisible, must concern personal facts, contrary to the interests of the confessing party, favorable to the adversary, and susceptible to being confessed. For the reasons that will be stated, the confession in this case cannot benefit the interests of the obligor (obligado alimentario); however, the judge is made aware that testimonial evidence is regulated as a means of proof and the respective analysis must have been conducted on it.\"**\n\n**\"III.[...] It can be seen that the arguments of the appeal do not justify the non-fixing of a child support payment (cuota alimentaria), despite the fact that the obligor (deudor alimentario) is serving a custodial sentence. In this regard, Article 27 of the Child Support Law (Ley de Pensiones Alimentarias) provides that if a person is unemployed, that is not grounds for exemption from the duty of support. It is important to highlight that the obligor's possibilities are not centered solely on whether or not he receives a salary; in this regard, the law refers to assets or income. In the same sense, Article 25 of the same law refers to: salaries, pensions (jubilaciones), retirement benefits (pensiones), per diems (dietas), or others. In this case, it was proven that the defendant is the father of the beneficiary, and therefore he is responsible for contributing to her maintenance (manutención).**\n\nAs is known, the duty to provide support (alimentos) to sons and daughters corresponds to the parents, given that it is an obligation imposed by law. Article 18 of the Convention on the Rights of the Child states: \"1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, shall have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern\". The Costa Rican legal system incorporates that regulation into law; in this regard, numeral 140 of the Family Code (Código de Familia) establishes that parents must protect their children; for its part, article 141 indicates that the rights and obligations inherent to the parental function (función parental) cannot be waived. Article 143 states: \"Parental authority (autoridad parental) confers the rights and imposes the duties to guide, educate, care for, supervise, and discipline sons and daughters...\". For its part, article 29 of the Childhood and Adolescence Code (Código de la Niñez y la Adolescencia) provides that the father and mother are obligated to ensure the physical, intellectual, moral, spiritual, and social development of their minor children. One of those duties is support (alimentación) (article 169 subsection 1). In accordance with numerals 18 and 27 of the Convention on the Rights of the Child, it is foreseen that States shall guarantee the recognition of the principle that both parents have common responsibilities for the upbringing and development of the child and that their basic concern shall be the best interests of the child. Furthermore, as part of the recognition of every child's right to a standard of living adequate for their physical, mental, spiritual, moral, and social development, it expressly contemplates that parents or other persons responsible for the child have the primary responsibility to provide, within their abilities and financial means, the living conditions necessary for the child's development and imposes on States Parties the duty to take all appropriate measures to secure the recovery of maintenance (pensión alimentaria) from the parents or other persons having financial responsibility for the child, both within the State Party and abroad. It is thus justified that the father has the duty to provide maintenance (manutención) to minor sons and daughters even if he does not have a salary. Secondly, it is on record that the defendant possesses assets, that is, he has an estate (patrimonio) and therefore, has the capacity to pay. Although the defendant indicates that he is not the one who receives the rental income from the property of which he is the usufructuary (usufructuario), the law provides that the usufructuary is the holder of the right of use and enjoyment of another's property, the ownership of which belongs to the bare owner (nudo propietario); in other words, we are dealing with a highly personal right (derecho personalísimo). In other words, the usufruct (usufructo) is a right that gives a third party the possibility to use and enjoy a property that does not belong to him and grants him the possibility of appropriating the fruits it produces, which involves civil fruits (frutos civiles), that is, those arising from business dealings involving money. In that sense, numeral 341 of the Civil Code (Código Civil) establishes: \"The usufructuary may enjoy by himself or through others the thing in which his right is constituted, and freely dispose of it, by all means permitted by law, but with a precise limitation to the time the usufruct lasts\". Thus, if the defendant allows another person to appropriate his patrimonial rights, that decision could never prejudice the support right (derecho alimentario) of his daughter.\n\nIt should be noted that he did not clarify the reasons why it is his mother who benefits from that money, a situation that is in any case contrary to logic when the defendant is aware that he has a daughter and that it is his duty to meet her needs jointly with the mother, since as a minor she depends absolutely on her parents.\"\n\nFor the foregoing reasons, with the dissenting votes of Judges Castro and Calzada, the appeal is granted, with the legal consequences.\n\n
However, the legal professional must refrain from incurring errors of that nature, given that if a vulnerability factor were not present, there would have been a different outcome.
\nWHEREAS:
\nI.- PROVEN FACTS: Number 4) Is modified as follows: Mr. [Name 002] is the owner of the following assets: a property located in the province of San José number [Value 001], land dedicated to a grave, in Campo Santo la Piedad, the cause of acquisition being purchase, with a tax value of nine million colones and the property located in the province of San José number [Value 002], which corresponds to the usufruct he acquired through donation, with a tax value of seventeen million one hundred one thousand five hundred fifteen colones. (See Public Registry query in images 10 and 12 of the electronic file). 5) Is maintained. 6) Is modified: Mr. [Name 002] does not work at CAI Luis Paulino Mora Mora nor does he receive financial help from third parties, except for the money left by family members when they visit him (Defendant's confession). Number 7 is eliminated because it is a replica of number 3 and in its place it is ordered: The defendant's mother receives 180 thousand colones from the rental of property [Value 002] (Defendant's confession).
\nII.- GRIEVANCES: The appealing party grieves that the judgment takes as true the facts of the lawsuit when they are not true, for example, it says that it is not true that the defendant works for pay in the prison nor that he receives money from the rental of the property of which he is a usufructuary. Furthermore, it says that the property for the grave belongs to the mother and that he appears as the owner by a mere formality. It questions the proven facts. It considers that the set amount is excessive. It requests that the ruling be revoked/annulled because he is not in a position to pay any support (pensión).
\nIII.- RESOLUTION OF THE CASE: From the study of the file, it is observed that the first-instance judge did not evaluate the confession (prueba confesional) evidence that the defendant absolved, so this is a ground for annulment (nulidad); however, the undersigned judge is inclined towards the application of the Principle of Preservation of Acts, since even though said evidentiary element was not evaluated, it does not change the decision adopted by the first instance. As stated in numeral 338 of the Civil Procedure Code (Código Procesal Civil), Ley 7130, in force for family matters, according to Ley 9621 of October 3, 2018, the confession (prueba confesional) is indivisible, must concern personal facts, contrary to the interests of the confessing party, favorable to the adversary, and susceptible to being confessed. For the reasons that will be stated, the confession (confesión) in this case cannot benefit the interests of the support debtor (obligado alimentario); however, the judge is made aware that the confession (prueba confesional) is regulated as a means of evidence and that the respective analysis should have been performed on it.
\nIt is seen that the arguments of the appeal do not justify the non-setting of a child support quota, this despite the fact that the support debtor (deudor alimentario) is serving a custodial sentence. In this regard, numeral 27 of the Ley de Pensiones Alimentarias provides that if a person has no work, that is not a reason to be exempt from the support duty. It is of great importance to note that the possibilities of the support debtor (obligado alimentario) are not focused solely on whether or not he receives a salary; in this regard, the norm refers to assets or income. In the same sense, Article 25 idem refers to: salaries, retirement pensions, pensions, per diems, or other.
\nIn this case, it was accredited that the defendant is the father of the beneficiary, so it corresponds to him to contribute to her maintenance (manuención). As is known, the duty to provide support (alimentos) to sons and daughters corresponds to the parents, given that it is an obligation imposed by law. Article 18 of the Convention on the Rights of the Child which states: \"1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, shall have the primary responsibility for the upbringing and development of the child. Their basic concern shall be the best interests of the child.\" The Costa Rican legal system incorporates that regulation in the law; in this regard, numeral 140 of the Family Code (Código de Familia) establishes that parents must protect their children; for its part, Article 141 indicates that the rights and obligations inherent to the parental role (función parental) cannot be waived. Article 143 states: \"Parental authority (autoridad parental) confers the rights and imposes the duties to guide, educate, care for, supervise, and discipline sons and daughters...\". For its part, Article 29 of the Code on Childhood and Adolescence (Código de la Niñez y la Adolescencia) provides that the father and the mother are obligated to ensure the physical, intellectual, moral, spiritual, and social development of their minor children. One of those duties is support (alimentación) (Article 169 subsection 1). In accordance with numerals 18 and 27 of the Convention on the Rights of the Child, it is foreseen that States shall guarantee the recognition of the principle that both parents have common obligations regarding the upbringing and development of the child and that their basic concern shall be the best interests of the child.
\n\nFurthermore, as part of the recognition of every child’s right to an adequate standard of living for their physical, mental, spiritual, moral, and social development, it expressly contemplates that parents or other persons responsible for the child have the primary responsibility to provide, within their abilities and financial means, the living conditions necessary for the child’s development, and imposes on States Parties the duty to take all appropriate measures to secure the payment of child support (pensión alimentaria) by the parents or other persons having financial responsibility for the child, whether they live in the State Party or abroad.\n\nIt is thus justified that the father has a duty to provide maintenance (manutención) to his minor sons and daughters even if he does not have a salary. Secondly, it is on record that the defendant possesses assets, that is, he has a patrimony (patrimonio) and therefore, the capacity to pay. Although the defendant points out that he is not the one who receives the rental income from the property (finca) of which he is the usufructuary (usufructuario), the law stipulates that the usufructuary is the holder of the right to use and enjoy another’s property, the ownership of which belongs to the bare owner (nudo propietario); that is, we are dealing with a strictly personal right. In other words, usufruct (usufructo) is a right that gives a third party the possibility to use and enjoy a property that does not belong to them and grants them the possibility to appropriate the fruits it produces; these are civil fruits (frutos civiles), that is, those arising from transactions involving money. In this regard, Article 341 of the Civil Code (Código Civil) establishes: \"The usufructuary may enjoy, by themselves or through others, the thing in which their right is constituted, and dispose of it freely, by all means permitted by law, but with a precise limitation to the duration of the usufruct.\" So, if the defendant allows another person to appropriate their patrimonial rights, that decision could never prejudice their daughter's right to support (derecho alimentario). Note that he did not clarify the reasons why his mother is the one benefiting from that money, a situation which is in any case contrary to logic when the defendant is aware that he has a daughter and that it is his duty to attend to her needs jointly with the mother, since as a minor she depends absolutely on her parents.\n\nRegarding the property (nicho), it is also not proper to consider that its ownership is merely a formalism, because that interpretation is not justified in light of the Best Interest of the Child (Interés Superior del Niño) or the Best Interest of the person entitled to support (alimentos). In any case, the sum is reasonable and proportional, since in this case it represents a daily amount of merely two thousand five hundred colones per day, with which, it is difficult to attend to ALL the needs of a ten-year-old person, that is, a pre-adolescent person, who due to their stage of growth faces constant physical, emotional, and mental changes.\n\nFinally, it is necessary to warn that the aim of the appeal is more directed towards not setting a child support quota (cuota alimentaria) given that the defendant is deprived of liberty, which is improper, because as indicated, he has a patrimony from which he can profit to honor his parental duty.\n\nThus, the appeal is denied.\n\nTHEREFORE (Por tanto):\n\nThe appeal is denied. Let it be known. MSc. Patricia Méndez Gómez, Family Judge. AMENDEZG \n\n| \n
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EXP: 23-001318-0172-PA
\nI Circuito Judicial de San José, Edificio Tribunales, Primer Piso. Teléfonos: 2295-3473. Fax: 2295-3627. Correo electrónico: asis-j1familia@poder-judicial.go.cr
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