The Supreme Court upholds the non-retroactivity of the declaration of extinction of alimony agreed by the Provincial Court.

Supreme Court, First Civil Chamber, Judgment 680/2014 of 18 Nov. 2014, Rec. 1695/2013
Speaker: Arroyo Fiestas, Francisco Javier.
Ruling No.: 680/2014
Appeal No.: 1695/2013
Jurisdiction: CIVIL

DIVORCE. Modification of measures. COMPENSATORY PENSION. The circumstances taken into account when establishing the divorce decree have been altered by changing the beneficiary’s employment status and salary remuneration. It is transformed from indefinite to temporary. The purpose of the pension is to compensate for the inequality caused by the breakup and not to equalize assets. FOOD. The termination of the alimony cannot produce retroactive effects, which are produced from the date of notification of the judgment issued in the second instance.
The Court of First Instance dismissed the claim for modification of the measures agreed in the divorce decree. The AP Ciudad Real, partially upholding the appeal filed by the plaintiff, declared the alimony fixed in favor of the daughter to be extinguished and transformed the compensatory pension established for the benefit of the defendant from indefinite to temporary, fixing it for a duration of two years. The Supreme Court dismissed the extraordinary appeal for procedural infringement and partially upheld the appeal in cassation and agreed to partially cassify the appealed judgment by setting the date from which the termination of alimony takes effect.

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In the City of Madrid, on the eighteenth day of November, two thousand fourteen.
Having heard by the First Chamber of the Supreme Court, composed of the Judges at the margin indicated, the extraordinary appeals for procedural infringement and cassation appeals filed against the judgment issued in appeal No. 365/2012, of the Second Section of the Provincial Court of Ciudad Real, as a result of verbal trial proceedings with the specialties provided for in Article 753 of the LEC, initiated by virtue of a lawsuit requesting modification of measures, which was registered under No. 220/2009, followed before Court of First Instance No. 1 of Puertollano, whose appeal was prepared before the aforementioned Court by attorney Raquel Mora Ruiz on behalf of Ms. Mora Ruiz on behalf of Ms. Mora Ruiz. 220/2009, followed before the Court of First Instance number 1 of Puertollano, whose appeal was prepared before the mentioned Court by the attorney Ms. Raquel Mora Ruiz in name and representation of Ms. Marí Jose, appearing in this appeal in her name and representation the attorney Mr. Enrique de Antonio Viscor as appellant and the attorney Ms. Beatriz Verdasco Cediel in name and representation of Leoncio as appellant.

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1.- The attorney Ms. Matilde Muñiz Fernández, in the name and on behalf of Mr. Leoncio, filed a lawsuit for the modification of the measures agreed in the divorce sentence, against Ms. Marí Jose and Ms. Leocadia, and alleging the facts and legal grounds she considered applicable, she ended by requesting the Court to issue a sentence “by virtue of which it is agreed:
1º.- To proceed with the modification of the measure relating to the alimony in favor of the daughter Ms. Leocadia in the sense that the same be left without effect, with effect from the date on which Ms. Leocadia joined the labor market.
2º.- To proceed to the modification of the measure related to the compensatory pension established in favor of the defendant Mrs. Marí Jose, in the sense of proceeding to the extinction of the mentioned pension, with effect from the date on which Mrs. Marí Jose joined the labor market.

This with imposition of costs to the defendants if they oppose”.
The attorney Soraya Viñas Lara, on behalf of Mrs. Leocadia, answered the claim and, opposing the facts and legal grounds she considered applicable, ended by requesting the Court to issue a judgment “dismissing the claim, ordering the maintenance of the alimony, with the plaintiff being ordered to pay the costs”.
3.- The attorney Soraya Viñas Lara also appeared on behalf of Ms. Marí Jose opposing the claim with the facts and legal grounds she considered applicable and requesting the court to “issue in due course a judgment dismissing the claim, ordering the maintenance of the compensatory pension, with an order for the plaintiff to pay the costs”.
4.- After the corresponding procedural formalities and the practice of the evidence proposed by the parties and admitted, the Hon. Mr. Magistrate-Judge of the Court of First Instance number 1 of Puertollano, issued judgment on April 15, 2012, the operative part of which is as follows: RULING

That I must DISMISS AND DISMISS the claim for modification of the definitive measures agreed in the sentence of February 23, 2000 of this Court issued in the divorce proceedings No. 253/1999, filed by Mr. Leoncio against Ms. Marí Jose and Ms. Leocadia, maintaining the same and imposing the procedural costs to the plaintiff.
And on May 7, 2012, the same was clarified by means of an order, the operative part of which states: AGREEMENT
To grant the request made by the PLAINTIFF to clarify the JUDGMENT of April 15, 2012 , issued in the present proceeding, in the sense indicated:
THE RULING of the referred judgment must contain the following paragraph: “Notify the parties of the present resolution, making them aware that it is not final and that an appeal may be filed against it within 20 days from the date following its notification, which appeal shall be heard by the Provincial Court of Ciudad Real”.

SECOND.- Upon appeal by the procedural representation of the plaintiff, the Second Section of the Provincial Court of Ciudad Real, issued a sentence on January 17, 2013, the operative part of which is as follows: WE FIND
We partially uphold the appeal filed by the legal representation of Leoncio against the judgment issued by the Court of First Instance Number One of Puertollano on April 15, 2012 and we revoke the same.
We partially uphold the claim and declare: a) extinguished the alimony fixed in favor of Leocadia with effect from April 2009, and b) we transformed the compensatory pension established for the benefit of Marí Jose from indefinite to temporary, fixing for the same a duration of two years as of the date, thus extinguishing in February 2015, all this without making any special imposition of the costs caused in any of the two instances.

THIRD.- 1.- The procedural representation of Ms. Marí Jose filed extraordinary appeals for procedural infringement and appeals in cassation.
The extraordinary appeal for procedural infringement based on the following grounds:
First plea: In accordance with the provisions of Article 469.1.2 of the LEC, this plea is formulated for infringement of the legal rules governing the judgment for lack of reasoning, specifically for infringement of Article 218.2 of the LEC.
Second ground of appeal: In accordance with the provisions of art. 469.1.2 of the LEC, this second ground of appeal is formulated for infringement of the legal rules governing the sentence, resulting in infringement of arts. 209.4, 216, 218.1 of the LEC and violation of the principle of dispositive, fairness and congruence.
Third plea.- Based on the provisions of Article 469.1.4, for violation, in civil proceedings, of fundamental rights recognized in Article 24 of the Constitution, for violation of the fundamental right to effective judicial protection derived from the patent and notorious error of the illogical or unreasonable interpretation (Supreme Court Decision 2/2006 of April 4) of the documents attached to the case file for the determination of the substantial alteration of circumstances and the existence of the imbalance between the litigants with respect to the compensatory pension.
The appeal was based on the following grounds:
First plea: Under Article 477.1 of the LEC, for infringement of the rules applicable to resolve the issues at issue in the proceeding and specifically for infringement of the provisions of Articles 97 in relation to Articles 100 and 101 of the Civil Code, according to the interpretation given by the Supreme Court’s doctrine.
Second plea: Under Article 477.1 of the LEC, for infringement of the rules applicable to resolve the issues at issue in the proceeding and specifically for infringement of the provisions of Article 97 in relation to Articles 100 and 101 of the Civil Code, there being contradictory case law of the Provincial Courts.
Third plea: Under Article 477.1 of the LEC, for violation of the applicable rules to resolve the issues at issue in the proceeding and specifically for violation of Article 774.5 of the LEC and violation of the provisions of Article 106 CC, due to the improper declaration of retroactivity of the termination of the alimony contained in the fourth legal basis and in the ruling of the contested judgment, there being contradictory jurisprudence of the Provincial Courts.
The proceedings were referred to the Civil Chamber of the Supreme Court, and by order dated June 24, 2014, it was agreed to admit the extraordinary appeals for procedural infringement and cassation filed and to transfer them to the respondent party so that it could formalize its opposition within a period of twenty days.
2.- Once the transfer was completed, the attorney Beatriz Verdasco Cediel, on behalf of Mr. Leoncio, filed a brief opposing the admitted appeals.
3.- Not having been requested by all the parties to hold a public hearing, it was set for voting and ruling on November 11, 2013, which took place.
The Judge who acted as Rapporteur was the Honorable Magistrate. Mr. D. Francisco Javier Arroyo Fiestas ,

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[toggle_content title=”FUNDAMENTOS DE DERECHO”]

FIRST.- From the proceedings it appears that the litigants had obtained a divorce in proceeding 253/1999 of the Court of First Instance No. 1 of Puertollano, in which a judgment was issued, agreeing, among other measures, the indefinite compensatory pension in favor of the wife, in the amount of 20% of the husband’s income, and the alimony in favor of the daughter Leocadia.
In the present proceeding for modification of measures, the Court rejected the claim, declaring that it was not appropriate to terminate the compensatory pension and denying the termination of the alimony fixed, at the time, in favor of the daughter.
The Provincial Court upheld the appeal, agreeing:
1. The termination of alimony, in favor of the daughter, on the understanding that she was of legal age and that she was working in a job that allowed her to meet her needs.
2. That the termination of the aforementioned alimony would be effective as of April 2009, one month after the filing of the claim.
3. The transformation of the compensatory pension into a temporary one, and for a period of two years.
EXTRAORDINARY APPEAL FOR PROCEDURAL INFRINGEMENT.
SECOND.-First plea.-In accordance with the provisions of art. 469.1.2º of the LEC, this plea is formulated for infringement of the legal norms regulating the sentence due to lack of motivation, specifically for infringement of art. 218.2 of the LEC.
The plea is dismissed.
The appellant alleges that the judgment lacks reasoning as to what it considers to be a substantial alteration and what is to be understood as a sufficient standard of living.
As stated, among others, in the judgment 11/11/2010, appeal 2048/2006 , the statement of reasons must be understood as the requirement to express the essential criteria of the decision, or, in other words, its ratio decidendi. [razón decisoria] ( SSTC 119/2003, of June 16; 75/2005, of April 4; 60/2008, of May 26), its purpose is to externalize the basis of the decision adopted and thus allow its possible jurisdictional control – SSTS of June 1, 1999 and June 22, 2000 -, as well as the criticism of the decision and its assimilation by the internal and external legal system, guaranteeing compliance with the principle of proscription of arbitrariness that is incumbent upon all public authorities. ( STS04/12/2007, RC n.º 4051/2000 ).
Applying the aforementioned doctrine, we must declare that in the appealed judgment the reason for its decision is adequately motivated, given that the appellant had gone from holding the position of Councilor, as such a transitory position, to an indefinite position, under a labor regime, dependent on the Chamber of Commerce. In the same way, it refers to the labor regime and the salary remuneration, which in itself is more than enough reasoning to understand that the standard of living that could be maintained would be sufficient.
THIRD.Second plea.In accordance with the provisions of art. 469.1.2.2 of the LEC, this second ground of appeal is formulated as an infringement of the legal rules governing the judgment, resulting in the infringement of arts. 209.4 º, 216, 218.1 of the LEC and violated the principle of disposition, Rogada Justice and Congruence.
The plea is dismissed.
Inconsistency is alleged given that the termination of the compensatory pension was requested and, nevertheless, the temporary pension was granted for a period of two years.
This Chamber declared:
It is not true that the principles of congruence and of rogation subject the judge in such a way that, when faced with a request for a change of measures due to an alteration of the circumstances taken into account for their adoption, he has no other alternative but to accept, in whole or in part, the request in the lawsuit or to reject it, without being able to take into account this modification based on the accreditation of a slight or simple variation of the circumstances either to modify the measure or to transform a pension agreed in principle as a life pension into a temporary one, since both situations are found in the factual situation contemplated in article 100 CC. It is therefore wrong to allege inconsistency when it is a question of aspects of the measure adopted, which in no case gives rise to a lack of defense.
Ruling of December 20, 2012, appeal 2043/2010 .
Therefore, it cannot be accepted that the court was incongruent since it did not alter the terms of the debate, but granted less than requested, that is to say, instead of the termination, it agreed to the temporary pension, so that the parameters of decision and the nature of the institution studied (compensatory pension) did not change, and therefore there was no lack of defense.
FOURTH.-Third ground. Based on the provisions of art. 469.1.4º, for violation, in civil proceedings, of fundamental rights recognized in art. 24 of the Constitution, for violation of the fundamental right to effective judicial protection derived from the patent and notorious error of the illogical or unreasonable interpretation (Supreme Court Agreement 2/2006 of April 4) of the documents attached to the case file for the determination of the substantial alteration of circumstances and the existence of the imbalance between the litigants with regard to the compensatory pension.
The plea is dismissed.
The appellant contends that there was a patent error in the evaluation of the evidence.
Certainly there is a different quantification of the plaintiff’s and defendant’s salaries in the Court’s decision and in the Court’s decision, but this is not necessarily an error, nor does it determine the ruling, since in both cases it can be seen that both have their own income that allows them to develop with economic autonomy (art. 24 of the Constitution).
Moreover, the appellant alleges that she has become unemployed, and she only proves this by her own allegation in her opposition to the appeal (folio 5, in fine), to which she refers in the third ground of law of the present appeal.
APPEAL IN CASSATION.
FIFTH.-First reason. On the basis of art. 477.1 of the LEC, for infringement of the rules applicable to resolve the issues at issue in the proceeding and specifically for infringement of the provisions of articles 97 in relation to articles 100 and 101 of the Civil Code, according to the interpretation given by the Supreme Court’s doctrine.
The plea is dismissed.
It is alleged that the circumstances have not been altered and that the imbalance is not involved, thus violating the jurisprudential doctrine on temporality.
This Chamber in judgment of July 16, 2013, appeal 1044/2012 , stated:
Article 97 CC requires that the separation or divorce produce an economic imbalance in one spouse, in relation to the position of the other, in order for the right to obtain the compensatory pension to arise. In determining whether or not an imbalance exists, several factors must be taken into account, as highlighted by STS 864/2010, Plenary, January 19, 2010. The compensatory pension – it declares – “aims to prevent the damage that may be caused by cohabitation from falling exclusively on one of the spouses and for this purpose it will be necessary to take into consideration what has occurred during the marital life and basically, the dedication to the family and the collaboration with the activities of the other spouse; the property regime to which the spouses have been subject as it will compensate certain imbalances, and even their situation prior to marriage in order to determine whether this has produced an imbalance that generates possibilities of compensation. Thus, the circumstances contained in article 97.2 CC have a double function:
a) They act as integral elements of the imbalance, to the extent possible according to the nature of each of the circumstances.
b) Once the concurrence of the same has been determined, they will act as elements that will allow fixing the amount of the pension.
In light of this, the judge must be in a position to decide on three issues:
a) If there has been an imbalance that generates a compensatory pension.
b) What is the amount of the pension once its existence has been determined.
c) Whether the pension should be permanent or temporary”.
This doctrine has been applied in subsequent judgments 856/2011 of November 24, 720/2011 of October 19, 719/2012 of November 16 and 335/2012 of May 17, 2013.
In STS, December 4, 2012, appeal 691/2010 , it was established that:
…imbalance is to be understood as an economic worsening in relation to the existing situation at the time of the marriage, which should result from the comparison between the economic conditions of each party, before and after the breakup. Since by its legal and jurisprudential configuration, the compensatory pension does not have the purpose of perpetuating, at the expense of one of its members, the economic level that the couple had been enjoying until the moment of the breakup, but its legitimate purpose is to rebalance the unequal situation resulting from the breakup, not in the sense of fully equalizing patrimonies that may be unequal for reasons unrelated to the cohabitation, but in the sense of placing the spouse harmed by the breakup of the marital bond in a situation of potential equality of labor and economic opportunities with respect to those that he or she would have had in the absence of the marital bond…
In view of this doctrine, we must declare that in the appealed judgment, in accordance with article 97 of the Civil Code, the situation of possible imbalance is analyzed, and it is determined that the circumstances have been substantially altered, given that, as we have said, the appellant had gone from holding the position of Councilor, as such a transitory position, to an indefinite position, under a labor regime, dependent on the Chamber of Commerce. In the same way, it refers to the labor regime and salary remuneration.
What cannot be sought by the appellant is an equalization of assets, but rather to compensate for the inequality that may have been caused by the duration of the marriage, which has been sufficiently mitigated by the temporary pension granted, without prejudice to the time during which she has been receiving the same, namely, since the marital separation (1998), although at that date it was considered alimony, subsequently transmuted by the parties into compensatory pension.
SIXTH.-Second ground.under the protection of art. 477.1 of the LEC, for infringement of the rules applicable to resolve the issues at issue in the proceeding and specifically for infringement of the provisions of Article 97 in relation to Articles 100 and 101 of the Civil Code, there being contradictory case law of the Provincial Courts.
The plea is dismissed.
It is argued that the temporary pension cannot be granted when what was requested was the termination of the pension.
It does not violate jurisprudential doctrine, since as we said the judgment of this Chamber of December 20, 2012, appeal 2043/2010 , accepted it.
SEVENTH.-Third plea.under art. 477.1 of the LEC, for infringement of the rules applicable to resolve the issues that are the object of the process and specifically for infringement of Art. 774.5 of the LEC and violation of the provisions of Art. 106 CC, due to the improper declaration of retroactivity of the extinction of the alimony contained in the fourth legal basis and in the ruling of the contested sentence, there being contradictory jurisprudence of the Provincial Courts.
The reason is estimated .
The appellant argues that the declaration of termination of alimony cannot be declared retroactive.
The judgment of the Court of Appeals declares that the effects of the termination of the alimony in favor of the adult daughter must be computed from one month after the filing of the action for modification of measures, by analogical application of art. 148 of the Civil Code.
There is no need to harmonize the doctrine in this regard, since this Chamber has already ruled on the matter.
In the judgment of October 3, 2008, the following has been said: “what really raises doubts is the application of such a precept to the successive decisions that can modify the previous pronouncements once the maintenance allowance has been fixed, either due to an appeal being upheld or due to a subsequent modification, as in this case, which varies the parent obliged to pay. On such a question, the provisions of article 106 of the Civil Code would be applicable, which establishes: “the effects and measures provided for in this chapter terminate in any case when they are replaced by those of the judgment or the proceeding is otherwise terminated”, and in article 774.5 of the Civil Procedure Law: “the appeals that according to the Law are filed against the sentence will not suspend the effectiveness of the measures that would have been adopted in this one”, so that each resolution will deploy its effectiveness from the date in which it is dictated and it will be only the first resolution that fixes the alimony that will be able to impose the payment from the date since the filing of the lawsuit, because until that date the obligation was not determined, and the remaining resolutions will be effective since it is dictated, moment in which they substitute the previously dictated ones”.

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[toggle_content title=”SENTENCIA”]

Judgment of October 24, 2013, appeal: 2159/2012 .
In view of the foregoing, the termination of the alimony only takes effect from the date of notification of the judgment of the Court of January 17, 2013, so that in this aspect, exclusively, the appealed judgment must be annulled.
EIGHTH.- Having dismissed the extraordinary appeal for procedural infringement and partially upheld the appeal in cassation, the costs corresponding to the extraordinary appeal for procedural infringement are imposed on the appellant and no express pronouncement is made in the appeal in cassation (art. 398 LEC of 2000).
For the foregoing, in the name of the King and by the authority conferred by the Spanish people.

WE FAIL

1. DISMISS the extraordinary appeal for procedural infringement and PARTIALLY AMEND the appeal filed by Ms. Marí Jose represented by attorney Enrique de Antonio Viscor against the judgment of January 17, 2013 of the Second Section of the Provincial Court of Ciudad Real .
2. To partially cassate the appealed judgment in the sense that the extinction of alimony only produces effects since the Audiencia’s judgment of January 17, 2013 was notified .
3. The sentence is upheld in the remaining aspects.
4. The jurisprudential doctrine emanating, among others, from the judgments of this Chamber of October 3, 2008 and October 24, 2013 is ratified.
5. The appellant must be ordered to pay the costs of the extraordinary appeal for procedural infringement.
6. There is no express imposition of costs in the appeal.
7. Proceed to the return of the deposit to appeal, exclusively, in cassation.
Send the corresponding certification to the aforementioned court, with the return of the case file and the Chamber roll.
Thus by this our sentence, which will be inserted in the LEGISLATIVE COLLECTION and the necessary copies will be provided for this purpose, we pronounce, order and sign it Jose Antonio Seijas Quintana, Antonio Salas Carceller, Francisco Javier Arroyo Fiestas, Eduardo Baena Ruiz, Xavier O’Callaghan Muñoz, Jose Luis Calvo Cabello. Signed and initialed. PUBLICATION: The above sentence was read and published by EXCMO. SR. D. Francisco Javier Arroyo Fiestas, Rapporteur in the proceedings of the present case, while the First Chamber of the Supreme Court held a Public Hearing today; of which, as Secretary of the same, I hereby certify.

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