Acórdão nº 3977/05.6TBBCL-A.G1 de Tribunal da Relação de Guimarães, 25 de Junho de 2015
Magistrado Responsável: | MANSO RAÍNHO |
Data da Resolução: | 25 de Junho de 2015 |
Emissor: | Tribunal da Relação de Guimarães |
Acordam em conferência na 1ª Secção Cível do Tribunal da Relação de Guimarães: Por decisão judicial de 24 de outubro de 2005, proferida no processo de regulação do exercício do poder paternal relativo aos menores C… (nascido a 21 de julho de 2001) e S… (nascida a 22 de setembro de 2003), filhos de R… e J…, ficou este obrigado a pagar a cada um dos menores a quantia mensal de €100,00 a título de alimentos.
Não tendo sido cumprida tal obrigação, nem tendo sido possível obter o seu cumprimento coercivo, veio a ser proferida decisão, em 28 de maio de 2009, que impôs ao Estado, através do Fundo de Garantia de Alimentos Devidos a Menores, a obrigação de prestação a cada um dos menores da quantia mensal de €150,00 a título de alimentos, obrigação esta que, entretanto, foi sucessivamente renovada por se manterem os pressupostos que a determinaram.
Em 28 de janeiro de 2015 promoveu o Ministério Público que fosse revista e alterada a decisão que vinculou o Fundo de Garantia de Alimentos Devidos a Menores ao pagamento da referida prestação, de forma a ficar fixada uma atualização anual segundo a taxa da inflação (fls. 299).
Tal promoção foi indeferida, com fundamento em estar esgotado “o poder jurisdicional previsto no art. 619º do Código de Processo Civil” (fls. 300).
Inconformado com o assim decidido, apela o Ministério Público.
Da respetiva alegação extrai as seguintes conclusões: 1. – No caso que nos ocupa, quem necessita de alimentos «está no fim da linha», são os «párias» que a egoística decadência de valores e a dura dinâmica económico-social vão criando, são os mais carenciados dos carenciados, são os indefesos que são crianças; 2. – A intervenção do Fundo de Garantia de Alimentos Devidos a Menores depende da existência de uma obrigação de alimentos judicialmente decretada, que não é satisfeita, nem se mostra possível satisfazê-la pela forma prevista no artigo 189.° do Decreto-Lei n.º 314/78, de 27 de Outubro, e do facto do alimentado não ter rendimento líquido superior ao salário mínimo nacional nem beneficiar nessa medida de rendimentos de outrem a cuja guarda se encontre; 3. – A fixação daquela prestação alimentícia é feita atendendo às actuais condições do menor e do seu agregado familiar, podendo ser diferente da anteriormente fixada; 4. – A criação do Fundo de Garantia de Alimentos Devidos a Menores, gerido pelo Instituto de Gestão Financeira da Segurança Social, deveu-se ao elevado número de situações de incumprimento das prestações de alimentos devidos a menores; 5. – O referido Fundo de Garantia não visa substituir definitivamente uma obrigação legal de alimentos devida a menor, antes reveste natureza subsidiária, visto que é seu pressuposto legitimador a não realização coactiva da prestação alimentícia já fixada, através das formas previstas no artigo 189.° da Organização Tutelar de Menores; 6. – Ora os presentes autos e os incidentes deles dependentes – como o presente – têm a natureza de procº de jurisdição voluntária (tal como decorre por força do disposto no Artº150º da Organização Tutelar de Menores natureza esta que há que se entender ser extensível a todos os incidentes umbilicalmente dependentes da causa principal onde se hajam fixado os alimentos ao devedor originário); 7. – Ademais estes processos, onde se Regulam as Responsabilidades Parentais e onde se processam os incidentes de incumprimento da prestação alimentícia e onde (por impossibilidade de se obter a cobrança desta através do mecanismo de incumprimento próprio p. no Artº. 189º da O.T.M.
) se processa, como no presente, o incidente, legal e logicamente subsequente, p. no Artº. 1º da Lei 75/98 de 19/XII e no Artº. 3º...
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