Appealed to the court with a claim to reduce the amount of alimony
The plaintiff S. appealed to the court with a claim to reduce the amount of alimony to the defendants K. and T. S. indicated that on the basis of a court decision of June 5, 2012, 1/4 of his income for the maintenance of his son M. in favor of K., as well as on the basis of a court order of July 19, 2017, 1/3 of his income for the maintenance of his daughter P. and son N. in favor of T., the amount of alimony collected under these judicial acts is 58 percent, and according to the law, he must pay 50 percent alimony. In this regard, they asked to reduce the amount of alimony withheld to 50 percent. Subsequently, the statement of claim was clarified and asked to reduce the amount of alimony collected in favor of K. from 25 percent to 23 percent, and the amount of alimony collected in favor of T. from 33 percent to 27 percent. By the decision of the Specialized Interdistrict court for juvenile affairs of Mangystau region dated September 20, 2017, the claim was partially satisfied. The amount of alimony collected from all income and (or) other income of S. is reduced by 50 percent. The amount of alimony collected from income and (or) other income for the maintenance of P. born on January 30, 2015 and N. born on October 12, 2016 in favor of T. from S. was reduced to 1/4 part (25%). The amount of alimony collected for the maintenance of a child named M. in favor of K. is left unchanged. From T. in favor of S., court costs were collected in the amount of 1,135 tenge.
Appealed to the court with a claim to reduce the amount of alimony
By the decision of the Judicial Board of the Mangistau regional court for civil cases dated December 12, 2017, the decision of the court of first instance was left unchanged. In his petition, T. indicated that the court of first instance did not agree with the judicial acts adopted in the case, did not take into account his arguments, the courts considered the case superficially, the family and financial situation of the plaintiff did not change, he did not live with the plaintiff, the plaintiff did not provide material assistance and moved to Astrakhan. K. in his petition, he asked to dismiss the judicial acts without change and the cassation appeal of T. The judicial board, having studied the case documents, considers that the judicial acts challenged in the petition are subject to change on the following grounds. In accordance with Part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APC), a significant violation of the norms of material and procedural law, which led to the issuance of an illegal judicial act, is the basis for the Cassation review of judicial acts that have entered into legal force. The following violations occurred in this case. According to the case documents, by the court decision of the Atyrau City Court dated June 05, 2012, alimony was collected in favor of the defendant K. in the amount of 1/4 of the plaintiff's income for the maintenance of M. born on October 5, 2011. By the court order of the court No. 2 of Aktau city dated July 19, 2017, alimony was collected in favor of the defendant T. in the amount of 1/3 of the plaintiff's income for the maintenance of P. born on January 30, 2015 and N. born on October 12, 2016. The court of first instance concluded that S. pays alimony for each child by 58% of his income, that the marriage between S. and T. has not been dissolved, that they take care of their children together, run a common household, and K. is a single mother, has a low financial situation, reducing the amount of alimony collected for T.'s children by 1/4 part, leaving the amount of alimony collected for K.'s child unchanged. This judgment was agreed by the court of Appeal.
At the same time, in accordance with Part 2 of Article 225 of the APC, the court decides the case within the limits of the requirements declared by the plaintiff. As it turned out from the case materials, S. in his application to clarify the statement of claim asked to reduce the amount of alimony being collected in favor of T. from 33 percent to 27 percent. However, the court of first instance went beyond the claim and reduced the amount of alimony being collected in his favor to 25 percent, not taking into account the fact that T. had two minor children under his care. In such a situation, judicial acts adopted in the case cannot be recognized as legitimate and justified. In accordance with subparagraph 8) of Part 2 of Article 451 of the code of criminal procedure, the court of Cassation in the deliberation room changes the decision, ruling, decision of the courts of first or appellate instance, or issues a new judicial act without sending the case for a new consideration, with the cancellation in full or in part of the decision, ruling, decision of the court of first instance or decision, ruling of the court of appeal, if the circumstances of the case are fully and correctly determined by the court of first or appellate instance, but a mistake was made in the application of the norms of material law.
The judicial board concluded that the local courts have fully and correctly determined the circumstances of the case, but made a mistake in applying the norms of substantive law, and therefore the judicial acts adopted in the case are subject to change. Based on the above, the Judicial Board of the Supreme Court of the Republic of Kazakhstan on civil cases decided to change the judicial acts of local courts, that is, to reduce the amount of alimony collected from income and (or) other income for the maintenance of P. born on January 30, 2015 and N. born on October 12, 2016 to 27 percent in favor of S. Dan T.
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