Claim to reduce the amount of alimony
February 2, 2022 in the judicial collegium of the Supreme Court of the Republic of Kazakhstan on civil cases: presiding judge B. zh., judges A. K., full name, representative of the plaintiff M.-lawyer A., representative of the defendant A. G. – N. B. Sarsenbayev, defendant A. K. at an open court session held by mobile videoconference in the building of the Supreme Court of the Republic of Kazakhstan
plaintiff A. Sh. defendants A. G., A. K. accepted in a civil case initiated by a statement of claim for reducing the amount of alimony
Considering the civil case received by the petition of the representative of A. G. – N. B. on the revision of the resolution of the Judicial Board of the Regional Court on civil cases dated September 9, 2021 in Cassation,
A. appealed to the court with the above statement of claim, indicating in the arguments of the claim that the amount of alimony withheld from him is 75%, that is, more than half of the salary, and this is contrary to the law.
By the decision of the specialized Inter-District Court for juvenile affairs of the region dated June 15, 2021, the statement of claim was dismissed.
The issue of court expenses has been resolved.
By the decision of the Judicial Board of the regional court for civil cases dated September 9, 2021, the decision of the court of first instance was canceled and a new decision was made to satisfy the claim.
From A. in favor of A. B., born on September 7, 2007, X., born on December 9, 2008, and N., born on April 25, 2018, the amount of alimony paid for the maintenance of income and (or) other income was reduced to 3/8, that is, to 37.5%.
The amount of alimony paid from A. to A. in favor of A. for the maintenance of A. born in March 2018, the amount of income and (or) other income is reduced to 1/8 part, that is, to 12.5%.
In the petition, the applicant disagrees with the appeal decision adopted in the case, indicating that the conclusions do not correspond to the circumstances of the case, referring to the violation of the norms of material and procedural law, annulled it and asked to leave the court decision of the first instance in force.
N., who supported the petition, listened to A., G., who asked to dismiss it, studied the case documents and discussed the motives of the petition, the judicial board comes to the conclusion that the petition is subject to satisfaction 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.
In the case, such violations were allowed by the court of Appeal.
According to the case documents, by the court order of the City Court of December 07, 2020, alimony was collected in favor of A. in ½ part of the income and (or) other income from A. for the maintenance of three minor children.
By the decision of the Specialized Interdistrict court for juvenile affairs of the region dated February 24, 2021, the claim of A. was satisfied.
In relation to the minor daughter of A. born on March 04, 2018, paternity was established and alimony was collected in ¼ of her income and (or) other income.
As determined by the court of First Instance, at the moment A. and A. Live in a legal marriage, have three children from a common marriage. A court order on the recovery of alimony in the amount of ½ is submitted for execution, according to which A. has no arrears.
It is fully established that A. and A. are in family relations and their marriage is not dissolved, in turn, alimony payments collected in favor of A. are the common income of this family.
The full circumstances of this are described in detail in the decision of the court of first instance, there is no need to repeat them.
These circumstances served as the basis for dismissing the claim to the court of First Instance.
The court of Appeal, which did not agree with this conclusion, based its new decision on the satisfaction of the claim on the requirements of Paragraph 3 of Article 115 of the Labor Code of the Republic of Kazakhstan, which stipulates that the amount of monthly deductions should not exceed fifty percent of the salary due to the employee.
At the same time, the plaintiff's arguments that 75% of the monthly salary is withheld for alimony are irrational, since in accordance with paragraph 1 of Article 95 of the law of the Republic of Kazakhstan "on enforcement proceedings and the status of bailiffs", at least fifty percent of the debtor's salary or other income must be retained when foreclosure is applied to the debtor's salary or other types of income under the enforcement document in the Proceedings of one or more, including other bailiffs.
According to the requirements of this norm, the debtor's place of work withheld funds in the amount of Strictly up to fifty percent from his monthly salary.
In turn, the obligation to care for children is of an unconditional nature, that is, children have the right to receive from their parents the necessary maintenance to support their vital activity, in this regard, the rights of children have priority over the rights of parents, since it is assumed that able-bodied adults (in contrast to minor children) will be able to find
A decrease in the amount of alimony entails a violation of the property rights of children, worsens their material situation.
The plaintiff is of working age, he is not provided with evidence of the presence of diseases that prevent him from working, as well as evidence of a deterioration in his material condition, which objectively does not allow him to pay alimony in the amount established by judicial acts.
In the case under consideration, he is trying to improve his financial situation by worsening the situation of minor children by changing the amount of alimony.
And in accordance with Part 2 of Article 27 of the Constitution of the Republic of Kazakhstan, caring for and raising children is a fundamental right and duty of parents.
The study of the case documents showed that the position of the court of first instance fully corresponds to the interests of minor children, the dispute was resolved correctly and fairly on the merits.
The court of Cassation considers that the conclusions of the court of first instance correctly applied the norms of legal and material law, respectively, the court of Appeal did not have a legal basis for reducing the amount of alimony.
In this context of the case, the judicial board considers the petition to be justified and subject to satisfaction, since the above circumstances are significant grounds for canceling the disputed judicial act and leaving in force the decision of the court of First Instance, which is valid in essence.
The state duty paid when submitting an application with G. is subject to collection from A. in accordance with Article 109 of the APC.
Guided by subparagraph 2) of Part 2 of Article 451 of the Criminal Code, the judicial board decided:
Cancel the decision of the Judicial Board of the regional court for civil cases of September 9, 2021 and leave in force the decision of the specialized Inter-District Court for juvenile affairs of the region of June 15, 2021.
To collect from the plaintiff a state duty in favor of the defendant A in the amount of 11,163 (eleven thousand one hundred and sixty-three) tenge.
To satisfy the request of the representative of A. G.-N. B.
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