Disputes about appealing against the actions of a private bailiff, withholding alimony for the maintenance of minor children
The court of first instance lawfully established that the amounts paid by the employer for housing rent and medical insurance do not fall within the scope of item 2 of the List of Types of wages and (or) other income from which alimony is withheld for the maintenance of minor children, approved by Order of the Minister of Justice of the Republic of Kazakhstan dated December 24, 2014 No. 372, which HSI must be taken into account when determining the alimony arrears per child for the disputed period of B., taking into account the specified requirements, I complained to the court about the actions of a private bailiff (hereinafter referred to as CSI) T. related to the accrual and recalculation of alimony from 2015 to March 2017, and asked that the CSI T. resolution on debt determination dated February 20, 2018 be declared illegal. The decision of the Atyrau City Court of April 17, 2018 denied the complaint. By the decision of the judicial Board for Civil Cases of Atyrau Regional Court dated July 24, 2018, the court's decision was changed. The resolution of the CHSI T. dated February 20, 2018 on determining the debt of B. was declared illegal. for alimony in terms of the amount owed in the amount of 2,698,904 tenge.
The rest of the court's decision remains unchanged. The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance on the following grounds. It follows from the case file that the judicial acts with B. in favor of K. alimony was collected for the maintenance of two children: Alzhan, born on September 14, 2008 (recovered from February 4, 2015), and Amalia, born on March 27, 2016 (recovered from April 12, 2017). The bailiff combined two enforcement documents into enforcement proceedings, the total amount of alimony collected from B. is 1/3 of all types of earnings or other income of B. Judicial acts are being executed by a private bailiff T. Based on the statement of the recoverer K. dated September 8, 2017, B.'s alimony debt was determined in the amount of 194,000 tenge. On February 1, 2018, the claimant K. She applied to the bailiff for the determination of the alimony arrears for the maintenance of her son Alzhan for the last three years from February 2015 to March 2017, indicating that the debtor B. paid the alimony himself, but he has a good salary.
Disputes about appealing against the actions of a private bailiff, withholding alimony for the maintenance of minor children
According to the salary certificate dated February 9, 2018 No. 1 in LLP "S" B. for the disputed period, only 35,088,632.50 tenge was paid withholding mandatory pension contributions and individual income tax. In accordance with the resolution of the CHSI T. dated February 20, 2018, B.'s alimony debt for the disputed period was determined based on the calculation per child, according to the claimant's statement, 35,088,632.50 tenge x ¼ (25%) = 8,772,158 tenge, minus the listed and confirmed amounts in the amount of 2,940,000 tenge, the remainder The debt amounted to 5,832,158 tenge. The bailiff determined the alimony arrears over the past three years based on the claimant's application, and the amounts of alimony voluntarily paid were taken into account when recalculating. The Court of appeal, changing the decision of the court of first instance, reasoned as follows. By examining the applicant's salary certificates, the Regulations on providing compensation for expenses to invited employees of LLP "S" related to housing rental, it was established that the employer paid the employee for housing rent, medical insurance, that is, he received material benefits in kind, these incomes are not income in cash, from which alimony is collected.
In this regard, the appellate instance considered that when determining the amount of unpaid alimony, it is necessary to exclude from the amount of wages in the amount of KZT 35,088,633 the amount of rental compensation in the amount of KZT 9,561,738 and medical insurance in the amount of KZT 1,233,879 indicated in the applicant's salary certificate, hence the amount of unpaid alimony less The amount of alimony voluntarily paid in the amount of KZT 2,9410,000 is KZT 3,133,254. On this basis, the contested decision of the bailiff is subject to recognition as illegal in part 2,698,904 tenge. However, these conclusions are unfounded, as they do not correspond to the actual circumstances of the case, while the court incorrectly applied the norms of substantive law. By virtue of paragraph 2 of Article 99 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs" (hereinafter referred to as the Law), the amount of alimony arrears is determined by the bailiff at the place of execution of the decision based on the actual salary (income) received by the debtor during the time during which the recovery was not carried out, or received by him at the time debt determination, at the option of the recoverer.
According to the List of types of wages and (or) other income from which alimony is deducted for the maintenance of minor children, approved by Order of the Minister of Justice of the Republic of Kazakhstan dated December 24, 2014 No. 372 (hereinafter referred to as the List), alimony for the maintenance of minor children is deducted from all types of wages (monetary remuneration, maintenance) and other income that parents receive in monetary (national and (or) foreign) currency, with the exception of the income of the persons specified in paragraph 2 of this List. The court of first instance lawfully established that the amounts paid by the employer for rental housing and medical insurance do not fall within the scope of paragraph 2 of the List, which must be taken into account by the CSI when determining the alimony arrears for one child for the disputed period. Also noteworthy are the arguments of the petition that, in accordance with article 98 of the Law, these funds also do not relate to monetary amounts that cannot be levied. The payment of rental housing cannot be attributed to housing payments made, according to the Law of the Republic of Kazakhstan "On Housing Relations", at the expense of budgetary funds, in return for providing official housing to employees of special government agencies and military personnel.
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