Lawyer for disputes related to the reduction of alimony
S. appealed to the court with a claim against R., Sh. for a reduction in the amount of alimony, arguing that alimony in the amount of 1/4 of wages and other income for the maintenance of two minor children was collected from him in favor of each defendant. Since the amount of deductions from his pension is 1/2 part, he asked to reduce the amount of alimony collected in favor of each defendant to 1/6 part. By the decision of the specialized interdistrict Juvenile Court of the Pavlodar region dated March 19, 2020, the claim was dismissed. According to the plaintiff, by the ruling of this court dated September 2, 2020, the court's decision of March 19, 2020 was canceled due to newly discovered circumstances. Upon a new review, the claim was partially satisfied by the decision of the same court dated September 28, 2020. It was decided to reduce the amount of alimony collected from S. in favor of S. for the maintenance of a minor child N., born on February 15, 2010, from 1/4 of earnings and other income monthly to 1/6 of earnings and other income monthly, starting from the date of entry into force of the court decision until the child reaches the age of majority. The claim for a reduction in the amount of alimony in favor of R. was denied. By the resolution of the judicial Board for Civil Cases of the Pavlodar Regional Court dated December 15, 2020, the court's decision remained unchanged.
Lawyer for disputes related to the reduction of alimony
The Judicial Board for Civil Cases of the Supreme Court changed the judicial acts of local courts, judicial acts regarding the satisfaction of S.'s claim to S. for reducing the amount of alimony collected by S. according to the ruling of the court of first instance dated January 6, 2020 in favor of S. expenses for the maintenance of minor child N., born on February 15, 2010, from the amount of 1/4 (one-fourth) of earnings and other income per month to 1/6 (one-sixth) of earnings and other income per month, starting from the moment the court decision entered into force until the child reached the age of majority, were canceled. The new decision to dismiss S.'s claim against S. for a reduction in the amount of alimony was made on the following grounds. It follows from the case file that the decision of the Pavlodar City Court of December 10, 2019 with S. in favor of R. collected the alimony on the maintenance of the minor child Eraly, March 22, born in 2009, in the amount of 1/4 of part of the earnings and other income on a monthly basis starting from 13 November, 2019 until the child reaches adulthood. By a ruling of the specialized interdistrict juvenile Court of the Pavlodar region dated January 6, 2020, an agreement on the settlement of a dispute (conflict) through judicial mediation was approved, which S. undertook to pay in favor of S. alimony for the maintenance of a minor child, born on February 15, 2010, in the amount of 1/4 of earnings and other income per month until the child reaches the age of majority. Applying for a reduction in the amount of alimony, S. He indicated that the reason for his satisfaction was an excess of the share established by law and a change in his financial situation. The above arguments of the plaintiff were not taken into account by the court of first instance, since evidence of the deterioration of the plaintiff's financial situation and evidence confirming the excess of the recovery of alimony for both enforcement documents were not provided.
The court pointed out that the certificates of pension payments submitted by the plaintiff confirmed the increase in the amount of his pension, as well as the deduction of alimony from the pension in favor of the defendants R. and Sh. in the total amount not exceeding 50%. The plaintiff's credit obligations in second-tier banks and utility bills were not taken into account by the court, because when receiving consumer loans, the plaintiff was aware of his obligations to support minor children, the loans were spent on his personal needs, and evidence confirming the plaintiff's expenses for the purchase of medicines in the amount of 40000-50000 tenge was not provided. Thus, the court of first instance correctly established that there were no grounds provided by law for reducing the amount of alimony for the maintenance of minor children. Meanwhile, despite these conclusions, the court reduced the amount of alimony collected from S. in favor of the defendant Sh. for the maintenance of a minor child, from 1/4 of the part to 1/6 of the part, motivating the decision by recognizing the claim of Sh., which, in the opinion of the court of first instance, is fair and lawful. At the same time, the court recognized the need to keep the same amount of alimony in favor of R. for the maintenance of a minor child, pointing out that alimony in the amount of 1/4 is provided for by law, the plaintiff's rights have not been violated, which is also fair. The court of appeal, agreeing with the above conclusions of the court of first instance and refusing to satisfy the appeal of Sh., motivated by the fact that the latter, acting in the interests of her minor daughter as a legal representative, expressed her will to recognize the claim, without coercion, which is her right and does not violate the rights of others, and also does not contradict the law. In the opinion of the judicial board, having drawn the right conclusions about the absence of legal grounds for reducing the amount of alimony for the maintenance of minor children in favor of both defendants, the local courts violated and incorrectly applied the norms of substantive and procedural law.
Thus, according to paragraph 1 of Article 175 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code), if, in the absence of an agreement on the payment of alimony, the financial or marital status of one of the parties has changed after the court has established the amount of alimony, the court has the right, at the request of either party, to change the established amount of alimony or to release the person who is obliged to pay alimony from paying them. When changing the amount of alimony or exempting them from payment, the court has the right to take into account other noteworthy interests of the parties. According to paragraphs 10, 29 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On the application of legislation by courts when considering cases related to the recovery of alimony" dated November 29, 2019 No. 6, when determining the amount of alimony in proportion to earnings and (or) other income of parents, the court should proceed from the provisions of paragraph 1 of Article 139 of the Code, according to which alimony for minor children is collected by the court from their parents on a monthly basis in the amount of: one quarter for one child, one third for two children, and three or more children - half of the parents' earnings and/or other income. The size of these shares may be reduced or increased by the court, taking into account the material or marital status of the parties and other circumstances worthy of attention. When resolving the claim of a parent paying alimony for a minor child to reduce the amount of alimony, it should be borne in mind that a change in the parent's financial or marital status is not an unconditional basis for satisfying the claim, since it must be established that such changes do not allow him to maintain the payment of alimony in the same amount. By virtue of the provisions of paragraph 1 of Article 95 of the Law of the Republic of Kazakhstan "On Enforcement proceedings and the status of bailiffs", when foreclosing on wages or other types of income of the debtor for one or more enforcement documents, including those in the production of other bailiffs, the debtor must retain at least fifty percent of wages or other income.
Disputes related to the reduction of alimony
At the same time, the amount retained by the debtor must be at least the minimum subsistence level established annually for the relevant financial year by the law on the republican budget, except in cases of recovery of alimony and compensation for damage caused by injury or other damage to health, as well as the death of the breadwinner. The case materials established that alimony payments have been withheld from S.'s pension since January 1, 2020 in the amount of 1/4 part in favor of R., since May 1, 2020 in the amount of 1/4 part in favor of S. The total amount of alimony collected from the plaintiff is 1/2 of the pension. Since April 2020, the amount of the plaintiff's pension has increased from 257,270 tenge to 270,066 tenge. The cost of living established by the law on the republican budget for fiscal year 2020 was 31,183 tenge from January 1, and 32,668 tenge from April 1. Thus, the amount of pension payment retained by debtor S. is 135,033 tenge (after deductions of alimony in favor of claimants), which exceeds the minimum subsistence level established by law. In this regard, the plaintiff's arguments about exceeding the statutory share of alimony were correctly recognized by the courts as unfounded. According to the rules of part 2 of Article 48, Article 171 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC), the court does not accept the recognition of a claim by the defendant if these actions contradict the law or violate someone's rights, freedoms and legitimate interests. The defendant has the right to recognize the claim in whole or in part before the court is removed for adjudication by submitting a written application to the courts of first and appellate instances. Before accepting the recognition of the claim, the court explains to the plaintiff, the defendant or the parties the consequences of the relevant procedural actions. The acceptance of the defendant's recognition of the claim in whole or in part, or the non-acceptance of such recognition on the grounds provided for in the second part of Article 48 of this Code, shall be indicated in the court decision or resolution. It follows from the case file that defendant Sh. appealed to the court with a statement in which she acknowledged the plaintiff's claims for a reduction in the amount of alimony in full, the consequences of recognizing the claim by the court were explained and understandable to her, and requested that subsequent court sessions be considered without her participation.
Lawyer for disputes related to the reduction of alimony
In the opinion of the judicial board, accepting the recognition of the claim by the defendant, Sh. and by reducing the previously established amount of alimony for the maintenance of a minor child, while maintaining the same amount of alimony in favor of the second claimant R. for the maintenance of a child, the local courts, in the absence of legal grounds for reducing the amount of alimony, violated the requirements of the law, the rights and legitimate interests of a minor child. By virtue of the requirements of Part 2 of Article 5, Part 5 of Article 6 of the CPC, violation of the principles of civil proceedings, depending on its nature and materiality, entails the cancellation of judicial acts. If the law or the agreement of the parties to the dispute provides for the resolution of the relevant issues by the court, the court is obliged to resolve these issues based on the criteria of fairness and reasonableness.
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