Lawyer Lawyer in Almaty for the recovery of alimony for the maintenance of minor children
The judicial act is subject to cancellation, regardless of the arguments of the complaint or protest, if it is signed by the wrong judge who is indicated in the decision. B. filed a lawsuit against K. for the recovery of alimony for the maintenance of minor children: F., born on September 05, 1998, and M., born on August 09, 2003, in the amount of 1/3 of all types of earnings. The claim was satisfied by the decision of the Almaty District Court of Astana dated October 31, 2011. Recovered from K. in favor of B. alimony for the maintenance of the above-mentioned minor children in the amount of 1/3 of all types of earnings and other income until adulthood, starting on April 18, 2011. A state duty in the amount of 640 tenge was collected from K. to the state revenue. By the decision of the Appellate Judicial Board of the Astana City Court dated December 22, 2011, the court's decision remained unchanged.
By the decision of the Cassation Judicial Board of the Astana City Court dated February 14, 2012, the decision of the appeals board remained unchanged. In the petition of K. Requests to cancel the judicial acts that took place in the case in connection with a significant violation of the norms of substantive and procedural law, and to make a decision to terminate the proceedings in the case. In the review, the plaintiff's representative requests that the petition be dismissed, considering that the previously approved settlement agreement concerns the division of the spouses' property and has nothing to do with the defendant's alimony obligations. In accordance with Article 387 of the CPC, the basis for a supervisory review of judicial acts that have entered into force is a significant violation of substantive or procedural law. In the petition, the applicant stated that by the ruling of the Almalinsky District Court No. 2 of May 27, 2007, an amicable agreement was approved between him and the plaintiff, according to which B. refused to receive child support. This court ruling has entered into legal force, has not been challenged by anyone, and therefore, in the applicant's opinion, is the basis for terminating the proceedings in this case in accordance with subparagraph 2) of Article 247 of the CPC. The Board agreed with the court's conclusions that the defendant's arguments were unfounded. The Supervisory Judicial Board of the Supreme Court overturned the decision of the Almaty District Court of Astana, the decisions of the appellate and cassation judicial boards of the Astana City Court in this case, and sent the case for new consideration to the Appellate Judicial Board of the Astana City Court, in view of the following.
It follows from the case file that the defendant indicated the existence of an outstanding court order dated 08.01.2007 on the recovery of alimony from K. for the maintenance of two minor children and the decision of the bailiff dated 02.04.2007 on the termination of enforcement proceedings at the request of B. However, the courts did not investigate these circumstances and did not give them a proper legal assessment. In addition, the board took into account that when considering the present case in the court of cassation, the composition of the judges of the cassation judicial board in the introductory and operative parts of the decision is different, and therefore, according to subparagraph 5) of part 1 of Article 366 of the CPC, the judicial act is subject to cancellation, regardless of the arguments of the complaint, protest, if it is signed not by the judge who is specified in the decision. In these circumstances, judicial acts are subject to cancellation with the referral of the case for a new judicial review to the court of appeal.
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