Recovery of alimony for the maintenance of a minor child
On February 9, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of: The chairman, Judge Zh., judges A., K., with the participation of a representative of the plaintiff A.T., a representative of the defendant A.M., having considered in open court via mobile videoconference, an electronic civil case on the claim of M.Zh. to T.M. for the recovery of alimony for the maintenance of a minor child,
on the counterclaim of T.M. to M.J. challenging paternity,
received at the request of the defendant T.M. for a review of the decision of the judicial board for civil cases of the City Court dated May 13, 2021,
M.Zh. filed the above claim with the court, arguing that the defendant does not participate in the maintenance of a minor child, M.S., born on June 28, 2008. The plaintiff requested to collect alimony from him in the amount of 1/4 of his earnings and (or) other income, starting from March 17, 2017 and until the child comes of age. The earlier court order was cancelled at the request of the defendant.
T.M. filed a counterclaim with the court, arguing that he had never been married to M.J., the child was born in the Republic of Uzbekistan, and he is listed in the "father" column on the child's birth certificate without his consent. He did not submit an application for establishing paternity in relation to a minor child.
By the decision of the district court of March 18, 2021, M.Zh.'s claim was partially satisfied.
The court decided: to collect from T.M. in favor of M.Zh. alimony for the maintenance of a minor child M.S., born on June 28, 2008, in the amount of 1/4 of all types of earnings and (or) other income monthly until his majority, starting from January 18, 2021.
T.M.'s counterclaim was denied.
By the decision of the judicial Board for Civil Cases dated May 13, 2021, the court's decision was changed, in terms of the beginning of the period for calculating alimony, it was canceled with the issuance of a new decision on the recovery of alimony starting from March 18, 2017.
The rest of the court's decision remains unchanged.
In the petition, T.M., disagreeing with the decision of the court of appeal due to the incorrect application of the norms of substantive and procedural law, asks him to cancel it while upholding the decision of the court of first instance.
In the response to the petition, the plaintiff's representative, A.T., requests that the contested judicial act remain in force, and the defendant's petition be dismissed.
Having listened to the explanations of the representative of the defendant A.M., who supported the arguments of the petition, the objections of the representative of the plaintiff A.T., having examined the case materials, having discussed the arguments of the petition, the judicial board considers the petition to be satisfied 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 CPC), the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law provided for in Article 427 CPC, which led to the issuance of an illegal judicial act.
Such violations were committed in this case by the court of appeal.
The electronic case materials established that in the child's birth certificate No. 6 dated June 28, 2008, issued by the Registry Office of the Republic of Uzbekistan, the parents of the child M.S., born on June 28, 2008, indicated T.M. and M.Zh.
At the same time, it was established by the local courts and is not disputed by the parties that T.M. and M.Zh. were not and are not in a registered marriage. The parties did not submit a joint application for establishing paternity in relation to the child to the authorized body.
The court of first instance, partially satisfying M.Zh.'s claim for the recovery of alimony, argued that the claim for the recovery of alimony for the past period could not be satisfied, since T.M.'s paternity had not been established prior to the plaintiff's appeal to the court. In this regard, the time limit for collecting alimony should be calculated from the date of filing a claim for alimony recovery, that is, from January 18, 2021.
The court of appeal, changing the court's decision, reasoned that the plaintiff M.J. had taken measures to obtain funds for the maintenance of the child by submitting an application for a court order and a claim for alimony, but the alimony was not received due to T.M.'s evasion of their payment by filing an objection to the court order, challenging paternity, alimony was not They could have been obtained due to the defendant's unscrupulous behavior and prolonged non-resolution of this issue by the courts.
Meanwhile, a court order dated March 17, 2017 to recover alimony from him in favor of M.Zh. for the maintenance of a minor child M.S., born on June 28, 2008, was canceled by a district court ruling dated September 14, 2018 at the request of the defendant, since there were no documents confirming the establishment of paternity.
Then, on January 11, 2019, the plaintiff M.Zh. applied to the specialized inter-district juvenile court with a claim for establishing paternity and collecting alimony. However, by a court ruling dated February 1, 2019, on the basis of her statement of dismissal of the claim, the proceedings were terminated.
By the ruling of the Judicial Board for Civil Cases of the Court of December 4, 2020, this ruling was canceled in terms of termination of the alimony recovery proceedings with the transfer of the case for a new hearing to the court of first instance.
Upon a new review, the ruling of the specialized interdistrict juvenile Court dated January 8, 2021, based on a statement from the plaintiff's representative, dismissed M.Zh.'s claim.
Further, M.Zh. appealed to the district court with a similar claim, the proceedings were terminated by a court ruling dated June 17, 2019 on the basis of subparagraph 2) of Article 277 of the CPC, which was subsequently canceled by a ruling of the same court on December 29, 2020 due to a new circumstance.
By a ruling of the district court dated January 14, 2021, M.Zh.'s statement of claim for establishing paternity and collecting alimony at the request of the plaintiff's representative was left without consideration due to the filing of a similar claim at the place of residence of the plaintiff and the minor child in court.
After the plaintiff's appeal to the district court, by a ruling dated February 23, 2021, at the request of the defendant's representatives, a forensic molecular genetic examination was ordered to establish the relationship of T.M. with a minor child.
Expert opinion No. 85/17.1 of March 15, 2021, does not exclude the paternity of T.M. in relation to the minor child M.S., born on June 28, 2008 by citizen M.Zh. The probability of true paternity for a citizen of T.M. in relation to a child of S.T. is 99.9999%.
Based on this evidence, which was recognized by the courts as admissible, the courts reasonably satisfied the plaintiff's claim for alimony recovery, guided by the provisions of Articles 66, 138, 139, 164 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code).
By virtue of the requirements of paragraphs 1 and 2 of Article 164 of the Code, a person entitled to receive alimony has the right to apply to the court for recovery of alimony, regardless of the period that has expired since the right to alimony arose, if alimony was not paid earlier under an agreement on the payment of alimony.
Alimony is awarded from the moment of applying to the court.
According to paragraph 33 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" No. 6 dated November 29, 2019, when considering claims for the recovery of alimony filed jointly with a claim for establishing paternity, the requirement for the recovery of alimony for the past period in accordance with paragraph 2 of Article 164 of the Code, is not subject to satisfaction, since prior to the satisfaction of the claim for establishing paternity, the defendant was not recognized as the father of the child in accordance with the established procedure. In this regard, the beginning of the alimony recovery period must be determined from the date of the appeal to the court.
However, the court of appeal recovered alimony for the past period, that is, from March 18, 2017, guided by the provisions of part 2 of paragraph 2 of Article 164 of the Code, stating that if the court finds that measures were taken to obtain funds for maintenance before going to court, but the alimony was not received due to the evasion of the person obligated to pay alimony, from their payment, then alimony for the past period may be collected within a three-year period from the date of applying to the court.
Meanwhile, the previously cited circumstances of the plaintiff's appeal to the court and the actions of her representatives indicate that it was the plaintiff and her representatives who filed similar claims in different courts, that is, the cases did not end with consideration on the merits due to the procedural position and actions of the plaintiff. These circumstances cannot be regarded as evidence of the defendant's evasion from paying funds for the maintenance of the child, especially since the fact of paternity has been established in accordance with the established procedure only in the present case by refusing to satisfy the defendant's counterclaim challenging paternity.
In such circumstances, the conclusions of the decision of the court of first instance regarding the calculation of the beginning of the period from which alimony is to be collected from the defendant - from the moment of filing this claim with the court, namely from January 18, 2021, are correct.
Accordingly, the decision of the court of appeal in this part is subject to change due to a misinterpretation of substantive law and inconsistency of the conclusions of the circumstances established in the case in accordance with paragraphs 3), 4) of part 1, subparagraph 3) of part 2 of Article 427 of the CPC.
In the rest, the decision of the court of appeal is lawful and justified.
In accordance with parts 1 and 3 of Article 109 of the CPC, in favor of the applicant, the defendant's petitions are subject to recovery from the plaintiff's court costs for the payment of the state fee when filing the petition in cassation in the amount of KZT 3,166.
Grant T.M.'s petition.
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