Reduction (increase) of the amount of alimony collected

The courts of the republic satisfy claims for reduction (increase) of the amount of alimony, filed on the grounds of paragraph 1 of Article 139 and paragraph 1 of Article 175 of the KBS.

At the same time, there is an ambiguous practice in the courts of first instance in assessing the circumstances of significant importance – the existence of grounds for reducing (increasing) the amount of alimony with the subsequent denial of the claim.

So, in some cases, the courts see unfair actions of the plaintiff aimed at worsening the financial situation of the child, the amount of alimony, which the plaintiff asks to reduce. In other cases, the courts formally apply the relevant norms of marriage and family law and satisfy the claim.

By the court's decision in the claim of S.D.E. to Z.voy Zh.Zh.kyzy about reducing the amount of alimony, refused.

It was established that, by court order of the Ualikhanov district Court of the North Kazakhstan region, alimony payments were collected from S.va D.E. in favor of Z.voi Zh.Zh. for the maintenance of the child E.voi S. born on November 16, 2009, in the amount of ¼ of all types of earnings or other income. The debtor works in the State Enterprise for PCV Moldir Su, his average monthly salary is 35,358 tenge, alimony is deducted from the debtor's earnings from November 2012 to 25 percent, which follows from the salary certificate and the response of the bailiff of the Ualikhanov territorial Department of the Judicial Acts Enforcement Department of North Kazakhstan region. E.ova S. D. visits the Akbota mini-center on a monthly basis for a fee in the amount of 5,000 tenge.

The plaintiff requested to reduce the amount of alimony for the maintenance of one child by one sixth, while the plaintiff refers only to the fact that the amount of alimony demanded is burdensome for him, since he has a dependent second child and his spouse does not work, takes care of the child.

The court of first instance did not take these arguments into account, considering that as a result of reducing the amount of alimony, the property status of the child from the first marriage should not worsen compared with the property status of the second child who lives with him.

The court pointed out that when setting the maximum amount of alimony for the maintenance of children, the legislator assumed that every child should receive equal maintenance.

When comparing the financial status of a child for whose maintenance the plaintiff pays alimony, it follows that with a salary of 35,358 tenge, one-fourth is 7659 tenge, one-sixth is 5893 tenge. The share of each dependent of the plaintiff and his maintenance, after deducting the amount of 5893 tenge, accounts for the amount of 9821 tenge, which significantly exceeds the maintenance per child.

At the same time, the court took into account that the plaintiff's claim provides for unequal maintenance of children from the first marriage and the second, and as a result of reducing the amount of alimony, the property status of the child from the first marriage should not worsen compared with the property status of the child who lives with him.

The court took into account the defendant's arguments that the child from the second marriage lives together with the plaintiff and his financial situation is not worsened compared to the financial situation of her child.

Based on the criteria of fairness and the interests of all the plaintiff's children, the court dismissed the latter's claim.

The appellate judicial board of the Astana City Court, which was left unchanged by the cassation instance of the same court, refused to satisfy the claims of S.E.I. to A.G.K., S.A.O. for a reduction in the amount of alimony. During the consideration of this case in the courts of appeal and cassation, it was established that, by a court order of the Almaty District Court of Astana dated July 3, 2009, alimony payments for the maintenance of a child, I.A.E., born on February 9, 2007, in the amount of one quarter of earnings and other income were collected from the plaintiff S.E.I. in favor of Akhmetova G.K.. By a court order of the Almaty District Court of Astana dated February 13, 2014, alimony in the amount of one quarter of wages and other income was collected from the plaintiff S.E.I. in favor of S.A.S. for the maintenance of the child, I.E.E., born on December 20, 2012. The plaintiff claimed a reduction in the amount of alimony collected in favor of both claimants from 1/4 to 1/6 of earnings and other income due to the fact that the total amount of alimony collected from him exceeds the statutory amount of 33% and is 50%.

In this case, the court of appeal, overturning the court's decision and refusing to satisfy the claim for a reduction in the amount of alimony, took into account that the total amount of alimony collected from S.A.S. in favor of the claimants does not exceed 50% of his salary. In addition, the court took into account the financial situation of the defendant, A.O. G.K., who does not have a permanent job, rents a room, has no salary, and has no income other than alimony for her son.

The court of Appeal rejected the plaintiff's arguments, citing financial difficulties, since he pays off the loan on a monthly basis, he and the child with whom he lives with the defendant, S.voy A.S., are less well off than the first child.

Meanwhile, according to the submitted certificate from the place of work of the RSU "Military Unit 12750" of the Ministry of Defense of the Republic of Kazakhstan, the average salary of the plaintiff for the period from July to December 2014 is 203,262 tenge. After deduction of alimony transferred to the defendant A.V. G.K. within 25% of the salary, more than 75% of the plaintiff's earnings remain to him and his family, since, despite deduction of alimony in favor of S.V. A.S., the plaintiff S.sov E.I. and the defendant S.ova A.S. live together, run a common household, have a common budget, raise their son together, the plaintiff participates in his maintenance.

At the same time, there is no evidence that the second child, a minor I.E.E.uly, with whom he lives together, is less financially secure than I.A.E.uly, for whose maintenance the plaintiff pays alimony in the amount of a quarter of earnings and other income, the plaintiff in accordance with art. 65 and part 1 of art. 66 of the CPC, submitted.

In addition, the plaintiff has not appealed the second court order of the Almaty District Court of Astana to recover alimony in favor of S.A.S. in the amount of one quarter of his salary and other income in accordance with the procedure established by law.

Only after the bailiff issued a decision to foreclose on the plaintiff's salary, S.E.I. filed a real claim with the court for a reduction in the amount of alimony.

Taking into account the above circumstances, the courts of higher instances concluded that the filing of a claim by S.A.S. for the recovery of alimony from the plaintiff was initiated to worsen the financial situation of his spouse and the subsequent reduction of alimony to the defendant A.G.K.

 

 

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