Appeal against the court's decision to recover the unpaid amount of alimony for the maintenance of minor children

 

To the Court of Appeal for Civil Cases

and administrative cases of the Almaty City Court

 

from the plaintiff: A.G. (S.G. A.)

IIN .....

547/1 S. ave., Almaty,

183 sq.m., tel. 8701.

 

plaintiff's representative: lawyer Sarzhanov Galymzhan Turlybekovich

Law and Law Law Firm

BIN 201240021767

79/71 Abylai Khan Ave., office 304, Almaty

cell phone: 87085785758

 

plaintiff's representative: lawyer Sabit Davletovich Nigmetov

IIN 820125350700

79 Abylai Khan ave., office 313, Almaty

Phone: 87009785755, 87054628284

 

 

 

 

appeal against the decision of the District Court No. 2 of Almaly district of Almaty dated October 17, 2023

 

 

On October 17, 2023, the District Court No. 2 of Almaly district of Almaty considered a civil case on the claim of A G to the Limited Liability Partnership "G B -Sh " for the recovery of the unpaid amount of alimony for the maintenance of minor children.

The court's decision dismissed the claim.

According to the court's decision, "In such circumstances, the arguments of the defendant and a third party, S.B., that the deduction of alimony from the debtor's salary was carried out in accordance with the requirements of the law, the court cannot recognize as justified" (quote).

However, the court further concludes to the contrary that the Beineu-Shymkent Gas Pipeline LLP is not a defendant in the case. Such ambivalent conclusions lead us to confusion and reasonable doubt about the fairness of the decision.

We consider the court's decision to be unlawful and unjustified on the following grounds.

According to article 427 of the Civil Procedure Code of the Republic of Kazakhstan:

1. The grounds for revocation or amendment of a court decision on appeal are:

1) incorrect definition and clarification of the range of circumstances relevant to the case;

2) the lack of evidence of circumstances relevant to the case established by the court of first instance;

3) inconsistency of the conclusions of the court of first instance set out in the decision with the circumstances of the case;

4) violation or improper application of substantive or procedural law;

2. The norms of substantive law are considered violated or improperly applied if the court:

1) has not applied the applicable law;

2) applied a law that is not applicable;

3) misinterpreted the law.

I believe that the court violated the requirements of this article, namely:

1. The court's conclusions do not correspond to the circumstances of the case;

2. The court did not apply the applicable law;

3. The court misinterpreted the law.

 

In support of the decision to dismiss the claim, the court referred to Article 138 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family," however, the court did not take into account the fact that S.B.K. is a debtor in enforcement proceedings and did not hide his earnings, as he was officially employed by Beineu Gas Pipeline LLP.Shymkent" according to labor legislation, and not according to a civil contract. That is, S.B.K. could not actually manage his earnings before deducting child support from him. And with regard to disputed legal relations, the court should have paid attention to the provisions of Articles 139 and 140 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", which states that alimony for minor children is collected by the court from their parents monthly in the amount of: for three or more children - half of the earnings and (or) other income of the parents. The list of types of wages and (or) other income that parents receive and from which alimony is deducted is approved by the Ministry of Justice of the Republic of Kazakhstan.

According to paragraph 1 of Article 4 of the Constitution of the Republic of Kazakhstan, the current law in the Republic of Kazakhstan is the norms of the Constitution, its corresponding laws, other normative legal acts, international contractual and other obligations of the Republic, as well as normative decisions of the Constitutional Court and the Supreme Court of the Republic.

According to Part 2 of Article 7 of the Law of the Republic of Kazakhstan "On Legal Acts":

"The main types of regulatory legal acts include:

1) The Constitution of the Republic of Kazakhstan, constitutional laws of the Republic of Kazakhstan, codes of the Republic of Kazakhstan, consolidated laws of the Republic of Kazakhstan, laws of the Republic of Kazakhstan, temporary resolutions of the Government of the Republic of Kazakhstan having the force of law;

2) regulatory legal decrees of the President of the Republic of Kazakhstan;

2-1) regulatory legal acts of the Chairman of the Security Council of the Republic of Kazakhstan;

3) regulatory legal resolutions of the Parliament of the Republic of Kazakhstan and its Chambers;

4) regulatory legal resolutions of the Government of the Republic of Kazakhstan;

5) regulatory rulings of the Constitutional Court of the Republic of Kazakhstan, the Supreme Court of the Republic of Kazakhstan;

6) regulatory legal resolutions of the Central Election Commission of the Republic of Kazakhstan, the Supreme Audit Chamber of the Republic of Kazakhstan, the National Bank of the Republic of Kazakhstan and other central government agencies;

7) regulatory legal orders of the Ministers of the Republic of Kazakhstan and other heads of central government agencies;

8) regulatory legal orders of heads of departments of central government agencies;

9) regulatory legal decisions of maslikhats, regulatory legal decisions of akimats, regulatory legal decisions of akims and regulatory legal decisions of audit commissions."

According to parts 1 and 2 of art. 11 of the Law of the Republic of Kazakhstan "On Legal acts":

"1. All normative legal acts have direct effect, unless otherwise stipulated in the normative legal acts themselves or the acts on their enactment.

2. No additional instructions are required for the application of the regulatory legal acts that have been put into effect."

According to part 2 of art . 93 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", when foreclosing on wages and other types of income of the debtor, the bailiff, taking into account the requirements of this Law, issues a resolution indicating the amount to be withheld monthly until the awarded amounts are fully recovered, and sends it together with a copy of the enforcement document, stamped with the seal of the territorial department or private bailiff, for execution to the employer with whom the debtor is in an employment relationship, or to a person, from which the debtor receives income.

According to paragraph 5 of Article 10 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", the decision of the bailiff comes into force from the date of its issuance, is subject to mandatory execution and can be appealed to the court within ten working days in accordance with the procedure established by the legislation of the Republic of Kazakhstan on administrative proceedings.

According to the Order of the Minister of Justice of the Republic of Kazakhstan dated December 24, 2014 No. 372 "On approval of the list of types of wages and (or) other income from which alimony is deducted for the maintenance of minor children":

"1. Alimony for the maintenance of minor children is withheld from all types of wages (monetary remuneration, maintenance) and other income received by parents in monetary (national and (or) foreign currency), with the exception of income of persons specified in paragraph 2 of this list, including:

1) from the salary accrued to employees for the time actually worked or for the work performed, based on the established official salaries (rates) provided for by the remuneration system

2) from all types of surcharges and allowances provided for by the wage system, as well as from allowances received due to savings within the wage fund, or funds provided for the maintenance of the relevant institution

3) with bonuses (monetary rewards) provided by the remuneration system

4) from all compensation payments, with the exception of payments:

provided for in subparagraph 7) of Article 98 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" dated April 2, 2010 (compensation payments for work in harmful or extreme conditions, as well as monetary amounts paid to citizens affected by environmental disasters or radiation exposure during the elimination of consequences of natural and man-made emergencies)".

According to Article 7 of the Civil Code of the Republic of Kazakhstan, civil rights and obligations arise, change and cease.:

2) from administrative acts entailing civil law consequences by virtue of the legislation of the Republic of Kazakhstan;

3) from a court decision that established civil rights and obligations;

4) as a result of the creation, destruction, acquisition or alienation of property on grounds not prohibited by legislative acts of the Republic of Kazakhstan, as well as the renunciation of property rights;

6) as a result of causing harm to another person, as well as as a result of unjustified acquisition or saving of property at the expense of another person (unjustified enrichment);

7) due to other actions of citizens and legal entities;

8) as a result of events with which the legislation of the Republic of Kazakhstan relates the occurrence of civil consequences.

The court order and the decision of the CSI in relation to S.B.K. were executed in the Beineu-Shymkent Gas Pipeline LLP during the period of his employment duties in this LLP.

According to the text of the court order, alimony was collected from the earnings of Saurambaev B.K. Thus, the court imposed the obligation to withhold alimony directly on S. B.K.'s employer, i.e. on the defendant.

By independently determining the share of wages to be withheld in favor of the plaintiff, the defendant violated the provisions of the Constitution of the Republic of Kazakhstan on the binding force of court decisions, the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and the Family" on withholding alimony in the amount of half of earnings, the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", the order of the Minister of Justice RK "On approval of the list of types of wages and (or) other income from which alimony is deducted for the maintenance of minor children".

Beineu-Shymkent Gas Pipeline LLP was obliged to withhold and transfer funds from S.B.K.'s salary for the maintenance of minor children as a result of the receipt by the accounting department of the LLP of a decision by a private bailiff to withhold alimony from wages with a specific amount of the share. However, the accounting department of the LLP independently determined the amount of deduction from S.B.K.'s salary, thereby violating the current legislation of the Republic of Kazakhstan.

The specified violation on the part of the Beineu-Shymkent Gas Pipeline LLP was established by the resolution of the Specialized Interdistrict Court for Administrative Offenses of Almaty dated January 23, 2023, for which the employee of the Beineu-Shymkent Gas Pipeline LLP, Sh.S.B., was found guilty of committing an administrative offense under Part 1 of art. 670 of the Code of the Republic of Kazakhstan "On Administrative Offenses", the Resolution of the Almaty City Court dated 02/16/2023, the resolution of the Specialized Interdistrict Court for Administrative Offenses of Almaty dated 01/23/2023, remained in force. These judicial acts are of prejudicial importance due to the provisions of Article 76 of the Civil Procedure Code of the Republic of Kazakhstan. However, the court did not take them into account.

 

Regarding the court's conclusions that the recovery of the unpaid amount of alimony from the defendant may entail unjustified enrichment for the plaintiff. According to paragraph 3) of Article 960 of the Civil Code of the Republic of Kazakhstan, sums of money and other property provided to a citizen, in the absence of bad faith on his part, as a means of subsistence (wages, royalties, compensation for harm to life or health, pensions, alimony, etc.) and used by the acquirer are not subject to return as unjustified enrichment.. Dishonesty on the part of the plaintiff has not been established during the trial, and was not reflected in the court's decision.

Moreover, it was the culpable actions of the defendant's employee, S.B. Shabdukarimov, that led to the fact that the plaintiff largely lost the amount she could have expected with proper execution of the court order and the decision of the accounting department of the defendant.

Thus, when considering the civil case, the court did not apply the law that was to be applied, and also misinterpreted the law, which eventually led to an unjustified and illegal decision.

I have signed a contract for the provision of legal assistance with the Law and Law Law Firm, the costs of paying for the assistance of a representative amounted to 500,000 tenge, which I ask to recover from the defendant. The costs of paying for the representative's assistance are confirmed by Agreement No. 2006/23 dated 06/20/2023 and a receipt for payment to Kaspi Bank JSC in the amount of 300,000 tenge (available in the materials of the civil case) and Agreement No. 1011/23 dated 11/10/2023 and a receipt for payment to Kaspi Bank JSC in the amount of 200,000 tenge.

Based on the above, I ask:

- the decision of the District Court No. 2 of Almaly district of Almaty dated October 17, 2023 to cancel and make a new decision on the satisfaction of the claim;

- to collect from the defendant in my favor the costs of the representative in the amount of 500,000 tenge.

Appendix: a copy of the power of attorney for the representatives of Sarzhanov G.T., Nigmetov S.D., a copy of the notice of representation of Sarzhanov G.T., a copy of the notice of representation of Nigmetov S.D., a copy of the certificate of attorney of Sarzhanov G.T., a copy of the certificate of attorney Nigmetov S.D., a copy of the certificate of registration of a legal entity, a copy of the agreement on legal assistance No. 1011/2023 dated 11/10/2023, a copy of the legal aid payment receipt.

 

11/14/2023 A. G.

 

 

representative                                                            Sarzhanov G.T.

 

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