Objection to a statement of claim for additional alimony

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To the Al-Farabiysky District Court of Shymkent, South Kazakhstan region, Judge Turgunbai L.T.

Republic of Kazakhstan, South Kazakhstan region, Shymkent, Mailykozha str., 7.

from the defendant: Sarzhan Nurlybek Tursunbayevich IIN:...................

Lawyer of Law firm No. 6 AGCA Sarzhanov G.T.Almaty

Bukhar zhyrau 64, office 15. + 7 (708) 578 57 58.

Objection

to file a claim for collecting additional funds from a parent in the form of alimony for payment in the higher education system by virtue of Article 138 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family"

In, your production has a civil case No. 5111-17-00-2/1234 dated 09.11.2017 on the claim of Gazi Bakhytgul Uzbekovna, who acts in the interests of her imperfect daughter Sarzhan Zhanna Nurlybekkyzy (at the time of filing the Claim, a minor) against Sarzhan Nurlybek Tursunbayevich about collecting additional funds from her parent in the form of alimony to pay in the higher education system. Which explains that from 1994 to 2015, Gazi B.U., cohabited with the defendant Sarzhan N.T., in a civil marriage, as a result of living together, a daughter was born after which the defendant Sarzhan N.T. recognized paternity and gave her his surname and patronymic Sarzhan Zhanna Nurlybekkyzy. The objection to the claim for additional alimony, the Plaintiff's arguments that the Plaintiff and the defendant lived together from 1994 to 2015, does not enter into any framework, whereas the defendant was taken into custody in 2009 and sentenced in 2015, after which he was released for health reasons (tuberculosis) and invalidity in 2015.

Prior to his placement in custody, the defendant was engaged in private business and did not live with the Plaintiff all the time, but from time to time he stopped by as the defendant has his own family living in the rural district of Atakent, village. Yesentaev, Mahtaralsky district, South Kazakhstan region, Sarzhan Gulsara's wife, Sarzhan Damir's two-year-old children, Janel, Kuanysh, Olzhas. Also, the Plaintiff's arguments that the Plaintiff and her daughter Sarzhan Zhanna constantly visited places of deprivation of liberty where the defendant was located are not supported because they never visited and did not show any moral support, but instead reproached the defendant that he was a criminal and sent messages to places of deprivation of liberty through general acquaintances.

 

After his release in 2015, the defendant underwent intensive treatment for tuberculosis and spent a long time in hospitals, where the Defendant also did not find moral support for the Plaintiff and his daughter. In early 2016, after intensive treatment, the defendant wanted to visit the Plaintiff, where he intended to see his daughter and establish a relationship where the Plaintiff was not allowed into the house and kicked out, accompanied by obscenities and that they did not need a criminal and an unemployed bisharashka tagda, as in fact the defendant is still unemployed. After the expiration of time, the Plaintiff invited the defendant to a cafe and set the conditions that the defendant should leave his legal family and permanently reside with the plaintiff, (whereas in 1994, the Plaintiff knew that the defendant was married with two children at that time and was in agreement to be the defendant's common-law wife) or disappear from their lives.

Having failed to comply with the Plaintiff's demands, the defendant left after which the Plaintiff filed a claim for recovery of alimony until the age of majority, for which to this day we have not received Pre-trial compensation in order to settle the dispute in a pre-trial manner and/or conclude an agreement on the payment of alimony. Also, dear Court, in this case, we also did not receive a Pre-trial pre-trial settlement and/or an agreement on the payment of alimony. In accordance with paragraph 1) of Article 279 of the CPC, the court leaves the statement of claim without consideration: if the plaintiff has not complied with the law for this category of cases or the prescribed procedure for pre-trial dispute settlement and the possibility of applying this procedure has not been lost. In this case, the materials of the civil case do not contain notices and notices of Pre-trial pre-trial settlement of the dispute and/or the conclusion of an agreement on the payment of alimony, which was not sent to the defendant, and we believe that this Claim is only vindictive. The objection to the claim for additional alimony, as well as the Plaintiff's arguments on tuition fees for Sarzhan Zhanna, are not justified, since Parents have equal rights and bear equal responsibilities with respect to their children and a certificate stating that Sarzhan Zhanna is indeed studying at the university is available, however, how much do I need to pay for the studies of a certificate and/or a payment order or There is no other document in the materials of the civil case., We also believe that the defendant is not obliged to pay for his studies in full, whereas the procedure for parents' participation in additional expenses and the amount of these expenses are not determined by mutual agreement, they are determined by the court based on the financial and marital status of the parents, other children and the interests of the parties that deserve attention, and it would be logical to pay half of the tuition.

There is also a line in the claim where the amount of tuition fees should be indicated with an attached receipt for tuition fees. We also believe that the plaintiff does not correctly interpret the requirements of art. 144. of the Code, where it is stated that In the absence of an agreement on the payment of alimony and in the presence of exceptional circumstances (serious illness, injury to minor children or disabled adults in need of assistance, the need to pay for outside care for them and other circumstances), each parent may be involved by the court to participate in additional costs caused by these circumstances. Which has nothing to do with this civil case. The Information Letter of the Advisory Council for the Development of a unified judicial practice in the Administration of Justice of the Karaganda Regional Court dated June 6, 2012 No. 10 "On the practice of considering civil cases for the recovery of alimony for minors and adult children" recommended: In order to form a uniform judicial practice of considering civil cases related to the recovery of alimony amounts for the maintenance of adult children, (since 07.12.2017 Sarzhanova Zhanna turned 18 years old) students in the system of general secondary, technical and vocational education, after secondary education, in the system of full-time higher education under the age of 21, as well as disputes about changing the amount of alimony for minor children previously established by the court, the Advisory Council recommends the following.

According to paragraph 2 of Article 141 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code), the collection of maintenance for children studying in the system of general secondary, technical and vocational, post-secondary education, in the system of full-time higher education under the age of 21, in the absence of an agreement on alimony payments are made in court in a fixed amount of money. When considering this category of cases, the courts need to clearly define the subject of the claim. In accordance with the requirements of art. 17 of the Civil Code, the ability of a citizen to acquire and exercise civil rights by his actions, create civil duties for himself and fulfill them arises in full upon reaching the age of majority, i.e. upon reaching the age of eighteen, as can be seen from the materials of the civil case 07.12.2017 Sarzhan Zhanna turned 18 years old.

It follows from the above that, being a capable citizen, a claim for the recovery of alimony amounts for his maintenance until he reaches the age of 21, provided that he studies in the system of general secondary, technical and vocational education, after secondary education, in the system of full-time higher education, is brought by the adult child himself and/or his representative according to the requirements of the Supreme Court of the Republic of Kazakhstan, and not his parent. In this regard, we consider all the arguments of the plaintiff to be unfounded and refuted by this objection.

Based on the above and guided by Articles 46, 166 of the CPC RK,

I ask the Court:

To satisfy the claims of gr. Gazi Bakhytgul Uzbekovna about penalties from Sarzhan N.T., additional funds in the amount of 385,000 tenge in the form of alimony, for payment in the higher education system - to refuse.

Appendix: Self-identification; Trustworthiness; Screenshots; Confessions.

Sincerely, Lawyer: ________________/Sarzhanov G.T. "___"___________ 2019

 

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