Publication date: 22.05.2024
Supreme Court: Collection of Arrears for Child Support Already Enforced by Court Order is Not Provided by Law
Recently, the Supreme Court of Ukraine issued an important decision regarding the collection of arrears for child support. This decision confirms that legislation does not provide for the collection of arrears for child support already being enforced based on a court order. The court can only determine the amount of such arrears within the framework of enforcement proceedings, and a separate (additional) court decision for this is not required. This decision was made by the Second Judicial Chamber of the Civil Court of Cassation in a case concerning the determination of the amount and collection of child support arrears (ruling dated April 10, 2024, in case No. 761/43598/21 (proceeding No. 61-2588s24)).
Case Circumstances
In 2013, the court ordered child support from the defendant for the maintenance of children. Subsequently, the plaintiff learned about other income received by the defendant for previous periods, and in May 2020, the state executor recalculated the arrears for child support. It was established that the defendant conducted business activities as an individual entrepreneur (FOP) under the simplified tax system, and his income, accrued as a self-employed person, could not be considered when calculating child support. Consequently, the state executor recalculated the child support debt and concluded that there were no arrears.
The plaintiff considered these conclusions erroneous, arguing that the income received by the defendant as an FOP before 2017 should be considered when calculating child support arrears. The court of first instance, whose decision was upheld by the appellate court, satisfied the claim.
Position of the Supreme Court
The Civil Court of Cassation of the Supreme Court overturned the previous decisions regarding the collection of child support arrears, rejecting the claim in this part, but left the decisions intact in the part concerning the determination of the arrears amount. The Supreme Court concluded that the collection of arrears for child support already being enforced based on a court order is not provided by law.
According to parts 1 and 3 of Article 194 of the Family Code of Ukraine (in the edition valid at the time of filing the claim), child support may be collected by an enforcement order for the past period, but not more than for ten years preceding the presentation of the enforcement order for execution. Arrears for child support being collected according to Article 187 of this Code are repaid upon the payer's application through deductions from their salary, pension, or scholarship at the place of their receipt or collected by court order.You may be interested in the following articles: Analysis, consultation, evaluation. legal analysis of the situation, lawyer's consultation, lawyer's consultation, analysis of documents, legal analysis of the situation, written consultation, verification of documents by a lawyer, lawyers' documents, lawyer's help online, lawyer online, legal opinion, legal opinion of a lawyer, lawyer online.
Clarification of Legal Norms
According to part 1 of Article 187 of the Family Code of Ukraine, one of the parents may submit an application at the place of work, place of pension payment, or scholarship for the deduction of child support from their salary, pension, or scholarship in the amount and for the period specified in this application.
These legal norms define the procedure for collecting child support by an enforcement order for the past period and arrears formed during their deduction based on the payer's application submitted according to Article 187 of the Family Code of Ukraine. In this case, the law provides the right to apply to the court and collect arrears for child support.
The Supreme Court emphasized that the court, in the presence of a dispute, can only determine the amount of arrears for child support, which should be collected within the framework of enforcement proceedings during the execution of the court order for child support, and a separate (additional) court decision for collecting these arrears is not needed.
Conclusions
In this case, the court determined the amount of arrears for child support, the collection of which cannot be a separate subject of the claim, as it is subject to collection by the state executor in the manner provided by the Law "On Enforcement Proceedings," based on the 2013 court decision for child support.
Thus, the Supreme Court's decision clearly defines the limits and procedure for collecting arrears for child support. This decision will help avoid legal conflicts and ensure the correct enforcement of court decisions regarding child support.
