Facts
The spouses A. (appellant) and B. (respondent) have been living separately since July 1, 2012. The Cantonal Court regulated the separation and ordered the appellant to pay maintenance contributions for the children C. and D. The appellant filed an appeal and requested a reduction of the maintenance contributions. The Higher Court dismissed the appeal and did not consider the appellant's new claim of unemployment since July 1, 2014. The appellant then filed a complaint with the Federal Supreme Court.
Considerations
The Federal Supreme Court states that in appeal proceedings, new facts and evidence pursuant to Art. 317 para. 1 CPC are only considered if they are submitted without delay and could not have been submitted before the court of first instance despite reasonable diligence. A distinction must be made between genuine and non-genuine new facts.
The Federal Supreme Court further states that the modification action constitutes a new action in the sense of its case law. In the modification proceedings, only genuine new facts, i.e., facts and evidence that have only arisen or become available after the time when new means of attack and defense could last be submitted in the previous proceedings, can be taken into account.
From this different legal situation regarding new facts, the practice has concluded that new submissions alleging and proving changed circumstances may not simply be…