Dismissal of the appeal against the granting of the definitive enforcement order for maintenance contributions

Facts

On May 1, 1987, P. was ordered by the President of the District Court II of Lucerne-Land to pay maintenance contributions of a total of CHF 3,700 per month to his wife and the two children, starting from April 1, 1987. On April 14, 1988, the High Court of the Canton of Lucerne set the maintenance contributions retroactively from April 1, 1987 at a total of CHF 4,300 per month. Since P. had paid according to the judgment of the President of the District Court until the decision of the High Court, a difference of CHF 7,226 in overpaid contributions arose.

To pay off this difference, P. began to offset the overpaid amount against the maintenance contributions that were now owed according to the judgment of the High Court. For the month of June 1988, he initially only transferred an amount of CHF 900 to his wife. The wife then pursued her husband P. for the outstanding amount, whereupon the President of the District Court III of Lucerne-Land granted the wife the definitive enforcement order for CHF 2,400 plus interest.

P. appealed against this decision, which was dismissed by the High Court of the Canton of Lucerne on January 5, 1989. Thereupon, P. filed a constitutional appeal with the Federal Court, requesting that the decision of the High Court be overturned.

Considerations

The Federal Court dismissed the appeal. It stated that according to the express statutory provision, the judge in the enforcement order proceedings may only recognize the defense of discharge if documentary evidence is provided for this. If the discharge is based on the offsetting against a counterclaim, the debtor's counterclaim must itself be proven by a court judgment or an unconditional acknowledgment by the opposing party.

In the present case, the appellant had indeed submitted payment receipts showing that he had paid a total of CHF 7,226 more to the respondent until the end of April 1988 than he was obliged to pay according to the judgment of the High Court. However, this did not constitute the required documentary evidence for the existence of a counterclaim. The documents submitted merely showed that the appellant had made certain additional payments, but not that he was therefore entitled to a counterclaim.

Furthermore, it must be taken into account that maintenance claims under…