Setting aside of child support calculation in divorce proceedings due to incorrect application of the two-step method and insufficient fact-finding

Facts

Parties and procedural history:

The parties, the appellant (husband) and the appellee (wife), had been married since 1999 and have three daughters, who are now of full age. The marriage was finally dissolved in 2016. The dispute concerned child support for the daughters as well as post-marital alimony. Both parties appealed the divorce judgment, whereupon the Higher Court of the Canton of Solothurn issued a new ruling on child support on 9 February 2023. Both parties filed appeals in civil matters with the Federal Supreme Court (5A_274/2023 and 5A_300/2023).

Decisions of the lower courts:

The Higher Court had initially set child support in a decision dated 14 December 2017, applying a mix of different methods. The Federal Supreme Court set aside this decision in a judgment dated 2 February 2021 (5A_104/2018) and remanded the matter for supplementation of the facts (in particular, hearing the daughters) and for recalculation using the two-step method. The Higher Court then issued a new ruling on child support on 9 February 2023, again making an opaque and mathematically incomprehensible calculation.

Subject of the appeals:

The subject of the appeals is the amount of child support to be paid by the appellant for the three daughters as well as post-marital alimony. The appellant criticises, in particular, the incorrect application of the two-step method, insufficient fact-finding (e.g., missing income statements for 2021) and the binding effect of alleged “acknowledgments” on his part. The appellee objects to the child support and her own alimony being set too low.

Considerations

1. Procedural aspects:

The Federal Supreme Court consolidates the two appeals as they concern the same subject matter and are directed against the same decision (Art. 71 FSCA in conjunction with Art. 24 FCPA). Both parties are entitled to appeal (Art. 76(1) FSCA), and the appeals were filed within the statutory time limit (Art. 100 in conjunction with Art. 46(1)(a) FSCA). The appeal in civil matters is the correct legal remedy. The appellee’s subsidiary constitutional appeal is not considered.

2. Scope of review and principle of objections:

The Federal Supreme Court reviews the challenged decision for legal violations pursuant to Art. 95 et seq. FSCA ex officio (Art. 106(1) FSCA) and applies the law with free cognition. However, it only reviews objections that are sufficiently substantiated in form. The parties must state in the appeal in what respect the challenged decision violates the law (Art. 42(2) FSCA). For the objection of obviously incorrect factual findings, the strict principle of objections pursuant to Art. 106(2) FSCA (Art. 97(1) FSCA) applies.

3. Incorrect application of the two-step method:

In its remand decision of 2 February 2021 (5A_104/2018), the Federal Supreme Court explicitly instructed that child support be calculated using the two-step method. This method requires that first the available financial resources be determined, then the needs of the persons concerned be ascertained, and finally the resources be distributed in a specific order (covering the minimum subsistence level under enforcement law, cash maintenance for minor children, care maintenance, post-marital alimony, maintenance for adult children, distribution of surplus).

The Higher Court, however, applied these instructions in a qualitatively incorrect manner in several respects. The calculations are opaque, mathematically incomprehensible and violate the prescribed order. For example, surplus shares were used before the distribution of resources, the needs of individual family members were not fully stated and income calculations were not carried out correctly. In addition, the appellant’s amended legal requests were wrongly treated as “acknowledgments”, even though such amendments were permissible in the remand proceedings (Art. 317(2) CPC).

4. Violation of the principle of official fact-finding:

The Higher Court violated its duty to ascertain the facts ex officio (Art. 296(1) CPC) by not obtaining continuous income statements for 2021, despite the appellant’s income fluctuating significantly. It also incorrectly calculated the average…