Setting aside of the appeal against the determination of separation maintenance and costs decision in divorce protection proceedings

Facts

Parties and procedural history:

The appellant (husband, born 1950) and the respondent (wife, born 1958) were married on 15 December 2001 and separated on 14 July 2017. On the same day, they signed an "Attestation sur l'honneur" in which the husband undertook to pay the wife EUR 15,000.-- per month and to provide her with two credit cards. On 9 March 2018, the wife filed a divorce protection petition, claiming retroactively for the period from 15 July 2017 to 8 March 2018 an amount of CHF 90,854.00 (EUR 77,500.00) and from 9 March 2018 onwards monthly payments of CHF 50,000.00.

The Regional Court of Albula (single judge) ordered the husband, by decision of 25 October 2018, to pay monthly maintenance of CHF 16,620.00 from 9 March 2018 onwards and to assume the lease payments and insurance premiums for a Porsche. Both parties appealed this decision to the Cantonal Court of Grisons. The Cantonal Court of Grisons (I Civil Chamber) partially amended the judgment by decision of 31 January 2023 (served on 2 February 2023), awarding the wife for the period from 15 July 2017 to 8 March 2018 an amount of CHF 82,175.00 and, from 9 March 2018 onwards, staggered monthly maintenance payments (CHF 10,800.00 until March 2022, thereafter CHF 10,040.00), in addition to tax refunds, lease payments and insurance premiums. The costs of the appeal proceedings of CHF 10,000.-- were split equally between the parties.

Appeal to the Federal Supreme Court:

The husband filed an appeal in civil matters on 3 March 2023, seeking the setting aside of the cantonal judgment in dispositive items 1, 2, 3a, 3b, 4 and 5 and the dismissal of the wife’s appeal. In the alternative, he requested a remittal to the lower court. The Federal Supreme Court did not obtain any statements but only the files of the cantonal proceedings. A previously filed complaint regarding undue delay was dismissed as moot.

Considerations

1. Admissibility of the appeal:

The appeal is admissible as it challenges a final decision of an upper cantonal court in a pecuniary civil matter (divorce protection measures) and the minimum value in dispute of CHF 30,000.-- has been exceeded (Art. 72 para. 1, Art. 74 para. 1 lit. b, Art. 51 para. 1 lit. a and para. 4 FSCA). The appellant is entitled to appeal (Art. 76 para. 1 FSCA) and filed the appeal within the statutory time limit (Art. 100 para. 1 FSCA). As regards the appellant’s request for confirmation of dispositive item 7 (introductory formula), no ruling is made thereon as this request was not substantiated (Art. 106 para. 2 FSCA).

2. Scope of review and principle of specific objections:

Decisions in divorce protection matters are subject to Art. 98 FSCA, under which only the violation of constitutional rights may be asserted. The objection must be raised precisely and in detail and substantiated (Art. 106 para. 2 FSCA). The Federal Supreme Court reviews only objections that are clearly and comprehensibly substantiated and does not entertain purely appellatory criticism. A violation of the prohibition of arbitrariness (Art. 9 Cst.) requires proof of a qualified and obvious deficiency leading to a gross contradiction with the notion of justice.

3. Separation agreement and retroactive maintenance:

The lower court correctly held that the separation agreement of 14 July 2017 was valid and binding. The appellant had undertaken to pay EUR 15,000.-- per month and to provide two credit cards. The respondent claimed that the appellant had only transferred EUR 5,000.-- CO EUR 5,500.-- and had assumed the credit card statements. The lower court qualified the respondent’s claim as enforcement of the separation agreement and not as a retroactive determination of maintenance. As the respondent had accepted the agreed payments without reservation, a tacit agreement had been reached. A retroactive award of maintenance was therefore ruled out. The lower court had jurisdiction as the separation agreement had matrimonial law effects and fell within the scope of the summary proceedings under Art. 271 CPC. The agreement was neither voidable due to duress (Art. 29 et seq. CO) nor for any other reason. The calculation of the outstanding amounts (CHF 82,175.00) was comprehensible and not arbitrary.

4. Financial capacity of the appellant:

The lower court determined the appellant’s financial capacity in a single-stage concrete manner, based on the last jointly lived standard of living. It relied on the 2016 tax return (income of CHF 292,000.--) and took into account dividends from [C. GmbH] , whose economic controller was the appellant (piercing the corporate veil). The appellant’s allegations that the lower court had arbitrarily relied on the 2016 tax return CO had not taken into account the GmbH’s loss of earnings were unsubstantiated. The general assertions regarding market conditions CO pandemic effects were insufficient to challenge the lower court’s findings. The appellant’s financial capacity was thus clearly established.

5. Needs of the respondent:

The lower court calculated the respondent’s needs using the single-stage concrete method, taking into account, inter alia, housing costs (CHF 3,220.--), cleaning assistance (CHF 300.--), health insurance (CHF 102.50) and vehicle costs…