Facts

The parties are spouses (husband [A.A.] , born 1968; wife [B.A.] , born 1973, Austrian national), married since 2014, no children. In protective measures proceedings, the District Court of Zurich ordered the husband on 20 February 2020, under threat of default consequences (Art. 164 CPC), to produce documents on his financial circumstances for 2015 to 2018. The Obergericht of the Canton of Zurich remanded the matter; by judgment of 1 September 2020 it regulated the separation and awarded the wife maintenance contributions until August 2018.

The husband had initiated divorce proceedings on 29 August 2018. By motion for protective measures of 15 March 2019, the wife requested maintenance contributions of Fr. 7'700.-- retroactively from 1 September 2018. In her answer to the claim of 26 November 2019, she requested the production of various documents and quantified the maintenance at no less than Fr. 7'700.--. At the hearing on protective measures, she requested the production of documents for 2018 to 2020; by order of 17 June 2020, the District Court set a time limit under threat of default consequences pursuant to Art. 164 CPC. On 25 August 2020, the husband declared that he did not see himself obliged to produce the income documents. By order of 31 August 2020, the District Court ordered him, under penal warning pursuant to Art. SCC 292, to produce them within 10 days.

The husband lodged an appeal against this order with the Obergericht. The Obergericht declined to hear it, treated the remedy as an appeal (Berufung), and dismissed it insofar as it was admissible. It set a final time limit of 10 days under penal warning pursuant to Art. SCC 292, imposed the court costs, and ordered the husband to pay a party compensation.

The husband (appellant) lodged a civil law appeal (Beschwerde in Zivilsachen) with the Federal Supreme Court and requested the annulment of operative paragraphs 1, 3 and 4 of the Obergericht's judgment, that the costs of the appeal proceedings be imposed on the wife (respondent), and a party compensation. Suspensive effect was granted. The Federal Supreme Court did not obtain any responses.

Considerations

Admissibility: The decision concerns production obligations within the framework of provisional measures for the duration of the divorce proceedings and originates from the last cantonal instance (Art. 75 FSCA). The time limit was observed (Art. 100 para. 1 FSCA). Whether this is a final decision (Art. 90 FSCA; production claim under Art. 170 CC) or an interlocutory decision (evidentiary order under Art. 154 CPC) is determined by the party seeking it, which bases its claim on substantive or procedural law. Since the legal classification itself is a point in dispute on the merits, the Federal Supreme Court admits the appeal regardless of the amount in dispute and without examining Art. 93 FSCA.

Standard of review: Decisions on protective measures under Art. 276 CPC are subject to Art. 98 FSCA, so that only the violation of constitutional rights, in particular arbitrariness (Art. 9 Cst.), may be complained of. The principle of complaint applies; the appeal must address the considerations of the contested decision. Submissions based on facts not apparent from the decision, without alleging arbitrariness, remain disregarded.

Substantive-law request: The appellant complained that the wife had not made a substantive request for production, so that the penal warning under Art. SCC 292 was impermissible. The Federal Supreme Court holds that the lower court misjudged the case law, according to which it is not the court but solely the party seeking production that determines whether it bases its claim on substantive or procedural law. Additionally, however, the lower court established without arbitrariness that the wife, in her answer to the claim, expressly made the production request as a substantive request and linked it to her maintenance claim. The link to the protective measures proceedings cannot unambiguously be understood as a mere request for evidence. A production obligation based on substantive law may be combined with the procedural penal warning for…