Facts
Parties and procedural history: The appellant (father) challenges the decision of the Bern Cantonal Court of Appeal, 2nd Civil Chamber, of 9 March 2021 (ZK 20 556). The respondent (daughter, born 1997) completed an apprenticeship as a commercial employee and obtained the vocational baccalaureate, studied at the ZHAW in Winterthur from summer 2016 and completed her studies in June 2019. The parents were divorced in 2012 by the Emmental-Oberaargau Regional Court; according to a partial agreement, the father owes child maintenance of Fr. 1'400.-- per child until the ordinary completion of the initial training, with a right to reduce by 45% of the child's net income.
Subject matter of the dispute: By action of 18 November 2015 before the Berner Jura-Seeland Regional Court, the father requested retroactive annulment or, alternatively, reduction of maintenance for adult children from majority onwards, as well as repayment of contributions paid in excess. On 4 November 2020 the Regional Court reduced the contribution from September 2015 to July 2019 to Fr. 920.-- per month and dismissed the action for the remainder. On 9 March 2021 the Cantonal Court of Appeal dismissed the appeal but corrected the period to June 2019.
Requests before the Federal Supreme Court: The father requests annulment of the maintenance obligation from 1 September 2015, repayment of Fr. 30'355.95, a new allocation of costs and compensation, and alternatively remittal. The daughter requests full dismissal of the appeal.
Key questions: (1) Whether it is reasonable for the father to provide adult maintenance due to the lack of personal contact (Art. 277 para. 2 CC); (2) whether the Cantonal Court of Appeal wrongly treated the period of the maintenance obligation as moot; (3) whether the calculation of maintenance (income and needs of the daughter and the financial capacity of the mother) complied with federal law; (4) whether the party compensation was lawfully fixed.
Findings of the lower court on refusal of contact: The Cantonal Court of Appeal found that the father and mother had waged a bitter divorce war, which burdened the children and alienated them from the father. The father had always blamed others and did not acknowledge his own responsibility. He had only contacted the daughter when maintenance adjustments were at issue. The daughter had refused all contact.
Maintenance calculation of the lower court: Monthly available funds: father's income Fr. 10'000.--, the daughter's own income Fr. 500.--, training allowance Fr. 290.--; needs of the daughter Fr. 2'500.-- (basic amount Fr. 850.--, share of housing costs Fr. 400.--, mobility Fr. 240.--, study expenses Fr. 360.--). A shortfall of approximately Fr. 800.-- was to be borne by the mother in kind (board and lodging) or in cash.
Procedural course before the Federal Supreme Court: The Federal Supreme Court admitted the appeal, examined the complaints and partially upheld them. Suspensive effect was granted by order of 28 September 2021.
Considerations
1. Reasonableness of adult maintenance (consid. 3) Under Art. 277 para. 2 CC, parents must provide for the initial training to the extent that this can reasonably be expected of them in view of all circumstances. Reasonableness encompasses economic and personal aspects. A child who culpably and without reason breaks off personal relations may lose the maintenance claim. However, where contact is broken off during divorce, responsibility of the child is usually to be denied; a charge of fault requires that the child, even after reaching majority, maintains its rejecting attitude despite the parent's proper conduct. The Cantonal Court of Appeal was entitled to consider the father's co-responsibility, and the question of who is responsible for the breakdown of contact is a question of fact or of discretion, which the Federal Supreme Court reviews only for arbitrariness. The father has failed to demonstrate arbitrariness; his objections are appellatory. The submission of a letter of 26 April 2016 as a genuine novum was not admitted (Art. 99 para. 1 FSCA). The appeal is unfounded on this point.
2. Mootness and correction (consid. 4) The Cantonal Court of Appeal declared the appeal proceedings moot for the month of July 2019 and corrected the decision. Under Art. 241 CPC, however, mootness presupposes a procedural act by a party that terminates the proceedings (acknowledgment of the claim, settlement, withdrawal of the action) and relates to the opposing party's request for relief. The daughter had merely admitted facts (completion of studies in June 2019) but had not acknowledged the claim; she requested dismissal of the appeal. The appeal is well-founded on this point; the Cantonal Court of Appeal must decide anew on the termination for July 2019, including the costs consequences.
3. Calculation of maintenance (consid. 5 to 8) The Federal Supreme Court notes that the appellate instance has full power of review (Art. 310 CPC); restraint in review is only appropriate where the lower court has better knowledge of the circumstances. The question of which economic circumstances exist is a question of fact, whereas reasonableness is a question of law. The lower court therefore could not discretionarily dispense with establishing the actual circumstances. Methodologically, the two-step method (BGE 147 III 265) is to be applied; for adult maintenance the family-law subsistence minimum is decisive, and maintenance is to be paid in money.
3a. Income of the daughter (consid. 6): The Cantonal Court of Appeal attributed to the daughter a hypothetical income of Fr. 500.--, based on general practice concerning what can be expected of students. The Federal Supreme Court criticises that the actual income was not sufficiently established. Only pay slips for three months (February to April 2017, net between Fr. 642.60 and Fr. 833.50) and a 2016 tax assessment with net earned income of Fr. 12'870.--, corresponding to approximately Fr. 1'072.50 per month, were on file. The lower court did not address this tax assessment. Imputing a hypothetical income is a question of law, but the determination of the income actually earned is a question of fact; an exercise of discretion may not take its place. The matter is therefore to be remitted in order to establish the average…