Modification of child maintenance: effect of the modification action from the date of the judgment, non-entry into the appeal for lack of reasoning

Facts

The parties are the unmarried parents of the son [B.] (born 2002). The father, [A.] (appellant), committed himself by a maintenance agreement dated 23 December 2002, which was approved on 6 January 2003 by the guardianship authority of Suhr, to graduated monthly maintenance contributions payable in advance (CHF 700.-- until the child's 6th year of age, CHF 850.-- until the 12th year of age, CHF 1'000.-- until majority or ability to earn a living), plus child allowances and social insurance pensions.

After unsuccessful conciliation, the father filed an action on 5 September 2017 with the District Court of Baden, which did not enter the case for lack of local jurisdiction. On 30 October 2017 he applied to the District Court of Aarau and sought, as the principal claim, a declaration that the maintenance agreement was void, and, in the alternative, an appropriate reduction of the maintenance contributions. At the main hearing of 31 October 2018 he modified the alternative claim so that he owed no maintenance from 25 March 2017 (filing of the conciliation request) onwards.

The Presiding Judge's Office of Aarau dismissed the principal action and, upholding the alternative claim, terminated the maintenance obligation. Both parties appealed to the Cantonal Court of Appeal of the Canton of Aargau. The father newly requested that the maintenance obligation be terminated from 15 March 2017 onwards; the son requested that the modification action be dismissed in its entirety.

By judgment of 28 April 2020, the Cantonal Court of Appeal dismissed the father's appeal insofar as it was admissible, and partially upheld the son's appeal by ordering the father to pay monthly maintenance contributions in advance of CHF 50.--. The Cantonal Court of Appeal did not enter the request to terminate the maintenance obligation from 15 March 2017 onwards for lack of reasoning. According to the reasoning, the decision takes effect from the date of the judgment. On 23 June 2020 the Cantonal Court of Appeal corrected the judgment on a minor point.

The father filed a civil law appeal with the Federal Supreme Court and requested that the prior decision be set aside and that the maintenance agreement be modified so that maintenance of CHF 50.-- was owed from 15 March 2017 onwards. He also applied for free legal aid and appointment of counsel. The Federal Supreme Court did not obtain any responses.

Considerations

The appeal is directed against a final decision (Art. 90 FSCA) of a last cantonal instance in a civil matter of a pecuniary nature concerning child maintenance (Art. 276 ff. CC). The amount in dispute exceeds CHF 30'000.--, the father has standing to appeal (Art. 76 para. 1 FSCA), and the appeal was filed in time (Art. 100 para. 1 FSCA). The appeal is therefore admissible. During the proceedings the son was represented by his mother; after he reached majority, it was not necessary to obtain his consent to continue the proceedings, since this did not affect the outcome of the case (Art. 14 CC; BGE 129 III 55 E. 3.1.5).

The Federal Supreme Court applies the law of its own motion, but only examines complaints that are sufficiently reasoned as to form. The statement of grounds must be relevant to the matter and must demonstrate, in a targeted engagement with the reasons of the contested decision, which legal provisions were violated (Art. 42 para. 2 FSCA; BGE 142 III 364 E. 2.4). In discretionary decisions under maintenance law (Art. 4 CC), the Federal Supreme Court intervenes only in cases of abuse of discretion, consideration of impermissible factors, disregard of legally relevant circumstances, or manifest unfairness (BGE 142 III 612 E. 4.5).

Only the time from which the modification takes effect is in dispute. Since the Cantonal Court of Appeal had not entered the request to terminate the maintenance obligation from 15 March 2017 onwards, only the non-entry is the subject of the proceedings before the Federal Supreme Court, not the substantive question (BGE 135 II 38 E. 1.2).

The father complains that the point in time from which a modification action takes effect is a question of law, so that the Cantonal Court of Appeal should have applied the law of its own motion (iura novit curia). The Federal Supreme Court counters that the appeal must be filed with reasons under Art. 311 para. 1 CPC, and that the statement of reasons is a prerequisite for admissibility. The appellate instance applies the law of its own motion only when it is faced with a sufficiently reasoned appeal; this also applies within the…