Facts
Parties and instances: The appellants are the two minor daughters [A.] (born 2010) and [B.] (born 2012), together with their mother [C.] (born 1973), who legally represents the daughters. The respondent [D.] is the man established as the father. The prior instance was the Higher Court of the Canton of Zurich, First Civil Chamber, judgment of 5 December 2019. The court of first instance was the District Court of Meilen (judgment of 19 September 2018).
Background: The mother was married to another man at the time of the children's birth; the paternity of that husband was set aside by judgment of 17 May 2013. By partial judgment of 3 June 2014, the respondent's paternity was established; the Federal Supreme Court confirmed this in judgment 5A_794/2014 of 6 May 2015. Provisional maintenance contributions were set in the Higher Court's judgment of 30 November 2017; the appeal against it was dismissed by judgment 5A_1053/2017 of 25 September 2019.
Decision of the prior instance: The Higher Court set the indexed child maintenance contributions using the single-stage method, based on the Zurich child cost tables with partly increased values due to the good financial circumstances. It fixed the maintenance contributions for both daughters in staggered amounts until 2028 and 2030 respectively (care maintenance until 2020 and 2018 respectively, each CHF 815.--). Payments by the respondent of at least CHF 93,450.-- (July 2015 to November 2017 excluding August 2017) and CHF 101,120.-- (April 2010 to June 2012) were credited against the maintenance obligation. The appeals were otherwise dismissed, the court costs were imposed on the parents in equal halves, and no party compensation was awarded.
Requests before the Federal Supreme Court: Increase of the maintenance contributions for [A.] by private school costs, and for both daughters from 3 March 2020 by CHF 815.-- each (no cessation of care maintenance); non-crediting of the payments from April 2010 to June 2012; an order that the respondent assume extraordinary child expenses within 10 days; a contribution to legal costs of CHF 90,000.-- for the proceedings at first instance; full imposition of the costs of the first-instance proceedings on the respondent. The mother also requested free legal aid and appointment of counsel. No responses were invited.
Points in dispute: (1) private school costs; (2) extraordinary child expenses; (3) hypothetical income of the mother and care burden; (4) crediting of earlier payments; (5) contribution to legal costs and lawyer's fees; (6) allocation of the first-instance court costs.
Considerations
Admissibility: The civil law appeal is admissible against the final decision of a last cantonal instance, since the matter concerns pecuniary child maintenance claims and a contribution to legal costs, and the amount in dispute of CHF 30,000 is reached (Art. 72, 74, 75, 90 FSCA). The mother, as holder of parental authority, is entitled to appeal insofar as child maintenance is concerned; the daughters lack standing only with respect to the allocation of court costs, which does not concern them (Art. 76 para. 1 FSCA).
Principle of complaints and facts: The Federal Supreme Court applies the law of its own motion but examines only adequately substantiated complaints (Art. 42 para. 2, 106 para. 2 FSCA). It bases its decision on the findings of the prior instance, unless they are manifestly incorrect (arbitrary) or otherwise in breach of federal law (Art. 105 para. 1, 97 FSCA). Deviations from the facts without a qualified complaint are irrelevant.
Private school costs and maintenance assessment: The prior instance denied a demonstrated need for the daughter [A.] 's attendance at a private school, since no clear consent of the father to the private school had been shown, no objective reason for a private school was apparent, and the daughter could also learn English at the public school. The appellants rely on a presentation of the facts that deviates from the findings (two rather than one child attending a private school) without a qualified complaint about the facts, and they do not engage with the argument of lack of need. The complaint of violation of Art. 285 para. 1 CC, as well as of Art. 157 CPC (free evaluation of evidence) and the complaint of arbitrariness regarding the father's consent, therefore fail. The registration from 2010 changes nothing, since the appellants do not address the main argument that an agreement was not clearly shown.
Extraordinary child expenses: The Higher Court did not enter into the appeal on this point, because the appeal did not substantively address the reasoning of the court of first instance. The appellants do claim that the first-instance judgment contains no reasoning; however, this contradicts their own account, according to which the first instance explained that future costs were to be assessed only in the future. A statement in the appeal would therefore have been possible. A mere reference to a reply is not sufficient. There is therefore no denial of justice through excessive formalism. New submissions and evidence are inadmissible or not sufficiently substantiated.
Hypothetical income of the mother: From 3 March 2020 the prior instance imputed to the mother a hypothetical income of CHF 4,250.-- at 50%. The school report of 31 January 2020 post-dates the contested judgment and is a genuine novum, which is irrelevant. The planned operation of the daughter [B.] was not raised before the prior instance; an ungenuine novum is admissible under Art. 99 para. 1 FSCA only where occasioned by the prior instance's decision, which was not shown. The mere outcome of the proceedings does not constitute such an occasion. The complaints are therefore unfounded.
Crediting of earlier payments: The prior instance took into account only payments of CHF 101,120.-- (not CHF 200,300.--) as advance maintenance payments, since the remaining payments were qualified as current maintenance or as fulfilment of a moral obligation. The appellants do not substantively engage with this independently sufficient reasoning, nor with the objection that the point had not been dealt with in the first-instance proceedings. To that extent, the appeal is inadmissible.
Contribution to legal costs: The Higher Court did not enter into the appeal…