Facts
The spouses [A.A.] (father, appellant) and [B.A.] (mother, respondent) married in 2011 in [U.] (VD). A daughter, [C.] , born in 2012, is issued from this union. The husband brought an action for divorce by unilateral petition on 31 January 2017.
In her response of 20 September 2017, the wife sought, among other things, a maintenance contribution for her daughter, in the form of a childcare contribution (principal claim VI) of CHF 1,550.20 per month until the child reaches 16 years of age, and, subsidiarily to this claim VI, a contribution to her own maintenance (claim XI) of CHF 1,550.20 per month until 1 June 2028.
By judgment of 1 October 2018, the Civil Court of the District of Est vaudois pronounced the divorce, ratified the partial agreement on ancillary effects, set a maintenance contribution in favour of the daughter of CHF 1,500 until age 16 and then CHF 860 until majority or the end of an appropriate training (art. 277 para. 2 CC), and a maintenance payment of CHF 570 per month in favour of the wife until 1 June 2028, with indexation.
The husband appealed, seeking annulment of the payment owed to the wife and limitation of the indexation to the child's contribution, on the ground that the first-instance judges had ruled ultra petita. By judgment of 21 February 2019, the Civil Appeals Court of the Cantonal Court of Vaud dismissed the appeal.
By civil appeal of 27 March 2019, the husband asked the Federal Supreme Court to reform the judgment in the sense of his appeal claims, subsidiarily to remit the matter to the cantonal authority, as well as legal aid. No responses were requested.
Considerations
The Federal Supreme Court examines the admissibility of the appeal (art. 100 para. 1, 42 para. 1, 90, 75, 72 para. 1, 51, 74 para. 1 let. b and 76 para. 1 FSCA) and holds that it is in principle admissible, the amount in dispute reaching the threshold of CHF 30,000. It recalls that, under the requirement of reasoning (art. 42 para. 1 and 2 FSCA), it only examines the grievances raised, and that violations of fundamental rights are only examined if they were invoked and substantiated in a clear and detailed manner (art. 106 para. 2 FSCA). It may depart from the established facts only if these were established in a manifestly inaccurate manner, namely arbitrarily (art. 105 para. 2 and 9 Cst.), which has not been shown: the factual allegations of the appeal diverging from the contested judgment are disregarded.
On the merits, the appellant invokes a violation of art. 58 para. 1 CPC, arguing that the cantonal court ruled ultra petita by awarding the wife a contribution to her own maintenance on the basis of her subsidiary claim XI. The Federal Supreme Court recalls that post-divorce maintenance is subject to the principle of disposition and that the judge is bound by the sum requested. To guard against the consequences of this principle, a parent who claims amounts for himself or herself and for a child must make subsidiary claims for each maintenance creditor (ATF 140 III 231 consid. 3.5). The appellant argued that principal claim VI had been fully upheld, so that the subsidiary claim did not need to be examined, and that the wife had waived her personal contribution by not pursuing it as a principal claim.
The Federal Supreme Court rejects this argument: a subsidiary claim is justified when the principal claim is only partially unfounded or founded to a lesser extent than what was requested, which was precisely the case here. Moreover, the principle of disposition does not prevent the judge from determining the true meaning of the claims according to the principle of trust, in light of the reasoning of the document (ATF 123 IV 125…