Facts

In marital protection proceedings between the husband (appellant) and the wife (respondent), the District Court of Einsiedeln, by order of 17 October 2018, ordered the husband to pay time-staggered cash and childcare maintenance contributions for the two children, retroactively or in advance. Based on the wife's income of CHF 500.-- (July/August 2017) or CHF 220.-- (from September 2017), it imputed to the husband an income of CHF 23'665.-- per month. Furthermore, court fees of CHF 4'000.-- and CHF 500.-- were imposed on the husband, and he was ordered to pay party compensation.

The husband lodged an appeal with the Cantonal Court of Schwyz and requested, among other things, the annulment of operative paragraphs 6, 7, 10, 12 and 13 and the granting of suspensive effect. By order of 28 December 2018 (ZK2 2018 82), the Cantonal Court dismissed the application for suspensive effect or for a stay of enforcement.

By a civil law appeal of 18 January 2019, the husband appealed to the Federal Supreme Court. He primarily requested the annulment of the cantonal interlocutory decision and the granting of suspensive effect, in the alternative a partial grant for the period from 1 July 2017 to 31 December 2018 and for maintenance contributions exceeding CHF 3'200.-- from 1 January 2019, and in the further alternative remittal to the lower court. The Federal Supreme Court dismissed the application for suspensive effect of the appeal by order of 11 February 2019. No responses were requested.

Subject matter of the dispute: Admissibility of a civil law appeal against a cantonal decision of last instance on an interlocutory decision concerning the stay of enforceability of maintenance contributions in marital protection proceedings, in particular whether there is an irreparable legal prejudice.

Considerations

Admissibility of the interlocutory decision: The object of the appeal is a cantonal interlocutory decision of last instance on the stay of enforceability of maintenance contributions in marital protection proceedings. The legal remedy follows the principal proceedings (BGE 137 III 380 E. 1.1; 133 III 645 E. 2.2). The principal proceedings are a civil matter with an amount in dispute exceeding CHF 30'000.-- (Art. 72 para. 1 and Art. 74 para. 1 lit. b FSCA), so the civil law appeal is in principle available.

Irreparable prejudice: An appeal against an interlocutory decision is only admissible if it may cause an irreparable prejudice (Art. 93 para. 1 lit. a FSCA). This prejudice must be of a legal nature and must not be remediable even by a favourable final decision (BGE 142 III 798 E. 2.2). Purely factual or economic disadvantages are not sufficient. An obligation to make a monetary payment is in principle not a legal prejudice, and the risk of collection in the event of a subsequent reclaim of maintenance only constitutes a factual prejudice (BGE 138 III 333 E. 1.3.1; 137 III 637 E. 1.2). The burden of substantiation lies with the appellant (Art. 42 para. 2 FSCA).

Submissions of the appellant: The appellant did not assert any prejudice whereby he would fall into serious financial difficulties or his debt enforcement subsistence minimum would no longer be covered. He merely argued that the impecunious, welfare-dependent wife could not repay overpaid maintenance contributions and fees, that offsetting against future maintenance contributions was impermissible, and that she was excluded under matrimonial property law due to separation of property. The Federal Supreme Court classified this as a mere economic disadvantage, which is not sufficient. The judgment 5A_661/2015 relied on by the appellant does not alter this; any divergent readings of earlier judgments are attributable to ambiguous wording and are immaterial.

Substantiation…