Facts
The parties, [A.] (appellant, husband) and [B.] (respondent, wife), married in 1999 and are the parents of three children (born 2001, 2004 and 2007). On 26 January 2015 they gave up their joint household.
By protection of marriage decision of 14 September 2015, the District Court of Laufenburg regulated custody and approved a partial agreement under which the husband paid child maintenance and spousal maintenance for the period from 1 June to 30 September 2015. In clause 6.3 of the partial agreement, the spouses stated that maintenance contributions from 1 October 2015 could only be fixed once clarity existed about the future income situation, in particular once the decisions of the disability insurance (IV) were available. A revision request by the wife was dismissed on 27 May 2016.
The husband initiated divorce proceedings on 27 January 2017. The wife applied on 3 November 2017 and on 5 June 2018 for maintenance contributions to be fixed from 1 October 2015. By decision of 29 June 2018, the District Court fixed maintenance contributions and ordered the wife to repay the advance on court costs.
On the wife's appeal, the Cantonal Court of Aargau, by decision of 12 November 2018, annulled the repayment obligation and fixed the maintenance contributions anew; it attributed to the husband a hypothetical income from 1 March 2019 (transitional period until the end of February 2019) and awarded care maintenance for the younger son, but not for the daughter.
The husband lodged a civil law appeal with the Federal Supreme Court and requested the annulment of the cantonal court decision and confirmation of the first-instance decision, alternatively remittal. Suspensive effect was granted only for the accrued, but not for the current, maintenance contributions. The cantonal court waived a response; the wife requested dismissal.
The subject matter in dispute is the child and spousal maintenance payable by the husband from 1 August 2016, the attribution of a hypothetical income, and care maintenance.
Considerations
The Federal Supreme Court entered into the appeal against interim measure decisions under Art. 98 FSCA only; only the violation of constitutional rights may be complained of under the strict principle of complaints (Art. 106 para. 2 FSCA). It did not enter into the question of repayment of the advance on court costs, as the husband did not engage with it.
On the scope of the 2015 maintenance arrangement, the Federal Supreme Court held that the content of an agreement is to be determined according to the parties' common actual intent (Art. 18 para. 1 CO); the establishment of the subjective intent of the parties is a question of fact. Based on the unclear employment situation, the cantonal court established without arbitrariness that no agreement on maintenance after 30 September 2015 existed. The wife's request for unlimited maintenance and the systematic structure of the law do not alter this. Thus the modification of the protection of marriage decision (Art. 276 paras. 1 and 2 CPC; Art. 179 para. 1 CC) was not at issue, so the complaints regarding the lack of a ground for modification fail; there is no violation of the right to be heard (Art. 29 para. 2 Cst.).
The complaint of caput controversum and of violation of the right to be heard was considered inadmissible or unfounded for lack of sufficient reasoning. The Federal Supreme Court held that a preliminary decision of the IV (Art. 57a para. 1 InvIA) is sufficient for fixing maintenance, since the preliminary decision anticipates the final decision and the proceedings serve the right to be heard. The objection of retroactive fixing of maintenance contrary to the principle in praeteritum non vivitur was rejected, since the cantonal court set out the reasons for maintenance from 1 August 2016.
On the hypothetical…