Non-entry upon appeal against protective measures in marital matters due to insufficient reasoning; no excessive formalism for a lay submission

Facts

The parties are married and have a common son (born 2013). By decision of the Cantonal Court of Zug dated 3 May 2018 in protective marriage proceedings, the son was placed in the custody of the mother; the father was granted extensive visitation rights.

Upon the husband's application for modification, the single judge of the Cantonal Court of Zug, by decision of 5 June 2019, placed the son in the custody of the father, granted the mother visitation rights, ordered a guardianship pursuant to Art. 308 para. 1 CC, and obliged the parents to attend mediation.

The appellant (mother), without legal representation, filed on 14 June 2019 a submission designated as 'Wiederspruch' which was forwarded to the Cantonal Court of Appeal of Zug and treated as an appeal. By decision of 24 June 2019, the Cantonal Court of Appeal declined to enter upon it, because the appeal obviously contained no sufficient reasoning: the appellant had criticised the custody allocation in general terms, repeated her first-instance positions, and failed to engage with the first-instance considerations.

By civil law appeal of 29 July 2019, now represented by counsel, the appellant requested that the cantonal appellate decision be set aside, the matter be remitted to the lower court, and the appeal be entered upon; in the alternative, she requested free legal aid. The respondent waived a response, and the Cantonal Court of Appeal requested dismissal.

The subject matter before the Federal Supreme Court was whether the lower court was correct in declining to enter upon the appeal for deficient reasoning.

Considerations

The appeal is directed against a final decision of a last cantonal instance (Art. 90, Art. 75 para. 1 FSCA) concerning the modification of a protective marriage decision (Art. 179 CC) and constitutes a civil matter (Art. 72 para. 1 FSCA). Since custody is disputed, no minimum amount in dispute applies. The appellant has standing to appeal (Art. 76 FSCA) and the appeal was lodged in time (Art. 100 para. 1 FSCA), and is therefore in principle admissible. The request for remittal satisfies the formal requirements (Art. 42 para. 1 FSCA), since the Federal Supreme Court cannot render a merits judgment if the appeal should have been entered upon.

Decisions in protective marriage proceedings count as provisional measures within the meaning of Art. 98 FSCA. Accordingly, only the violation of constitutional rights may be asserted, and the application of federal law is reviewed only for arbitrariness (Art. 9 Cst.). The strict principle of complaint applies (Art. 106 para. 2 FSCA); appellate-style criticism is inadmissible. Complaints of violation of Art. 311, Art. 314 and Art. 296 CPC without an arbitrariness complaint therefore need not be examined.

The appellate procedure is independent and serves to review and correct the first-instance decision on the basis of specific objections (Art. 311 para. 1 CPC). This also applies under the investigative principle (Art. 277 para. 3 CPC). The appellant must identify the contested considerations, engage with them argumentatively, and cite the relevant documents. References to first-instance submissions or general criticism are not sufficient.

The appellant argues that lay submissions must be subject to lower requirements, and that an overly strict refusal to enter upon the appeal violates the prohibition of excessive formalism (Art. 29…