Non-entry on appeal in divorce proceedings for lack of a request for relief and insufficient reasoning, and representation authority for the daughter

Facts

The parties are spouses who married in 1999; they are the parents of the daughter (born 2004). The wife (respondent) is also the mother of a son born in 1995; paternity proceedings are pending before the District Court of March.

On 14 February 2011 the wife filed a divorce action with the District Court of March. By judgment of 30 December 2016, the District Court dissolved the marriage and regulated the ancillary consequences: the daughter was placed under the parental authority and custody of the mother, the father was not granted a right of visitation, the curatorship was continued, and a monthly written exchange of information between father and daughter was ordered. Child and post-marital maintenance was waived; the vested benefits of occupational pension were divided, matrimonial property was settled, and the father was ordered to repay advances on court costs.

The husband (appellant) lodged an appeal with the Cantonal Court of Schwyz, and the wife lodged an incidental appeal. The Cantonal Court dismissed the appeal but partially reduced the amount payable by the wife from the division of the vested benefits. The requests for child protection measures and revision were dismissed insofar as the court could entertain them. By judgment of 18 December 2018 (ZK1 2017 20), it confirmed the result.

By appeal of 1 February 2019, the husband requested the annulment of the cantonal judgment and filed an application for legal aid. In addition, he filed an appeal in the name of the daughter. The Federal Supreme Court did not obtain any responses.

Considerations

The appeal filed in the name of the daughter is not entered upon. The husband cannot represent the daughter before the Federal Supreme Court, as the parental authority was transferred to the mother and the appeal has no suspensive effect (Art. 304 para. 1 CC; Art. 103 para. 1 and 3 FSCA). Furthermore, procedural representation for the daughter was ordered under Art. 299 CPC, whereby the powers of the statutory representatives are restricted.

The appeal must contain a request for relief (Art. 42 para. 1 FSCA). As this is a reformatory remedy (Art. 107 para. 2 FSCA), a request on the merits is in principle required; mere requests for annulment are not sufficient. The husband only requested the annulment of the judgment and did not set out which orders should be made or which sums of money should be awarded. The…