Liquidation of matrimonial property: value of a co-ownership share sold at auction, reunion of acquisitions and inadmissibility of a late submission

Facts

The appellant (the wife), represented by a lawyer, and the respondent (the husband), represented by a lawyer, married in 1995. Two children were born of the union, including a minor daughter born in 2003. The spouses have been living separately since August 2008, following an agreement on protective measures for the marital union dated 15 August 2008.

The wife was the victim of a serious accident in 1999 and received compensation from the disability insurance as well as from Assurance [E.] .

In 2004, the spouses acquired, each for one half, a plot of land at [U.] including a villa under construction, for a total investment of CHF 870,204. In 2016, the husband's co-ownership share was sold at auction by the Debt Enforcement Office of the district of Nyon for CHF 51,000. The wife exercised her right of pre-emption.

The husband filed a unilateral petition for divorce on 8 June 2012. A notary appointed to the liquidation filed a report on 15 July 2016, then a supplementary report on 19 April 2017. By judgment of 5 June 2018, the Civil Court of the District of La Côte ordered the wife to pay CHF 244,247.08 to the husband. Seised of an appeal, the Civil Court of Appeal of the Cantonal Court of Vaud, by decision of 14 June 2019, reformed that judgment by fixing the sum due at CHF 231,864.10.

During the appeal proceedings, the case was suspended until 31 March 2019 to allow settlement negotiations. On 19 March 2019, the wife filed a submission containing a new claim for maintenance contribution for the minor daughter; the delegated judge returned it and then declared it inadmissible by order of 16 April 2019.

The wife lodged an appeal in civil matters with the Federal Supreme Court, seeking reform of the cantonal decision so that a claim in her favour of CHF 5,481.65 is recognised, a maintenance contribution of CHF 580 per month for the daughter is set, and the husband is ordered to bear the court costs and costs of the proceedings; in the alternative, she sought remittal of the case. An application for suspensive effect was dismissed.

Main points in dispute: (1) the value of the husband's co-ownership share (auction price or market value); (2) the reunion of acquisitions of CHF 60,000 (lawyer's fees) and CHF 346,000 (family maintenance) made by the wife, pursuant to art. 208 para. 1 CC; (3) the admissibility of the submission of 19 March 2019 in light of art. 317 CPC.

Considerations

The Federal Supreme Court recalls that the appeal in civil matters is admissible in this case, the amount in dispute exceeding CHF 30,000. It only reviews duly substantiated complaints (art. 42 paras. 1-2 FSCA) and may depart from the facts established by the lower court only in cases of arbitrariness (art. 105 para. 2 and 97 para. 1 FSCA). New facts and new evidence are inadmissible except in the exceptions of art. 99 para. 1 FSCA; facts alleged without an explanation of admissibility are therefore disregarded. The claim seeking a finding of charges of CHF 3,190 is inadmissible for lack of substantiation.

On the value of the co-ownership share (art. 211, 214 CC), the market value is in principle determined at the time of liquidation, or on the day of alienation if the latter occurred in good faith (art. 214 para. 2 CC by analogy). The determination of market value is a question of fact, reviewed only under the angle of arbitrariness, whereas the criteria for its determination pertain to law. The cantonal court held that the value of a single share does not correspond to half the value of the entire property on the market, and that decision 5C.81/2001 was not transposable. The wife merely offers an appellate-type critique of these findings and makes allegations of the husband's bad faith, without precisely indicating the circumstances justifying the exception; this complaint is inadmissible.

On the reunion of acquisitions (art. 208 para. 1 CC), the spouse claiming it must prove the conditions (art. 8 CC), while the spouse contesting a gift must prove the other's consent. Regarding the fees of CHF 60,000, it is unnecessary to decide whether this constitutes a gift, since the complaint exclusively concerns the assessment of evidence and is limited to…