Colorado § 14-5-316 - Special rules of evidence and procedure.

§ 14-5-316. Special rules of evidence and procedure.

(a) The physical presence of a nonresident party who is an individual in a tribunal of this state is not required for the establishment, enforcement, or modification of a support order or the rendition of a judgment determining parentage of a child.

(b) An affidavit, a document substantially complying with federally mandated forms, or a document incorporated by reference in any of them, which would not be excluded under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing outside this state.

(c) A copy of the record of child support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it, and is admissible to show whether payments were made.

(d) Copies of bills for testing for parentage of a child, and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten days before trial, are admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.

(e) Documentary evidence transmitted from outside this state to a tribunal of this state by telephone, telecopier, or other electronic means that do not provide an original record may not be excluded from evidence on an objection based on the means of transmission.

(f) In a proceeding under this article, a tribunal of this state shall permit a party or witness residing outside this state to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means at a designated tribunal or other location. A tribunal of this state shall cooperate with other tribunals in designating an appropriate location for the deposition or testimony.

(g) If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.

(h) A privilege against disclosure of communications between spouses does not apply in a proceeding under this article.

(i) The defense of immunity based on the relationship of husband and wife or parent and child does not apply in a proceeding under this article.

(j) A voluntary acknowledgment of parentage, certified as a true copy, is admissible to establish parentage of the child.

Source: L. 93: Entire article R&RE, p. 1593, § 1, effective January 1, 1995. L. 2003: (a), (b), (e), and (f) amended and (j) added, p. 1254, § 23, effective July 1, 2004. L. 2015: (a), (b), (d), (e), and (f) amended, (HB 15-1198), ch. 173, p. 552, § 23, effective July 1. L. 2022: (j) amended (HB 22-1153), ch. 210, p. 1394, § 6, effective August 10.

Editor's note: This section is similar to former §§ 14-5-121 and 14-5-124 as they existed prior to 1993.

Cross references: For privileged evidence of husband and wife generally, see §§ 13-90-107 and 13-90-108.

COMMENT

Note that the special rules of evidence and procedure are applicable to a party or witness "residing outside this state," substituting for "residing in another state." This is the broadest application possible because the utility of these special rules is not limited to parties in other states, or in foreign countries, as defined in the act, but extends to an individual residing anywhere. This extremely broad application of the special rules is to facilitate the processing of a support order in this state or elsewhere. This section combines many time-tested procedures with innovative methods for gathering evidence in interstate cases.

Subsection (a) ensures that a nonresident petitioner or a nonresident respondent may fully participate in a proceeding under the act without being required to appear personally. Subsection (b) recognizes the pervasive effect of the federal forms promulgated by the Office of Child Support Enforcement, which replace the necessity of swearing to a document "under oath" with the simpler requirement that the document be provided "under penalty of perjury," as has long been required by federal income tax Form 1040.

Subsections (b) through (f) provide special rules of evidence designed to take into account the virtually unique nature of the interstate proceedings under this act. These subsections provide exceptions to the otherwise guiding principle of UIFSA, i.e., local procedural and substantive law should apply. Because the out-of-state party, and that party's witnesses, necessarily do not ordinarily appear in person at the hearing, deviation from the ordinary rules of evidence is justified in order to assure that the tribunal will have available to it the maximum amount of information on which to base its decision. The intent throughout these subsections is to eliminate by statute as many potential hearsay problems as possible in interstate litigation, with the goal of providing each party with the means to present evidence, even if not physically present.

Subsection (d) provides a simplified means for proving health-care expenses related to the birth of a child. Because ordinarily the amount of these charges is not in dispute, this is designed to obviate the cost of having health-care providers appear in person or of obtaining affidavits of business records from each provider.

Subsections (e) and (f) encourage tribunals and litigants to take advantage of modern methods of communication in interstate support litigation; most dramatically, the out-of-state party is authorized to testify by the full panoply of audio and audiovisual technologies currently available for direct personal communication and to supply documents by fax, email, or direct transfer between computers or other electronic devices. One of the most useful applications of these subsections is to provide an enforcing tribunal with up-to-date information concerning the amount of arrears.

Subsection (f) unambiguously mandates that telephone or audiovisual testimony in depositions and hearings must be allowed. It anticipates that every courtroom is equipped with a speakerphone. In a day when laptop computers often come equipped with a video camera, live testimony from a remote location is not only possible, but almost as reliable as if the testimony was given in person. No doubt a demeanor is better judged in person than by viewing a video screen, but the latter is certainly preferable to only a disembodied voice.

Subsection (g) codifies the rule in effect in many states that in civil litigation an adverse inference may be drawn from a litigant's silence that restriction of the Fifth Amendment does not apply. A related analogy is that a refusal to submit to genetic testing may be admitted into evidence and a trier of fact may resolve the question of parentage against the refusing party on the basis of an inference that the results of the test would have been unfavorable to the interest of that party.

Subsection (j), new in 2001, complies with the federally mandated procedure that every state must honor the "acknowledgment of paternity" validly made in another state.

Related to Convention: art. 13. Means of communication; art. 14. Effective access to procedures; art. 29. Physical presence of the child or the applicant not required.

ANNOTATION

Annotator's note. Since § 14-5-316 is similar to §§ 14-5-121 and 14-5-124 as they existed prior to the 1993 repeal and reenactment of this article, relevant cases construing those provisions have been included in the annotations to this section.

Full faith and credit must be given to another state's final order for arrearages entered under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), § 14-5-101 et seq. In re Sabala, 802 P.2d 1163 (Colo. App. 1990).

Child support installment under California decree became an enforceable judgment in Colorado where husband made support payments in amounts less than the amount ordered by such decree. In re Barone, 895 P.2d 1075 (Colo. App. 1994).

The doctrine of equitable estoppel may properly be applied to afford relief from accrued arrearages in child support if the party asserting the claim demonstrates reasonable reliance, to the party's detriment, upon the acts or representations of the other person, and lack of knowledge or convenient means of knowing the facts. In re Dennin and Lohf, 811 P.2d 449 (Colo. App. 1991).

Eventual and belated compliance with a prior support order may be a defense to an action, but each case must be decided on its own facts and circumstances. Jackson v. Jackson, 157 Colo. 564, 404 P.2d 281 (1965).

It may be a defense if the trial court chooses not to enter an order under the action brought pursuant to the uniform act. Jackson v. Jackson, 157 Colo. 564, 404 P.2d 281 (1965).

Where denial of continuance not prejudicial. Where the trial court has before it the affidavits filed in the initiating state, as well as the deposition of the absent obligee, and the obligor has declined the court's offer to provide a subpoena duces tecum in conjunction with letters rogatory so the obligor could obtain financial documents from the obligee, there is no prejudice resulting from the trial court's denial of the obligor's request for a continuance. Rohrer v. Kane, 44 Colo. App. 85, 609 P.2d 1121 (1980).

Child's right to support is unaffected by misconduct of his parents, and when a court conditions the disbursement of child support payments upon the custodial parent's complying with visitation orders, the court errs as a matter of law. People ex rel. Meveren v. District Court, 638 P.2d 1371 (Colo. 1982).

Nonresident mother not required to appear in state for determination of state's paternity action and child support order and should have been permitted to testify by telephone pursuant to subsection (f). Court erred in "closing" child support action based on mother's refusal to appear in person in the state due to outstanding warrants. In paternity action, statute displaces any court discretion to reject absentee testimony. People in Interest of S.C., 2020 COA 95, 469 P.3d 564.

Applied in Dewar v. LeNard, 653 P.2d 82 (Colo. App. 1982).