Colorado § 14-5-104 - Remedies cumulative.

§ 14-5-104. Remedies cumulative.

(a) Remedies provided by this article are cumulative and do not affect the availability of remedies under other law or the recognition of a foreign support order on the basis of comity.

(b) This article does not:

(1) Provide the exclusive method of establishing or enforcing a support order under the laws of this state; or

(2) Grant a tribunal of this state jurisdiction to render judgment or issue an order relating to child custody or visitation in a proceeding under this article.

Source: L. 2003: Entire part amended with relocations, p. 1243, § 2, effective July 1, 2004. L. 2015: (a) amended, (HB 15-1198), ch. 173, p. 546, § 3, effective July 1.

Editor's note: In 2003, this section was formerly numbered as § 14-5-103.

COMMENT

The existence of procedures for interstate establishment, enforcement, or modification of support or a determination of parentage in UIFSA does not preclude the application of the general law of the forum. Even if the parents live in different states, for example, a petitioner may decide to file an original proceeding for child support (and most likely for other relief as well) directly in the state of residence of the respondent and proceed under that forum's generally applicable support law. In so doing, the out-of-state petitioner submits to the personal jurisdiction of the forum and, for the most part, is unaffected by UIFSA. Once a child-support order has been issued, this option is no longer available to interstate parties. Under UIFSA, a state may not permit a party to proceed to obtain a second support order; rather, in further litigation the tribunal must apply the act's provisions for enforcement of an existing order and limit modification to the strict standards of UIFSA.

This section facilitates the recognition and enforcement of a support order from a nation state that is entitled to have its orders recognized by comity, but is not a "foreign country" under Section 102(5). The insertion of the term "foreign support order" to replace "support order of a foreign country or political subdivision" in subsection (a) helps clarify application of "comity" for support enforcement cases. In UIFSA, four types of nation states are defined as "foreign countries": (1) Convention countries; (2) countries with bilateral agreements with the federal government; (3) countries with bilateral agreements with particular states; and (4) countries with similar support laws. However, orders of countries that do not fall within this definition may nevertheless be enforced under "comity". Applying comity to enforce a support order of a tribunal of another nation state intends courtesy and good will, and extends due regard for the legislative, executive, and judicial acts of another nation which is not a "foreign country" as defined in Section 102.

Although the determination by the United States Department of State that a foreign nation is a reciprocating country is binding on all states, recognition of a support order through comity is dependent on the law of each state. The reference to "remedies under other law" is intended to recognize the principle of comity as developed in the forum state by statutory or common law, rather than to create a substantive right independent of that law.

Subsection (b)(1) gives notice that UIFSA is not the only means for establishing or enforcing a support order with an interstate aspect. A potential child-support obligee may voluntarily submit to the jurisdiction of another state to seek the full range of desired relief under the law of that state using intrastate procedures, rather than resorting to the interstate procedure provided by UIFSA. A nonresident married parent may choose to file a proceeding in the forum state for dissolution of the marriage, including property division and spousal support, and in conjunction seek an order regarding child custody and visitation and child support. A parent may submit to the jurisdiction of another state for a determination of parentage and child support. A support order resulting from each of these scenarios implicates UIFSA. Invariably the issuing tribunal will have continuing, exclusive jurisdiction over its controlling child support or spousal-support order as provided by Sections 205, 207, and 211, infra, with all of the attendant application of the act to those orders. Likewise, the order or judgment of another state can be enforced without the necessity of registration under UIFSA by resort to other post-judgment enforcement remedies, such as lien, levy, execution, and filing claims in probate or bankruptcy actions.

On the other hand, subsection (b)(2) makes clear that jurisdiction to establish child custody and visitation orders is distinct from jurisdiction for child-support orders. For the former, jurisdiction generally rests on the child's connection with the state rather than personal jurisdiction over the respondent. See UCCJEA § 201; May v. Anderson, 345 U.S. 528 (1953) (Frankfurter, J., concurring). Under the Supreme Court's case law, jurisdiction to establish a child-support order requires personal jurisdiction over the respondent. See Kulko v. Superior Court, 436 U.S. 84 (1978). If the child-support order is sought under the authority of UIFSA, the most important aspect of this rule is that a child-support obligee utilizing the provisions of UIFSA to establish child support across state lines submits to jurisdiction for child support only, and does not submit to the jurisdiction of the responding state with regard to child custody or visitation.

ANNOTATION

Annotator's note. Since § 14-5-104 is similar to § 14-5-103 as it existed prior to the 2003 amendment to part 2 of article 5 of title 14, which resulted in the relocation of provisions, to § 14-5-104 as it existed prior to the 1993 repeal and reenactment of this article, and to repealed 43-2-3, C.R.S. 1963, and 43-2-3, CRS 53, relevant cases construing those provisions have been included in the annotations to this section.

Since the enactment of the uniform act in Colorado, there are now two distinct courses of action which a demanding state may take with respect to one who does not carry out his obligations of support to his family, namely: (1) Extradition on a criminal charge of nonsupport, and (2) the initiation of civil proceedings under the uniform act. Conrad v. McClearn, 166 Colo. 568, 445 P.2d 222 (1968).

Either or both courses may be pursued, and the election lies wholly within the demanding state and the obligee. Conrad v. McClearn, 166 Colo. 568, 445 P.2d 222 (1968).

The time to raise a defense is when there is an attempt to punish under both the criminal and the civil proceedings. Conrad v. McClearn, 166 Colo. 568, 445 P.2d 222 (1968).

If a trial court in its discretion believes that proper support can be assured without applying the statute, it is free to do so. Jackson v. Jackson, 157 Colo. 564, 404 P.2d 281 (1965).

The jurisdiction of the district court of Adams county, which arose from the filing and disposition of the divorce action did not preclude the district court of the city and county of Denver from proceeding pursuant to the uniform act when the mother and children had moved to Nevada. The question of support of minor children is a question which can be litigated separate and apart from divorce proceedings. Scheer v. District Court, 147 Colo. 265, 363 P.2d 1059 (1961).

Equitable doctrine of unclean hands will not relieve father of his duty to support his child under this article. Kansas State Dept. of Soc. & Rehabilitation Servs. v. Henderson, 620 P.2d 60 (Colo. App. 1980).

Rights and duties under marriage dissolution decree unaffected by court's support order. A support order by a Colorado court, as the responding court in a proceeding under this article, does not affect the parties' rights and duties under a dissolution of marriage decree. Kansas State Dept. of Soc. & Rehabilitation Servs. v. Henderson, 620 P.2d 60 (Colo. App. 1980); In re Enewold, 709 P.2d 1385 (Colo. App. 1985).

In a proceeding for the dissolution of marriage in which no personal service in the state of Colorado had been made upon the husband, the trial court could not issue an award of child support and order that it should supersede any award for child support which the wife had obtained through this article. Offerman v. Alexander, 185 Colo. 383, 524 P.2d 1082 (1974).

Fact that post-dissolution matter was filed under the Uniform Dissolution of Marriage Act did not give the court a proper basis for exercising jurisdiction as to child support where wife's only contact with Colorado was her granting of consent for the child to reside in this state with his father. In re Zinke, 967 P.2d 210 (Colo. App. 1998).

Mother is free to pursue remedies for child support collection available pursuant to §§ 19-6-101 and 26-13-105. Father's argument that support must be established pursuant to this act because the mother and children are nonresidents of Colorado is invalid. People ex rel. A.K., 72 P.3d 402 (Colo. App. 2003).

Applied in County of Clearwater v. Petrash, 198 Colo. 231, 598 P.2d 138 (1979); Rohrer v. Kane, 198 Colo. App. 231, 609 P.2d 1121 (1980).