Colorado § 14-5-604 - Choice of law.

§ 14-5-604. Choice of law.

(a) Except as otherwise provided in subsection (d) of this section, the law of the issuing state or foreign country governs:

(1) The nature, extent, amount, and duration of current payments under a registered support order;

(2) The computation and payment of arrearages and accrual of interest on the arrearages under the support order; and

(3) The existence and satisfaction of other obligations under the support order.

(b) In a proceeding for arrears under a registered support order, the statute of limitation of this state, or of the issuing state or foreign country, whichever is longer, applies.

(c) A responding tribunal of this state shall apply the procedures and remedies of this state to enforce current support and to collect arrears and interest due on a support order of another state or a foreign country registered in this state.

(d) After a tribunal of this state or another state determines which is the controlling order and issues an order consolidating arrears, if any, a tribunal of this state shall prospectively apply the law of the state or foreign country issuing the controlling order, including its law on interest on arrears, on current and future support, and on consolidated arrears.

Source: L. 93: Entire article R&RE, p. 1597, § 1, effective January 1, 1995. L. 2003: Entire section amended, p. 1258, § 34, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 556, § 31, effective July 1.

Editor's note: This section is similar to former § 14-5-108 as it existed prior to 1993.

COMMENT

Subsection (a) is intended to clarify the wide range of subjects that are governed by the choice-of-law rules established in this section. The task is to identify those aspects of the case for which local law is inapplicable. A basic principle of UIFSA is that throughout the process the controlling order remains the order of the tribunal of the issuing state or foreign country until a valid modification. The responding tribunal only assists in the enforcement of that order. Absent a loss of continuing, exclusive jurisdiction by the issuing tribunal and a subsequent modification of the order, the order never becomes an order of a responding tribunal.

Subsection (a) first identifies those aspects of the initial child-support order that are governed by the term's original decision and the function of the issuing tribunal. First and foremost, ultimate responsibility for enforcement and final resolution of the obligor's compliance with all aspects of the support order belongs to the issuing tribunal. Thus, calculation of whether the obligor has fully complied with the payment of current support, arrears, and interest on arrears is also the duty of the issuing tribunal.

In UIFSA (1992) the decision was made by NCCUSL that the duration of child support should be fixed by the initial controlling child-support order. See Section 611(c). This policy decision was somewhat controversial at the time, especially given the general rule that "local law controls." But, case law regarding issues created by movement from one state with one duration to a state with another policy was hopelessly muddled, so a solution was sought. Then, as now, the policies of states on this subject varied greatly: today, a few states continue to set the once most-common age of 21 as the cut-off date; some continue the obligation past 21, dependent on enrollment in higher education (often with limited time specified); at the other end of the spectrum, some states end the obligation of child support at age 18; in others at 19; and, most popularly, at one or the other of either age 18 or 19, plus graduation from high school, whichever is later.

Under subsection (a), if the initial issuing tribunal sets the age for termination of child support at 18, a responding state must recognize and enforce that child-support order. If the responding state sets its child support to age 21, the responding tribunal may not apply that time duration to require additional support to that age. The converse is also true. If the controlling order of another state ends the support obligation at 21, the responding tribunal in a state with 18 as the maximum duration for child support must enforce the controlling order until age 21. The dissent on this policy decision in UIFSA has abated over time. Interestingly, the Convention establishes age 21 as the hallmark. At the same time, under Convention art. 2(2), a country may reserve the right to limit the application of the Convention with regard to child support to persons who have not reached the age of 18. The United States does not intend to make such a reservation.

Similarly, subsection (a) directs that the law of the issuing state or foreign country governs the answer to questions such as whether a payment made for the benefit of a child, such as a Social Security benefit for a child of a disabled obligor, should be credited against the obligor's child support obligation. In sum, on these subjects the consistent rule is that a controlling order from State A is enforced in State B (and State C as well).

Note that as soon as a general proposition is identified, an exception may well be presented. Subsection (b) contains a choice-of-law provision that often diverges from other local law. In situations in which the statutes of limitation differ from state to state, the statute with the longer term is to be applied. In interstate cases, arrearages often will have accumulated over a considerable period of time before enforcement is perfected. The rationale for this exception to the general rule of "local law applies" is that the obligor should not gain an undue benefit from his or her choice of residence if the forum state, as the obligor's state of residence, has a shorter statute of limitations for arrearages than does the controlling order state. On the other side of the coin, i.e., if the forum has a longer statute of limitations, the obligor will be treated in an identical manner as all other obligors in that state. This choice of limitations also applies to the time period after the accrual of the arrears in which to bring an enforcement action.

Subsection (c) mandates that local law controls with regard to enforcement procedures. For example, if the issuing state or foreign country has enacted a wide variety of license suspension or revocation statutes, while the responding state has a much narrower list of licenses subject to suspension or revocation, local law prevails.

Subsection (d) may initially appear only to express a truism the law of the issuing state is superior with regard to the terms of the support order. The last clause in the sentence, however, contains an important clarifying provision; that is, the law of the issuing state or foreign country is to be applied to the consolidated arrears, most particularly to the interest to be charged prospectively, even if the support orders of other states contributed a portion to those arrears. In sum, the local tribunal applies its own familiar procedures to enforce a support order, but it is clearly enforcing an order of a tribunal of another state and not an order of the forum.

Related to Convention: art. 2. Scope; art. 11. Application contents; art. 20. Bases for recognition and enforcement; art. 21. Severability and partial recognition and enforcement; art. 22. Grounds for refusing recognition and enforcement; art. 23. Procedure on an application for recognition and enforcement; art. 25. Documents.

ANNOTATION

Annotator's note. Since § 14-5-604 is similar to § 14-5-108 as it existed prior to the 1993 repeal and reenactment of this article and to repealed § 43-2-7, C.R.S. 1963, relevant cases construing this provision have been included in this section.

Specific adoption of the choice of law provision under the Uniform Interstate Family Support Act by both Colorado and Texas overrides application of the general borrowing limitations statute set forth in § 13-80-110. In re Morris, 32 P.3d 625 (Colo. App. 2001).

The duty of support under this article is that imposed under the laws of the state where the obligor parent is or was present for the period during which support is sought. Ross v. Thomas, 753 P.2d 783 (Colo. App. 1987).

The validity of orders to furnish support and reimbursement are predicated upon a duty to support. Aguilar v. Holcomb, 155 Colo. 530, 395 P.2d 998 (1964).

An order by the California court that the defendant owes a duty of support to the children residing in California was not enforceable in Colorado. The question as to whether defendant had a duty to support the children, whom it was alleged were his, a fact put in issue upon which there was no proof, must have been determined according to the laws of the state of Colorado. Aguilar v. Holcomb, 155 Colo. 530, 395 P.2d 998 (1964).

The trial court could not find a duty of support on the defendant because it does not have any jurisdiction to determine paternity as a part of the proceedings under the uniform act. Aguilar v. Holcomb, 155 Colo. 530, 395 P.2d 998 (1964).

Termination of support liability for Colorado resident. Where the obligor resides in Colorado, he is bound by Colorado law on the issue of when liability for support terminates. McDonald v. McDonald, 634 P.2d 1031 (Colo. App. 1981); Napolitano v. Napolitano, 732 P.2d 245 (Colo. App. 1987).

Application of changed circumstances standard proper. Court properly applied Colorado changed circumstances standard in § 14-10-122 to Colorado resident in action pursuant to Colorado support order rather than conducting new hearing for separate support order. People in Interest of Whittington v. Low, 761 P.2d 274 (Colo. App. 1988) (decided under law in effect prior to enactment of § 14-10-115 (17)).

No independent duty of support. This article does not create an independent duty of support but only a means of enforcing a duty arising out of either a foreign support order or the law of the state where the obligor resides. Com. of Pa. v. Barta, 790 P.2d 895 (Colo. App. 1990).

Applied in County of Clearwater v. Petrash, 41 Colo. App. 143, 589 P.2d 1370 (1978), aff'd in part, rev'd on other grounds, 198 Colo. 231, 598 P.2d 138 (1979); Gruber v. Wallner, 198 Colo. 235, 598 P.2d 135 (1979).

SUBPART B

CONTEST OF VALIDITY OR ENFORCEMENT