Colorado § 14-5-607 - Contest of registration or enforcement.

§ 14-5-607. Contest of registration or enforcement.

(a) A party contesting the validity or enforcement of a registered support order or seeking to vacate the registration has the burden of proving one or more of the following defenses:

(1) The issuing tribunal lacked personal jurisdiction over the contesting party;

(2) The order was obtained by fraud;

(3) The order has been vacated, suspended, or modified by a later order;

(4) The issuing tribunal has stayed the order pending appeal;

(5) There is a defense under the law of this state to the remedy sought;

(6) Full or partial payment has been made;

(7) The statute of limitation under section 14-5-604 precludes enforcement of some or all of the alleged arrearages; or

(8) The alleged controlling order is not the controlling order.

(b) If a party presents evidence establishing a full or partial defense under subsection (a) of this section, a tribunal may stay enforcement of a registered support order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered support order may be enforced by all remedies available under the law of this state.

(c) If the contesting party does not establish a defense under subsection (a) of this section to the validity or enforcement of a registered support order, the registering tribunal shall issue an order confirming the order.

Source: L. 93: Entire article R&RE, p. 1598, § 1, effective January 1, 1995. L. 2003: (a)(6) and (a)(7) amended and (a)(8) added, p. 1260, § 37, effective July 1, 2004. L. 2015: Entire part amended, (HB 15-1198), ch. 173, p. 558, § 31, effective July 1.

COMMENT

Subsection (a) places the burden on the nonregistering party to assert narrowly defined defenses to registration of a support order. The first of the listed defenses, lack of personal jurisdiction over the nonregistering party in the original proceeding, is undoubtedly the most widely discussed topic. It appears that at the appellate level, several of the other listed defenses are more commonly asserted. The decision in Kulko v. Superior Court, 436 U.S. 84 (1978) was somewhat controversial when delivered, and has remained so, at least in the international context. As a practical matter, however, the requirement that a support order be based on personal jurisdiction over both parties but primarily the obligor is a well-established fixture in the jurisprudence of the United States; relatively few appellate cases on this subject have been reported.

A nonregistering obligor may assert a wide variety of listed defenses, such as "payment" or "the obligation has terminated," in response to allegations of noncompliance with the registered order. There is no defense, however, to registration of a valid foreign support order. The nonregistering party also may contest the allegedly controlling order because its terms have been modified. Or, the defense may be based on the existence of a different controlling order. See Section 207. Presumably this defense must be substantiated by registration of the alleged controlling order to be effective.

While subsection (a)(6) is couched in terms that imply the defense to the amount of alleged arrears can only be that they are less, the converse is also available. For example, if the registering party is the obligor and asserts an amount of arrears that the obligee believes is too low, as the nonregistering party the obligee must contest to preclude confirmation of the alleged amount.

In the absence of a valid defense, if the obligor is found to be liable for current support, the registering tribunal must enter an order to enforce that obligation. Additional proof of arrearages must also result in enforcement under the Bradley Amendment, 42 U.S.C. Section 666(a)(10), which requires all states to treat child-support payments as final judgments as they come due (or lose federal funding). Therefore, federal law precludes arrearages from being subject to retroactive modification. Future modification of a child support order from another state is governed by Sections 609-614, and Sections 615-616 regulate modification of foreign child support orders.

Subsection (c) provides that failure to contest a registered order successfully requires the tribunal to confirm the validity of the registered order.

Related to Convention: art. 26. Procedure on an application for recognition.

ANNOTATION

Agreement between parents that was not approved by a court does not constitute a defense to registration under subsection (a)(3). People ex rel. State of Wyo. v. Stout, 969 P.2d 819 (Colo. App. 1998).

Subsection (b) conferred personal jurisdiction over another state's child support enforcement agency that continued to collect withholdings from plaintiff's wages under the Uniform Interstate Family Support Act, contrary to a previous Colorado court order vacating the other state's judgment upon which the wage assignment was based. Vogan v. County of San Diego, 193 P.3d 336 (Colo. App. 2008).