Nakauchi v. Cowart (Colorado 2022)

Due process requires parents in direct pay cases receive advance notice of the entry of an income withholding order (IWO) for future child support payments. The mother, who paid her child support directly, filed suit against the county for violating her right to due process when it sent her employer an IWO without notice. The trial court agreed and entered a state-wide injunction requiring notice to obligors concurrently with the entry of an IWO for future support. The Mother appealed, arguing concurrent notice was inadequate to protect her rights. The County also appealed, arguing the injunction was unnecessary. The Appellate Court found the failure to give the mother notice violated her right to due process. Further, the injunction didn’t provide the appropriate relief. The Appellate Court found notice was required prior to the entry of the income withholding order, not concurrently. The entry of an IWO implicates a person’s right to due process. A parent has an interest in the receipt of wages. The issuance of an IWO without notice creates a risk of erroneous withholding, as in this case, where the mother, had, in fact, made her child support payment. Notice gives the parent an opportunity to correct mistakes. The Appellate Court recognized the possibility of a fiscal impact but found the benefits outweighed the cost. The County argued the case was moot because the notice policy had been changed. The Appellate Court was unpersuaded. The policy change lacked formality and only called for concurrent notice, not advance.