Regis Philbin Imputation of Income Rule

Regis Philbin’s Family Law “Rule”.

Regis Philbin passed away recently. Did you know that the “Who Wants To Be A Millionaire” host has a special place in California Family Law? How famous do you have to be to get a Family Court “Rule of Law” named after you?

In the late 80’s and early 90’s, Regis’ Live ruled the morning chat shows. He even had a line of clothing. In the days before Google, while stuck in the McGeorge Law School Library (I miss the smell of dusty books), we had no time for his show. Nevertheless, we certainly did not skip his famous divorce case.

Regis and his first wife, Catherine, could not agree on spousal and child support. He had been making $55k per year shortly after the parties’ separation, then his income jumped to $95k per year by the time they were dividing their community estate, but his salary had been reduced “through no fault of his own” to only $27k per year when support was determined at trial. (That was still a nice salary.) Regis was still doing just fine for the time.

The trial court used Regis’ most recent figures and lowered support from $1,300.00 per month to $550.00 per month, but ordered Regis to loan Catherine an additional $350.00 per month and then also ordered that support would return to $1,300.00 after six months. You would think that Regis would be steaming mad, since there was zero evidence that Regis would return to bigger salaries (he must have earned a ton to sit next to Kathie Lee five days a week), but it was Catherine that filed the appeal. Turns out, that wasn’t a good idea.

In 1971, the Court of Appeal in Los Angeles announced the Philbin Rule, forbidding California trial courts from using a parties’ earning capacity to calculate support (in place of a party’s actual earnings) unless there was proof on the record of a “deliberate shirking of family financial responsibilities” such as intentionally limiting income, refusing work, or simply failing to even look for a job. Perhaps the Justices had taken a liking to Regis’ appearances on The Joey Bishop Show in the 60’s or something, because they really ripped into his trial judge with phrases like “the grossest kind of speculation”. Ouch!

The “Philbin Rule” stood for almost thirty years and was in effect when Melanie and I took the California State Bar Exam in the 90’s, but the legislature has since abolished it. Trial courts can now inquire into far more than simple bad faith.

For more information on the Philbin Rule, get in touch with us or take a look at the current Family Code §4058(b) and the discussion contained in Marriage of Destein (2001) 91 Cal.App.4th 1385.