As we have previously blogged, Bethenny Frankel, former star of The Real Housewives of New York, and founder of Skinnygirl Cocktails, recently filed for divorce from husband, Jason Hoppy. The parties have a daughter, age 2.

 

 

Reportedly, the parties’ separated on December 23, 2012 and Frankel filed for divorce just shortly thereafter (LA Times) It appears from Frankel’s Petition that she is requesting primary physical custody of the parties’ daughter and child support payable by Hoppy, in addition to life insurance, exclusive occupancy of their home and medical, dental, vision and orthodontic care for her and the child. Sources estimate Frankel is worth at least $25 million. This begs the question: Is child support appropriate in cases where the custodial parent is an extraordinarily higher earner?

Under Family Code section 4053, “[I]n implementing the statewide uniform child support guideline, the courts shall adhere to the following principles:

(a) A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.
(b) Both parents are mutually responsible for the support of their children.
(c) The guideline takes into account each parent’s actual income and level of responsibility for the children.

As such, regardless of Frankel’s ability to support the parties’ daughter, the court is tasked with ensuring Hoppy shares in that responsibility as well, pursuant to the statewide child support guideline. The guideline must account for both parents’ actual income. In this case, CelebrityNetWorth.com reports that Hoppy has a net worth of $5 million himself, the majority of which he made as a high end New York real estate agent. His income must be considered in determining whether a support order is appropriate in this case.

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The statewide child support guideline is presumptively correct. If, under the statewide child support guideline, Hoppy is obligated to contribute to the support of Bryn, might he be able to somehow “rebut” the presumption? Could Hoppy perhaps show the court that he too has an extraordinarily high income such that presumed support would exceed the needs of the child, and in doing so successfully rebut the presumption?

Family Code section 4057 provides: “(b) [t]he [presumed child support award i.e. the guideline amount] may be rebutted by admissible evidence showing that…(3) The parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the child.” To date, no case has defined “extraordinarily high income” for purposes of this section. Rather, it appears to be left to the discretion of the judge to determine what level of income may qualify. A judge may consider the local economic conditions in his or her analysis. But, because under Family Code section 4053 as mentioned above, “children should share in the standard of living of both parents” (Fam. C. section 4053(f)), consider that the needs of a child are relative to the parents’ income, even if that income is extraordinarily high.

It should be noted that before a judge can deviate from guideline child support, he or she must first calculate the guideline amount based, generally, on both parents’ incomes and their respective time share with the child. Only after that is done can a court go on to make the necessary findings as to why a different amount should be ordered. (Fam. C. section 4056(a)).

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 today.