Marriage of Bareket and Marcus CA1/4

Filed 3/12/14 Marriage of Bareket and Marcus CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re the Marriage of ITTAI HAIM
BAREKET and STACY LYNN MARCUS.

ITTAI HAIM BAREKET,
Respondent, A136067
v.
(San Mateo County
STACY LYNN MARCUS, Super. Ct. No. FAM0114605)
Appellant.

I. INTRODUCTION
Appellant Stacy Lynn Marcus (Marcus) challenges an order of the trial court
regarding the child support obligations of Marcus’s former husband, respondent Ittai
Haim Bareket (Bareket), as well as a second order declining to reconsider the first order.
Marcus1 contends that the trial court erred by: (1) absolving Bareket of child support
arrears accrued under a prior order; (2) improperly withholding child support on the basis
of a prior agreement between the parties; (3) failing to make express findings justifying

1
Appellate opinions in family law cases commonly refer to the parties by their
first names, in order to avoid confusion when the parties share a surname. (See, e.g.,
In re Marriage of Barth (2012) 210 Cal.App.4th 363, 365, fn. 2.) It is unnecessary,
however, to follow this custom in cases in which the parties have different surnames.
Accordingly, we refer to the parties by their surnames, as is common in appeals in which
the parties are natural persons. (See, e.g., Krug v. Maschmeier (2009) 172 Cal.App.4th
796, 798-799.)

1
the denial of Marcus’s request for attorney fees; (4) calculating child support based on an
incomplete and incorrect evaluation of Bareket’s income; and (5) denying Marcus her
right to offer evidence, and improperly denying her request for judicial notice. We vacate
the trial court’s first order in one respect, and remand for further proceedings as to that
specific issue, but otherwise affirm both of the orders from which this appeal was taken.
II. FACTS2 AND PROCEDURAL BACKGROUND
Marcus and Bareket were married in 1992, and have one child, born in December
1997. Bareket petitioned for dissolution of the marriage in 2000, and subsequently
obtained a status-only judgment of dissolution. Marcus and the child have resided in
New York since 2001, and Marcus has had sole legal and physical custody of the child
since July 30, 2005. A judgment resolving a number of issues regarding property
division was entered in May 2004, and a judgment on other issues, including child
support, was entered in November 2004. During the pendency of the dissolution
proceedings, the parties have conducted extensive litigation, including postjudgment
litigation over property division and child support issues, resulting in one published
opinion by the Sixth District Court of Appeal (Sixth District)—In re Marcus (2006) 138
Cal.App.4th 1009—and three unpublished opinions.3
Bareket’s dissolution petition was filed in the Santa Clara County Superior Court,
and the ensuing litigation took place in that court, with appellate proceedings in the Sixth
District, until September 27, 2010. On that date, the Santa Clara County Superior Court
issued an order transferring the child support proceedings to San Mateo County Superior
Court, based on Bareket’s residence in that county.

2
Both parties’ briefs on appeal make factual assertions that are not supported with
citations to the record, in violation of California Rules of Court, rule 8.204(a)(1)(C). We
have disregarded all unsupported factual statements in both parties’ briefs, and derived
much of our statement of facts from our own review of the record.
3
We take judicial notice, on our own motion, of the three unpublished opinions of
the Sixth District in prior litigation between Bareket and Marcus. (Evid. Code, §§ 451,
subd. (a), 452, subd. (d); Cal. Rules of Court, rule 8.1115(b)(1); see Estate of Dito (2011)
198 Cal.App.4th 791, 795, fn. 3.)

2
 In June 2006, while the case was still before the Santa Clara County Superior
Court, that court entered an order based on a stipulation by the parties (the June 2006
stipulation) resolving various pending issues relating to property division and child
support. The parties intended the June 2006 stipulation to be “a complete resolution of
all pending issues,” and to “resolve any and all claims that either party may have against
the other up to May 5, 2006,” except those specifically reserved in a prior stipulated
judgment, which included “child support in the future.” The June 2006 stipulation
expressly covered “[a]ll past due child support of whatever nature, including all claims
for retroactivity of past due child support, add-ons, medical reimbursement claims or any
other financial claims relating to the support of the minor child,” and stated that Bareket
was “current in his child support through April 30, 2006.”
Under the June 2006 stipulation, Bareket agreed to pay Marcus $3,500 per month
in child support “as a compromise of the disputed claims of the parties,” with “no
additional add-ons with the exception of health-care add-ons for deductibles and co-
pays,” and “one-half of any mandatory fees as a result of attendance of [sic] public
school.” The health care add-ons were to be “computed on an annual basis.” The June
2006 stipulation provided that Bareket was “not responsible for private school for the
child or college.” The June 2006 stipulation further provided that in order for there to be
“a sufficient change of circumstances to modify child support,” Bareket’s “yearly
compensation from all sources” would have to exceed $600,000, and Marcus’s “yearly
compensation from all sources” would have to exceed $100,000.
The June 2006 stipulation also included a mechanism for adjusting child support
annually for 2006 and succeeding years. It provided that starting in 2007, the parties
would exchange specified information, by March 15 of each year, regarding their “total
compensation from all sources” during the preceding year. If either party’s income
during the preceding year exceeded the modification thresholds ($600,000 for Bareket,
$100,000 for Marcus), either party could request that the court modify the previous year’s
support retrospectively based on the parties’ actual income for the previous year, and the

3
court would have “jurisdiction to retroactively modify the previous years [sic] support
based on the information exchanged.”
The June 2006 stipulation also contained a provision whereby Bareket waived an
earlier award of attorney fees in the amount of $100,000, in his favor and against Marcus.
In January 2008, the Santa Clara County Superior Court denied Marcus’s request
to modify the child support amount set by the June 2006 stipulation, both retrospectively
for 2006, and prospectively. Marcus appealed, and the Sixth District affirmed in an
unpublished opinion. (In re Marriage of Bareket and Marcus (Nov. 12, 2009,
H032760).) The Sixth District rejected Marcus’s contention that the $3,500 monthly
child support amount specified by the June 2006 stipulation should be increased because
it was below the statutory guidelines, and declined to reach her argument that the
provision for modification thresholds in the June 2006 stipulation was contrary to public
policy. (Ibid. [pp. 6, 9–10].) It also held that the trial court did not abuse its discretion in
declining to increase the child support owed by Bareket for the calendar year 2006. (Ibid.
[pp. 7–8].)
On December 17, 2009, Marcus filed a request for modification of child support
with the Santa Clara County Superior Court (the December 2009 motion), with a notice
setting the matter for hearing on March 1, 2010. The December 2009 motion sought to
modify the June 2006 stipulation, contending that the amount of child support set by that
stipulation was below the guideline level; that there had been a change of circumstances
in that Marcus had become unemployed; and that an upward deviation from the
guidelines was warranted by Bareket’s wealth. The December 2009 motion originally
had an set of exhibits attached, which Marcus listed in her moving papers, and of which
she requested the court to take judicial notice. The exhibits themselves are not attached
to the copy of the motion that appears in our record, but some of the documents described
on the exhibit list are included elsewhere in the clerk’s transcript.
On September 1, 2010, Marcus obtained from the Santa Clara County Superior
Court an order to show cause regarding child support add-ons that Marcus contended
Bareket was obligated to pay under the terms of the June 2006 stipulation. The matter,

4
which we will refer to as the September 2010 motion, was set for hearing on
September 15, 2010. In the September 2010 motion, Marcus sought payment of add-ons
covering the years 2006 through 2010, including uninsured health care costs, school fees,
and extra-curricular activities and lessons. Marcus did not attach any documentation
supporting her requests, explaining that she was awaiting decisions and instructions from
the court regarding the documentation needed. Marcus also explained that because the
child’s health insurance policies were in Bareket’s name, she had not been able to obtain
explanation of benefit statements showing what the insurance companies had and had not
paid for the child’s health care, but that Bareket had been sent such statements. Marcus
requested that the court order Bareket to produce copies of all such statements he had
received from 2006 through 2010.
On September 10, 2010, the Santa Clara County Superior Court filed three orders
regarding the parties’ child support issues. The first order rejected Marcus’s contention
that she had made a valid motion prior to December 17, 2009, to modify the child
support provisions of the June 2006 stipulation. Accordingly, the court declined to
modify the amounts due under the June 2006 stipulation for the calendar years 2006
through 2009 (subject to the retroactive review provided for by the June 2006 stipulation
itself). However, the order acknowledged that the December 2009 motion had been
properly filed, and thus that the child support terms set forth in the June 2006 stipulation
could be modified with respect to time periods after December 17, 2009.
The second order filed on September 10, 2010, resolved the proceedings held to
review the parties’ income and modify the child support for the calendar year 2007. The
court rejected Marcus’s argument that events during 2007 that affected Bareket’s equity
interest in the privately held technology company of which he is the chief executive
officer should result in the imputation of income to him, and therefore concluded the
modification threshold in the June 2006 stipulation had not been met during 2007. The
court also rejected Marcus’s arguments that the unmodified support amount was below
the statutory guidelines, and that the modification threshold provision was against public

5
policy. However, the court stated that Marcus could seek modification of the child
support amount prospectively from the date of the December 2009 motion.
The third order filed on September 10, 2010, resolved outstanding discovery
issues regarding Bareket’s compensation for the calendar year 2007. The order also
noted that the review of child support contemplated by the June 2006 stipulation was still
pending for the calendar years 2008 and 2009, and that Marcus was still entitled to
conduct discovery regarding Bareket’s compensation during those years, and thereafter.
As already noted, on September 27, 2010, the Santa Clara County Superior Court
issued an order transferring the child support proceedings to San Mateo County Superior
Court, based on Bareket’s residence in that county. At the time the proceedings were
transferred, both the December 2009 motion to modify child support and the September
2010 motion for add-on expenses were still pending.
According to a summary provided by Marcus at the request of the San Mateo
County Superior Court , the following matters were pending before that court as of
March 12, 2012, and were set for hearing on May 1, 2012: (1) Marcus’s December 2009
motion for prospective modification of child support, originally filed in the Santa Clara
County Superior Court; (2) Marcus’s September 2010 motion for child support add-ons;
(3) the retrospective review of child support contemplated by the June 2006 stipulation,
with regard to the years 2008 and 2009; and (4) an order to show cause regarding
attorney fees, complex case designation, and venue.
At the hearing on May 1, 2012, Marcus and Bareket each appeared without
counsel; Marcus participating by telephone. The court heard sworn testimony and
argument from both parties. After the hearing, the court filed a written order (the May
2012 order) resolving the issues raised by Marcus’s pending motions.
The May 2012 order granted Marcus’s December 2009 motion for prospective
modification of child support, and set that support at $4,110 per month for the calendar
year 2010, and $3,625 per month from January 1, 2011 on, in accordance with computer
calculations of guideline support, printouts of which were attached to the order. For the
calendar years 2008 and 2009, however, the court found that the income thresholds

6
specified in the June 2006 stipulation had not been exceeded, and therefore declined to
modify the support amount.
The May 2012 order required Bareket to pay half of the child’s uninsured medical
costs starting May 1, 2012, in accordance with procedures set out in an attachment to the
order, but denied Marcus’s September 2010 motion to the extent that it sought payment
of non-medical add-on expenses such as private school tuition, which are discretionary
rather than mandatory under Family Code section 4062, subdivision (b).4
Finally, the May 2012 order denied Marcus’s requests for attorney fees, for a
change of venue to New York, and for designation of the case as complex under
section 2032, subdivision (b).
On May 16, 2012, Marcus moved to correct, set aside, or relieve Marcus from the
May 2012 order (the motion to correct). Bareket filed a declaration opposing the motion
to correct, and Marcus filed a reply declaration. The motion to correct was heard on
July 24, 2012, with both parties present without counsel, and was denied in its entirety.
On the same day, Marcus filed a notice of appeal.5
III. DISCUSSION
A. Denial of September 2010 Motion for Child Support Add-Ons
Marcus argues on appeal that the trial court erred in denying her September 2010
motion for child support add-ons—a ruling she characterizes as “forgiving the six (6)
years of child support accrued under the 2006 child support order.” This
4
All further statutory references are to the Family Code unless otherwise
specified.
5
On May 31, 2013, Bareket filed a motion to dismiss Marcus’s appeal under the
doctrine of disentitlement. Marcus filed her opposition to the motion on July 3, 2013.
On July 8, 2013, the motion was denied. We, therefore, disregard the argument made in
Bareket’s respondent’s brief that this appeal should be dismissed under the same
doctrine. We also decline to dismiss this appeal on the basis of irregularity in the service
of the notice of appeal, as argued in Bareket’s respondent’s brief, inasmuch as it is not
disputed that the notice of appeal was timely filed, and Bareket received actual notice of
its filing no later than August 18, 2012. (See Cal. Rules of Court, rule 8.100(a)(3)
[“Failure to serve the notice of appeal neither prevents its filing nor affects its validity
. . . .”].)

7
mischaracterizes the May 2012 order. In fact, the trial court retroactively increased the
basic monthly support Bareket had to pay for the years 2010 and 2011, and expressly
ordered that Bareket pay the resulting arrears within 90 days.6 In addition, the May 2012
order also affirmed Bareket’s responsibility to pay health care add-ons from May 1, 2012
forward.
Thus, there were only two respects in which the trial court’s May 2012 order could
be characterized as having “forgiven” accrued child support. The first was that it
declined to require Bareket to pay discretionary add-ons for the period between June
2006 and April 30, 2012. The trial court’s reason for doing so is clear from its order.
Under the terms of the June 2006 stipulation, Marcus waived the right to discretionary
add-ons in general, with the exception of necessary fees for attendance at public school,
and specifically waived the right to private school tuition. In exchange, Marcus received,
among other consideration, Bareket’s agreement to forego enforcement of an award of
attorney fees as sanctions in the amount of $100,000, which was then pending on appeal.
The effect of the May 2012 order, in regard to accrued discretionary child support add-
ons, was simply to enforce that aspect of the parties’ earlier agreement. We are not
persuaded, in light of the overall record, that this was an abuse of discretion.
Marcus’s argument as to the second respect in which the May 2012 order
“forgave” accrued child support has merit, however. While the May 2012 order
expressly confirmed Marcus’s right to payment of health care add-ons from May 1, 2012
forward, and expressly denied Marcus’s September 2010 motion for future add-ons
“except as to medical related expenses” (italics added), the order did not explicitly
address any mandatory health care add-ons that had accrued between the filing of the
June 2006 stipulation and April 30, 2012, and remained unpaid as of May 1, 2012.

6
It appears from the record that Bareket paid the basic child support required by
the June 2006 stipulation on a monthly basis as it came due. Thus, when the trial court
ordered in May 2012 that Bareket should have been required to pay a higher amount of
monthly support during the years 2010 and 2011, this resulted in an amount of arrears
equal to the difference between the amount Bareket actually paid and the amount the trial
court held he should have paid.

8
 Section 4063, subdivision (b), requires a parent who accrues or pays a child’s
uninsured health care costs to provide the other parent with an itemized statement of
those costs within a reasonable time, not to exceed 30 days. As already noted, the June
2006 stipulation required an annual computation of health care add-ons. In Marcus’s
reply declaration filed in the San Mateo Superior Court on April 25, 2012, she identified
and attached exhibits documenting both the expenses she incurred for the child’s
uninsured health care, and her prior attempts to collect reimbursement for those expenses,
both informally and as part of her September 2010 motion.7 The documents indicate that
in seeking reimbursement from Bareket for his share of these expenses, Marcus did not
comply fully either with the time limit specified in section 4063, subdivision (b), or with
the requirement in the July 2006 stipulation for an annual computation of uninsured
health care expenses.
Due to Marcus’s failure to timely submit adequate documentation of what she had
actually paid for the child’s uninsured health care expenses, we cannot fault the trial court
for not resolving Marcus’s motion with respect to health care add-ons accrued between
the filing of the June 2006 stipulation and April 30, 2012. Nonetheless, the trial court
erred in this respect. Under section 4063, a parent’s failure to provide the itemized
statements required by section 4063, subdivision (b) does not waive that parent’s right to
collect the other parent’s share of add-on health care expenses. Instead, subdivision (c)
of section 4063 allows the court to “award filing costs and reasonable attorney[] fees,” or

7
In these documents, as well as in her September 2010 motion, Marcus contended
that she was unable to document her payment of health care expenses for the child
because Bareket, who paid for the child’s health insurance, had declined to provide her
with copies of the health insurer’s explanation of benefits statements for the child.
Marcus did not need the explanation of benefits statements, however, in order to know
the amount she herself had been required to pay out of her own pocket for the child’s
medical care. Obviously, Marcus could seek reimbursement from Bareket for his share
of the child’s uninsured health care expenses only to the extent she had actually paid
them. Accordingly, Bareket’s failure to provide Marcus with copies of the explanation of
benefits statements does not justify Marcus’s failure to provide documentation of her own
payments in a timely fashion.

9
to exercise its powers under section 290,8 “if it finds that either party acted without
reasonable cause regarding his or her obligations.” (§ 4063, subd. (c); see In re Marriage
of Rothrock (2008) 159 Cal.App.4th 223, 236–237.) In the present case, the trial court
made no finding that Marcus had acted without reasonable cause, and even if it had, the
remedy would not have been to deny Marcus’s motion with respect to the health care
add-on expenses.
Accordingly, we vacate the May 2012 order insofar as it denied Marcus the right
to reimbursement from Bareket of his 50 percent share of the child’s uninsured health
care expenses accrued between June 27, 2006 (the day after the filing of the June 2006
stipulation) and April 30, 2012, inclusive. To the extent Marcus has established or can
establish that prior to May 1, 2012, she provided Bareket (either informally or as an
attachment to a court filing) with documentation showing that she had actually paid such
costs, then Marcus remains entitled to be reimbursed for half the amount actually paid
(except as to payments for which Bareket has already reimbursed her for his share).
On remand, the trial court is directed to determine the amount due to Marcus in
accordance with the foregoing discussion. If, in the future, Marcus seeks payment of
Bareket’s share of additional uninsured health care costs incurred at any time, and does
so in a manner that does not comply with section 4063, subdivision (b), she remains
subject to the sanctions permitted by section 4063, subdivision (c).
B. “Withholding” of Child Support Based on June 2006 Stipulation
1. Generally
Marcus’s second argument on appeal is that the trial court improperly “withheld”
child support on the basis of the June 2006 stipulation. This argument does not make
sense in the context of the trial court’s treatment of child support from 2010 onward,
because the trial court granted Marcus’s motion to modify the basic child support amount
set by the June 2006 stipulation from the year 2010 onward, without requiring Marcus to

8
Section 290 provides that any judgment or order under the Family Code may be
enforced “by any . . . order as the court in its discretion determines from time to time to
be necessary.”

10
prove that Bareket’s income exceeded the threshold set by the June 2006 stipulation.
Moreover, in setting the new amounts, the court did not rely on the June 2006 stipulation,
but awarded guideline support as calculated by a computer program, printouts from
which were attached to the order. The court also made clear at the hearing that its May
2012 order, not the June 2006 stipulation, would govern going forward. Thus, Marcus’s
argument on this point necessarily applies only to the aspects of the trial court’s order
that did rely on the 2006 stipulation, that is, the retrospective review of child support for
the years 2008 and 2009, and the issue of discretionary add-ons.
Marcus also contends, without limiting her argument to the years 2008 and 2009,
that the trial court’s “only reason” for the amounts of child support established by the
May 2012 order was the June 2006 stipulation. This is inaccurate. Both the order and
the trial court’s remarks at the May 1, 2012 hearing make clear that the court relied on the
June 2006 stipulation only with respect to the years 2008 and 2009, and the issue of
discretionary add-ons. Even as to the latter issue, the order says only that the June 2006
stipulation was “take[n] . . . into consideration,” not that it was the sole reason for the
court’s order.
2. Basic Child Support for 2008 and 2009
With respect to the retrospective review of basic child support for 2008 and 2009,
the trial court did rely on and enforce the June 2006 stipulation. That is, the court
declined to revisit the amount Bareket paid during those years, on the ground that his
income did not exceed the threshold required under the stipulation for a modification of
the basic monthly child support amount.
The validity of the June 2006 stipulation, and the necessity for Marcus to file a
motion in order to modify its terms prospectively, were established as law of the case in
this matter by the Sixth District’s unpublished opinion on one of Marcus’s prior appeals.
(In re Marriage of Bareket and Marcus (Nov. 12, 2009, H032760).) We decline to
deviate from that ruling, as Marcus has not provided any argument or authority that the
doctrine of law of the case does not apply here. Because Marcus did not file a motion to
modify child support until December 2009, the trial court did not err in enforcing the

11
June 2006 stipulation with regard to Bareket’s child support obligations for the years
2008 and 2009.
3. Discretionary Add-Ons
Marcus contends that the trial court “fashioned an order for discretionary [add-on]
support” and then “rescinded this support on the basis of the parties’ 2006 agreement.”
In support of this contention, Marcus cites a portion of the transcript of the May 1, 2012
hearing in which the court asked Marcus about her income in 2011, and Marcus
explained that she was attending school in order to obtain a license she needed to pursue
her career. In response, the trial judge said he understood, and then said, “In regard to
add ons [sic] and so forth you have the private school, all of the expenses that you listed
average about $1200 a month plus or minus.” Marcus confirmed that this was correct.
The court then indicated that it was about to rule on Marcus’s motion, but Bareket asked
if he could address the court, and in response, the court indicated that a break in the
proceedings was necessary before Bareket could make his comments.
We see nothing in the cited portion of the reporter’s transcript indicating that the
court ever announced an intention to award discretionary add-on support to Marcus and
then withdrew it, as opposed to simply noting that her income and expense declaration
indicated she was paying private school tuition. Accordingly, we disregard Marcus’s
argument as unsupported by the record.
C. Determination of Bareket’s Income
Marcus argues in two separate sections of her opening brief that the trial court
abused its discretion in determining Bareket’s income for child support guideline
purposes. Marcus contends that in computing guideline support, the trial court erred by
failing to include in Bareket’s income the following items: (1) Bareket’s unexercised
stock options in the privately held company for which he works; (2) Bareket’s deferred
compensation; (3) cash gifts Bareket received from family members; and (4) interest and
dividend income reported on Bareket’s tax returns. Marcus also contends that the court
erred in calculating support based on Bareket’s projected average monthly income for
2012, rather than on his actual year-to-date income.

12
 Our standard of review on these issues is a variant of the abuse of discretion
standard. “A trial court’s determination to grant or deny a request for modification of a
child support order will be affirmed unless the trial court abused its discretion, and it will
be reversed only if prejudicial error is found from examining the record below.
[Citation.] ‘We observe, however, that the trial court has “a duty to exercise an informed
and considered discretion with respect to the [parent’s child] support obligation . . . .”
[Citation.] Furthermore, “in reviewing child support orders we must also recognize that
determination of a child support obligation is a highly regulated area of the law, and the
only discretion a trial court possesses is the discretion provided by statute or rule. . . .”
[Citation.] In short, the trial court’s discretion is not so broad that it “may ignore or
contravene the purposes of the law regarding . . . child support. . . .” [Citation.]’
[Citation.] Moreover, to the extent that the trial court’s decisions reflect an interpretation
of the statutory definition of income for child support purposes, this is a question of law
that we review de novo. [Citations.]” (In re Marriage of Pearlstein (2006) 137
Cal.App.4th 1361, 1371–1372 (Pearlstein).)
1. Stock Options
In support of her contention that the trial court abused its discretion in excluding
the value of unexercised stock options when determining Bareket’s income in the present
case, Marcus relies primarily on In re Marriage of Kerr (1999) 77 Cal.App.4th 87 (Kerr)
and In re Marriage of Cheriton (2001) 92 Cal.App.4th 269 (Cheriton). Both of these
cases are distinguishable.
In Kerr, supra, 77 Cal.App.4th 87, a father appealed from the trial court’s orders
awarding spousal and child support in connection with the dissolution of his marriage.
The father worked for a publicly held company, and during the marriage, he had regularly
received options for the company’s stock as part of his compensation. The parties had
used the options to produce substantial income over and above the father’s salary. (See
id. at p. 91.) The trial court included in its child support award a provision requiring the
father to transfer to his former wife, as child support, 15 percent of the beneficial
ownership in any future stock options that the father actually exercised. The father

13
appealed. He acknowledged that treating the options as part of his compensation for
child support purposes was proper, but objected to the trial court’s use of a fixed
percentage, on the ground that it was not based on the needs of the children. (Id. at
p. 92.) The appellate court agreed, holding that the father’s income from stock options
was part of his overall compensation for child support purposes, but remanding for
reconsideration of the percentage in relation to the children’s needs and the parents’
standard of living. In so doing, the court indicated that “a percentage award based on the
realized income from the exercise of stock options would be permissible, as long as the
court sets a maximum amount that would not exceed the children’s needs.” (Id. at p. 97,
italics added.)
Cheriton also involved a father who worked for a publicly held company that
awarded him stock options as part of his compensation. After the dissolution of his
marriage, the father exercised the options, and then sold the shares of stock he had
obtained by so doing. He sold the stock at a price significantly higher than what he paid
for it under the option agreement. The court held that the father’s profit from the sale
should have been taken into account as part of the father’s income. (Cheriton, supra, 92
Cal.App.4th at pp. 286–289.) The court did not, however, hold that the value of
unexercised options should have been treated as part of the father’s income. As Division
Two of this court noted in Pearlstein, supra, 137 Cal.App.4th 1361, the Cheriton opinion
should not be “read [so] broadly as [to] authoriz[e] trial courts to treat not just an imputed
income stream, but the entire principal value of a support obligor’s assets, including any
unrealized gain attributable thereto, as income for child support purposes.” (Id. at
pp. 1373–1374, fn. 10, italics omitted.)
In the present case, the company for which Bareket works is privately held, which
limits the market for any stock in the company that he would obtain if he exercised his
options. Marcus’s briefs on appeal point to no evidence in the record that Bareket has in
fact sold any shares in the company, much less realized any gain from such a sale.
Moreover, there is no evidence in the record as to what the price would be if Bareket did
conduct such a sale. Accordingly, the value of Bareket’s stock options remains both

14
speculative and unrealized. Both Kerr, supra, 77 Cal.App.4th 87, and Cheriton, supra,
92 Cal.App.4th 269 are distinguishable on that basis, because in both of those cases, what
was treated as income was not the unrealized value of the support-paying parent’s
unexercised options in a privately held company, but the cash the parent received from
the sale of stock in a publicly held company obtained through exercise of the options.
Marcus has not identified in her briefs on appeal any authority that requires a court
to include the value of unexercised stock options issued by privately held companies in a
parent’s income for child support purposes. Moreover, the Sixth District Court of Appeal
has twice rejected Marcus’s argument to the contrary. (In re Marriage of Bareket
(Apr. 18, 2006, H028332); In re Marriage of Bareket and Marcus (Nov. 12, 2009,
H032760).) Those rulings are the law of the case in this matter, and Marcus has neither
argued otherwise nor persuaded us that we should deviate from them.
2. Deferred Compensation
As support for her argument that the trial court erred in failing to include deferred
compensation9 in computing Bareket’s income, Marcus relies on a document entitled
“Waiver and Release” by which Bareket waived his right to exercise certain stock options
in order to facilitate an investment in the company by a third party. In connection with
the same investment, Bareket received a letter from the chief financial officer of his
employer indicating that the company would pay Bareket a bonus of up to $289,812, in
three installments: $129,601 to be paid on December 31, 2009; $129,174 on February 26,
2010; and an additional sum of up to $31,037 to be paid upon release of certain escrow
funds.
With respect to the $129,601 portion of the bonus paid in 2009, the record reflects
that the trial court acknowledged that it should be considered in determining whether
Bareket’s income in 2009 exceeded the threshold for modification set by the June 2006

9
Marcus also argues that Bareket’s stock options constitute deferred
compensation, but we have dealt with stock options separately in the preceding section.

15
stipulation. The court declined, however, to include the remaining amounts, totaling up
to $160,211, in Bareket’s 2009 income for this purpose.
In the trial court, Marcus objected on the ground that the June 2006 stipulation
required income to be counted in the year it was earned, not the year it was paid. Our
reading of the June 2006 stipulation does not disclose any such provision. Marcus also
argued that Bareket manipulated the timing of the payments so as to keep his 2009
income below the modification threshold. Marcus has not pointed to any evidence in the
record supporting that contention, however. Moreover, the trial court took the 2010
bonus payments into account in computing Bareket’s 2010 income for child support
purposes. Thus, the trial court did not abuse its discretion in allocating the bonus
payments to the years in which they were paid, rather than to the year 2009 in their
entirety.
3. Gifts from Family
With respect to cash gifts that Bareket received from his family, the trial court had
discretion whether to treat them as income, given that the parties’ child was not receiving
public assistance, and her basic needs were being met. “[T]he principal amount of a gift,
inheritance, or lump sum personal injury award need not be treated as income for child
support purposes, at least where, as here, the child is not receiving public assistance.
[Citations.]” (Pearlstein, supra, 137 Cal.App.4th at p. 1373, citing County of Kern v.
Castle (1999) 75 Cal.App.4th 1442, 1451, 1453–1454 [where support obligor’s actual
income was sufficient to cover minimum basic needs of child, trial court did not err in
declining to consider entire lump sum inherited by support obligor as income]; In re
Marriage of Schulze (1997) 60 Cal.App.4th 519, 529 [inter vivos gift not income for
support purposes].) Nothing in the record or in Marcus’s briefs on appeal persuades us
that this discretion was abused in the present case.
4. Taxable Interest and Dividend Income
Marcus argues that the trial court erred in excluding interest and dividends from
Bareket’s income in making its child support computations. Bareket’s tax returns for
2009, 2010, and 2011 are in the record on appeal. His interest and dividend income for

16
2009 was just over $1,100. This amount was not sufficient to take him over the
modification threshold under the June 2006 stipulation. Accordingly, Marcus was not
prejudiced by the trial court’s failure to include it in Bareket’s income.
Similarly, Bareket’s 2010 and 2011 tax returns show only de minimus amounts of
interest and dividends—$1,628 in 2010, and $1,529 in 2011. Any increase in the basic
monthly support amount that would have resulted from the inclusion of these amounts in
Bareket’s income is more than offset by the trial court’s discretionary decision to deny
him hardship exemptions for his stepchild and his two children from his subsequent
marriage. Accordingly, we decline to require the court to revisit its child support
calculations based on the exclusion of these minimal amounts from Bareket’s income.
5. Projected Average Monthly Income
Bareket prepared an income and expense declaration dated April 7, 2012, to which
he attached his pay stubs for the months February and March, 2012. These pay stubs
showed that Bareket’s gross regular bimonthly pay rate was $8,583.34 (that is,
$17,166.68 per month), and that in addition, he had received a total of $119,000 in
bonuses during the period from January 1, 2012 through March 30, 2012. On Bareket’s
income and expense statement, he stated, consistently with his pay stubs, that his average
monthly income was $17,167. He also stated that he earned an average of $18,792 per
month in commissions and bonuses, for a total monthly income of $35,959. The trial
court’s calculation of child support for the years 2011 onward attributed to Bareket a
slightly higher monthly income of $36,823.
Citing Bareket’s March 30, 2012 pay stub, Marcus argues that Bareket’s actual
monthly income was $56,943. This calculation necessarily assumes that the same
$119,000 in bonus income that Bareket earned during the first three months of 2012
would continue to be paid every three months during the remainder of the year, which
would result in an annual income of $683,316. Other documents in the record, including
Bareket’s income and expense declaration and his tax returns, make clear that Bareket’s
annual salary income (including bonuses) was considerably lower than that figure; in
2011, for example, it was $429,366 (an average of $35,780.50 per month). Accordingly,

17
Marcus’s argument that the trial court should have attributed to Bareket a monthly
income of $56,943 relies on an assumption about Bareket’s bonuses that is flatly contrary
to the evidence. We find no error or abuse of discretion in the trial court’s order as to this
issue.
D. Denial of Request for Attorney Fees under Section 2030
In a request for an order to show cause that was filed on December 2, 2011, but
not heard until May 1, 2012, Marcus requested $50,000 for need-based attorney fees and
costs under section 2030. The record is unclear as to why the trial court did not address
the request more promptly. In any event, in the May 2012 order, the trial court denied
Marcus’s request, without making the findings required under section 2030,
subdivision (a)(2). Marcus contends this was error.
We review a trial court’s order on a request for attorney fees under section 2030
for abuse of discretion. (Cheriton, supra, 92 Cal.App.4th at p. 283.) However, “ ‘ “It is
well established in California that, although the trial court has considerable discretion in
fashioning a need-based fee award [citation], the record must reflect that the trial court
actually exercised that discretion, and considered the statutory factors in exercising that
discretion.” [Citation.]’ [Citation.]” (In re Marriage of Lynn (2002) 101 Cal.App.4th
120, 134, original italics.) Where the record “does not leave [the appellate court] any
room to conclude the [trial] court exercised its discretion as the law requires” (ibid.), the
trial court’s order must be reversed.
Here, the only explanation given by the trial court for its denial of Marcus’s
request for attorney fees was its remarks at the hearing that fees would be “denied
because the matter is proceeding to trial as we speak,” and that “[w]e are set for trial
today.” Section 2030 does not permit a trial court to deny need-based attorney fees based
on the fact that the request for those fees is still pending, and has not yet been
adjudicated, at the time of a trial or evidentiary hearing. Rather, section 2030,
subdivision (a)(1) requires the court to “ensure that each party has access to legal
representation, including access early in the proceedings.” Similarly, section 2030,
subdivision (a)(2) provides that “A party who lacks the financial ability to hire an

18
attorney may request, as an in pro per litigant, that the court order the other party, if that
other party has the financial ability, to pay a reasonable amount to allow the
unrepresented party to retain an attorney in a timely manner before proceedings in the
matter go forward.” (Italics added.)
Accordingly, it appears that in denying Marcus’s request for attorney fees, the trial
court failed to exercise its discretion in the manner required by section 2030. However,
Marcus did not in fact incur any attorney fees in connection with the proceedings, so this
error does not result in Marcus being entitled to any award of fees in connection with the
already-completed proceedings leading up to the orders from which this appeal was
taken.
Moreover, Marcus has not shown with specificity how she was prejudiced by the
trial court’s denial of attorney fees with respect to any other aspect of the proceedings.
Indeed, the trial court granted much of the relief Marcus sought, including increasing the
amount of child support and setting aside the child support provisions of the June 2006
stipulation with respect to the years 2010 onward. As to the matters as to which Marcus
did not prevail, our review of the record has not revealed any issue as to which it appears
Marcus could have obtained a better result if she had been represented by counsel.
Accordingly, we decline to reverse the May 2012 order on the basis of the trial court’s
error in denying Marcus’s request for attorney fees.
E. Denial of Right to Present Evidence
As noted earlier, at the hearing in the San Mateo County Superior Court on May 1,
2012, Marcus appeared by telephone. Prior to the hearing, Marcus filed a request for
judicial notice, accompanied by a set of documents of which she requested the court take
judicial notice. At the hearing, the court informed Marcus that “[m]ost of the items [she]
requested that [the court] take judicial notice of are not items that the Court can take
judicial notice of.” In addition, the court indicated that although it had “three and a half
volumes of documents” before it for the May 1, 2012 hearing, it did not have the entire
35-volume record that had accumulated in the Santa Clara County Superior Court prior to

19
the transfer of venue to the San Mateo County Superior Court as to child support issues
only.
Marcus now contends, in general terms, that the trial court denied her the right to
present evidence, and thus denied her a fair hearing. However, Marcus’s opening brief
does not identify any specific document of which the trial court erroneously declined to
take judicial notice under the applicable portions of the Evidence Code, nor does she
explain how the exclusion of any such document was prejudicial to the outcome of the
hearing. “ ‘The trial court’s error in excluding evidence is grounds for reversing a
judgment only if the party appealing demonstrates a “miscarriage of justice”—that is, that
a different result would have been probable if the error had not occurred.’ [Citations.]”
(Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317; see also
Evid. Code, § 354.) “A miscarriage of justice should be declared only when the
reviewing court is convinced after an examination of the entire case, including the
evidence, that it is reasonably probable a result more favorable to the appellant would
have been reached absent the error. [Citations.]” (In re Marriage of Smith (1978) 79
Cal.App.3d 725, 751.) Marcus has made no such showing in the present case.
In any event, Marcus subsequently filed the documents she wished to rely upon as
exhibits to her motion to correct, and the trial court’s ruling denying that motion
indicated that it had considered all of the evidence. Our own thorough review of the
record, which includes many of the documents on which Marcus sought to rely, has not
disclosed any prejudice to Marcus from the trial court’s failure to consider, at the May 1,
2012 hearing, the documents Marcus subsequently filed in support of her motion to
correct. Accordingly, we are not persuaded that any evidentiary error the trial court may
have committed constitutes grounds for reversal.
IV. DISPOSITION
The trial court’s order entered May 1, 2012, is vacated, solely insofar as it denied
Marcus the right to reimbursement from Bareket of his 50 percent share of the child’s
uninsured health care expenses accrued between June 27, 2006, and April 30, 2012,
inclusive. To the extent Marcus has established or can establish that prior to May 1,

20
2012, she provided Bareket (either informally or as an attachment to a court filing) with
documentation showing that she had actually paid such costs, then Marcus remains
entitled to be reimbursed for half the amount actually paid (except as to payments for
which Bareket has already reimbursed her for his share). On remand, the trial court is
directed to determine the resulting amount due to Marcus.
In all other respects, the trial court’s order entered May 1, 2102, is affirmed. The
trial court’s order entered July 24, 2012, also is affirmed. The parties shall each bear
their own costs on appeal.

21
 _________________________
RUVOLO, P. J.

We concur:

_________________________
RIVERA, J.

_________________________
HUMES, J.

22