Commissioner David S. Weinberg (Ret.

)
(Formerly Orange County Superior Court)
PRIVATE DISPUTE RESOLUTION SERVICES
20 Corporate Park, Suite 300 Irvine, California 92606
Telephone: 949-376-9933 Fax:
949-955-3854

10/28/15

Thomas W. Tuttle, Esq.

4695 MacArthur Court, Suite 1450
Newport Beach, California 92660-8863
Decision on Submitted Matters
Babak Samini, Esq.
949 South Coast Drive, Suite 420
Costa Mesa, California 92626

In Re: The Marriage of McCracken/Dobson Case #12D011605

The issues addressed herein were tried in two segments. Trial of the
disputed issues concerning all financial matters concluded September 23, 2015.
The issues concerning the legal and physical custody of the parties’ minor
child was initially resolved at the conclusion of evidence portion of the Trial on
those issues and before closing argument by the Stipulation and Order for Special
Master dated February 5, 2015. The terms of that Stipulation provided a
mechanism, among other provisions, that contemplated and authorized the Special
Master to make recommendations.
The Stipulation provided a process by which the Special Masters
recommendations would become orders of the Court if not timely challenged. If
timely challenged, the Court would then set a hearing for the presentation of
evidence in support of and in opposition to the challenged recommendations.
The issues addressed herein relative to the legal and physical custody of the
minor child arise from the Petitioner’s timely challenge to the Special Masters

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Recommendations as contained in his June 4, 2015 report.

The Court initially had intended to provide its determinations in separate

statements at the conclusion of each phase.
However, the Court concluded an integrated Decision on Submitted Matters
to be more suitable and deemed the entirety of the matters litigated submitted
effective September 23, 2015
The proposed Decision on Submitted Matters herein however will address
the subject matters in each phase in separate sections.
The Court has undertaken a comprehensive review of the evidence admitted
in this matter. The Court has also reflected on the credibility of the witnesses and
information reported during each witness’s testimony.
The Court finds the Petitioner did not present as a highly reliable or credible
witness. She appeared to be gauging her responses to questions asked by counsel.
When examined by her own attorney her demeanor was friendly, her responses
more comprehensive and her manner cooperative.
When examined by Respondent’s counsel, her demeanor markedly shifted.
She appeared to feign confusion in response to clearly stated and easily understood
questions. Her answers became noticeably laconic, her memory suddenly became
very poor and her general manner was challenging.
The Respondent’s general demeanor remained consistent throughout his
testimony regardless of who the examiner was at the time. He was cooperative,
gave complete answers and in no way appeared to be anything but trying to
truthfully and fully answer the questions asked.
The Court finds the Respondent’s other witnesses, including his forensic
accountant and compensation expert appeared and presented much the same as
Respondent. There was no suggestion that testimony had been practiced or

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rehearsed and the witnesses willingly offered complete response to questions
asked by both parties counsel.

I. PETITIONER’S CHALLENGE TO THE SPECIAL MASTERS

RECOMMENDATIONS

The Court makes the following findings:

The parties and minor child are residents of the County of Orange, State of
California and therefore this Court has jurisdiction regarding the custody of the
minor child (EMILEE P. McCRACKEN-DOBSON, D.O.B. October 5, 2003).
Both parties had adequate notice and an opportunity to be heard. Both
parties participated in these proceedings. The United States of America is the
habitual residence of the minor child. Any violation of this Order may result in
criminal and/or civil penalties.
The decision in this matter has been reached after much reflection and after
review of abundant evidence. What the Respondent is asking of the Court is
admittedly uncommon and was not contemplated by the Court without serious
consideration of other alternatives.
The Court is mindful that this order will undoubtedly be regarded with a
considerable negative reaction from the Petitioner and the minor child. This has
been taken into consideration. The Court understands this and throughout the
pendency of this matter made every effort to implement less drastic means of
addressing the presenting problems.
However, there is simply no other realistic alternative given the
overwhelming persuasive evidence of obstruction and alienation here and the
unwillingness or inability of the Petitioner to recognize the consequences of her

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behavior and influence over this minor child.
The Court finds there is ample evidence of the Petitioner’s conduct
demonstrating her severe obstruction and alienation of the minor child resulting in
the damaged relationship the minor has with her father.
Any proof or factual basis for the Petitioner’s allegations the Respondent is
an alcoholic and was abusive were utterly absent.
Finding it is in the minor child’s best interests; the Court adopts the
conclusions and recommendations of the Special Master, Dr. Galindo, as
augmented herein below as supported by the evidence.
The minor child shall forthwith be in the Respondent’s sole legal and
physical custody. The Respondent shall have the sole authority to make all
decisions concerning the child’s health, education and welfare without
consultation or agreement with the Petitioner. As one example, the Respondent
may make a change in the minor child’s schooling.
Respondent as sole legal and physical custodian is authorized to obtain any
medical, psychological or educational treatment/intervention for the child as he
deems necessary and appropriate for the child’s welfare.
Respondent has the right to conceal from Petitioner the location of any
treatment/intervention sought for the child (e.g., educational or mental health
intervention) in the interests of protecting the child from intrusion, interruption,
and/or harassment.
Respondent is authorized, if he deems necessary and/or appropriate, to hire
or designate other persons to facilitate and assist with the transfer of the child to
the location where any intervention will be conducted.
Respondent shall have the sole authority to consent to the child’s travel and
shall have possession and control of the child’s passport and birth certificate, and
may apply for and be granted any renewals without the other parent’s consent for

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such renewals.
The Court finds persuasive, evidence of the Petitioner’s attitude and
behavior toward the Respondent, demonstrating no capacity for a current
co-parenting relationship. This is a factor in support of the Court’s award of sole
legal and physical custody.
It is in the child’s best interests that commencing forthwith, as outlined in
this order, the minor child has no contact whatsoever with the Petitioner during the
pendency of this order.
As used herein, “contact” includes all forms of contact and communication,
including but not limited to phone contact, text messages, e-mails, instant
messaging, chat-rooms, faxes, electronic games or electronic game consoles,
letters, contact via computer/tablet, contact via electronic means (e.g. Skype,
Facetime, Facebook, Instagram, Twitter, social media, websites, etc.), in-person
contact, and communication via third parties, including but not limited to family,
friends, or school personnel.
Respondent has the authority to confiscate and prevent the child’s use of any
electronic device including but not limited to cell phones, pagers, smart phones,
tablets, and computers regardless of how the minor child came into possession of
such equipment.
Petitioner, during this period of no-contact, is specifically ordered not to be
within 1,000 yards of the Respondent, the minor child, the Respondent’s work
place, any residence of the Respondent, including any vacation homes or rental
dwellings, the Respondent’s vehicle(s) including any vehicle driven by any
household member or individual hired to transport the minor, or the child’s school.
This is not an exhaustive list, but illustrative of locations the Respondent
and/or the minor child are likely to be. In no event is the Petitioner permitted to be
within 1,000 yards of the Respondent or the minor child regardless of the

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circumstances.
The Petitioner shall not harass, attack, strike, threaten, assault, hit, follow,
stalk, molest, destroy personal property, disturb the peace, keep under
surveillance, or block movements of the Respondent or the minor child.
The police and/or other law enforcement agencies shall enforce the terms of
this Order and lend all necessary assistance to allow the custodial parent
Respondent, to maintain sole custody of the child.
The Petitioner may not initiate contact with or respond to any contact
initiated by Respondent whatsoever in any manner except in the case of a bona
fide emergency and then only through Our Family Wizard.
The Respondent may enroll, but is not obligated to, the minor child in
Family Bridges or another comparable program at his discretion after consultation
with Dr. Galindo.
Dr. Joseph Cervantes shall continue to serve as the minor child’s individual
therapist. The frequency of sessions with Dr. Cervantes shall be as agreed by the
Respondent and Dr. Cervantes but is expected to be at a minimum one time per
week.
The Respondent shall continue in his individual therapy in addition to the
other therapeutic intervention contained herein.
The Respondent shall engage a therapist to provide therapeutic support for
the minor child and the Respondent, (referred to as aftercare), in addressing the
relational challenges this order will undoubtedly present.
The Court appoints Dr. Amy Stark PhD. The frequency of sessions shall be
as arranged by Dr. Stark and the Respondent.
The Petitioner shall be required to engage in individual therapy with a
specific emphasis on coping with the circumstances that gave rise to this order.
That therapist shall be entitled to a copy of any report issued by Dr. Bussey, Dr.

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Galindo, Dr. Cervantes or Dr. Johnson.
It is required that the Petitioner have her first session on or before
November 6, 2015 and she shall attend twice weekly sessions. In the event a
suitable therapist is not already engaged, Dr. Galindo shall provide a list of at least
three mental health professionals to accept this assignment. The Petitioner shall be
required to select one from that list.

The Petitioner shall be financially responsible for her therapy sessions. The
Respondent shall be financially responsible for the therapy sessions for the minor
child and himself.
The court orders a review hearing on this matter for February 5, 2016 at
9:00am to address custody and visitation, the current orders as well as determine if
and when Dr. Bussey should proceed with an updated custody evaluation.
Dr. Galindo, in his continuing role as Special Master, shall contact the
relevant parties and professionals and provide an updated report including any
recommendations.
That report shall be completed and provided to the parties and the Court no
later than January 22, 2016.
II. FINANCIAL TRIAL

I. TRILLIUM MGMT./J.T. MCKINNEY/MCKINNEY TRAILER RENTALS/MCKINNEY VEHICLE

SERVICES

For purposes of this decision, the business entities Trillium Management, JT

McKinney, McKinney Trailer Rental and McKinney Vehicle Services are treated
as one, as they were during trial.
The Respondent acquired an approximate one-third interest in
McKinney in 1988 along with his two brothers, Les and Ted. McKinney is

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principally a tractor-trailer/chassis & container rental company.
The parties, on September 1, 2015, stipulated that McKinney is the
Respondent’s separate property and reserved for the Court’s determination
whether the Petitioner established the community had an apportionment interest in
the separate property of the Respondent.
The Petitioner contends the increase in the value of McKinney during the
marital period is principally attributable to the time, effort and skill of the
Respondent, thus supporting an application of the Pereira approach to equitable
apportionment.
The Respondent does not claim he did not contribute any effort to the
operation of McKinney. He testified he did little by way of management or
operations during the marriage that would account for the growth of the company.
He argued the growth of the company was not principally related to any of his
efforts.
In addition to the Respondent’s testimony, the Court heard from Les
Dobson, the Respondent’s brother, McKinney President Dave Tavares and
McKinney CFO Mark Bedard regarding the operations of McKinney.
Witnesses testified that the Respondent’s duties at McKinney changed
beginning in about November 1996 when Mark Bedard became CFO. Before that
Respondent had been chiefly responsible for financial and accounting activities at
McKinney.
Additionally, Dave Tavares, who had been functioning in large part as the
acting President for some years, had his role formalized in 2009 being named
President of McKinney.
The persuasive evidence established that between 2003 and 2013 the
Respondent was not responsible for the day to day operations of McKinney. The
President, Dave Tavares and CFO Mark Bedard principally undertook those tasks.

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 A four person management committee was formed to make high level
strategic decisions for McKinney.
The members of this committee are Respondent, Les Dobson, Dave Tavares
and Mark Bedard. They meet on an as needed basis and the meetings are described
as very informal.
The Respondent’s job duties and responsibilities were described as
diminishing beginning in 1997 and throughout the marital period. With the
addition of Mr. Bedard, and formalizing the elevation of Mr. Tavares as President,
the Respondent’s role in the company became more focused on strategic decision
making when those issues arose.
Two significant opportunities were presented to McKinney that altered the
financial circumstances of the company. The first was the GE-TIP asset purchase
of 7,500 trailers. The second was a smaller asset purchase of 2,000 trailers from
Aurora.
In both cases, these acquisitions appear to have been the product of
McKinney having been independently selected by the sellers for these
opportunities. The committee of four apparently quickly realized the value of
these opportunities and moved forward with obtaining the necessary financing to
close the deals.
McKinney ultimately acquired these trailers by the terms of borrowing in
the more than 35 million dollars. It appears personal guarantees for these loans
were not required.
Although the testimony was somewhat unclear, it appears Respondent did
not take a lead role in the due diligence of the acquisition process.
The Court finds the growth of this company during the marital period was
primarily a function of market conditions and capital intense investment. The
Respondent’s measure of management was not responsible for driving the success

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of this company.
The value of this business corresponds to the character of the asset itself
rather than the efforts of Respondent.
Evidence was offered relative to the compensation afforded the Respondent
during the marital period, the question being whether he was reasonably
compensated.
Dr. Jerald Udinsky was called by the Respondent to testify relative to the
reasonable compensation paid to someone serving in the capacity of the
Respondent at McKinney. He offered several opinions regarding that inquiry, none
of which were refuted with differing expert opinion or weakened through
cross-examination.
No other compensation expert was called to testify. The Court finds Dr.
Udinsky’s testimony persuasive on the subject matter to which his testimony was
directed.
A calculation of the reasonable compensation as compared to the actual
compensation received by the community during the marital period, results in a
finding that the community has been adequately compensated if not over
compensated.
Therefore, the Petitioner has not sufficiently or satisfactorily established the
community is entitled to any measure of an apportionment of the Respondent’s
interest in McKinney. The entirety of the Respondent’s interest in McKinney
remains his separate property.

18681 ORIENT DRIVE

This community asset is awarded to the Petitioner at a value of $590,000

with all related debts and obligations. The Petitioner shall hold the Respondent

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harmless therefrom.
The Respondent argued there were two FC 2640 claims connected to this
property. He offered evidence through his forensic expert in support of those
claims.
The Court finds the Respondent has met his burden establishing he is
entitled to reimbursement in the sums of $1,250 and $109,320 for a total of
$110,570. He shall receive these credits to the extent there is net value in this
asset.
The Petitioner shall refinance this property within 120 days from the date of
this order removing the Respondent from the mortgage. The Court shall reserve
jurisdiction to consider a request ordering the property sold in the event the
property is not refinances within the time frame set forth herein.

520 BIGWIN ISLAND

This residence and the accompanying golf club membership are located in
Ontario Canada. The residence is a community asset. The Golf membership was
acquired after separation. The evidence established the community value at
$680,000. It shall be awarded to the Respondent. The Respondent’s FC 2640 claim
is denied for insufficiency of evidence.

FIVE IN FIFTY LLC

The 21% ownership interest in Five In Fifty LLC is a community asset and
shall be awarded to the Respondent in the established sum of $181,431.

19060 SHADOW RIDGE LANE

The parties stipulated this residence was the separate property of the

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Respondent. He shall be awarded this asset along with all obligations and hold the
Petitioner harmless therefrom. There is no community value in this asset. The
Petitioner shall vacate this residence within 60 days of this order.

DIVISION OF OTHER ASSETS AND LIABILITIES

Each party shall be awarded all savings, checking, securities and other
financial accounts standing in their name alone as their sole and separate property.
The automobiles, boats and motorcycle are awarded to the parties as set
forth in Respondent’s exhibit 301 items 32 through 43.
The life insurance policies insuring Respondent’s life are awarded to him at
no value, as they are term policies.
However, as security for the spousal support order contained herein he shall
nominate the Petitioner as the beneficiary of one or more of the policies in the
aggregate amount of two million dollars.
So long as he has an obligation to pay spousal support this order shall
remain in full force and effect. Should the amount of spousal support be modified
by agreement or by Court order, this requirement may be modified accordingly.
The parties shall meet and confer regarding the equal division of art,
furniture, furnishings and jewelry. The Court reserves jurisdiction over these
issues if the parties do not come to an agreement.
The Court grants the Respondent’s request for a $54,000 charge to the
Petitioner for post separation rent collected but not shared on the 18681 Orient
property.
The Court grants the Respondent’s request that the Petitioner be charged
with a $50,000 distribution post separation from community funds used to pay her
attorney fees.

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 The issues of the community property tax paid by Respondent post
separation, and the retroactive application and proposed adjustment of child and
spousal support to the date of filing of the petition are reserved for further
clarification and consideration. All other reimbursement requests are denied.
Each party shall be awarded any and all credit cards and card accounts
standing in their name alone along with any outstanding obligation on those credit
cards without right to contribution from the other. Any jointly held credit cards; to
the extent they still remain, shall be immediately cancelled and closed.
The Respondent is assigned the note payable to Trillium Management in the
approximate sum of $156,000.
The Respondent is awarded the Morgan Stanley account ending in #6840 as
his sole and separate property.
Any issue thought not to have been resolved by the terms of this Decision
on Submitted Matter shall be reserved for further consideration after discussion
with counsel.

CHILD AND SPOUSAL SUPORT

The Court has awarded sole legal and physical custody to the Respondent
with no contact between the minor child and the Petitioner at this time. The
Respondent does not seek an affirmative child support order. He has asked the
Court to reserve jurisdiction over this issue. The pendent lite child support order
shall terminate effective immediately.
The Court grants this request and finds the minor child’s needs will be
adequately met without a child support order in place.
The Court has evaluated the issue of spousal support in conformity with F.C.
4320 and the relevant governing decisional authority.

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 The parties were married 9 years 6 months. This is not a statutory long-term
marriage, (see FC 4336).
Using the subtraction method, the Respondent offered detailed evidence of
the parties’ marital standard of living. The Petitioner presented no affirmative
expert testimony on this subject matter.
Based upon the totality of the evidence presented the Court finds that for the
marital standard of living to be achieved by the Petitioner she will need to have
monthly gross income of $25,000.
The Petitioner is 46 years of age and reports no physical, emotional or
mental health problems. During the marriage the Petitioner did not work outside
the home.
The Respondent is 55 years of age and reports no physical, emotional or
mental health problems.
The parties have stipulated to the Petitioners earning capacity in the sum of
$1,560 per month. The Respondent’s expert testified Respondent’s income was
$137,000 per month.
The Court finds the Petitioner has demonstrated a need for spousal support.
The Respondent has the ability to provide spousal support according to the marital
standard of living.
The order contained herein will permit the Petitioner to live according to the
marital standard of living when combined with her imputed income.
The Court in making this determination has taken into account the assets
and obligations of both parties after division, as well as consideration of any tax
consequences.
The Court has also given consideration to FC 4320 (l) wherein it states the
Court shall consider:
The goal that the supported party shall be self-supporting

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within a reasonable period of time. Except in the case of a marriage
of long duration as described in Section 4336, a "reasonable period
of time" for purposes of this section generally shall be one-half the
length of the marriage.
Here, the Respondent has been paying informal spousal support since
December 2012 and has paid spousal support pursuant to Court order commencing
February 1, 2014.
The Court finds it is appropriate to set a date upon which spousal support
shall terminate and the Court’s jurisdiction to award spousal support ends. That
date shall be January 1, 2018, which results in a period slightly longer than
one-half the length of this marriage.
The Respondent shall pay as and for spousal support the sum of $23,440
each month commencing November 1, 2015, payable one half on the first of each
month and one half on the fifteenth of each month.

ATTORNEY FEES/SANCTIONS/BORSON MOTION

The Petitioner requests that 100% of her fees and costs be underwritten by
the Respondent. The Respondent asks that the Court sanction the Petitioner for
specified litigation behavior throughout this case.
One of Petitioner’s prior counsels filed a “Borson” motion on or about
September 5, 2015. In that request he asks for a $25,000 contribution from the
Respondent.
As it relates to the Petitioner’s requests, including the Borson request, the
Court’s review of the evidence does not show the required current income and

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expense declaration having been filed by the Petitioner. Further, the Court has no
record of any billing statements by any of her counsels or any other evidence of
the work performed and the fees incurred on Petitioner’s behalf.
Thus, the Court is without the necessary foundational evidence to grant her
requests.
Therefore, the Court’s initial response to her request from present counsel
and Borson counsel must be to deny the relief requested in its entirety.
If there have been prior filings in this regard that the Court for some reason
does not have, counsel may provide the filings within 5 days. To be clear, no new
filings can be accepted.
The Respondent’s request for sanctions shall be reserved for further
determination after Petitioner has had the opportunity to provide the
documentation as described above.
ENDED: 10-28-15
David S. Weinberg
_________________________________________
COMMISSIONER DAVID S. WEINBERG (RET.)
TEMPORARY JUDGE

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