Barnes v. McKendry

CONLEY, P.

—This is an appeal from the judgment in a divorce case by E. S. McKendry, the defendant and cross-complainant, against Pancho B. McKendry, his wife, more familiarly known in the history of air flights and desert land proprietorship- as Pancho Barnes. Mrs. McKendry was .almost completely successful in the trial of this domestic litigation; she obtained a divorce on the grounds of adultery and extreme cruelty, resisted the cross-complainant’s request for a divorce for himself, and secured by decree practically all of the property as to which the parties claimed an interest.

The record shows that Mrs. McKendry filed the original complaint on August 16, 1962, in which she charged mental cruelty as a ground for relief. The pleadings show that the parties were formally married in June 1952, although both conceded that they had lived together as husband and wife “without the benefit of clergy” since about February of 1946. Both had been identified with flying; Pancho Barnes was successful as one of the early women fliers in this country, and E. S. McKendry was engaged in airplane operation in the army and commercially for a period thereafter. The record indicates that in 1946 Pancho Barnes was the victim of two minor strokes,- and hypertension with the result that she was gravely ill, in part at the Mayo Clinic, and that Mr. Mc-Kendry then volunteered to take care of her and moved into her house and became an assistant in her financial ventures, principally in the desert area of California, occupying the practical position of a husband, although a formal marriage itself did not take place until a later date.

Pancho Barnes had inherited a considerable sum of money from her grandfather and had purchased land, a large part of which was ultimately condemned by the United States government for military airfields. On his part, Mr. McKendry contributed nothing of monetary value except an old automo

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bile and some $4,.0.00,5 which the record indicates' he • expended prior to the marriage. The memorandum of decision filed by the .trial judge shows that .during this period Pancho Barnes transferred considerable property to the defendant without monetary consideration, and that such transfers were made with the understanding that the land and personalty involved would be retransferred to her at any time she requested; the trial judge held that Mr. McKendry held title only as a constructive trustee for Mrs. McKendry. The court also found that defendant contributed little or nothing to the premarital and marital property other than the secondhand automobile above referred to and the $4,000, which were expended on his living expenses before marriage, and that all present property, ' except an. old airplane, which appellant says has disappeared, and an automobile, must be considered and treated as the separate property of Mrs. McKendry. The court also said that, while there appeared to be little or no community property with minor exceptions, it set aside to Mrs. McKendry any community property which, in fact, existed. It was also' found that a mining claim, known as the Gypsite Mine, as to which there was a 51 percent interest standing in the name of Pancho Barnes, was the only piece of property which truly was acquired by the joint efforts of the parties, but as the parties had seen fit to have it conveyed directly to Pancho Barnes in her own name, the presumption resulted that it was her separate property; the court awarded her the interest in the. mine, as her sole property.