In Re Marriage of Silvers

California Court of Appeal

In Re Marriage of Silvers

23 Cal. App. 3d 910, 100 Cal. Rptr. 731, 1972 Cal. App. LEXIS 1265

CourtCalifornia Court of Appeal

DecidedMarch 1, 1972

DocketCiv. 28683

StatusPublished

Cited by5 cases

This text of 23 Cal. App. 3d 910 (In Re Marriage of Silvers) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re Marriage of Silvers, 23 Cal. App. 3d 910, 100 Cal. Rptr. 731, 1972 Cal. App. LEXIS 1265 (Cal. Ct. App. 1972).

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Opinion

THE COURT.

In this case both parties sought a divorce on the ground of extreme cruelty. Although the case was at issue in July 1969, it was not tried until February 1970, after the new Family Law Act became effective. Prior to January 1, 1970, the effective date of the act, Civil Code section 146 permitted an unequal distribution of community property in favor of an innocent party upon the granting of a divorce on the ground of extreme cruelty. Appellant contends that she acquired a “vested right” to more than one-half of the community property because of acts of “extreme cruelty” she alleged were inflicted upon her by respondent, and that the trial court erred in ruling that evidence thereof was not admissible. It is her position that the Family Law Act retrospectively takes away her “vested right” without due process of law and is therefore in violation of Amendment XIV of the Constitution of the United States.

We cannot agree with appellant’s claim of a “vested right” to more than one-half of the community property. Any partial or incomplete right becomes vested only when reduced to final judgment (Willcox v. Edwards (1912) 162 Cal. 455 [123 P. 276]) and no person has a vested right in an unenforced penalty (Anderson v. Byrnes (1898) 122 Cal. 272 [54 P. 821]). Furthermore, Civil Code section 161a was in effect from the inception of the marriage until the repeal of that statute on January 1, 1970. It provided that “The respective interests of the husband and wife *912 in community property during continuance of the marriage relation are present, existing and equal interests.....” Civil Code section 5105, which has been in effect since the repeal of section 161a on January 1, 1970, contains identical language.

The judgment is affirmed.

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Opinion

THE COURT.

In this case both parties sought a divorce on the ground of extreme cruelty. Although the case was at issue in July 1969, it was not tried until February 1970, after the new Family Law Act became effective. Prior to January 1, 1970, the effective date of the act, Civil Code section 146 permitted an unequal distribution of community property in favor of an innocent party upon the granting of a divorce on the ground of extreme cruelty. Appellant contends that she acquired a “vested right” to more than one-half of the community property because of acts of “extreme cruelty” she alleged were inflicted upon her by respondent, and that the trial court erred in ruling that evidence thereof was not admissible. It is her position that the Family Law Act retrospectively takes away her “vested right” without due process of law and is therefore in violation of Amendment XIV of the Constitution of the United States.

We cannot agree with appellant’s claim of a “vested right” to more than one-half of the community property. Any partial or incomplete right becomes vested only when reduced to final judgment (Willcox v. Edwards (1912) 162 Cal. 455 [123 P. 276]) and no person has a vested right in an unenforced penalty (Anderson v. Byrnes (1898) 122 Cal. 272 [54 P. 821]). Furthermore, Civil Code section 161a was in effect from the inception of the marriage until the repeal of that statute on January 1, 1970. It provided that “The respective interests of the husband and wife *912 in community property during continuance of the marriage relation are present, existing and equal interests.....” Civil Code section 5105, which has been in effect since the repeal of section 161a on January 1, 1970, contains identical language.

The judgment is affirmed.

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Bluebook (online)

23 Cal. App. 3d 910, 100 Cal. Rptr. 731, 1972 Cal. App. LEXIS 1265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-silvers-calctapp-1972.

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