In Re Marriage of Silvers

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.