IN RE: the MARRIAGE OF Harry and Ima Nell BOUQUET.

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Court of Appeal, First District, Division 2, California.

IN RE: the MARRIAGE OF Harry and Ima Nell BOUQUET. Ima Nell BOUQUET, Respondent, v. Harry BOUQUET, Appellant.

Civ. 32117.

Decided: January 20, 1975

Bruce H. Johnsonbaugh, San Francisco, for appellant. Alfred P. Chasuk, Orville C. Casteel, Mountain View, for respondent.

Harry Bouquet appeals from certain provisions of an interlocutory judgment dissolving marriage and determining the property rights of the parties.

Appellant and Respondent, Ima Nell Bouquet, were married June 9, 1941, and separated March 2, 1969. On April 20, 1971, respondent filed a petition for dissolution of marriage and determination of the property rights of the spouses. Appellant filed his response on July 21, 1971. Trial was had on May 17 and 18, 1972, and an interlocutory judgment dissolving the marriage and determining the property rights of spouses was entered on May 26, 1972.

On March 4, 1972, after filing the petition, but before rendering the interlocutory judgment, Civil Code,1 section 5118, as amended in 1971, took effect, providing that the earnings and accumulations of both spouses become separate property while living separate and apart.2 As a consequence, appellant amended his original response with the court's permission, and insisted at trial that his earnings and accumulations acquired since March 2, 1969, the date of separation, became his separate property. The trial court rejected appellant's contention and held that only the earnings and accumulations acquired by appellant after March 4, 1972 were his separate property.

Thus, we are presented squarely with an issue of first impression, namely, whether amended section 5118 should be given retroactive effect or should be applied only prospectively.

The rules relating to the retroactive application of statutes are, of course, well settled. As a general rule, a statute will not be construed to operate retroactively unless the legislative intent cannot be otherwise satisfied (Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 828, 114 Cal.Rptr. 589, 523 P.2d 629; Interinsurance Exchange v. Ohio Cas. Ins. Co. (1962) 58 Cal.2d 142, 149, 23 Cal.Rptr. 592, 373 P.2d 640). The legislature, of course, is well acquainted with this fundamental rule, and when it intends a statute to operate retroactively, it uses clear language in the statute to accomplish that purpose. Consequently, where the language used by the Legislature has not clearly shown that retroactive application was intended, the rule against retroactive construction has uniformly been upheld (Balen v. Peralta Junior College Dist., supra; DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 176, 18 Cal.Rptr. 369, 367 P.2d 865; Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 344, 353, 139 P.2d 908). To the above stated general rule there is one exception: a statute may be construed to apply retroactively even in the absence of clear legislative intent to that effect if the legislation at issue merely clarifies the existing law (Martin v. California Mut. B. & L. Assn. (1941) 18 Cal.2d 478, 484, 116 P.2d 71).

A simple reading of amended section 5118 persuades us that it does not qualify for retroactive application either under the foregoing general rule or the exception. In manifest contradiction with those rules, the language of section 5118 is fatally silent as to whether it should be held applicable to those cases where the separation of the parties had taken place prior to its effective date. Appellant's proposition notwithstanding, the required legislative intent cannot be inferred from overbroad language of the statute or from its mere silence.

In an effort to show that a retrospective application of the code section in question was intended by the Legislature, appellant calls our attention to a Senate resolution3 incorporating a letter written to Senator Mills by Assemblyman Hayes, the author of the bill. In this letter Assemblyman Hayes undeniably voiced his personal view that amended section 5118 should be given retroactive effect. We do not think, however, that the view thus expressed may be equated with that of the Legislature. Furthermore, we are equally convinced that the basic legal requirements for retroactive application of an enactment which operates to impair vested rights, have not been met; and, as a consequence the code section at hand may not be clothed with retroactive force.


Contrary to appellant's assertion, the letter from Assemblyman Hayes and the Senate resolution actually serve to bolster the conclusion that the statute cannot be held to operate retroactively. As we have pointed out earlier, it is a fundamental rule of construction with which the Legislature is well acquainted that a statute will not be deemed retroactive unless such intent clearly appears from the statute itself. (Cf. § 3; Code Civ.Proc., § 3; Pen.Code, § 3; DiGenova v. State Board of Education, supra.)

Because the Legislature is deemed to be aware of this fundamental principle of statutory construction, and since there is nothing in section 5118 itself to indicate that it was intended to have retroactive application, it must be concluded that the Legislature did not intend the statute to have that effect. It would seem to be obvious that, had the Legislature intended section 5118 to have retroactive effect, it clearly would have expressly so declared, since the precise question was presented to the Assembly in ‘the argument’ used by Assemblyman Hayes Before that body.

Since there is a fatal lack of showing that the Legislature as a body (as opposed to one of its members) clearly and expressly intended a retroactive effect of the amendment, we are constrained to hold under the consistent line of authorities discussed above that the suggested retroactivity of section 5118 is foreclosed as a matter of law.


Turning to the second question, as a preliminary matter we must emphasize that under an unbroken line of authorities the issue of whether or not the property acquired by a husband and wife is separate or community is determined at the time of its acquisition (Trimble v. Trimble (1933) 219 Cal. 340, 26 P.2d 477; Kenney v. Kenney (1950) 97 Cal.App.2d 60, 217 P.2d 151; Palen v. Palen (1938) 28 Cal.App.2d 602, 83 P.2d 36). It is likewise axiomatic that under both statutory and case authorities the respective interests of the husband and wife in community property during continuance of the marriage are present, existing and equal interests (§ 5105 (see former § 161a); Bank of America etc. Assn. v. Manz (1935) 4 Cal.2d 322, 49 P.2d 279). Under the law existing prior to the effective date of amended section 5118, only the earnings and accumulations of the wife were her separate property during the time of the separation (cf. § 5118 and former § 169), while the earnings and accumulations of the husband during the same period were classed as community property unless and until an interlocutory judgment of dissolution of marriage had been entered. All this leads to the conclusion that prior to March 4, 1972, appellant's earnings and accumulations became community property in which respondent acquired a vested interest. Consequently, an eventual clothing of amended section 5118 with retroactive effect would amount to an impairment of vested property rights. This, of course, raises the serious question whether or not the Legislature is empowered to strip a spouse of his or her vested right in the community property by retroactive legislation, and, if so, under what conditions.

There are a number of cases in California which hold that amendments whereby it is sought to lessen, enlarge or change in any manner the rights of the spouses in the community property will not be given retroactive application at all so as to affect the respective rights of the parties in community property acquired prior to the enactment of such amendments (Boyd v. Oser (1944) 23 Cal.2d 613, 619, 145 P.2d 312; see also: Estate of Thornton (1934) 1 Cal.2d 1, 33 P.2d 1; Spreckels v. Spreckels (1897) 116 Cal. 339, 48 P. 228). But even if we accept the proposition that the traditional police power of the state does include the right to interfere with vested property rights and that this right extends to a possible impairment of the vested rights of the spouses by a marital property law change (Addison v. Addison (1965) 62 Cal.2d 558, 566, 43 Cal.Rptr. 97, 399 P.2d 897), it is manifestly clear that even under Addison such divestiture or impairment of vested rights may be justified only whenever it is necessary to protect health, safety, morals or general well-being of the people. However, in the instant case the documents filed by appellant fall fatally short of indicating that the suggested retroactive application of amended section 5118 would promote the above described aims to any extent. It goes without saying that in the absence of such showing the purported retroactive application would be altogether ineffective even if such intent had been clearly expressed by the Legislature.

Lastly, we observe that appellant's claim of retroactivity may not be predicated upon the exception theory, either. It is indisputable that amended section 5118 brought about a radical change in the law; therefore it cannot be designated as a mere declaration or clarification of the existing rules. Prior to 1972 it had been the recognized law for almost a century that while the earnings and accumulations of a wife living separate and apart were her separate property even though she lived separate through her own fault, the earnings and accumulations of the husband during the same time remained community property (Spreckels v. Spreckels, supra, 116 Cal. at p. 342, 48 P. 228; § 169 (enacted in 1872)).

The judgment is affirmed.


FN1. Unless otherwise indicated all references will be made to the California Civil Code..  FN1. Unless otherwise indicated all references will be made to the California Civil Code.

2.  Section 5118, as amended in 1971, provides that ‘The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate properly of the spouse.’ (Emphasis added.)

3.  The resolution reads as follows:‘MOTION TO PRINT IN JOURNAL‘Senator Grunsky moved that the following letter of legislative intent be printed in the Journal.‘Motion carried.‘Assembly, California LegislatureSacramento, June 14, 1972‘Hon. James R. MillsPresident pro Tempore off the Senate‘Re: Assembly Bill 1549, 1971 Regular Session, Chapter 1699‘Dear Mr. President: Several questions have arisen from lawyers and others concerning the intended application of AB 1549, 1971 Regular Session (Chapter 1699) of which I was the author. This bill amended Section 5118 of the Civil Code, a portion of the Family Law Act, of which I was one of the principal authors in the 1969 Regular Session of the Legislature.‘The Family Law Act became effective on January 1, 1970, and was applicable to all cases thereafter filed and to all pending cases in which an interlocutory or other judgment had not yet been rendered.‘It was my intention as the author of AB 1549, and the argument I used in obtaining passage of the measure by the Assembly and Senate of the California Legislature, that this amendment to Section 5118 of the Civil Code (Family Law Act) would govern the determination of the property rights of the parties under the same rules applied by the California Supreme Court Case of Addison v. Addision, 62 Cal. [2d] 2nd 588 [sic, 588], 48 Cal.Rptr. 97 [399 P.2d 897] (1965). In other words, the courts, on or after the effective date of AB 1549 (March 4, 1972), must construe the status and the division of the property of the parties by the law then in effect, without regard to whether the status of the property of the parties or the division of such property might have been differently determined or divided had a judgment been made on March 3, 1972, or at any time prior thereto. The intention was to supersede the prior law and to have the new law retroactively apply to all cases decided on and after march 4, 1972.‘Respectfully,JAMES A. HAYESAssemblyman, 39th District'(Emphasis added. Senate Journal dated June 16, 1972, at pp. 3872–3873.)

KANE, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.

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