( In re Marriageof Martinez (1984) 156 Cal.App.3d 20, 30 [ 202 Cal.Rptr. 646]. See also In re Marriage of Taylor (1984) 160 Cal.App.3d 471, 474 [ 206 Cal.Rptr. 557]; In re Marriage of Benart (1984) 160 Cal.App.3d 183, 188, fn. 2 [ 206 Cal.Rptr. 495].) This literal reading of the statute without due consideration for its practical application to proceedings initiated prior to its effective date, unnecessarily exalts form over substance, substantially impairing vested property rights along the way.
The disruptive effect of retroactive application of this type of statutory change is keenly felt in this area of the law. "`The net effect of retroactive legislation is that parties to marital dissolution actions cannot intelligently plan a settlement of their affairs nor even conclude their affairs with certainty after a trial based on then-applicable law.'" ( Buol, supra, 39 Cal. 3d at p. 763, quoting In re Marriage of Taylor (1984) 160 Cal.App.3d 471, 479 [ 206 Cal.Rptr. 557] (Sims, J. dis.).) In the interest of finality, uniformity and predictability, retroactivity of marital property statutes should be reserved for those rare instances when such disruption is necessary to promote a significantly important state interest.
`The net effect of retroactive legislation is that parties to marital dissolution actions cannot intelligently plan a settlement of their affairs nor even conclude their affairs with certainty after a trial based on then-applicable law.'" ( Id., at p. 763, quoting, In re Marriage of Taylor (1984) 160 Cal.App.3d 471, 479 [ 206 Cal.Rptr. 557] (dis. opn. of Sims, J.).) Finally, we observe that these amendments, whatever the intent, have no practical or legal effect on the issue with which we are concerned here.
Finally, "`[t]he net effect of retroactive legislation is that parties to marital dissolution actions cannot intelligently plan a settlement of their affairs nor even conclude their affairs with certainty after a trial based on then-applicable law.'" ( In re Marriage of Buol, supra, 39 Cal.3d at p. 763, quoting In re Marriage of Taylor (1984) 160 Cal.App.3d 471, 479 [ 206 Cal.Rptr. 557] [Sims, J. dis.].) Our conclusion with respect to retroactive application of section 4800.2 to change the parties' agreement rests entirely on the assumption that there was a binding agreement which was fully performed by both parties. Consequently we deem it necessary to remand the cause to the trial court to make a specific finding as to whether such an agreement was proven.
In other situations, where new statutes have been retroactively applied which materially affect the issues, courts have simply remanded for retrial utilizing the correct legal standards. (In re Marriage of Taylor (1984) 160 Cal.App.3d 471, 474, disapproved on another point in In re Marriage of Buol (1985) 39 Cal.3d 751, 763, fn. 10; In re Marriage of Martinez (1984) 156 Cal.App.3d 20, 31, disapproved on another point in In re Marriage of Buol, supra, 39 Cal.3d at p. 763, fn. 10.) Further, Code of Civil Procedure section 906 provides that if it is necessary and proper an appellate court may order that a retrial and further proceedings be had.
(In re Marriage of Benart (1984) 160 Cal.App.3d 183, 188, fn. 2, 206 Cal.Rptr. 495; In re Marriage of Huxley (1984) 159 Cal.App.3d 1253, 1259, 206 Cal.Rptr. 291; In re Marriage of Koppelman (1984) 159 Cal.App.3d 627, 636, 205 Cal.Rptr. 629; In re Marriage of Buol (1984) 159 Cal.App.3d 174, 178, fn. 4, 205 Cal.Rptr. 543; In re Marriage of Leversee (1984) 156 Cal.App.3d 891, 896, 203 Cal.Rptr. 481 (dicta); In re Marriage of Buford (1984) 155 Cal.App.3d 74, 80, 202 Cal.Rptr. 20; In re Marriage of Anderson (1984) 154 Cal.App.3d 572, 577, 201 Cal.Rptr. 498; In re Marriage of Neal (1984) 153 Cal.App.3d 117, 121 at fn. 1, 200 Cal.Rptr. 341.) Other courts are split on the issue of constitutionality of retroactive application of section 4800.1.(In re Marriage of Taylor (1984) 160 Cal.App.3d 471, 474, 206 Cal.Rptr. 557 ( § 4800.1 constitutional); In re Marriage of Milse (1984) 159 Cal.App.3d 471, 475, 205 Cal.Rptr. 616 ( § 4800.1 unconstitutional); In re Marriage of Martinez (1984) 156 Cal.App.3d 20, 30, 202 Cal.Rptr. 646 ( § 4800.1 constitutional).) At oral argument we granted the parties' requests to file supplemental briefs on the issue of the constitutional propriety of the retroactive application of these two sections.