dissenting.
This case is an example, and one which is replicated endlessly in our opinions, of the absurdity of a system which gives this court the power and the duty to exercise de novo review. The parties made their record in the trial court. The trial judge made an error of law, in that it decided an issue in the case in the face of a total absence of evidence on the issue. The trial court intended to reach an equal division of the marital assets. The erroneously decided issue was fundamental to that result. Husband appealed. On de novo review, the majority awards wife an interest in the property as to which there was no evidence of present value, that award to be enjoyed, if at all, 15 years in the future.
Let us be very certain that we understand just what the majority achieves. The trial court was seeking an equal division of the marital estate. That was a proper objective. The majority has now achieved a result that it acknowledges gives wife at least twice as much of the marital property as husband gets, and perhaps three times as much. If there was a burden of proof to prove the value of the pension in the trial court {but see ORS 107.105(l)(e)), it must have rested on wife, who wants a share of it; but she put on no evidence whatsoever. Having done that, she now achieves for herself the surprising result of getting more than she might have got if she had put on evidence of present value.
None of this is said critically. The majority is exercising an authority which this court has in a way that is just as appropriate as the majority says it is. De novo review authority also encompasses sending a matter back to the trial court, and that is what I think appropriate in this instance. We have identified a legal error in what the trial court did. In a law action we would send the matter back for reconsideration or retrial under a correct legal rule. *660In the exercise of de novo authority the majority decides the case essentially piecemeal, by readjusting only that which was affected by the error. I would send the matter back to the trial court with instructions, in effect, to decide the whole case again. As a matter of authority, we could do that, as we have frequently done in de novo cases. For the same reasons of fairness and allocation of scarce judicial resources that the majority cites for its actions, I would leave trial court work to the trial court whenever we can.
Warren, J., joins in this dissent.