concurring.
The majority concludes from the text and the context of the statute that the phrase “acquisition of property during the marriage” in ORS 107.105(l)(f) encompasses the appreciation of nonmarital property under the circumstances of this case. This results in the increases in the value of non-marital assets being considered as marital assets subject to the statutory presumption of equal contribution even though the assets themselves are not subject to the statute. I submit for the reasons that follow that that result is inconsistent with the language of the statute and the legislature’s intent.
The issue in this case is very narrow. This is a two-year marriage in which husband brought into the marriage his business and personal assets having a net worth of between $3,000,000 and $4,000,000. During the marriage, those assets may have appreciated in value. Wife seeks to share in the appreciation. Regarding the assets in issue, husband did not commingle them with wife’s assets nor did wife contribute to the purported appreciation in a tangible or intangible way. The appreciation accrued because of husband’s efforts and the nature of the assets themselves. For purposes of this discussion, I will describe the appreciation in this case as “passive” appreciation.1
The issue is one of statutory interpretation and turns on what the legislature intended. ORS 174.020. In the *602first level of analysis, the text and context of the statute are the best evidence of the legislature’s intent. If the intent is not clear from the language of the statute, then we are to turn to the underlying legislative history to determine legislative intent. ORS 107.105(l)(f) provides in pertinent part, “There is a rebuttable presumption that both spouses have contributed to the acquisition of property during the marriage, whether such property is jointly or separately held.” The word “property” could mean the increase in the value of the kind of assets that are the subject of this case as the majority suggests. However, the preceding sentence in the statute refers to the “acquisition of marital assets.” If the word “property” in the statute means “marital assets,” than the majority’s reasoning in this case is dubious because the evidence is clear that the assets in question are nonmarital assets.
Moreover, the majority’s interpretation conceptualizes the appreciation of nonmarital assets as existing separate from the assets themselves. That must mean that for purposes of the statute, nonmarital assets that appreciate in value during a marriage become divisible and somehow acquire dual status as marital and nonmarital assets. Such a division is at odds with the common understanding of the meaning of the words “property” and “assets” and ordinary accountingprocedures. An asset in accounting terms refers to an entry on a balance sheet as in “assets and liabilities.” During an accounting period, the asset may increase or decrease in value, but the changes in value do not create a different asset or item of property. In the context of a dissolution proceeding, the use of the word “asset” in the statute has significance because the court is required to undertake an accounting-type process tempered by principles of equity when it allocates the marital and nonmarital assets between the parties, taking into account their indebtedness. The fact that assets appreciate during a marriage reflects a change in value, not a division of the asset into nonmarital and marital parts. All of this is to say that when the statute is read in context, it cannot reasonably be said that the meaning of the statute as it applies to the facts here is so clear that doubt is precluded about what the legislature intended. Moreover, although the majority relies on various definitions of the word “property,” none of those definitions focuses on what *603the Oregon Legislature intended specifically regarding the language in ORS 107.105(l)(f).
The ambiguity of the statute requires a further inquiry. The original provision governing the division of property in the dissolution of marriage was former ORS 107.105(l)(e) which provided that the court had the authority to enter a judgment:
“For the division or other disposition between the parties of the real or personal property, or both, or either or both of the parties as may be just and proper in all of the circumstances. ’ ’
In 1977, the legislature added to the statute:
“The court shall view the contribution of the spouse as a homemaker in the contribution of marital assets. There is a rebuttable presumption that both spouses have contributed equally to the acquisition of property during the marriage.” Or Laws 1977, ch 847, § 2.
During the 1981 legislative session, we decided Engle and Engle, 52 Or App 561, 629 P2d 397, rev’d 293 Or 207 (1982). In Engle we held that under Oregon law, separately owned appreciated property of a party in a dissolution of marriage proceeding acquired during the marriage, if transferred by the dissolution judgment, would likely result in tax consequences to the transferor, and that therefore, those consequences should be considered in making an equitable distribution. We held that the then legal effect of former ORS 107.105(l)(e) was to create a mere equitable interest in the homemaker in assets acquired during the marriage, whether or not jointly owned. 52 Or App at 576. The legislature responded by amending the statute to provide that “the rights of the parties in the marital assets shall be considered a species of co-ownership, ’ ’ and that a transfer of marital assets pursuant to a dissolution judgment “shall be considered a partitioning of jointly owned property.” Or Laws 1981, ch 775, § 1.
The Supreme Court took review of our decision in Engle and Engle, 293 Or 207, 646 P2d 20 (1982), and considered the effect of the 1977 amendment on the statute.
“The first sentence of the amendment uses the phrase ‘the contribution of marital assets’ and the second sentence of the amendment speaks of ‘the acquisition of property during *604their marriage.’ Although there may be some question whether property received during the marriage by a spouse by way of gift or inheritance is intended to be included with either phrase (a question which we need not and do not decide in this case), there is no doubt that both phrases intended to include most other property acquired by one or both spouses during the marriage. The amendment recognized the fact that nonearning spouses who maintain the home, do the cooking and cleaning and raise the children, also contribute to the acquisition of property in a tangible, substantial way. The result was the creation of the rebuttable presumption of an equal contribution. Thus, when property is acquired with monies earned by a working spouse, whether title is taken in the husband’s name, the wife’s name, or in both names, the acquisition of the property would be treated, at least presumptively, as having resulted from the efforts of the spouses. As respects property so acquired, the legislative history indicates that the meaning of the term ‘marital assets, ’ contained in the second sentence of the term ‘property’ contained in the third sentence are identical.” 293 Or at 214-15 (emphasis supplied; footnote omitted).
The court then held that the court-ordered transfer to the wife of the husband’s separate assets acquired after their marriage constituted a partitioning of jointly held property. It reasoned that the term “marital assets” as used in the second sentence of the statute was intended to include the husband’s stock acquired during the marriage.
The Supreme Court next considered the meaning of the phrase “acquisition of property during the marriage” in Pierson and Pierson, 294 Or 117, 653 P2d 1258 (1982). In that case, the wife received an inheritance after the parties separated, but before their dissolution of marriage proceeding was filed. The husband argued that the inheritance should be considered a marital asset. The court held that it was a marital asset subject to the statutory rebuttable presumption of equal contribution. The court said:
“[T]he reference to ‘acquisition of property during the marriage’ indicates that it includes neither assets brought into the marriage by either spouse nor assets acquired by them after dissolution. The term ‘real or personal property, or both, of either or both of the parties’ in the first sentence describes a larger class of property than the term ‘marital assets’ because it can include property owned prior to the *605marriage. The upshot is that property may be subject to the authority of the court to divide property, yet not be a marital asset.” 294 Or at 121-22 (emphasis supplied).
It concluded that although the wife’s inheritance was a marital asset, the presumption of equal contribution was rebutted.
In 1983, the legislature amended the statute resulting in subsection “(e)” becoming subsection “(f).” It also added another category of assets to the scope of the statute:
“A retirement plan or pension or an interest therein shall be considered property.” Or Laws 1983, ch 728, § 2.
As the statute presently reads, it requires consideration of the contribution of a homemaker as a contribution “to the acquisition of marital assets.” It also provides for a rebuttable presumption that both spouses have contributed equally “to the acquisition of property during the marriage.”
In Miller and Miller, 294 Or 660, 661 P2d 1361 (1983), the court considered the appreciation in the value of a family residence during a five-year marriage. The parties had been married twice to each other. During their hiatus from marriage, husband had acquired a 23-acre parcel of land. The wife had been awarded the family residence and an adjoining acre of land by the first dissolution judgment. When the parties remarried, they resumed living in the family residence. The court ruled that “neither party’s property is an ‘acquisition of property during the marriage,’ ” and held that “this is a case where the property division should be in the nature of a rescission. ’ ’ 294 Or at 665. It then noted that ‘ ‘any appreciation in value is arguably a ‘marital asset.’ However, our decision here eliminates the necessity of addressing this issue.” 294 Or at 666.
In resolving the issue of what the legislature intended, the case law interpreting the statute as well the legislative history must be considered. When the Supreme Court interprets a statute, that interpretation becomes a part of the statute as if it had been written into it at the time of enactment, Walther v. SAIF, 312 Or 147, 149, 817 P2d 292 (1991), and we are not free to disregard its interpretation. Here, the case law that has construed the meaning of the *606statute is instructive as to the legislature’s intent about the issue before us.
In Pierson, the court made it clear that the statutory presumption does not apply to assets brought into the marriage by either spouse or to “non-marital” assets. It is also clear that the word “property” in the language of the statute that affords a presumption of equal contribution refers only to marital assets. Thus, the majority’s reasoning is only sustainable if it has correctly characterized the increases in the value of the nonmarital assets during the marriage as “marital assets.” That characterization in turn must be consistent with the legislature’s purpose in adopting the statute.
In Pierson, the coiirt also said:
“The statute has a two-fold purpose. First, the statutory presumption of equal contribution is based upon a legislative recognition that a non-employed, non-earning spouse contributes in other ways to the financial situation of the family and should be given the benefit of that contribution if a property division becomes necessary. * * *
“Second, the ownership provisions were intended to obviate burdensome tax consequences which attach upon the transfer of an asset or a part of an asset from the legal owner to the other spouse pursuant to a property division. We conclude that the legislature intended to give the benefits of the presumption of contribution and tax avoidance to all property acquired by either spouse during the marriage regardless of the source of acquisition. Hence, we conclude that property acquired by either spouse during the marriage is within the term ‘marital assets.’ ” 294 Or at 122 (emphasis added).
There is nothing in the legislative history or the case law that indicates that the legislature had in mind the division of nonmarital assets into marital and nonmarital assets simply because pre-marital assets accumulated value during a marriage. The legislature was concerned about providing for the recognition of legal interests of homemakers in assets acquired during the marriage that resulted from their contributions as homemakers, and the tax consequences of transfer that resulted from an adjudication of those interests. The majority opinion expands the reach of the statute to encompass passive appreciation of nonmarital assets, a stretch that *607is beyond what the legislature contemplated and our authority as a court to interpret statutes. See ORS 174.010.2 In effect, by its interpretation, the majority has stepped into the province of the legislature.
The majority makes two responses. First, it states, “the concurrence’s argument, however, merely begs the question by assuming that an increase in the value of such property is not an asset that was acquired during the marriage. Neither Pierson nor Engle said anything about that.” 138 Or App at 597. The majority misses the point. The opinions in Pierson and Engle tell us what the purposes were underlying the enactment of the statute. Because none of the assets in which wife claims an interest was a marital asset or was “acquired” during the marriage, the presumption is inapplicable. Moreover, because the legislature did not intend the presumption of equal contribution to apply to the increases in value of “non-acquired” assets, we should refrain from extending the reach of the statute beyond what the legislature intended. It is not a matter of begging the question, but of applying rules of statutory construction and leaving the making of law to the legislature.
Second, the majority responds by misunderstanding the import of the holding in Miller and overruling our holding in Rolie and Kunkel, 127 Or App 428, 873 P2d 397 (1994), which relies on Miller. In Miller, the court declined to apply the statutory presumption to the appreciation in value of nonmarital assets because it held that the property division in that case should be in the nature of a rescission. However, the majority states:
“Miller stands for the unremarkable proposition that, regardless of whether the presumption applies, in some cases the facts may be such that it is nevertheless appropriate to refuse to divide an increase in the value of property brought in marriage.” 138 Or App at 598 (emphasis supplied).
If, by that statement, the majority means that, in marriages of short duration, the courts are free to arbitrarily refuse to *608apply the statutory presumption to marital assets, such a construction contravenes the express language of the statute that “the court shall consider the contribution of a spouse as a homemaker as a contribution to the acquisition of marital assets.” (Emphasis supplied.)
If, on the other hand, the majority means that the Miller court first considered the presumption of equal contribution regarding the appreciation during the marriage of the nonmarital assets, and after taking into account the wife’s contribution as a homemaker, decided not to divide the increases, the text of the opinion does not support that reading. Moreover, that interpretation is inconsistent with the text of the opinion. The opinion sets out the applicable version of the statute verbatim including the language about the presumption of equal contribution. Then, it describes the property in issue and concludes, “neither party’s property is an ‘acquisition of property’ during the marriage.” 294 Or at 665. Thereafter, there is no mention of the presumption of equal contribution. The court states:
“Our task is to insure a property division that is ‘just and proper’ in all the circumstances. * * * We think this is a case where the property division should be in the nature of a rescission. * * * Our decision here eliminates the necessity of addressing [whether the presumption of equal contribution applies to the appreciation in value of the assets during the marriage].” Id. at 665-66 (emphasis supplied).
In the light of the language of the statute, the Supreme Court’s rationale is only supportable if it is understood to hold that the remedy of rescission was available because the statute was not implicated in the absence of the acquisition of marital assets.
In this case involving a two-year marriage in which there was no commingling of the assets in dispute and no evidence of contribution by wife, we should follow the holding in Miller and our holding in Rolie and Kunkel. Aside from the problem of extending the scope of the statute beyond the contemplation of the legislature, the majority’s reasoning does not make good policy. The statute was enacted to reflect a homemaker’s intangible contributions to the acquisition of marital assets. The majority’s rule forsakes that policy and provides for a rebuttable interest in nonmarital assets to *609which there has been no contribution. In other words, the noncontributing spouse gets something for nothing unless the owner is able to overcome the presumption. This effect violates the legislature’s mandate that property divisions under ORS 107.105(l)(f) be “just and proper in all the circumstances.” Traditionally, the law places the burden of demonstrating an entitlement to a property interest on the proponent of the claim. The majority’s rule departs from that tradition. There is no equity in placing the burden on an owner spouse to overcome the presumption of equal contribution in the increase in value of a nonmarital asset when there has been no commingling of the asset or its income with marital assets or no contribution from the nonowner spouse.
For these reasons, I concur with the majority’s result, but not its interpretation that the presumption of equal contribution applies to the facts of this case.
Warren, J., joins in this concurrence.An example of so-called “passive appreciation” is when a spouse brings into the marriage an asset that accrues interest during the marriage without any contribution or use by the nonowner spouse or any commingling with marital assets. The majority, relying on Crislip and Crislip, 86 Or App 146, 738 P2d 602 (1987), takes issue with my use of the word “passive.” In Crislip, the parties placed all of their income, including that from their pre-marital property, in joint accounts and used it for family expenses, although the pre-marital property was kept in their separate names. We held that, under those facts, the wife’s contribution as a homemaker was presumed to be equal to the husband’s whether the increase was the result of new investment or of earnings on previous investments. The issue here is different. Wife argues that even when the court takes a “ ‘rescission’ approach to property settlement, it should nevertheless treat the increase in assets during the marriage as joint property and recognize the interests of both parties in this accumulation.” In other words, wife contends the statute is applicable to the increase in value of nonmarital assets despite the fact that they were not used by the parties for joint purposes or commingled in any respect.
ORS 174.010 provides, in pertinent part:
“In the construction of a statute, the office of the judge is simply to ascertain what is, in terms or in substance, contained therein, not to assert what has been omitted * *