In Re the Marriage of Githens

*91SCHUMAN, J.,

dissenting.

This case presents an important issue of first impression: In dividing property in a dissolution of marriage under ORS 107.105(1)(f) (set out below), how should the court treat one party’s beneficial interest in a revocable trust? The trial court first decided that, because husband’s interest in his mother’s revocable trust was “more real than speculative,” it could be treated as marital property. On reconsideration, the court decided that it could not be treated as marital property, but that the court could take it into consideration in determining a property division that was “just and proper in all the circumstances.” Id. On appeal, wife argues that the court should have considered husband’s interest to be marital property and allowed evidence of its value and of the likelihood that it would be revoked, while husband, in a cross-assignment of error, argues that the court should not have considered the terms of the trust or even its existence and, consequently, erred in taking it into consideration at all. The majority affirms.

As a result, wife emerges from this dissolution of the marriage (during which she enjoyed, according to the trial court, a “reasonably good standard of living”) with a maximum income from employment of less than $13,000 per year, no housing, and nothing to show for her contributions of money and labor to the home in which she and husband lived for 23 years, while husband will have rent- or mortgage-free housing, a larger income, and, in all probability, a soon-to-be-realized half interest in two parcels of Willamette Valley farm property. I dissent.

ORS 107.105(l)(f) governs the division of a couple’s property when their marriage is dissolved. Under that statute, the court has authority to provide

“[f]or the division or other disposition between the parties of the real or personal property, or both, of either or both of the parties as may be just and proper in all the circumstances. * * * There is a rebuttable presumption that both spouses have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held.”

*92In Kunze and Kunze, 337 Or 122, 133, 92 P3d 100 (2004), the Supreme Court held that that provision authorizes the court to dispose of “any real or personal property that either or both of the parties hold at the time of dissolution, including property that the parties had brought into the marriage.” That quantum of property, designated “marital property,” contains a subcategory of property called “marital assets,” or “property that either or both of the parties have acquired during the marriage.” Id. To reach an overall “just and proper” distribution, the court preliminarily divides the marital property that is not marital assets according to what is “just and proper in all the circumstances,” and then divides the marital assets under the same standard, albeit with the rebuttable presumption that a just and proper division of marital assets is an equal division. Id. at 133-34. After that preliminary distribution, however,

“ORS 107.105(11)(f) next requires that the court consider what division of all the marital property — that is, both the marital assets and any other property that the parties had brought into the marriage — is ‘just and proper in all the circumstances.’ By contrast to the focus upon the parties’ respective contributions under the statutory presumption, the court’s final inquiry as to the ‘just and proper’ division concerns the equity of the property division in view of all the circumstances of the parties.”

Kunze, 337 Or at 135.

As related above, the trial court ultimately ruled that husband’s interest was not “property” subject to division under ORS 107.105(l)(f). The court based its conclusion on “the case law regarding revocable trusts.” That case law is from other states; neither party cites an Oregon case that directly addresses the issue, and we have found none.1

*93It is true that, with one exception, the cases from other states hold that a beneficiary’s interest in a revocable trust cannot be divided on dissolution. See, e.g., In re Marriage of Balanson, 107 P3d 1037 (Colo Ct App 2004), rev den, 2005 WL 406503 (Colo 2005); Rubin v. Rubin, 204 Conn 224, 527 A2d 1184 (1987); In re Marriage of Centioli, 335 Ill App 3d 650, 781 NE2d 611 (App Ct 2002); Lauricella v. Lauricella, 409 Mass 211, 565 NE2d 436 (1991); In re Marriage of Beadle, 291 Mont 1, 968 P2d 698 (1998). The one exception, In re Marriage of Gorman, 36 P3d 211 (Colo Ct App 2001), was subsequently overruled by statute. Typically, the courts adopt the rationale suggested by the Restatement (Third) of Trusts § 25 comment a (2003) that “the interests the revocable-trust beneficiaries will receive on the death of the settlor should, generally at least, receive the same treatment and should be subject to the same rules of construction as the ‘expectancies’ of devisees.” Husband urges us to adopt that rationale as well.

He relies on two arguments. First, like testators, settlors of revocable trusts retain complete control over the ultimate disposition of the property, thereby rendering the beneficiary’s interest speculative and difficult to quantify. Second, treating a beneficial interest as property for purposes of ORS 107.105(1)(f) would complicate dissolution proceedings by subjecting any nonparty who might have created a revocable beneficial interest — be it in a trust, a retirement plan, a will, or an insurance policy — to “probing discovery of their financial affairs and health.”

Those are strong arguments and I do not reject them lightly — but I do reject them. The cases from other states depend for the most part on each state’s statutes and precedent. E.g., Rubin, 204 Conn at 230-31, 527 A2d at 1187-88. Many cases resolve the issue by declaring that the interest is an expectancy (generally preceded by the adjective “mere” or “bare”), without explaining why that label is anything more than the conclusory announcement of an outcome — that is, without explaining why the fact that an interest is future, speculative, and difficult to evaluate should logically mean that it cannot be divided upon the dissolution of a marriage, when so many other things that are speculative and difficult *94to evaluate (pensions, for example) can be. E.g., In re Marriage of Centioli, 335 Ill App 3d at 656, 781 NE2d at 616.

Our focus, of course, must be on Oregon law, in particular on ORS 107.105(l)(f) and the Oregon cases that construe it. “Property,” as that term is used in ORS 107.105(1)(f), means “something that is or may be owned or possessed, or the exclusive right to possess, use, enjoy, or dispose of a thing.” Massee and Massee, 328 Or 195, 206, 970 P2d 1203 (1999) (citing Webster’s Third New Int’l Dictionary 1818 (unabridged ed 1993)).2 Husband “own[s] or possessed]” an equitable interest in the trust property; a trust conveys legal title to the trustee and equitable ownership to the beneficiary. Windle, Adm’x et al. v. Flinn et al., 196 Or 654, 675, 251 P2d 136 (1952); Brown v. Brown, 206 Or App 239, 249, 136 P3d 745, rev den, 341 Or 449 (2006). Husband cites no authority, nor have I found any, for the proposition that a revocable equitable ownership interest, because it is future, contingent, and difficult to value, is, by virtue of those traits, not an ownership interest at all. Indeed, it is black letter law that a “beneficiary’s equitable interest under the trust may be for a definite period or during a named life, or an absolute interest; it may be contingent or vested, subject to a condition precedent or subsequent, determinable, possessory or non-possessory.” George T. Bogert, Trusts § 38, 137 (6th ed 1987). Further, husband has the exclusive right to sell his interest, should there be a willing buyer. Nor does the fact that husband’s interest is presently intangible mean that it is not “real or personal property” under ORS 107.105(1)(f); in Massee, for example, the Supreme Court held that appreciation of assets is “property” under that statute. 328 Or at 206. In a related context, the interest retained by the vendor of real property under a land sale contract — that is, the right to receive payment in the future — is itself real or personal property. *95Bedortha v. Sunridge Land Co., Inc., 312 Or 307, 312-13, 822 P2d 694 (1991).3

Johnson v. Commercial Bank, 284 Or 675, 588 P2d 1096 (1978), is not to the contrary. In that case, the court held that a creditor with a claim against the trustor of a revocable trust could reach the trust assets, because, under a then-existing statute,4 the transfer of the trustor’s assets to the trust “was void as against his existing or subsequent creditors.” Id. at 683 (emphasis in original). Johnson is not relevant to the issue in this case. It did not involve an interpretation of ORS 107.105(1)(f); whether a creditor can reach assets held by the settlor of a revocable trust tells us nothing about whether the beneficiary of that trust has a property interest for purposes of dividing property at dissolution. The fact that the settlor’s interest in that case “extended to the entire trust” for purposes of creditors, Johnson, 284 Or at 682, does not mean that that interest ousts other interests in the same property, any more than a life estate in property ousts the future interest of a remainderman.

Significantly, Oregon cases establish that an unvested but contingent interest in a trust is marital property and not, therefore, a “mere” expectancy — if, by expectancy, we mean something that is speculative, difficult to value, and therefore nonproperty. In Walker and Walker, 27 Or App 693, 695, 557 P2d 36 (1976), rev den (1977), the husband was the beneficiary of a trust, the corpus of which he would receive only if he was living when his youngest sibling reached the age of 21; his wife was the beneficiary of several trusts, one of which would be distributed only at the discretion of the trustee. The court held that all of the trusts— *96including the ones that could be extinguished at the whim of the trustee — were “valuable, alienable property” that “should properly be considered by the court when making an equitable distribution of the parties’ assets.” Id. at 696; Bentson and Bentson, 61 Or App 282, 284-85, 656 P2d 395, rev den, 294 Or 613 (1983) (“Whether vested or contingent, husband’s interest in the trust is a marital asset to be considered in the division of marital property.”); accord von Ofenheim and von Ofenheim, 40 Or App 865, 869-71, 596 P2d 1007, rev den, 287 Or 477 (1979) (affirming division of the husband’s contingent interest in trust at dissolution). The difference between a contingent trust and a revocable trust is that, in the latter, the beneficiary’s interest depends at least partly on the will or whim of the settlor, whereas in the former, the interest depends at least partly on factors beyond the settlor’s control — “at least partly,” because some revocable trusts, such as the one in the present case, depend on the settlor’s nonrevocation and on the beneficiary’s outliving the settlor, and some contingent trusts can be defeated by actions or decisions of the settlor short of revocation.

I do not understand why a trust under which the beneficiary’s interest is speculative because the settlor might change her mind should differ, for purposes of determining the beneficiary’s spouse’s claim on that interest, from a trust under which the beneficiary’s interest is speculative for some other reason, including that the trustee might change his or her mind, as was the case in Walker, 27 Or App at 695. In other words, a revocable trust differs from a contingent trust in degree but not in kind; in both, the significant factor for purposes of a just and proper division of property at dissolution is the degree to which the beneficiary’s interest is real as opposed to speculative. Put yet another way: A revocable trust is a type of contingent trust because nonrevocation is a type of contingency, and, for purposes of determining a just and proper division of property, the crucial factor is not where the contingency originates, but how much speculation it entails.

Further, I do not understand how the practical difficulties that, according to husband and the majority, necessarily flow from regarding a beneficial interest in a revocable trust as property differ significantly from the difficulties *97inherent in treating contingent trusts as property. In both cases, the speculative nature of the beneficiary’s interest renders that interest difficult to evaluate. That difficulty can be addressed by, for example, fashioning a judgment such as the one in the trial court’s original letter opinion, in which wife was awarded a non-interest-bearing judgment for one half of the value of husband’s portion of the trust, valued as of the date of dissolution but payable only if and when distributed to husband. It could also be addressed by legislation. As for the problem of subjecting nonparties to intrusive questioning about their finances, health, or other matters, I note, first, that similar inquiries are required in distributing contingent trusts, and, second, that the trial court can exercise control over the proceedings so as to limit unnecessary or overly intrusive questioning.

Nor am I persuaded by the argument that treating husband’s interest as marital property necessarily implies that an heir apparent’s “interest” in a will is also marital property. Although revocable trusts are now common will substitutes, the two things are not the same. Because a trust effects the transfer of legal title to the trustee and equitable title to the beneficiary, “[t]he difference between a will and a trust is that a will operates only from the moment of death, while a trust operates in praesenti, to a certain extent.” Allen v. Hendrick, 104 Or 202, 225, 206 P 733 (1922). Thus, a will creates a “bare expectancy” because it conveys nothing until the death of the testator. Trusts — even trusts that may not ever vest — convey an equitable interest that can be considered marital property. Bentson, 61 Or App at 284-85; von Ofenheim, 40 Or App at 870; Walker, 27 Or App at 696.

In sum, I conclude that, in some circumstances, a beneficiary’s interest in a revocable trust may be considered marital property under ORS 107.105(l)(f). For that reason, I also conclude that the court erred.

On de novo review, this court has the discretion to modify a trial court’s division of property in a dissolution judgment. Gardner and Gardner, 212 Or App 148, 157, 157 P3d 320 (2007). We exercise that discretion, however, with “a healthy respect for the wisdom of our modern chancellors in the trial courts who see the people, decide the cases and *98develop a feel for the best solution in what are often difficult circumstances.” Haguewood and Haguewood, 292 Or 197, 202, 638 P2d 1135 (1981). In the present case, the trial court’s judgment was based on its conclusion that husband’s beneficial interest in mother’s trust was “not subject to division as a marital asset” — a conclusion that the court reached reluctantly and, as I believe, erroneously. In its first letter opinion, however, the trial court divided the parties’ property under the understanding, which I believe was correct, that husband’s interest in the trust was divisible property. I would therefore exercise our discretion to modify the judgment, but by adopting, with slight modification, the judgment that the trial court would have entered had it denied the parties’ motions for reconsideration after the first letter opinion.

In that letter, the trial court found as fact that husband’s interest in the trust was “more real than speculative.” Based on mother’s age and her evident affection for wife, I agree. Further, I would conclude that the court’s proposed remedy — awarding wife one half of husband’s interest in the trust, evaluated by a neutral appraiser as of the date of dissolution, payable when and if the trust corpus was distributed — obviated the need to gauge the chances of revocation or to take further evidence of value. The court also determined that the future contingent division was just and proper “however [husband’s interest] may be defined.” I understand that statement to reflect the court’s decision that, if the interest was a marital asset, husband did not overcome the presumption of equal contribution, and, if his interest was marital property, a just and proper division was an equal split, so that, in either case, an equal split was just and proper. See Kunze, 337 Or at 133-34. Again, I agree. And I also agree with the court’s division of personal property and its original equalizing judgment, that is, the equalizing judgment that did not take into consideration the inequity that would result from considering husband’s interest in the trust to be nondivisible. In short, I conclude that, had the court reduced its original letter opinion to a judgment, it would not have “misapplied the statutory and equitable considerations that ORS 107.105(1)(f) requires.” Abreze, 337 Or at 136.

In Coote and Coote, 112 Or App 342, 345-47, 831 P2d 32 (1992), this court held that the corpus of a revocable trust created by the husband was a marital asset subject to division under ORS 107.105(1)(f), but it is unclear whether the husband was the trustee, the beneficiary, or both. In any event, the only issue at trial and on appeal regarding the trust was whether the husband had overcome the presumption of equal contribution with respect to the trust corpus. The question presented in this case was not litigated. The trial court in Roger and Roger, 175 Or App 540, 542, 28 P3d 1264 (2001), divided the husband’s interest in a revocable trust. On appeal, we did not decide whether the husband’s interest was marital property, because we concluded that there was no evidence that the trust existed. Id. at 546.

Under Oregon’s trust law, “ ‘[property’ means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein.” ORS 130.010(13). That definition applies to all trusts “created before, on or after January 1, 2006,” but it does not apply “to judicial, administrative and other proceedings concerning trusts commenced before January 1, 2006.” ORS 130.910. The trust in this case was created before January 1,2006, but the judicial proceeding also commenced before that date. It is therefore unclear whether the definition applies here. In any event, I mention it only as an indication of the general understanding of the term in its context.

In Panushka v. Panushka, 221 Or 145, 149-50, 349 P2d 450 (1960), the court held that, once a land sale contract is executed, the “interest conferred by the contract upon the vendor is ‘personal property,’ i.e., ownership of the right to receive the purchase money.” That holding was modified by Bedortha v. Sunridge Land Co., where the court noted that the distinction between real and personal property in the context of decedent’s estates had been abolished by ORS 111.005(28). 312 Or 307, 313, 313 n 3, 822 P2d 694 (1991).

Former ORS 95.060 (1977), repealed by Or Laws 1985, ch 664, § 16, provided:

“All deeds of gift, all conveyances and all verbal or written transfers or assignments of goods, chattels or things in action made in trust for the person making the same, are void as against the creditors, existing or subsequent, of such person.”