Crone, J.
Case Summary
John Henderson (“Husband”) appeals the trial court’s findings of fact, conclusions thereon, and judgment (“the Order”) dissolving his marriage to Tina Henderson (“Wife”) and dividing their marital estate. Husband argues that the trial court erred by including his contractual interest in certain real estate in the marital estate, valuing that real estate, and excluding certain evidence. Finding no error, we affirm.
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Specifically, Husband argues that the Real Estate is not a divisible marital asset because it is not owned by the parties. See Estudillo v. Estudillo, 956 N.E.2d 1084, 1091 (Ind. Ct. App. 2011) (“[A] trial court may not distribute property not owned by the parties.”). According to Husband, (1) Sellers are the titled owners of the Real Estate; (2) Husband’s “standing relative to the Real Estate is that of a purchaser having certain contractual rights who, conditionally, may eventually receive legal title to the Real Estate assuming fulfillment of certain terms and obligations as set forth within the Contract”; and (3) to the extent Husband has an interest in the Real Estate, “it an equitable interest which the trial court is without authority to distribute.” Appellant’s Br. at 10. To support his position, Husband relies on the following general rule: “[A]n equitable interest in real property, titled in a third party, although claimed by one or both of the divorcing parties, should not be included in the marital estate.” Id. (quoting Estudillo, 956 N.E.2d at 1091). This rule has been acknowledged several times by Indiana courts, including the Indiana Supreme Court, and appears to have originated in In re Marriage of Dall, 681 N.E.2d 718, 722 (Ind. Ct. App. 1997). See Vadas v. Vadas, 762 N.E.2d 1234, 1235-36 (Ind. 2002) (quoting Dall); Estudillo, 956 N.E.2d at 1091 (citing Dall); Nicevski v. Nicevski, 909 N.E.2d 446, 449 (Ind. Ct. App. 2009) (quoting Dall), trans. denied; In re Marriage of Bartley, 712 N.E.2d 537, 545 (Ind. Ct. App. 1999) (citing Dall).
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…Thus, the Dall court reasoned, “an equitable interest in real property titled in a third-party, although claimed by one or both of the divorcing parties, should not be included in the marital estate.” Id. The Dall court concluded that the trial court improperly included the value of the property in the marital estate, explaining,
Neither [h]usband nor [w]ife holds a vested interest in the marital residence, and their purported equitable interest in the property is indeterminate. …. Nor is there evidence that [w]ife will definitely acquire title to the home. There are any number of circumstances that could prevent or discourage [wife’s parents] from transferring title to [w]ife, thereby preventing her from acquiring ownership.
Id. The Dall court reversed and remanded and clarified that, at most, “the trial court may consider the value of the [w]ife’s continued possession and residence in the home in determining a just and equitable division of the marital assets.” Id. at 723-24.[Footnote omitted.]
Significantly, the Dall court attached the following footnote to the rule that an equitable interest in real property titled in a third party should not be included in the marital estate:
This rule would not apply where the real estate is titled in a third-party, and husband and/or wife are the contract purchaser. In that case, the parties have a vested interest in the contract, which is a marital asset, and their equitable interest in the real estate is not indeterminate but is derived from the contract. Neither would the rule apply where the real estate is titled in a partnership, corporation or other business organization in which the spouse has an ascertainable interest as a partner, shareholder or member.
Id. at 722 n.5 (emphasis added). Given these limitations, the rule in Dall may be considered an overstatement…
Returning to Husband’s claim that any interest he has in the Real Estate is an equitable interest and, pursuant to Dall, an equitable interest should not be included in the marital estate, we observe that Husband does not acknowledge the Dall court’s footnote that “the rule does not apply where the real estate is titled in a third-party, and husband and/or wife are the contract purchaser.” 618 N.E.2d at 722 n.5. Here, unlike Dall and the aforementioned cases, Husband and Sellers have executed a written contract for Husband’s purchase of the Real Estate. Husband has a vested interest in the Contract, and his equitable interest in the Real Estate is not indeterminate but is derived from the Contract. See id. He will obtain title to the Real Estate upon his full performance with and payment of the amount due under the Contract. As such, the general rule announced in Dall, that an equitable interest in real property titled in a third party should not be included in the marital estate, does not apply to the circumstances present in this case.
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Here, pursuant to the Contract, Husband enjoys full use and occupancy of the Real Estate, pays taxes on it, and maintains the insurance. He, not Sellers, bears the risk of loss and will benefit from any appreciation in value of the Real Estate. Upon Husband’s full performance and payment of all sums due under the Contract, the Sellers are obligated to convey to Husband the Real Estate by warranty deed. Sellers’ retention of the legal title to the Real Estate is akin to a mortgage on the Real Estate. Husband argues that given the many restrictions in the Contract, it should be considered more like an automobile lease. We are unpersuaded. Accordingly, we conclude that the trial court did not err by including Husband’s contractual interest in the Real Estate in the marital estate.
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Based on the foregoing, we affirm the trial court’s order.
Affirmed. May, J., and Pyle, J., concur.