dissenting.
The majority holds that husband is a prevailing party under the antenuptial agreement and, therefore, is entitled to recover attorney fees at trial in this dissolution proceeding. I disagree. Contrary to the majority’s view, the attorney-fee provision in the parties’ antenuptial agreement is unenforceable in a dissolution proceeding, because it is contrary to public policy to control a court’s discretion to award attorney fees in such a proceeding. It follows, then, *32that the trial court properly denied husband an award of attorney fees under the agreement.
ORS 108.710 controls the permissible scope of antenuptial agreements. It lists subjects that those agreements can cover (such as the obligations of the parties with respect to property) and those that they cannot (such as limitations on child support). It also provides that:
“Parties to a premarital agreement may contract with respect to:
‡ * * *
“(h) Any * * * matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.”
ORS 108.710(l)(h) (emphasis supplied).
Forcing the court to award attorney fees to one party or the other in a dissolution proceeding violates public policy, because it deprives the court of the discretion that ORS 107.105(l)(i) intends it to have to make such an award. ORS 107.105(l)(i) provides, in relevant part:
“(1) Whenever the court grants a decree of marital annulment, dissolution or separation, it has power further to decree as follows:
‡‡‡‡
“(i) For a judgment against one party in favor of the other for any sums of money found to be then remaining unpaid upon any enforceable order or orders theretofore duly made and entered in the proceedings pursuant to any of the provisions of ORS 107.095, and for a judgment against one party in favor of the other or in favor of the other’s attorney for any further sums as additional attorney fees or additional costs and expenses of suit or defense as the court finds reasonably and necessarily incurred by such party; or, in the absence of any such order or orders pendente lite, a like judgment for such amount of money as the court finds was reasonably necessary to enable such party to prosecute or defend the suit.”
(Emphasis supplied.) See also ORS 107.445 (gives courts discretion to award attorney fees in “any proceeding brought *33under ORS 107.095, 108.110 and 108.120”). Thus, ORS 107.105(1)(i) establishes a public policy that courts should have discretion to award attorney fees to either party in a dissolution proceeding, particularly when such an award may be necessary to enable a party to litigate the issues raised in such a proceeding.
The Supreme Court has discussed the public policy underlying ORS 107.105(1)(i) in Haguewood and Haguewood, 292 Or 197, 212-13, 638 P2d 1135 (1981). There, the court stated that “the statute is not intended to compensate the prevailing party. Indeed, it is often difficult to determine which party prevails in a dissolution suit.” The court continued:
“We regard the statute as a legislative recognition that dissolution affects interests of the greatest personal importance and that neither spouse should be denied the opportunity to sue or defend due to lack of equal access to marital resources which may be available for that purpose. The ‘financial resources of the parties, the property division made by the decree,’ and the support orders, if any, are all relevant to a trial court’s determination of attorney fees under the statute. If neither party has the resources, whether in the form of assets or earning power, to pay the costs of litigation, it would be inequitable to require either to pay the costs of the other. On the other hand, if the parties are equally able to bear the costs of litigation, an order for one to pay the other’s costs would not be inequitable. The more difficult situation occurs where the cash, liquid assets or income-producing capability are in the hands of one party as, for example, when a custodial parent receives a house, young children and a support order, and the other spouse receives his or her professional practice or the family business. In such a case, provisions for the spouse without resources at hand should be made and reflected in the property division.”
Id. at 213 (emphasis supplied).
In the context of a dissolution action, the legislature has established a public policy that neither party to the action should be prohibited from litigating any of the myriad issues that arise in such a proceeding because of a lack of *34resources. ORS 107.105(1)(i); ORS 107.445. It would be contrary to that policy to allow parties to usurp the trial court’s discretion to make an equitable award of attorney fees to either party in the proceeding. Hence, the attorney-fee provision in the antenuptial agreement is unenforceable because it violates public policy to the extent that it applies to an award of attorney fees in a dissolution proceeding.
That conclusion finds support in our decision in Edwards and Edwards, 73 Or App 272, 698 P2d 542 (1985). Edwards involved a proceeding to modify an award of spousal support. The original dissolution judgment had incorporated the parties’ property settlement agreement, and that agreement provided that the prevailing party in later litigation to enforce it could recover attorney fees. We held that the attorney-fee provision could not be enforced because it denied the trial court the discretion that the legislature had given it to decide whether to award attorney fees to either party in such a proceeding. Id. at 281.
The majority tries to distinguish Edwards on two grounds, neither of which is availing. It asserts that antenuptial agreements are favored. 143 Or App at 28. Even assuming that that is true,11 doubt that antenuptial agreements are any more favored than are property settlement agreements that have been incorporated into dissolution judgments, as the agreement in Edwards was.
The majority also draws a distinction between property settlement agreements and antenuptial agreements on the ground that the fiduciary obligations owed by the parties in preparing those agreements differ. 143 Or App at 27-28. Again, assuming that that is true,2 it has no bearing on whether the principle on which Edwards is based applies to this case. Edwards held the attorney-fee provision in the property settlement agreement to be invalid because it *35deprived the court of the discretion that the legislature had given it to award fees, not because a party breached his or her fiduciary obligations by including the provision in the agreement.
The issue we must decide is whether it is contrary to public policy to enforce a contractual provision that constrains the court’s exercise of discretion to award attorney fees in an ORS chapter 107 dissolution proceeding. Edwards establishes that it is. Unless we are prepared to overrule Edwards, we must deny husband’s claim for attorney fees under the antenuptial agreement.3
Deits, Riggs, and Leeson, JJ., join in this dissent.I question whether it is meaningful to speak in the abstract of a type of agreement being “favored.” If, as here, the legislature has enacted statutes to deal with a particular type of agreement, our task is to interpret and give effect to the statutes, not to apply some general policy favoring such agreements.
One can imagine circumstances in which inclusion of a reciprocal attorney-fee provision in an agreement would violate the fiduciary obligations owed by the parties to the agreement. Nevertheless, it does not appear obvious that inclusion of such a provision would violate those obligations in most cases.
Contrary to the majority’s view, Purcell and Purcell, 99 Or App 668,783 P2d 1038 (1989), has no bearing on this case. Purcell involved a request for attorney fees in a chapter 107 dissolution proceeding, based on an attorney-fee provision in an antenuptial agreement. Because the party who sought fees under the agreement did not request them at trial, we did not consider whether he was entitled to recover fees. Consequently, we did not consider, let alone resolve, whether the attorney-fee provision was enforceable in such a proceeding.