(concurring and dissenting):
I concur in the main opinion’s discussion of the Hallmark Money and the Lot. I dissent, however, both to the result and the analysis of the Rent Note .and Attorney Fees.
Rent Note
The main opinion concludes that the trial court was correct in ruling that the rent note was not a marital obligation. Contrary to the main opinion’s contention, the trial court expressly found that the rent note was a marital obligation: ‘With reference to the ‘monies for rent’ note, this loan was made during the marriage, with a fixed interest at six percent. It was intended that it would eventually be paid back.” The main opinion therefore errs by holding that the trial court correctly concluded that the rent note did not constitute a marital obligation, since the court actually held that it was a marital obligation.
As with the Hallmark Note, however, the trial court erred by injecting into the analysis of the rent note the notion of enforceability. A trial court may not determine the enforceability or unenforceability of a marital debt in a divorce proceeding. See, e.g., Gambles v. Perdue, 175 Mont. 112, 572 P.2d 1241, 1243 (1977) (contracting obligee cannot be deprived of recourse against contracting obligor by substitution of debtors without obligee’s consent). The reason the court is not vested with this authority is because not all the parties to the debt are necessarily before it. See, e.g., Openshaw v. Openshaw, 80 Utah 9, 12, 12 P.2d 364, 365 (1932); Broadway Drug Store of Galveston, Inc. v. Trowbridge, 435 S.W.2d 268 (Tex.Civ.App.1968).
Because the trial court found that the rent note was a marital obligation, and Wife has not properly challenged the finding by marshaling the evidence, this court is obligated to uphold the finding. See Ohline Corp. v. Granite Mill, 849 P.2d 602, 604 (Utah App. 1993) (appellate court assumes record supports findings where appellant has failed to marshal evidence). However, because the trial court erred, as a matter of law, in holding that the rent note was unenforceable, *852I would reverse that portion of the trial court’s ruling.1
Attorney Fees
The main opinion concludes that the trial court correctly awarded attorney fees based on “Husband’s noncomplianee with its interim orders.” The main opinion then concludes that the trial court, erred only in not making adequate findings to justify its sua sponte reduction in the award. The main opinion therefore remands the issue of attorney fees to allow the trial court to make findings on this limited question. By taking this approach, I believe the main opinion has placed the proverbial cart before the horse.
In Utah, as well as in virtually all American jurisdictions, an award of attorney fees can only be made where it is authorized by statute or by an agreement between the parties. See Turtle Management Inc. v. Haggis Management Inc., 645 P.2d 667, 671 (Utah 1982). Since there was no agreement between the parties on attorney fees, the trial court could only award attorney fees pursuant to statute. While the trial court cites several reasons for awarding attorney fees, it did not specify the legal basis for its award.2 I would therefore vacate the award of attorney fees and remand the issue to the trial court for findings as to the legal basis for its award. Only if fees are justified under a statute, do the reasons for the reduction in the fees requested become an issue.
. At some future time Mina may decide to try to collect on the rent note against one or both of the parties. At that time, Wife would be entitled to plead defenses such as the statute of limitations, and the enforceability of the rent note may be determined.
. See, e.g., Utah Code Ann. § 30-3-3 (Supp.1993) (attorney fees may be awarded in divorce proceedings); id. § 78-27-56 (1992) (attorney fees may be awarded to prevailing party where "the action or defense to the action was without merit and not brought or asserted in good faith”); id. § 78-32-11 (1992) (attorney fees may be awarded in contempt proceedings).