O‘CONNOR, Respondent, v. O‘CONNOR, Appellant.
No. 219.
Supreme Court of Wisconsin
Argued October 27, 1970.—Decided November 6, 1970.
180 N. W. 2d 735 | 48 Wis. 2d 535
For the respondent there was a brief by Barrock & Barrock, attorneys, and Maroney & Schiro of counsel, all of Milwaukee, and oral argument by Anthony W. Schiro.
HALLOWS, C. J. The issue presented on this appeal is narrow, namely, whether a husband in a divorce action may be held in contempt of court for failure to pay the allowance made to his wife for her attorneys’ fees when the only motion upon which the contempt could be based was made by the attorneys on their own behalf for a
In Wisconsin, as distinguished from some states,1 a request for an allowance for attorney‘s fees by a wife in a divorce action is not an independent suit on the theory of necessities furnished to the wife. It has long been held in this state, the enforcement of the duty of the husband to contribute to the wife‘s costs of maintaining or defending a divorce action, including attorney‘s fees, is incidental to that action. Clarke v. Burke (1886), 65 Wis. 359, 362, 27 N. W. 22. It was therein said the courts of this state have only such powers to require a husbаnd to pay the expenses of prosecution in a divorce action as are given to them by statute. In
The contempt process, and not a judgment, has from earliest times been used in this state to enforce an order to pay an allowance for attorney‘s fees. Such payment in this state is not regarded as a debt contracted or created
A stipulation by the parties relating to attorney‘s fees does not change the nature of the duty imposed by the court. Of course, if the stipulation is not presented to the court, any obligation of the husband to рay his wife‘s attorney‘s fees thereunder is a contractual duty not involving the discretion of the court and is not subject to enforcement by the contempt process. Where the stipulation is presented to the court, there is a split of authority whether there is still a contract not subject to enforcement by contempt or a decree which is so enforceable. The distinction lies in what the court does with the agreement. As stated in 2 Nelson, Divorce and Annulment (2d ed.), Enforcement of Awards, p. 403, sec. 16.08, “. . . if the settlement agreement is complete in itself and merely referred to in the decree or approved by the court, its provisions are not enforceable by contempt; but if it was intended merely by way of recommendation and the decree is the court‘s adjudication, that adjudication is enforceable the same as if the parties had said nothing about the situation.” The latter is the case as here; the decree incorporates verbatim the provisions of the agreement. Thus the agreement is “regarded as merely the recommendation or approval of the parties of an order which the court could have entered in any event without consulting them or having any regard for their wishes.” 2 Nelson, supra, p. 402, sec. 16.08.
We think it makes no difference to whom the fees are ordered рaid because under
In respect to alimony, this court said in Miner v. Miner (1960), 10 Wis. 2d 438, 443, 103 N. W. 2d 4, “When a court follows and adopts an agreement of the parties making it a part of its judgment, the court does so on its own responsibility, and the provisions become its own judgment.” As such judgment, it may be enforced by contempt, and the parties cannot proscribe by agreement its enforcement by contempt.
Generally, the allowance is made to the wife as the statute prescribes, but we note a practice of ordering payment direct to the attorneys. The difficulties this practice creates are exemplified by this case. An attorney should not hаve a direct interest in a pending suit. He should not be a party to it and an advocate too. It is true,
While the record shows some contempts on the part of Warren O‘Connor in the past, it does not show that he was given notice of being tried for contempt at the December 8, 1969, hearing. True, the record shows a failure to pay but it does not show he was able to pay and that
It is claimed the misconduct of the defendant in failing to pay the attorneys’ fees was committed in the immediate view and presence of the court and could be punished summarily under
The trial court may have proceeded under
This view is reflected in
The order must be reversed. If the defendant is still allegedly in contempt, a proper petition by the plaintiff Mary Ann O‘Connor must be filed and notice given to obtain the contribution to her attorneys’ fees by use of the contempt process.
By the Court.—Order reversed.
ROBERT W. HANSEN, J. (concurring). Here the husband was summarily found to be in contempt of court for failing to pay a contribution to his wife‘s attorneys’ fees as ordered in a judgment of legal separation. He was sentenced to serve six months in jail, subject to payment of a purge.
Anything wrong with that? Yes, answers the majority opinion, reversing and requiring both notice and hearing as prerequisites to a finding of contempt and imposition
“Imprisonment for debt. SECTION 16. No person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.”
Here the wife retained attorneys to represent her in an action brought by her for legal separation. She thus assumed a debt аrising out of and founded on contract. If she failed to pay what she agreed to pay to her attorneys, could she be put in jail for not paying such debt? Clearly not. If the trial court had included in the judgment of legal separation an order that she pay her own attorneys for their services in the case, could she be put in jail for not complying with such court order? I would think not.
Here both husband and wife stipulated and agreed that the husbаnd was to pay $2,000 of the total fee owed to the wife‘s attorneys under her contract with them. The trial court approved the stipulation of the parties “in its entirety,” and, as requested by both parties, provided in the judgment that the husband “. . . shall contribute on account of plaintiff‘s attorney fees for the use and benefit of Barrock & Barrock, plaintiff‘s attorneys, the sum of $2,000. . . .”1 This contribution by the husband was to be paid by November 23, 1965. It was not paid.
On the basis of the husband‘s agreement with his wife that he would pay $2,000 on the fee owed by her to her attorneys, could he be put in jail for not paying that por-
In separating duty from debt, the majority opinion locates a “. . . duty of the husband to contribute to the wife‘s costs of maintaining or defending a divorce action, including attorney‘s fees, . . .” It is true that when the needs of the wife require and the ability to pay of the husband permit, the family court may order such contribution.2 Here the court-ordered contribution by the husband did not arise from a finding of need and ability to pay. It arose out of the agreement or stipulation of both parties as to how the amount owed to the wife‘s attorneys was to be paid or shared between them. The foundation for such stipulation and subsequent court order has to be the contract between the wife and her attorneys, for without a contract, express or implied, there would be no debt or obligation to be shared or contributed tо. Ordering the husband to pay a part of the wife‘s debt to her attorneys does not change the basic nature of the obligation involved any more than ordering him to pay a bill or debt for the wife‘s purchase of a coat or car would change the debt-founded nature of the obligation arising out of her contract of purchase. The court order shifts the liability for payment, but does not change the origin or nature of the obligation involved. The majority opinion concedes that “It may be his wife‘s debt,” but states, “. . . it is not his nor does it become his debt.” The writer would hold the ban on imprisonment for debt to include debts incurred by the wife for which the husband is or subsequently (by court order or judg-
Seeking authority for the concept that, where duty enters, the element of debt vanishes, the majority cites an 1883 case.3 However, in that early case, this court cited with approval: “‘. . . And the contempt does not consist in the relator‘s neglect or refusal to pay the debt, but in his disobedience of the order directing him to hand over certain property to the receiver . . .‘”4 The distinction between paying a debt and handing property over to a receiver is on the microscopic side, but the distinction was made and relied upon in finding imprisonment for debt not to be involved.
More recently, a contempt sentence was appealed to this court, the appellant claiming the sentence constituted imprisonment for debt because it was based “. . . on a failure to make payments to the pension and welfare funds as required by the collective-bargaining agreement, . . .”5 Noting that the contempt findings also involved noncompliance with a court order for the discharge of a certain person and the turning over of certain records, this court held that: “. . . Even if appellant could not be imprisoned for rеfusing to contribute to the two funds, he could be for not turning over the records.”6 The spelling out of a constitutionally anti-
While the majority opinion does not assert or claim an identical twinship between contributions to attorney‘s fees and alimony, the differences between the two merit comment. The contribution to the wife‘s attorney‘s fees relates solely to a debt owed by her to her attorney. An order for wife or child maintenance rests solely upon marital status and the statutory obligation of marital support. As one court has put it:
“. . . Payments which fall into the category of law-imposed alimony or separate maintenance arе based upon the statutory obligation of marital support, may be modified by the court upon a proper showing, ordinarily terminate with the death of either party, and may properly be held not to constitute a ‘debt’ within the meaning of the constitutional provision. . . .”7 (Emphasis supplied.)
The italicized portion in the California opinion correctly stresses the element of modifiability by the court in the light of changed future circumstances as identifying an order based on status, rather than one based on debt. Where an order is based on status, not debt, a change in status warrants, may require, a change in the order. Where the order is based on a debt, arising out of contract, it has no similar inbuilt adaptability to any future changes in status or conditions. Here, as to the contribution to attorney‘s fees, the order was fixed and final. The trial was over. The services to be performed under the contract of attorney-client had been performed. At the time of the entering of the judgment for legal separation, nothing remained except to determine who
There remains the issue of whether the portion of the judgment ordering the husband to pay, as he had agreed, $2,000 to the wife‘s attorneys could, on application of the attorneys to whom the money was to be paid, be converted into a judgment in favor of such attorneys against the husband in the amount of the balance established to be unpaid. This is what the wife‘s attorneys sought, but did not get. What is here involved is a question of statutory interpretation. The Wisconsin legislature has enacted sub. (3) of