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 [538] judgment and no notice was given or request made to hold the husband in contempt.
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 husband to pay the expenses of prosecution in a divorce action as are given to them by statute. In sec. 247.23, Stats., and its predecessors, the power is granted to the court to order a husband to pay “such sums for the support of the wife and the minor children in her custody and enabling her to carry on or defend the action ... as in its discretion shall be deemed just and reasonable.” In sub. (3), there is a provision that if the action affecting marriage is dismissed or a judgment therefore vacated, “the court shall prior to or in its order render and grant separate judgment in favor of any attorney who has appeared for a party to such action . . . for the amount of fees and disbursements to which such attorney . . . is, in the court’s judgment, entitled and against the party responsible therefor.” Presumably, as no statute is cited in the motion, it was pursuant to this section that the wife’s attorneys made the application, but it would seem such an application was premature and must be conditioned upon an order of dismissal of the action or the vacation of a judgment affecting marriage.
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 [539] by the husband but the fulfillment of a duty imposed by the court. The fact the enforcement of the duty calls for the payment of money does not create a debt within the meaning of art. I, sec. 16 of the constitution, forbidding imprisonment for debt. In re Milburn (1883), 59 Wis. 24, 17 N. W. 965.
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 pay 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 paid because under sec. 247.23, Stats., the payment is to enable the wife “to carry on or defend the action.” The allowance is for her benefit.
[540] The constitutional prohibition against imprisonment is for a debt, not any kind of debt, but only such debt as arises out of or is founded upon a contract. Ordering a husband to pay his wife’s attorney’s fees in a divorce action, even if he stipulated to pay the fees, is not a debt arising out of or founded upon a contract of his. It may be his wife’s debt, but it is not his nor does it become his debt. The imprisonment must be for the debt. In State v. Croy (1966), 32 Wis. 2d 118, 145 N. W. 2d 118, we held sec. 943.21, Stats, (intentionally absconding without paying a hotel bill) did not violate art. I, sec. 16, Wisconsin Constitution, because that statute punishes fraud by imprisonment although the fraud arises in connection with the nonpayment of a debt.
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 have a direct interest in a pending suit. He should not be a party to it and an advocate too. It is true, sec. 247.23 (3), Stats., provides the attorney may be protected by a judgment upon proper notice and presumably made a party for that purpose only. But in such a situation there is a reconciliation or the suit is otherwise at an end. See 27A C. J. S., Divorce, p. 866, sec. 201, for the view a court has inherent power to grant a judgment for attorney’s fees when a divorce action is dismissed.
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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 [538] judgment and no notice was given or request made to hold the husband in contempt.
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 husband to pay the expenses of prosecution in a divorce action as are given to them by statute. In sec. 247.23, Stats., and its predecessors, the power is granted to the court to order a husband to pay “such sums for the support of the wife and the minor children in her custody and enabling her to carry on or defend the action ... as in its discretion shall be deemed just and reasonable.” In sub. (3), there is a provision that if the action affecting marriage is dismissed or a judgment therefore vacated, “the court shall prior to or in its order render and grant separate judgment in favor of any attorney who has appeared for a party to such action . . . for the amount of fees and disbursements to which such attorney . . . is, in the court’s judgment, entitled and against the party responsible therefor.” Presumably, as no statute is cited in the motion, it was pursuant to this section that the wife’s attorneys made the application, but it would seem such an application was premature and must be conditioned upon an order of dismissal of the action or the vacation of a judgment affecting marriage.
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 [539] by the husband but the fulfillment of a duty imposed by the court. The fact the enforcement of the duty calls for the payment of money does not create a debt within the meaning of art. I, sec. 16 of the constitution, forbidding imprisonment for debt. In re Milburn (1883), 59 Wis. 24, 17 N. W. 965.
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 pay 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 paid because under sec. 247.23, Stats., the payment is to enable the wife “to carry on or defend the action.” The allowance is for her benefit.
[540] The constitutional prohibition against imprisonment is for a debt, not any kind of debt, but only such debt as arises out of or is founded upon a contract. Ordering a husband to pay his wife’s attorney’s fees in a divorce action, even if he stipulated to pay the fees, is not a debt arising out of or founded upon a contract of his. It may be his wife’s debt, but it is not his nor does it become his debt. The imprisonment must be for the debt. In State v. Croy (1966), 32 Wis. 2d 118, 145 N. W. 2d 118, we held sec. 943.21, Stats, (intentionally absconding without paying a hotel bill) did not violate art. I, sec. 16, Wisconsin Constitution, because that statute punishes fraud by imprisonment although the fraud arises in connection with the nonpayment of a debt.
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 have a direct interest in a pending suit. He should not be a party to it and an advocate too. It is true, sec. 247.23 (3), Stats., provides the attorney may be protected by a judgment upon proper notice and presumably made a party for that purpose only. But in such a situation there is a reconciliation or the suit is otherwise at an end. See 27A C. J. S., Divorce, p. 866, sec. 201, for the view a court has inherent power to grant a judgment for attorney’s fees when a divorce action is dismissed.
[541] The amount of the allowance for an attorney’s fees and in fact whether any such allowance should he made in a divorce case is discretionary with the court. This discretion is expressly given by the language of sec. 247.23, Stats. King v. King (1964), 25 Wis. 2d 550, 131 N. W. 2d 357. Under this grant of power, the court can deny an allowance for attorney’s fees in one case and grant the wife an allowance sufficient to pay in part or entirely the attorney’s fees in another case. Either may be an abuse of discretion in a particular case. In Spheeris v. Spheeris (1967), 37 Wis. 2d 497, 155 N. W. 2d 130, this court intimated it would be an abuse of discretion on the facts of that case to require the husband to pay to the wife the total costs of her attorney’s fees and disbursements. But this court did not mean thereby that as a matter of law it would be an abuse of discretion in every case for a court to allow the wife the entire cost of her attorney’s fees in prosecuting or defending a divorce action. Any such language or inference in Wahl v. Wahl (1968), 39 Wis. 2d 510, 526, 159 N. W. 2d 651; Johnson v. Johnson (1969), 42 Wis. 2d 237, 244, 166 N. W. 2d 230; Martin v. Martin (1970), 46 Wis. 2d 218, 228, 174 N. W. 2d 468; and Schipper v. Schipper (1970), 46 Wis. 2d 303, 313, 174 N. W. 2d 474, is withdrawn or overruled. Each allowance must rest on its own facts to meet the standard of the statute of what is just and reasonable. Here, the allowance was a “contribution.” For such to be tested as just and reasonable, the trial court would have to know what the total fee agreed upon by the wife and her attorney was. This is not shown in this record.
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 [542] his failure to pay was attributable to him as a fault. It may well be that O’Connor was guilty of wilfully refusing to comply with the court’s order and his past record would seem to suggest that he may have been; but a suggestion is not enough even if his contempt was in issue. But here, the motion of the attorneys was not for contempt but to reduce the order to pay to a judgment for their direct benefit. The motion was not the equivalent of a motion to hold the defendant in contempt of court for a contumacious refusal to pay a sum ordered by the court by one who has the ability to make such payment.
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 sec. 295.02, Stats. There is no merit in this argument. The failure to pay did not occur in the presence of the court.
The trial court may have proceeded under sec. 295.03, Stats., which provides, in effect, when an order of the court requires payment of costs or “any other sum of money” in an action for divorce or legal separation, the court may issue a warrant of commitment. See sec. 247.80 which provides for enforcement of alimony “or other allowance” under sec. 295.03 or otherwise. However, it has long been settled in Wisconsin that a person cannot be held in contempt of court for the failure to pay money unless the refusal is willful and contemptuous and not a result of his inability to pay. This was so held in a divorce case in which we said, “Imprisonment [on contempt] should not be ordered when it is made to appear that the default is the result of an inability to pay.” Howard v. Howard (1955), 269 Wis. 334, 337, 69 N. W. 2d 493. See also: Staples v. Staples (1894), 87 Wis. 592, 596, 58 N. W. 1036; and Warren v. Rosenberg (1896), 94 Wis. 523, 69 N. W. 339. The essential finding in such a contempt must be that the defendant is able to pay or [543] should be able to pay if he can work and will not and the refusal to pay is willful and with intent to avoid payment. 2 Nelson, Divorce and Annulment (2d ed), p. 421, sec. 16.20; In re Adam’s Rib, Inc. (Kaminsky) (1968), 39 Wis. 2d 741, 159 N. W. 2d 643.
This view is reflected in sec. 295.04, Stats., which provides that a court may, upon being satisfied by affidavit of the commission of misconduct, make an order requiring the accused party to show cause why he should not be punished for alleged misconduct. See Upper Lakes Shipping v. Seafarers’ International Union (1964), 23 Wis. 2d 494, 128 N. W. 2d 73. The whole purpose of the hearing is to determine the ability to pay and the reason for the failure to pay the amount of money ordered. Due process requires at least a notice and a hearing in the contempt process, whether the proceeding is under statutory authority or is an exercise of the inherent power of the court to enforce its order by an in per-sonam remedy. On this record, the defendant was not given either a notice of or a hearing on the issue the court decided.
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.