Coulborn v. Joseph

• Decision Date: 14 April 1943
• Docket Number: 14511.
• Parties: COULBORN et al. v. JOSEPH.
• Court: Georgia Supreme Court

25 S.E.2d 576

195 Ga. 723

COULBORN et al. v. JOSEPH.

No. 14511.

Supreme Court of Georgia

April 14, 1943

Syllabus by the Court.

1. A decree of an English court of chancery, rendered when both parties were citizens of that realm, which adjudges that the defendant therein is liable to the plaintiff in a given sum of money, no question being raised as to the court having jurisdiction of the subject-matter or of the parties, and there being no suggestion of fraud in its rendition, will by the courts of this State be given conclusive effect.

2. A decree rendered in England, 'In the High Court of Justice, Probate, Divorce, and Admiralty Division,' which provides that 'until further order or until she shall remarry' the husband shall pay to the wife an annual sum for the maintenance of a child of the marriage, is not rendered unenforceable in the courts of this State on the ground that it was not final in its nature, when only so much of it as it is sought to enforce here relates to the matured and unpaid installments of the amounts awarded as maintenance.

3. Upon application of the foregoing principles, it was not erroneous to overrule the general demurrer to the petition.

Mrs Florence Coulborn Joseph brought in Fulton superior court a suit against Arthur Percy Rushton Coulborn and Mrs. Rushton (Helen Marie) Coulborn, alleging that the defendants are residents of Fulton County, Georgia; that the defendant A. P R. Coulborn is indebted to plaintiff in the sum of nearly $9,000, and the defendant, Mrs. Coulborn, his wife, is indebted to her in the sum of $3,000, by reason of the following facts: The petitioner and the defendant A. P. R Coulborn were husband and wife; and while both were residents and citizens of England, petitioner sued him for divorce and was granted a divorce decree, she being granted the custody of their minor child and a certain allowance as alimony for herself and child for their support. She alleged, that defendant A. P. R. Coulborn was indebted to her by virtue of said English decrees and certain contracts between the parties; that in an action brought by her in the High Court of Justice, Chancery Division, against the defendant Arthur Percy Rushton Coulborn, that court ordered him to convey to her a dwelling-house owned by him, known as Firenze, the mortgage on which was to be completely paid off by September 29, 1938, and petitioner was to have said property free and clear of any encumbrance, said property having a reasonable value of $4,500; that in violation of the decree, the defendant refused and neglected to pay off the mortgage and deed the property to petitioner unencumbered, and in consequence she has suffered a loss of $4,500; that said dwelling-house has a reasonable rental value of $350 per year, and has been rented at that price per year; that the defendant failed and refused to pay the cost on that and other actions, and the rents have been impounded by the court and applied to attorneys' costs which the defendant was obligated to pay, and petitioner was thereby deprived of the rental value of said property, amounting in the aggregate to $1,535; that she instituted in the High Court of Justice an action against Arthur Percy Rushton Coulborn, respondent, and after a hearing that court provided, among other things, that after the remarriage of petitioner the respondent was to pay her for the maintenance of their minor child the sum of 150 pounds ($750) per year until the child shall attain the age of 21 years, the sum to be paid in monthly installments, until November, 1939, when, over the protest of petitioner, defendant began to pay on the current rate of exchange existing as of the time the decree was entered, and has thus paid considerably less than the court intended that petitioner should have for the maintenance of said child; that said payments have been accepted by petitioner for the child without prejudice since November, 1939; that said deficiency amounts to $12.50 per month since that date, and aggregates $450; and that by reason of defendant's failure to pay anything for several months, he is in default to her in the further sum of $355; that defendant failed to pay the costs assessed against him on various action between petitioner and him in the English court, necessitating an action by her against him, and under the English law these costs became charges against her upon defendant's failure to pay them, although the cost decrees are in her favor; and that the costs for which defendant A. P. R. Coulborn is indebted to petitioner by reason of the various actions, and by reason of the judgments of court against him for the benefit of the petitioner, are as follows:

1. Proceeding between plaintiff and defendant for the custody of the minor child, the cost of being taxed on February 7, 1938, against the defendant in the sum of $425. (85 pounds, 6 shillings).

2. It was necessary for petitioner to bring a suit for maintenance against the defendant, and in addition to the judgment heretofore referred to, in favor of petitioner for herself and her minor child, a cost was assessed against the defendant in the sum of $450 (90 pounds); and these costs remain unpaid to date.

3. There was another suit instituted by petitioner against the defendant, to enforce the terms of the marriage settlement, and judgment was rendered in favor of petitioner on March 30, 1938, and costs were assessed by the court on December 10, 1940, three-fourths to defendant and one-fourth to petitioner, and defendant's share of said cost and his indebtedness to petitioner by reason thereof is $1,130.

4. That the total cost involved in these various actions, for which the defendant is liable to petitioner by the said decrees and judgments, is the sum of $2,005. The judgments hereinabove referred to are attached as exhibits.

The petitioner alleges that the defendant A. P. R. Coulborn purchased a house and property located on Howell Mill Road, of a stated value, and that while he was insolvent and greatly indebted to petitioner by virtue of the English decrees hereinbefore referred to he transferred that property to his present wife, the other defendant, the transfer being without any valid consideration and made for the purpose of defeating petitioner's rights. There are like allegations as to certain Danish bonds.

The prayers were: (1) That the court enjoin both defendants from transferring, selling, or conveying the property on Howell Mill Road, or in any way or manner changing the status of same. (2) For a like injunction as to the Danish bonds. (3) That in the event the defendant, Mrs. Coulborn, has herefore disposed of the Danish bonds, a judgment in personam be rendered against her for the value thereof, to wit, $3,000. (4) That the court make the English judgments the judgments of this court. (5) That the alleged transfer and conveyance of said property between A. P.

R. Coulborn and his wife be declared null and void and of no effect, and the said deed be cancelled.

(6) That petitioner have judgment against defendant Arthur Percy Rushton Coulborn in the sum of $8,894.66, and all costs of court. (7) For a rule nisi against the defendants, and for such other relief as the court may deem just and proper in the premises.

Attached to the petition as exhibits were purported copies, viz.: (A) Decree of the High Court of Justice, Chancery Division, wherein it appeared that Florence Violet Coulborn was plaintiff in an action against Arthur Percy Rushton Coulborn, and that evidence was heard, and the defendant by hiscounsel admitting his liability to convey to the plaintiff a certain dwelling and premises known as Firenze; further reciting that the defendant by his counsel undertook to pay or discharge on or before September 29, 1938, all money secured by a mortgage thereon; further reciting that, plaintiff and defendant by their counsel consenting, the decree ordering the defendant to convey to the plaintiff forthwith the dwelling-house and premises known as Firenze, subject to a mortgage of the date of September 21, 1933, but otherwise free from incumbrances, and subject to and with the benefit of the said tenancy agreement as from the 29th of September, 1938, but so that the plaintiff shall be entitled to the rent becoming payable thereunder on the after said last-named date, and that 'the costs of the plaintiff of this action and counterclaim be taxed by the Taxing Master, and that the defendant to pay to the plaintiff (a) 3/4 of her taxed costs of the action, and (b) the whole of her taxed costs of the counterclaim. And it is ordered that, subject to aforesaid, this action do stand dismissed out of this court.'

(B) A consent order in the High Court of Justice, Probate, Divorce, and Admiralty Division, between Florence Violet Coulborn, petitioner, and Arthur Percy Rushton Coulborn, respondent, reciting that upon hearing the solicitors for both parties, and by consent, 'It is ordered that Arthur Percy Rushton Coulborn do pay or cause to be paid to Florence Violet Coulborn, the petitioner, during their joint lives and until further order or until she shall remarry, as from the date of the decree absolute herein, to wit, the 28th day of June, 1938, maintenance at and after the rate of 150 pounds per annum less tax, and the sum of 75 pounds per annum less tax, for the maintenance of the child, etc.'

(C) Another order in the same High Court of Justice, Chancery Division, that the costs of the plaintiff in that action and counterclaim be taxed by the taxing master, and that defendant pay to the plaintiff (a) three-fourths of her taxed costs of the action, and (b) the whole of taxed costs of the counterclaim.

(D) An order from the High Court of Justice in the same action between the same parties, that ...