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01/27/76 SABOURIN v. SABOURIN

January 27, 1976

SABOURIN
v.
SABOURIN



Appeal from Wayne, Neal Fitzgerald, J.

Bashara, P. J., and D. F. Walsh and W. S. White,* JJ.

SYLLABUS BY THE COURT

1. Pleading -- Complaint -- Amendment -- Leave to Amend -- Court Rules.

Leave of the court, after a party has moved to amend his complaint, shall be freely given when Justice so requires; however, leave should not be given where the amendment and relating evidence would prejudice the objecting party in maintaining his action or defense upon the merits (GCR 1963, 118.1, 118.3).

2. Pleading -- Amendment of Pleading -- Prejudice -- Court Rules.

The "prejudice" to a party which would defeat a motion to amend pleadings refers to matter which would prevent a party from having a fair trial, or matter which he could not properly contest, e.g. when surprised; it does not refer to the effect in the result of the trial otherwise (GCR 1963, 118.3).

3. Divorce -- Property Settlement -- Factors.

Factors to be considered in arriving at an equitable division of property in a divorce action include the source of the property, length of marriage, needs of the parties, their earning ability, and the cause of the divorce.

4. Pleading -- Amendment -- Marriage -- Annulment -- Divorce -- Prejudice.

A trial court, which granted a plaintiff leave to amend his complaint for annulment of a marriage by adding a count for divorce, did not err where the defendant was not prejudiced by the amendment, the evidence before the court was sufficient to enable the court to equitably distribute the parties' property, and defense counsel had more than adequate information to present capable argument as to plaintiff's interests in the property settlement.

5. Parties -- Joinder -- Divorce.

A trial Judge was not obligated to permit a party other than the husband or wife to be joined in a divorce action although the defendant alleged that this party usurped monies and assets of the marriage, where there was no allegation that the party conspired with one spouse to conceal assets from the other spouse.

The opinion of the court was delivered by: Per Curiam

Complaint by Eugene J. Sabourin against Louise Grace Sabourin for annulment of their marriage and, after amending his complaint, for divorce. Judgment of ...


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