Bell v. Odil , 60 N.M. 404 ( 1956 )

COMPTON, Chief Justice

(dissenting).

The heavy burden resting upon a trial judge in child custody cases should not be made more difficult by reversal of its orders, particularly where the interest of grandparents alone is primarily concerned. So far the error complained of is harmless and may be corrected upon motion.

The very New Mexico case cited by the majority in support of the opinion, Martinez v. Martinez, 49 N.M. 405, 165 P.2d 125, 128, refutes the action which it proposes to take here. On the facts, it is a carbon copy, and we there refused to reverse the judgment. Note what Justice Brice said in speaking for the court:

“We would exercise our authority to reverse this case and remand it for a proper trial, notwithstanding the state of the record, but for the fact that the appellant may at any time file an application to reopen the case if the trial court has erred in the disposition it has made of the child. We are constrained to leave the matter in the hands of the district judge, with full confidence that he will exercise his authority to reopen the cause for further consideration if in his judgment it is for the child’s welfare.”

I would say something of the sort here :and permit the trial court a free hand in correcting its own error. The majority ■concluding otherwise, I dissent.