Failure to disclose a witness' identity prior to trial in itself is not grounds for reversal. Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715 (Ct.App. 1988). The objecting party must show that he was prejudiced by such non-disclosure.
Accordingly, courts that have considered custody or visitation disputes involving the religious practices of the parents have generally required a clear showing that a parent's religious practices have been or are likely to be harmful to the child before allowing judicial interference with those religious practices. In re Marriage of Murga, 103 Cal.App.3d 498, 163 Cal.Rptr. 79, 82 (1980); Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861, 863 (1977); Osier v. Osier, 410 A.2d 1027, 1030 (Me. 1980); Felton v. Felton, 383 Mass. 232, 418 N.E.2d 606, 607-08 (1981); Pope v. Pope, 267 S.W.2d 340, 343 (Mo. App. 1954); LeDoux v. LeDoux, supra, 452 N.W.2d at 5; Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715, 719-21 (Ct.App. 1988); Hanson v. Hanson, supra, 404 N.W.2d at 463-64; Zummo v. Zummo, 394 Pa. Super. 30, 574 A.2d 1130, 1140-41 (1990); Robertson v. Robertson, 19 Wn. App. 425, 575 P.2d 1092, 1093 (1978); Munoz v. Munoz, supra, 489 P.2d at 1135-36. See also Developments in the Law: The Constitution and the Family, 93 Harv.L.Rev. 1156, 1338-40 (1980); Anno., Religion As Factor In Child Custody And Visitation Cases, 22 A.L.R.4th 971, 1020-28 (1983).
]" Id. Our cases have generally held that undisclosed witness testimony should be excluded under two circumstances: (1) where prejudice to the appellant is severe because the testimony of the witness is crucial to the appellee's case and (2) where the appellee has gained a tactical advantage by willfully failing to disclose the intention to call a witness. {37} In Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715 (Ct.App. 1988), we explained the type of prejudice warranting reversal on the basis of undisclosed witness testimony. We held that the trial court had abused its discretion in allowing the "surprise testimony" of a doctor, which was "the only evidence supporting the trial court's denial of joint custody."
To allow witness to testify is within court's discretion. Citing Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715 (Ct.App.), cert. denied, 107 N.M. 16, 751 P.2d 700 (1988), Super Save argues that the trial court committed error in allowing Montoya to call Cassandra Maestas as a rebuttal witness. Maestas was not disclosed as a potential witness in response to Super Save's pretrial interrogatories.
See State v. Ruiz, 2007–NMCA–014, ¶¶ 50–54, 141 N.M. 53, 150 P.3d 1003 (stating the district court did not abuse its discretion by admitting a surprise rebuttal witness because the opposing party failed to show materiality, prejudice, and the inadequacy of the court's remedy). {32} In demonstrating that the district court abused its discretion, Plaintiffs rely on Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715 (Ct.App.1988), and Shamalon Bird Farm, Ltd. v. U.S. Fidelity & Guaranty Co., 111 N.M. 713, 809 P.2d 627 (1991). Plaintiffs argue that this Court should, like this Court in Khalsa and the Supreme Court in Shamalon Bird Farm, “find that Plaintiffs were unfairly prejudiced by the belated identification of Dr. Pike.”
{35} The cases on which Bank relies are inapposite. Bank relies on Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715 (Ct.App. 1988). In Khalsa this Court held that the trial court abused its discretion in allowing testimony of two experts when the party for whom the experts were testifying did not disclose the experts until the day before trial and the opposing party had no opportunity to depose the experts and was unable to effectively cross-examine them.
The trial court overruled the objection, and Dr. Cave was allowed to testify. 26. Citing Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715 (Ct.App.), cert. denied, 107 N.M. 16, 751 P.2d 700 (1988), and Shamalon Bird Farm, Ltd. v. United States Fidelity Guaranty Co., 111 N.M. 713, 809 P.2d 627 (1991), the City claims unfair surprise to the extent Dr. Cave based her testimony on work she completed after the City's deposition had been completed. The City claims prejudice because Dr. Cave was the only expert to testify that Amanda suffered permanent cognitive impairment from the near-drowning accident.
, See Khalsa v. Khalsa, 107 N.M. 31, 36 (Ct. App. 1988) (general testimony regarding parents' divergent religious beliefs causing child to be upset or confused insufficient to justify restriction of exposure to noncustodial parent's religion); Munoz v. Munoz, 79 Wn.2d 810, 815 (1971) (duality of religious beliefs does not per se create conflict in child's mind); Robertson v. Robertson, 19 Wn. App. 425, 427 (1978) (child's alarm at religious beliefs insufficient); Zummo v. Zummo, 394 Pa. Super. 30, 74-76 n.39 (1990) (rejecting speculation by parents and experts as to potential future emotional harm to child based on assumption that exposure is generally harmful); In re Marriage of Weiss, 42 Cal.App.4th 106, 116-117 (1996) (rejected notion that contradictory messages caused harm, no evidence child had disciplinary problems, nor bruises); In re Marriage of Mentry, 142 Cal.App.3d 260, 266 (1983) (held that evidence of child's social adjustment problems in school and periodic stomach aches were not attributable to conflict over religion); Kirc
Most disputes involve conflicting religious practices between the divorced parents, however, the same principles have been applied equally when one parent practices no religion. See Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715 (1988); Robert O. v. Judy E., 90 Misc.2d 439, 395 N.Y.S.2d 351 (N.Y. Fam. Ct. 1977). Therefore, courts should not interfere when a parent has chosen not to participate in religious services during visitation with children any more than it should enjoin a parent from attending any particular denomination of religious service without a showing of harm to the welfare of the child to justify this intrusion into a parent's religious freedoms.
See, e.g., In re Jacinta M., 107 N.M. 769, 771, 764 P.2d 1327, 1329 (Ct.App. 1988) (finding must be supported by evidence); Khalsa v. Khalsa, 107 N.M. 31, 36, 751 P.2d 715, 720 (Ct.App.) (harm to child cannot be assumed but must be demonstrated), cert. denied, 107 N.M. 16, 751 P.2d 700 (1988); Fitzsimmons v. Fitzsimmons, 104 N.M. 420, 423, 722 P.2d 671, 674 (Ct.App.) (court's ruling must be supported by evidence), cert. quashed, 104 N.M. 378, 721 P.2d 1309 (1986). We hold that, under New Mexico law, the district court erred in concluding that this type of an agreement is unenforceable as a matter of law.