GOTTLIEB v. GOTTLIEB, 42 Or. App. 643 (1979)

601 P.2d 817

GOTTLIEB, nka Campbell, Appellant, v. GOTTLIEB, Respondent — Cross-Appellant.

No. 367-806, CA 13311Oregon Court of Appeals.Argued September 21, 1979. Reversed October 22, 1979. Reconsideration denied December 13, 1979.
Petition for review denied January 22, 1980.

Appeal from Circuit Court, Multnomah County.

Albin W. Norblad, Judge.

Jack L. Kennedy, Portland, argued the cause for appellant. With him on the brief was Kennedy, King McClurg, Portland.

Clifford W. Powers, Portland, argued the cause for respondent — cross-appellant.

Before Schwab, Chief Judge, and Buttler and Gillette, Judges.

SCHWAB, C. J.

Reversed. No costs to either party.

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SCHWAB, C. J.

This is an appeal by mother from an order changing the physical custody of the nine-year-old daughter of the parties from mother to father. The marriage of the parties was dissolved on May 11, 1972, at which time a decree was entered approving and incorporating into it an agreement negotiated by the parties. Pursuant to the decree, joint legal custody of the parties’ daughter was awarded to father and mother, with mother being awarded physical custody. The child has resided with her mother continuously since the entry of the decree.[1]

There is no useful purpose to be served by setting out the facts. Suffice it to say that we agree with the court’s conclusion that:

“* * * This case squarely falls under [Niedert and Niedert, 28 Or. App. 309, 559 P.2d 515, rev den (1977),] and the facts therein, so in my opinion there is no change of circumstances and under this case there would be no change of custody.”

However, the trial judge decided to change custody on the basis of Whitaker v. Glerup, 35 Or. App. 201, 580 P.2d 1073 (1978), which he construed as modifying the change-of-circumstances rule discussed in Niedert. Whitaker does not apply where there has been a previous adjudication of custody by a court of competent jurisdiction.

Reversed. No costs to either party.

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