dissenting:
The majority misperceives the jurisdiction of the trial court. The majority confuses modification of custody orders entered in divorce cases with grandparental visitation orders. The majority treats them as if they were the same. They are not. Custody in a divorce case and grand-parental visitation are very different.
Courts are given a powerful tool in divorce cases. If there are minor children of the marriage, the court “may modify or change any order whenever circumstances render such change proper ...” The court has jurisdiction over “... guardianship, custody, medical care, support and education ...” of such children. 43 O.S.1990 Supp. § 112(A)(1), (3).
Grandparental visitation is not governed by 43 O.S.1990 Supp. § 112. Instead, grandparental visitation is controlled by 10 O.S.1990 Supp. § 5. Unlike 43 O.S. § 112, 10 O.S. § 5 does not give the court power to “modify or change” a grandparental visitation order. Thus, an order under 10 O.S. § 5 becomes final according to the same rules as other orders.
Grandparents lack even implied rights under 43 O.S. § 112. Grandparents may not intervene in a divorce case, even when the grandparents are seeking custody. In Logan v. Smith, 602 P.2d 647 (Okl.1979), the supreme court held that 10 O.S. § 5 did not give grandparents standing to seek to modify custody in a divorce case.
This matter started as a divorce case. It is not one now, however. The father, son of the grandmother here, died before the divorce case was tried. The intervention of the grandmother in this case was improper. Under Logan, the grandmother had no right to proceed under 43 O.S. § 112, or any other divorce statute. The grandmother’s rights here must, therefore, be tested as if she had filed an independent lawsuit seeking visitation rights. The trial court had no jurisdiction over the children under 43 O.S. § 112. The trial court’s 1989 order, denying the grandmother visitation, was the same as any other final order. The trial court correctly held it lacked the jurisdiction to modify it. Only in a divorce action may a trial court modify a final order.
The majority relies on In Re Bomgardner, 711 P.2d 92, 97 (Okl.1985), and Guardianship of Sherle, 683 P.2d 78, 80 (Okl.App.1984). Both cases are cited for the proposition that grandparents have an equitable right to visitation, independent of 10 O.S. § 5. That rule does not support the majority’s holding, however. Equity cases are subject to the same rules of res judicata as cases at law. Neither In Re Bomgardner, nor Guardianship of Sherle involved a modification of a final order.
In Bomgardner, the trial court denied grandparental visitation under 10 O.S. § 5, and the grandparents appealed. In Bom-gardner, the trial court’s right to modify a visitation order was not an issue; there, the grandparental visitation order was the first one in the case.
In Sherle the trial court, in its visitation' order, left open the details of the days and times the grandparents would have visitation. The court of appeals expressly held the trial court’s second order, which merely fixed the days and times, was not a modification of the first. The .court held the second order was a clarification of the first. Thus, the court held, in effect, that the first order was interlocutory. Sherle, therefore, recognizes that final orders dealing with grandparental visitation are subject to the doctrine of res judicata. Sherle was a guardianship case. The child, as a ward of the court, therefore, was subject to the trial court’s continuing jurisdiction.
The majority’s confusion about the distinction between parental custody and *1056grandparental visitation is made clear in one sentence and a case citation in the majority opinion:
The test to modify a previous custody or visitation order is “change of circumstances” ... Boatsman v. Boatsman, 697 P.2d 516, 519 (Okla.1984) ...
The term “change of circumstances” comes from 43 O.S. § 112. By its terms, § 112 can apply only in divorce cases. Boats-man, supra, involved a custody dispute between parents in a divorce case. This is not a divorce case. The majority, therefore, wrongly applies the “change of circumstances” rule. The trial court correctly held its 1989 visitation order was final.
The doctrine of res judicata is based on the sound judicial policy that litigation must end. Heiser v. Woodruff, 327 U.S. 726, 66 S.Ct. 853, 90 L.Ed. 970 (1946), Reh. Den. 328 U.S. 879, 66 S.Ct. 1335, 90 L.Ed. 1647. Grandparents seeking visitation rights, as with other litigants, should be limited to one trial on the merits. If grandparents have the money — and the determination — to institute multiple visitation hearings because of “Change of Circumstances,” the grandparents can wreak financial and emotional havoc on the parent. In Re Sherle, supra, dissenting opinion, 683 P.2d at 81.
The supreme court recognized that a judgment concerning an attempt by grandparents to obtain custody of a child under the dependent and neglected child portions of Title 10 is subject to res judicata. Montgomery v. Moore, 292 P.2d 1040 (Okl.1955). In Montgomery, the supreme court found res judicata inapplicable to the particular trial court order before it. The basis of the court’s holding was that the trial court order was interlocutory, as it left further findings to be made. Montgomery, therefore, supports the proposition that orders brought under Title 10 are subject to res judicata.
The trial court’s order dismissing the grandmother’s application for visitation should be affirmed. I dissent.