specially concurring.
While I concur in the result reached by the majority, I do not concur in that portion of the opinion which invalidates the proviso in the trial court’s decree authorizing the wife to request a review of the provision regarding spousal support "at any time without a necessity of showing a substantial change of circumstances.”
At the outset it should be pointed out that the decree provided for monthly spousal support for a three-year period only.
It is my view that the trial judge did have authority to make this provision a part of the decree under the terms of its equitable powers. First, I can find nothing in our domestic relations code which prohibits a trial court, in the exercise of its sound judicial discretion, from inserting the above provision in its decree, where the circumstances justify doing so. Second, it seems to me that as a practical matter this flexibility is necessary in order to permit the court to perform its proper function in domestic relations cases. See, e.g., Remington v. Remington, 29 Or App 135, 562 P2d 586 (1977), where this court allowed to stand a circuit court order providing for a visitation arrangement which was to be reexamined by the court at the end of six months.
In Gwinner and Gwinner, 24 Or App 743, 547 P2d 151, Sup Ct review denied (1976), cited by the majority, this court had occasion to consider a similar question. There the parties were contesting the right *186to custody of their two minor children who were in the mother’s custody pursuant to the decree dissolving the marriage. Three years later the father moved for a change in custody. Following a hearing on the merits the circuit court entered an order providing for a "temporary” change of custody to the father for a period of 10 months. The mother appealed to this court. The father moved to dismiss the appeal on the ground that no appeal would lie from a temporary order.
This court held that the circuit court’s order would be treated as permanent in nature and hence appeal-able. Further we said, obiter, that the "change of circumstances” rule pertaining to modification of custody provisions of a decree cannot be avoided by entry of a "temporary” order that runs for an extended period of time.
I do not read ORS 107.135 or Gwinner and the authorities cited therein as forbidding the trial judge in a domestic relations matter from expressly reserving power to modify unto itself by inserting the above provision in its decree. Rather, Gwinner should stand only for the proposition that such a proviso cannot prevent the losing party from taking an immediate appeal from that decree.
The general rule is stated in 24 Am Jur2d 784 et seq, Divorce and Separation § 667 (1966), as follows:
"The propriety of inserting a provision in a decree of alimony reserving the power of modification in anticipation of a possible change in the financial circumstances of the parties, although not specifically passed upon, has been recognized in a number of cases. Indeed, some of the earlier cases state that a decree awarding alimony should always contain a provision reserving the right subsequently to modify the allowance, as to future payments, on the application of either party, according to their subsequent varying circumstances, and that if the trial court should fail so to provide in the award, such failure may be remedied on appeal. On the other hand, a provision in a decree serving juiisdiction to modify it is *187superfluous where a statute retains the cause in court whenever the decree provides for the support and maintenance of the wife and children.”
The "change of circumstances” rule is a salutary one. It is presumably based upon the doctrine of res judicata and is firmly fixed in our domestic relations jurisprudence. There is not, however, any such requirement in our statutes. I do not believe we should expand this rule to prohibit courts of domestic relations from exercising their judicial discretion as was done here and in Remington v. Remington, supra. See for examples, McLaughlin v. McLaughlin, 253 Or 447, 454 P2d 857 (1969), and Kent and Kent, 28 Or App 107, 558 P2d 1262, Sup Ct review denied (1977). This to me is an unwarranted curtailment of the trial court’s necessary and proper discretion.