In re the Marriage of Fenn

VAN HOOMISSEN,

concurring.

I agree with the majority’s result. However, I write to observe that a good case can be made for dismissing mother’s appeal on our own motion. See Gratreak v. North Pacific Lumber Co., 45 Or App 571, 576-77, 609 P2d 375, rev den 289 Or 373 (1980).

The maxim that one who comes into equity must come with clean hands is applicable in domestic relations cases. Parks v. Parks, 182 Or 322, 329, 187 P2d 145 (1947); Hollingworth v. Hollingworth, 173 Or 286, 292, 145 P2d 466 (1944). The dissolution decree awarded joint custody of the *514parties’ child. Without father’s knowledge or consent, mother moved the child from California to Texas. When he went to Texas to see the child, she refused him visitation. When, in accordance with the parties’ prior agreement, he took physical custody of the child and returned her to Eugene, mother and her new husband came to Eugene, attacked father and returned the child to Texas.

When father moved in the circuit court to modify the custody provisions of the parties’ decree, mother appeared to contest that motion. At that time, the circuit court awarded her temporary custody of the child subject to father’s visitation. Thereafter, she prevented father from visitation. Father then asked that she be held in contempt and that temporary custody be changed to him. Mother appeared at that hearing. The circuit court found her in contempt and gave temporary custody to father. Mother then returned the child to father. Thereafter, mother and an unidentified man took the child from her school in Eugene, after assaulting a school administrator. Mother was subsequently indicted in Lane County for custodial interference. Warrants have been issued for her arrest in Oregon and Texas. The present location of mother and child is unknown.

The reason I agree with the majority’s result is that father must still locate and secure physical custody of the child. I believe that the courts of other states will give greater weight to a decision by this court on the merits than they might give to a decision dismissing mother’s appeal.