specially concurring.
I concur in the result but on a different ground.
It is my view of this case that at the time the mother filed her petition for modification in California, Oregon rather than California was the more appropriate state to assume jurisdiction of any petition for modification because of the terms of § 3 of the Uniform Child Custody Jurisdiction Act (ORS 109.730(1)(a)). I say this because (1) Oregon was the home state of this child at the time and (2) the child was in the legal custody of the father in Oregon, although temporarily visiting in California. Therefore the California court should have declined jurisdiction under the above provision and the forum non conve*872niens provision of the Uniform Child Custody Jurisdiction Act (ORS 109.770).
However, when the father elected to submit to the jurisdiction of the California court and proceeded to a hearing on the merits, it seems to me that he thereby waived all objections to jurisdiction he could have urged under the terms of the Uniform Child Custody Jurisdiction Act and consented to have the cause determined on the merits by the California court.
The California court has now decided the issue of change of custody between the parties in favor of the mother. Under these circumstances the father should be estopped from commencing a new proceeding in Oregon at this time to relitigate the same issue, absent a showing of change of circumstances. See, Sweeney v. Jackson County, 93 Or 96, 178 P 365, 182 P 380 (1919); 24 Am Jur2d 1103, Divorce and Separation §§ 949, 972 et seq (1966).