NO. 92-425 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

ROBERT JOSEPH IRWIN, 

Petitioner and Appellant, 

and 

KELLY ANN IRWIN, 

Joint-Petitioner and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Christopher Daly, Attorney at law, 

Missoula, Montana 

For Respondent: 

Kelly Ann Irwin, Pro Se, 

Arroyo Grande, California 

Decided: June 23, 1993 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Robert Joseph Irwin appeals from a July 13, 1992, order of the 

District Court for the Fourth Judicial District, Missoula County, 

in which the court reaffirmed its decision that Montana is an 

inconvenient forum for child custody determinations pursuant to 

5 40-7-108, MCA, and stayed further proceedings for 30 days to 

allow Kelly Irwin to move a California court to assume jurisdiction 

over this matter. We affirm. 

The sole issue for our consideration is whether the District 

Court abused its discretion when it concluded that, in this 

instance, Montana is an inconvenient forum for a child custody 

proceeding. 

The Irwin marriage was dissolved by order of the Fourth 

Judicial District Court on October 31, 1989. The parties were 

awarded joint custody of the two minor children--Jake, who was six 

years old, and Caitlin, who was four years old--and Kelly was named 

as primary physical custodian. Two months later, after giving 

Joseph notice as required by the divorce decree, Kelly and the 

children moved to California to be closer to family and friends. 

At the time, Joseph was unemployed and could not provide support 

for the children. 

After Kelly left Montana, Joseph returned to Seattle, where 

the couple had previously lived, to look for employment. They 

attempted reconciliation during the spring of 1990, but when 

unsuccessful, Joseph brought the children to Montana for summer 

visitation. 
In August 1990, Joseph moved the court to modify custody and 

requested that he be named primary physical custodian. Kelly filed 

a motion to dismiss based on lack of jurisdiction, inconvenient 

forum, and insufficient grounds to modify custody. The court 

denied Kelly's motion and concluded that it would exercise 

jurisdiction to hear Joseph's motion. Based on the serious 

allegations which were raised by Joseph, the court allowed the 

children to stay in Montana with Joseph during the 1990-91 school 

year, pending a decision on the merits of the motion. 

The court held extensive hearings, and on February 22, 1991, 

issued an order in which it concluded that Joseph's allegations 

were unfounded and that the modification motion had been frivolous 

and an abuse of the judicial process. The court ordered the 

original decree to remain in place without alteration. However, 

because the children were enrolled in Montana schools, the court 

determined that it would be in their best interests to have them 

remain with Joseph until the end of the school year, at which time 

Kelly would be reinstated as primary physical custodian. 

Kelly removed Jake and Caitlin to California in June 1991, and 

they have lived in California since that time. Joseph has 

continued to work temporary jobs in the State of Washington, but 

has maintained legal residency in Montana, and has brought the 

children to Montana for brief visits. 

Because the Montana court was continuing to exercise 

jurisdiction over the issue of child support, Kelly moved the 

District Court on April 29, 1992, to stay further proceedings and 
determine proper venue due to the fact that the children have 

continuously resided and attended schools in California since June 

1991. The court issued its opinion and order on June 1, 1992, in 

which it concluded that Montana is an inconvenient forum pursuant 

to 40-7-108, MCA. All Montana proceedings were stayed for 

30 days to allow Kelly to move a California court to assume 

jurisdiction. Joseph moved the court to reconsider its ruling, and 

on July 13, 1992, the court reaffirmed its decision that Montana is 

no longer the proper forum for further custody determinations. 

Joseph appeals. 

Joseph contends that the District Court abused its discretion 

when it relinquished jurisdiction in favor of California and 

concluded that Montana is an inconvenient forum under the 

provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), 

found at 55 40-7-101 through -125, MCA. He argues that the Montana 

court is in the superior position to determine the merits of the 

case because it has had extensive opportunities to observe numerous 

witnesses, hear the testimony of experts, and observe the demeanor 

and character of the parties that have been involved in this 

litigation since the time of the original dissolution. 

Furthermore, he contends that he should not be penalized because he 

is currently employed and resides in Washington. Joseph asserts 

that it is Kelly who has created the inconvenience by putting 2000 

miles between herself and the Missoula court. 

The stated purpose of the UCCJA is to avoid the jurisdictional 

conflicts that arise in the enforcement and modification of custody 
decrees, and to assure that any litigation involving minor children 

occurs in the state where the child has the closest connection and 

where significant evidence concerning the child's care, protection, 

training, and personal relationships is most readily available. 

Section 40-7-102, MCA. Section 40-7-108, MCA, provides that a 

court of competent jurisdiction may decline to exercise 

jurisdiction if it finds that it is an inconvenient forum under the 

circumstances, and that a court of another state is a more 

appropriate forum. In making such a determination, the court shall 

consider if it is in the child's best interest for another state to 

assume jurisdiction, taking into account such factors as whether 

another state is the child's home state, whether substantial 

evidence concerning the child's welfare is more readily available 

in another state, and whether the exercise of jurisdiction by a 

Montana court would contravene the UCCJA's stated purposes. 

Section 40-7-108(3), MCA. 

When reviewing discretionary matters such as this, our 

standard of review is whether or not the court abused its 

discretion. Steer, Znc. v. Deparhent of Revenue (1990) , 245 Mont . 470, 475, 

803 P.2d 601, 603-04. In this instance, we conclude that the court 

did not abuse its discretion when it determined that Montana is an 

inconvenient forum and that the children's interests would be best 

served by having a California court assume jurisdiction. 

It is apparent from reviewing the record and the court's 

findings of fact and conclusions of law that the court carefully 

considered where evidence regarding the children's environment and 

5 
welfare was most readily available. After considering the factors 

in 3 40-7-108(3), MCA, the court found that it would be 

inappropriate to require Kelly and the children, and any witnesses 

familiar with the children, to travel to a remote court in Montana 

every time an issue involving custody, child support, or 

modification of the prior decree was raised. California is now the 

children's home state, and that is where the most significant 

evidence regarding the children's care, protection, and social 

development is available. 

For these reasons, the decision of the District Court is 

affirmed. 

We concur: 
June 23, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Christopher Daly 

Attorney at Law 

101 E. Broadway, Ste. 200 

Missoula, MT 59802 

Kelly Ann Invin 

2790 Green Place Rd. 

Arroyo Grade, CA 93420 

ED SMITH 

CLERK OF THE SUPREME COURT 

BY: