No. 07-431
INTHE SUPREME COURT OF THE STATE OF MONTANA
1988

INRE THE CUSTODY OF DONALDD. ZIER,JR.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, TheHonorableRussell 

### K. Fillner, Judgepresiding.
COUNSELOF RECORD:
ForAppellant: Michael G. Majerus,Billings,Montana
For Respondent:
D. Michael Eakin,Montana Legal Services, Billings, Montana

Submitted on Briefs: Jan. 14, 1988 Decided: March 1, 1988 Filed: 

### MAR

### 1

## -1988

ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court.

Mr. Zier filed a petition for modification of child custody in the District Court for Yellowstone County. The respondent moved to dismiss the petition on grounds that the CrowTribal Courtwas amore appropriate forum. TheDistrict Court granted this motion and deferred jurisdiction to the Tribal Court. We affirm. Mr. Zier presents one issue on appeal: Did the District Court abuse its discretionby dismissing the petition for modification of custody, thereby deferring to the jurisdictionof the Crow Tribal Court? Petitioner Donald Zier and respondent Meredith Hogan
were married in 1983 at Crow Agency, Montana. Donald, Jr.,
was born to the couple in December of thatyear. In 1984Mr. Zierpetitioned the DistrictCourt of the Thirteenth Judicial District for a legal separation. Ms. Hogan responded by requesting dissolution,whichwas granted inMarch 1985. The parties were granted joint legal custody over Donald, Jr., with Ms. Hogan as primary custodian. InAugust of 1985Ms. Hogan and Mr. Zier agreed that he would have physical custody of the boy. Mr. Zier petitioned the CrowTribal Court for guardianship,and the tribal court, in October 1985, placed the child in the custody of his father for a period of six months at which time another hearing was to be held to determine permanent custody. Evidently that hearing was not held. Mr. Zier moved to Billings inApril 1986. In October 1986he filed a petition in District Court seeking modification of that court's 1985 custody award and asking for full legal custody of Donald, Jr. Later, the tribal court held an evidentiary hearing concerning custody of the boy and continued thematter untilcompletion of a home study by Court Services of the Thirteenth Judicial District. In February 1987,Ms. Hogan filed
a motion to dismiss the petition for modification of custody in the District Court on grounds that the Crow Tribal Court
was amore appropriate forum. On July 29, 1987, the District Court deferred jurisdictionof the custody matter to the Crow Tribal Court and dismissed Mr. Zier's petition formodification of custody. This is the order from which Mr. Zier appeals.

Did the District Court abuse its discretionby dismissing the petition for modification of custody, thereby deferring to the jurisdiction of the Crow Tribal Court? Mr. Zier argues that the District Court, not the Crow Tribal Court, was the "most appropriate forum for handling this custody dispute.'I Section 40-7-108, MCA, provides in pertinentpart as follows:

A court which has jurisdiction under this chapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a courtof another state is amore appropriate forum. (2)A finding of inconvenient forum may be made upon the court1 s own motion or upon motion of aparty or a guardian ad litem or other representative of the child. (3) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors,among others: (a)if another state is or recently was the child's home state; (b)if another state has a closer connection with the child and his family or with the child and one ormore of the contestants;(c)if substantial evidence concerning the child's present or future care,protection, training, and personal relationships is more readily available in another state; (d)if the parties have agreed on another forum which is no less appropriate;and (e) if the exerciseof jurisdictionby a court of this state would contravene any of the purposes stated in 40-7-102. This statute should be considered in the district court's determination whether to exercise jurisdiction or defer to the tribal court in a child custodymatter. In re Bertelson

(1980), 189 Mont. 524, 540, 617 P.2d 121, 130. However, in Bertelson we outlined other factors, in addition to the statute,which the District Court must consider in deciding the jurisdiction question. Wewill not overturn the District Court's judgment in the absence of clear abuseofdiscretion. Both parties argue to this Court factswhich simply are not a part of the record on appeal. In addition, they have appended to their briefs documents which were not before the District Court and therefore will not be considered by this Court. The District Court in its order referred to a March hearing,yet the appellanthas not filed a transcript of that hearing with this Court. What we do have is the following list of stipulated facts whichwasbefore the DistrictCourt:

1. Petitioner got actual physical custody of theparties' child in August 1985. 2. Petitionermoved from the CrowReservation to Billings in the last part of April of 1986. 3. Respondent has been a student and attending school in Nevada during the last year. Her permanent residence has always been on the Crow Reservation. 4. Respondent currently resides on the Crow Reservation. 5. Both the maternal and paternal grandparents of the child reside on the reservation.6. An evidentiary hearing was held in the Crow Tribal Court. Before completion of the evidentiary hearing, the trial judge continued the matter until the completion of a home study by Court Services. The tribal court is awaiting that reportbefore proceeding. These facts together with the rest of the record on appeal present no basis for seriously questioning the District Court's discretion. On the contrary, we commend both the District Court and the Crow Tribal Court for the obvious spirit of cooperation between them. The District Court's decision to defer to the Tribal Court's jurisdiction avoids competition and conflict between the courts, promotes the purposes of the Uniform Child Custody Jurisdiction Act as set forth in § 40-7-102,MCA, and discourages continuing battles for custody. BecauseMr. Zier has failed to show an abuse of discretion,we affirm the District Court's deference to the jurisdiction of the Tribal Court and its dismissal of the petition for modification of custody. Af