                             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 5 5 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 O F 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 G r a d e , CA 93420

                                                    ED SMITH
                                                    CLERK OF THE SUPREME COURT


                                                    BY:
