                                                                       .



                            No.     94-006
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994



THE UNIVERSITY OF TULSA,
          Plaintiff and Appellant,
     v.
GERTRUDE M. SPIERLING,
fjkja GERTRUDE H. GORE,
ajkja TRUDI SPIERLING,
          Defendant and Respondent.




APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Missoula,
               The Honorable John W. Larson, Judge presiding.


COUNSEL OF RECORD:

          For Appellant:

               Julio K. Morales; Morales Law
               Office, Missoula, Montana
          For Respondent:
               Gertrude M. Spierling, Everett,
               Washington, Pro Se


                              Submitted on Briefs:       March 24, 1994
                                              Decided:   May 3, 1994
Filed:




                                  Clerk   J
                                      ..
Justice John Conway Harrison delivered the Opinion of the Court.


       Appellant University of Tulsa (University) appeals from the

October 26,      1993 order of the Fourth Judicial District Court,

Missoula      County,    granting     respondent       Gertrude    M.     Spierling's

(Spierling's)      motion     to     dismiss     based   on    lack      of    personal

jurisdiction.      We affirm.
       Since we conclude that the University's cause of action was
properly dismissed for lack of personal jurisdiction, we do not

address appellant's other arguments.

       The facts of this case are not in dispute.                 In 1978 Spierling

and her husband, James A. Gore (Gore), were divorced in Missoula

County, Montana.        In 1986, also in Missoula County, Spierling sued

Gore for child support payments.                 After ordered by the court to

make    the    payments,      Gore         requested   his    then-employer,         the

University, to deduct the payments from his paychecks.                         The first

payment was deducted from Gore's October 31, 1986, paycheck and

remi tted to the Clerk of the Court of Missoula County (Clerk).

Spierling moved to Washington state in 1988 where she continued to

receive child support payments through the Clerk.                      The University
continued to remit the child support payments to the Clerk after
Gore    had    left     the   University's        employment      in    June,      1990,
specifically throughout the months of July, August, September and

October, 1990.        During those same months, Gore was also personally

remitting      child    support     payments      to   the    Clerk.          Spierling,

therefore, was receiving twice the amount of child support payments

actually due her during those four months.                    On June 3, 1993 the

                                             2
           'f'   ..                                                    .....   .

University filed        suit in Missoula county against Spierling to

recover the excess payments.
     Did the District Court err in granting spierling's motion to

dismiss based on lack of personal jurisdiction?

     The District Court concluded that Spierling's receipt of child

support payments from the Clerk did not constitute substantial

contacts with the state of Montana to establish a basis for general

personal jurisdiction over Spierling.           In addition, the District

Court concluded that the passive receipt of payments could not be

analogized to any of the enumerated activities set out in Montana's

long-arm statute.         A trial court's conclusions of law will be

upheld if we determine that its interpretation of the law was

correct.         steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470,

474-475, 803 P.2d 601, 603.
     The University contends that spierling's receipt of child

support     payments     should   be   analogized   to   either   a   business

transaction or an act resulting in accrual of a tort action in

Montana.

     Personal jurisdiction of a Montana court over a defendant is
premised upon meeting the requirements of a two-part test.                         The

first prong is set out in Rule 4B(1), M.R.Civ.P., Montana's long-
arm statute, and the second part of the test is derived from the
constitutional right of a defendant to due process.

     Rule 4B(1), M.R.Civ.P., states in pertinent part:

     All persons found within the state of Montana are subject
     to the jurisdiction of the courts of this state.       In
     addition, any person is subject to the jurisdiction of
     the courts of this state as to any claim for relief

                                        3
          r    "
                                            ..                             -.
                                     -
     arising from the doing personally, through any employee,
     or through an agent, of any of the following acts:
           (a)  the transaction of any business within this
     state;
           (b)  the commission of any act which results in
     accrual within this state of a tort action. . . .

     In Simmons oil Corp. v. Holly Corp. (1990), 244 Mont. 75,83,

796 P.2d 189, 194, we clarified the "found within" concept as
applied to general personal jurisdiction:

     A party is "found within" the state if he or she is
     physically present in the state or if his or her contacts
     with the state are so pervasive that he or she may be
     deemed to be physically present there.      A nonresident
     defendant that maintains "substantial" or "continuous and
     systematic" contacts with the forum state is found within
     the state and may be subject to that state's jurisdiction
     even if the cause' of action is unrelated to the
     defendant's activities within the forum.

simmons Oil, 796 P.2d at 194.
     since Spierling, a resident of Washington state, is obviously

not "physically present" in Montana, we must determine whether she

is "found within" Montana according to the definition of this

concept as set out in simmons Oil, 796 P.2d at 194.                     Spierling's

only contact with the state of Montana was her receipt of child

support       payments    through   the    Clerk   in   Missoula   County.      The

Missoula County location was, in essence, a meeting point between
the University,          located in Tulsa,       Oklahoma,    and Spierling,    who

resided in Washington state.              The payment was simply sent to the

Montana location and subsequently forwarded on to Washington.                    We
stated in simmons oil that in order to be "found within" a state,

one's contacts must be pervasive, substantial, or continuous and

systematic. 796 P.2d at 194.          Spierling's contact with Montana was

neither        pervasive     nor    substantial.             Although    Spierling

                                           4
                                                                                    ·.   ,
                                                                                               •



systematically received the payments, the act of receiving payments

is    passive    and     is    not   actually    a    "contact"    in      the     sense       of
conducting an activity.                    The   facts    in    this       case     can       be

analogized to the facts in May v. Figgins (1980), 186 Mont. 383,

607    P.2d     1132.         In   May,   defendant     Figgins,      a    Montana           road

contractor with several employees,                   paid a total of thirty-five

monthly employer contribution checks into the designated depository

bank in Colorado.             607 P.2d. at 1133-34.            We held that Figgins
lacked     sufficient         "minimum    contacts"      to    subject       him    to       the
jurisdiction of the Colorado court because the                            act     of merely

sending checks did not constitute purposeful availment of the

privilege of conducting business within that forum.                        May, 607 P.2d.

at 1138.      Accordingly, in this case, we hold that the act of merely

receiving checks is passive and inSUbstantial and does not subject

Spierling to general personal jurisdiction.

       The University contends that specific long-arm jurisdiction

exists over Spierling under either SUbsection (a) or (b) of Rule

4B(1), M.R.Civ.p.             As to subsection (a), the transacting of any

business wi thin this state,              no authority exists to support the
contention that the mere receipt of payments constitutes a business
transaction.            The   Uni versi ty   argues     that    the       legal    monetary

obligation between Spierling and Gore is, in essence, a business

transaction and that the parties chose Montana as the forum for the

transaction.        The University also contends that this so-called

transaction is analogous to entering into a separation agreement.

We disagree.


                                             5
                                                                            .   ~   .
                                              •
                                    ~.




     A   business       transaction,          by     definition,    entails         both

communication and acti vi ty .           The sUbstantive divorce and child

support issues were settled long ago between Spierling and Gore.

Spierling's    only     remaining   contact with Montana            was    receiving

payments.     She was not transacting any business.

     The University contends, under Rule 4B(I) (b), M.R.Civ.P., that

its cause of action is based in tort and that Spierling's receipt

of child support payments in Washington resulted in the accrual of

a tort within the state of Montana.                In other words, the so-called

tort arose out of spierling's contacts with Montana.

     Since none of the other criteria under Rule 4B(I), M.R.civ.P.

are applicable, we conclude that there is neither general personal

jurisdiction     over    spierling,      nor       specific   (long-arm)   personal

jurisdiction over Spierling.

     Because we hold that the state of Montana has no jurisdiction

over Spierling, we do not reach the issue of whether Spierling's

due process rights have been violated.                  Edsall Construction Co.,

Inc. v. Robinson (1991), 246 Mont. 378, 381, 804 P.2d 1039, 1041.

     Affirmed.

     Pursuant to section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company.




                                          6
        .   ,
                ...
.
'
    •




    7
