Bisson v. University of New Hampshire

578 A.2d 320, 133 N.H. 353, 1990 N.H. LEXIS 72
CourtSupreme Court of New Hampshire
DecidedJuly 13, 1990
DocketNo. 89-010
StatusPublished
Cited by3 cases

This text of 578 A.2d 320 (Bisson v. University of New Hampshire) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bisson v. University of New Hampshire, 578 A.2d 320, 133 N.H. 353, 1990 N.H. LEXIS 72 (N.H. 1990).

Opinion

Thayer, J.

This case presents us with the question of whether, when ruling on the parties’ cross motions for summary judgment, the Trial Court (Nadeau, J.) erred in granting that of the defendants, thereby upholding the decision of the University of New Hampshire Board of Trustees that the plaintiff Todd D. Bisson was not entitled to the benefit of in-state status for purposes of determining tuition costs. For the reasons that follow, we affirm.

In August of 1982, Todd Bisson, a high school graduate of the International School of Kenya and unemancipated son of plaintiff Gary [354]*354Bisson, a foreign service officer then stationed in Kenya, enrolled at the University of New Hampshire (UNH) as an out-of-state student from the Commonwealth of Virginia, the undisputed domicile of his father at that time. On December 2, 1983, however, Todd, claiming that his parents had terminated their residence in Virginia and had established residence and domicile in the State of New Hampshire as of June 1983, applied to the University Registrar’s Office for in-state status for tuition purposes. The registrar’s office denied this application, noting that Todd’s parents were not living in New Hampshire and had not been domiciled in the State for twelve months, prerequisites for establishing domicile as mandated by the University Rules at that time.

A subsequent appeal to the University of New Hampshire Residency Appeal Board (appeal board) did not provide the plaintiffs with the relief they sought. Additional evidence was presented to and considered by the appeal board, but Todd was still denied in-state status because his parents had not resided in New Hampshire since 1959. The University of New Hampshire Board of Trustees (board of trustees) upheld the decision to deny Todd the in-state classification. The plaintiffs’ ultimate appeal to the superior court, as authorized by RSA 187-A-.16, XIX, also proved fruitless, as it was dismissed with prejudice for failure to file within the thirty-day appeal period.

Undaunted, Todd re-applied for in-state status in June of 1985. Once more, however, the registrar’s office denied his request, stating that Todd’s parents did “not live in New Hampshire and [did] not meet the definition of domicile included in the rules governing tuition at UNH.” The plaintiffs again took advantage of the appellate avenues available to them, but did not prevail. The appeal board, finding that Todd’s “parents’ circumstances [had] not significantly changed since 1984,” believed them to be “domiciled outside of New Hampshire.” Even though it acknowledged the fact that the Bissons owned property in the State and provided “other indicia which help[ed] support the claim of domicile in New Hampshire,” the appeal board concluded that Todd’s parents had “not lived in New Hampshire for any period since 1959.” The Bissons then appealed to the board of trustees, which declined to conduct a review.

Dissatisfied with this result, the plaintiffs appealed to the superior court. Both parties filed motions for summary judgment, each asserting the existence of no genuine issue of material fact and entitlement to judgment as a matter of law. After a hearing on the motions, the trial court, recognizing that the issue before it was to ascertain [355]*355whether Todd Bisson’s parents were domiciliaries of the State of New Hampshire at the time of Todd’s application for in-state status, found that UNH “ha[d] consistently required ‘habitation’ in the State of New Hampshire along with an intention to remain here before it will confer in-state status to a student.” The superior court further found that “[although the plaintiffs may have formed the requisite mental state for domicile, [it could not] say the Trustees’ determination that they failed to meet the requirement of physical presence or ‘habitation’ was unreasonable or unlawful.” The trial court therefore granted the defendants’ summary judgment motion.

The plaintiffs now appeal to this court, their primary contention being that the trial court erred in finding neither unlawful nor unreasonable the defendants’ determination that the plaintiffs failed to establish domicile in the State of New Hampshire. They also present for our review the related argument that the decision was “made without evidence or a record of a reasoned consideration of all material facts and issues and [was] therefore unreasonable and unlawful.” The plaintiffs further complain that the board of trustees’ refusal to review the record in this case was an abuse of discretion, and was unlawful and unreasonable. Finally, they argue that the trial court erred in refusing to grant their motion for summary judgment. In effect, the plaintiffs are asking this court to make the determination that Todd Bisson, during a portion of his student tenure at UNH, was entitled to in-state status for tuition purposes. Because we hold that the plaintiffs failed to plead facts sufficient to establish domicile in the State of New Hampshire, we affirm the decision of the trial court without reaching the other issues raised in this appeal.

The undisputed facts of this case, as presented to the trial court, are as follows. Plaintiff Gary Bisson (sometimes referred to as Mr. Bisson) was born and raised in the State of New Hampshire. He grew up in Gorham, is a product of the New Hampshire public school system, and graduated from UNH. In 1959, he entered the United States Foreign Service. Since that time he has spent the majority of his career serving this country overseas. In the late 1970’s, however, he established domicile in Virginia while he was working at the Department of State in Washington, D.C. He purchased a home, paid Virginia taxes, and became a member of the Virginia bar. Mr. Bisson subsequently left Virginia in 1980 when he was posted to Kenya. He was later stationed in Swaziland and, in June of 1983, came to New Hampshire during his annual leave from the foreign service. No one [356]*356doubts that it was Mr. Bisson’s desire at this time to relinquish his domicile in Virginia and to establish domicile in New Hampshire.

To this end, he purchased from his brother a one-half interest in the family ancestral home in Gorham. Since 1983, he has paid property taxes to the town of Gorham as well as resident taxes there for his wife, Ellen, and son, Todd. He also obtained a New Hampshire driver’s license and opened a New Hampshire bank account which he continues to maintain. He registered to vote in New Hampshire and, in fact, has voted in every State and local election since 1983. He also terminated his voter registration in Virginia, went on inactive status with the Virginia bar and ceased paying taxes there. The Commonwealth of Virginia, recognizing Mr. Bisson’s domiciliary change, provided him with a refund of taxes paid during the second half of 1983.

Furthermore, when he became eligible to be commissioned as a Foreign Service Officer in 1984, Gary Bisson was commissioned as a domiciliary of the State of New Hampshire. And, as of 1986, the federal government has recognized New Hampshire as Gary Bisson’s official home and leave State.

The plaintiffs assert that the above enumerated facts are not in dispute and are sufficient to establish domicile for University purposes, thereby entitling them to judgment as a matter of law. The trial court did not agree, and we affirm.

At the outset, it is important to recognize that the board of trustees is authorized by State law to “[establish a differential in the rate of tuition to be charged all in-state and out-of-state students.” RSA 187-A:16, XVIII.

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Cite This Page — Counsel Stack

Bluebook (online)
578 A.2d 320, 133 N.H. 353, 1990 N.H. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bisson-v-university-of-new-hampshire-nh-1990.