M.K. AND M.K., ON BEHALF OF MINOR CHILD, M.K. VS. BOARD OF EDUCATION, ETC. (COMMISSIONER OF EDUCATION)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 5, 2019
• Docket: A-2085-17T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2085-17T3

M.K. and M.K., on behalf of minor child, M.K.,

Petitioner-Appellant,

v.

BOARD OF EDUCATION OF THE BRIDGEWATER-RARITAN REGIONAL SCHOOL DISTRICT, SOMERSET COUNTY,

Respondent-Respondent.

Submitted May 30, 2019 – Decided July 5, 2019

Before Judges Alvarez and Reisner.

On appeal from the Commissioner of Education, Docket No. 363-12/15.

Pasquale Marago, attorney for appellants.

The Busch Law Group LLC, attorneys for respondent Bridgewater-Raritan Regional School District Board of Education (Elizabeth Farley Murphy and Nicholas Celso, of counsel and on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent Commissioner of Education (Joan M. Scatton, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

M.K. (Tom) and M.K. (Mary), on behalf of their son M.K. (Sam), a minor,

appeal from the Commissioner of Education's June 5, 2017 final agency decision

adopting without modification the initial decision of an Administrative Law

Judge (ALJ). The ALJ found that Sam was not domiciled in the Bridgewater-

Raritan Regional School District during the 2015-2016 school year and yet

attended public school in the District. Based on that determination, the

Commissioner ordered Tom and Mary to pay $38,329.20 for tuition costs to

defendant, the Board of Education of the Bridgewater-Raritan Regional School

District. We now reverse and remand.

The appeal began after the Bridgewater-Raritan Regional Board of

Education finance/facilities/transportation committee held a hearing and ruled

that Sam was not domiciled in the District, and should be disenrolled and pay

tuition costs of "$212.94 for each day [the] child attended school during the

ineligible period." Tom and Mary appealed to the Commissioner, who

transferred the matter to the Office of Administrative Law to be heard as a

contested case. N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13. The ALJ

A-2085-17T3 2 decided the matter based on his review of some documentation and his

credibility rulings. He found the school's attendance officer to be very "credible

and persuasive[,]" while Tom and Mary, and Tom's parents, were incredible

witnesses.

The family testified that Tom, Mary, and Sam resided with Tom's parents

in Bridgewater in a basement apartment where they had lived for years. The

school's attendance officer conducted surveillance on sixty days over the course

of one and a half school years. On thirty-five occasions, he observed the mother

and the minor child at Mary's mother's home in South Bound Brook, a separate

school district. On each occasion, Mary drove the child to school in

Bridgewater. On at least two occasions, the investigator saw Mary pick Sam up

from school and take him to the South Bound Brook residence. He did not

conduct surveillance at the Bridgewater residence. The investigator never saw

the child at South Bound Brook when he surveilled the home in the summer.

Two family vehicles registered in Mary's name are listed at the South

Bound Brook address, as is a rental agreement for a storage unit. Mary claimed

her mother co-signed the loan for those vehicles, and thus her mother's address

in South Bound Brook had to be given. She also said her mother paid for the

storage unit rental, and she therefore gave her mother's address.

A-2085-17T3 3 Tom and Mary proffered documents from 2015 listing Mary's address in

Bridgewater, including: Mary's driver's license, her food stamp allotment, a

vaccination certificate for the family pet as well as a reminder from the vet that

the animal was due for another booster, a life insurance certification, bank

statements, and insurance identification cards for a pickup truck and Mazda.

Mary testified that she and Tom file their returns with the IRS listing the

Bridgewater address. They submitted letters from neighbors in Bridgewater and

South Bound Brook stating that Mary lives in Bridgewater.

During the course of his testimony, Tom said Sam spent his evenings after

school at Bridgewater with him, engaging in typical every day after-school

activities, and went to bed there. Mary frequently would not be in the house,

however, when he awakened during the night, which would cause the child to

have an anxiety attack. Sam's struggles with the condition were verified by a

letter from a pediatric psychiatrist. When the child became anxious and upset,

either Mary would pick up the child and return to South Bound Brook, or Tom

would drive him over. Tom's father claimed he too would drive the child to

South Bound Brook.

Mary started staying overnight in South Bound Brook mainly because her

mother suffered from life-threatening pulmonary diseases that often necessitated

A-2085-17T3 4 someone's presence at night, and she had a very elderly grandmother at a

different South Bound Brook address who also required her assistance. Mary

said she started keeping the child with her overnight, and that the child was with

her in South Bound Brook on weekends when school was not in session.

The ALJ concluded the family concocted this story to avoid Sam's

disenrollment in Bridgewater. He found it inherently suspect that parents of a

child suffering from severe anxiety and behavioral struggles would add to his

stress by frequently transporting him from his home in the middle of the night

to the home of his ailing grandmother. Thus the ALJ decided that Tom and

Mary failed to meet their preponderance of the evidence burden of proof.

We do not question the ALJ's judgment that the parents' and the in-law's

testimony was unreliable. We do question his ultimate conclusion, however,

that the testimony and the attendance investigator's observations established that

Sam was domiciled outside of the District in the 2015-2016 term.

The ALJ made no mention of N.J.A.C. 6A:22-3.1(a)(1). That regulation

provides that a student is considered domiciled in the school district in which

the parent or guardian is domiciled. The ALJ made no findings with regard to

Tom's statement that the child lived with him in Bridgewater. Nor did the ALJ

in any fashion consider whether Mary intended to establish a permanent abode

A-2085-17T3 5 in South Bound Brook or was there merely to temporarily assist her mother and

grandmother, taking the child with her. A temporary relocation with the child

does not necessarily mean that the child's domicile changed. The regulations

embody the principle that a minor child is domiciled where the parent is

domiciled. P.B.K. v. Bd. of Educ. of Borough of Tenafly, 343 N.J. Super. 419,

427 (App. Div. 2001).

We note Tom's testimony that he spent some time in a drug rehabilitation

facility, and Mary's testimony about her mother's serious illness. Given the

family's situation, including a father struggling with drug addiction, and a

mother struggling with responsibilities for an ailing parent and grandparent, it

is legally possible that she and the child could have been found to have had two

simultaneous residences, although only one domicile. See D.M. v. Bd. of Educ.

of Princeton Reg'l Sch. Dist., 366 N.J. Super. 269, 274-75 (App. Div. 2004).

Because of her life circumstances, Mary may well have been temporarily living

in two residences without intending to make her mother's home her domicile.

The real question is not where Sam resides, but where he is domiciled. And that

question is answered by examining where Mary and Tom are domiciled. See

N.J.A.C. 6A:22-3.1(a)(1). The investigator's statements that over the course of

270 school days he observed Sam at the South Bound Brook residence thirty-

A-2085-17T3 6 five times is insufficient to decide the matter. The investigator never surveilled

mother and child at the Bridgewater residence.

The ALJ's skepticism was well-grounded. But given the peculiar facts

here, there was simply insufficient evidence in the record for a determination of

domicile. Accordingly, we remand the matter for a further hearing to clarify the

issue. We express no view as to the ultimate outcome.

Reversed and remanded. We do not retain jurisdiction.

A-2085-17T3 7