Shim v. Rutgers-The State University

924 A.2d 465, 191 N.J. 374, 2007 N.J. LEXIS 697

• Court: Supreme Court of New Jersey
• Decided: June 14, 2007
• Status: Published

Opinions

Justice LONG

delivered the opinion of the Court.

In 2003, eighteen-year-old Ezrina Shim applied for admission to Rutgers University (Rutgers) for the fall term. At the time, she had lived in New Jersey for four years and therefore was presumed, under N.J.S.A 18A:62-4, to be a domiciliary for the purpose of in-state tuition. Under Rutgers’ reading of the applicable administrative regulation, N.J.AC. 9A:5-l.l(f), Shim was subject to a counter-presumption of non-domiciliary status solely because of her financial dependence on her out-of-state parents. Rutgers only considered evidence bearing on that financial dependence in deciding Shim’s case. Because Shim could not establish that she was financially independent of her parents, her application for in-state tuition was denied. Shim appealed and the Appellate Division reversed and remanded the case to Rutgers for reconsideration of all of the evidence to determine whether the presumption of non-domicile had been overcome and whether she, in fact, established that she was domiciled here. We now affirm, although on different grounds.

We hold that, pursuant to the legislative scheme of N.J.S.A. 18A:62^4, a student who has lived in New Jersey for twelve months prior to enrollment is presumed to be a domiciliary for tuition purposes. If that student is, in fact, dependent on out-of-state parents, that dependence creates a genuine issue regarding domicile and the presumption in her favor is neutralized. However, that does not give rise to the contrary presumption that she is a non-domiciliary. Rather, she is neither presumed a domiciliary nor presumed a non-domiciliary. Rutgers must then fully, fairly, and dispassionately consider all submitted evidence, including but not limited to evidence of the student’s dependence on out-of-state parents. If a preponderance of the evidence indicates that the student’s domicile is in New Jersey then it must classify her as a domiciliary for in-state tuition purposes.

I.

Ezrina Shim was born in Montgomery County, Pennsylvania on November 5, 1984. Sometime later, Shim left the United States with her parents and settled in Korea. In August 1999, she moved back to the United States to live with her aunt and uncle, the Parks, in Mount Laurel, New Jersey. Her parents remained in Korea.

While living with Mr. and Mrs. Park, Shim attended four years of high school in Mount Laurel. She also obtained a New Jersey driver’s license; acquired and registered an automobile in New Jersey; opened a bank account in this State; worked several jobs here; filed New Jersey personal income tax returns; and registered to vote in Burlington County. In addition, Shim forged several meaningful social relationships in and around the State.

Since 1999, Shim has resided continuously in Mount Laurel with her aunt and uncle, visiting her parents in Korea only twice: for six weeks in the summer of 2000 and for three weeks in the summer of 2002. She has represented to others that she considers New Jersey her home and has no intention of returning to live in Korea. She does not speak Korean fluently, and has no meaningful social life or close friends in Korea.

In September 2003, Shim, then eighteen years old, enrolled as an undergraduate student at Rutgers. Prior to enrollment, the Admissions Office determined that Shim was not a resident of this State for tuition purposes because she was a dependent student whose parents were not domiciled here. Shim, however, claimed residency based on her living arrangement with her aunt and uncle.

As a result, Rutgers contacted Shim by letter in March 2003 to determine whether she had a claim for in-state tuition. The letter asked whether Mr. and Mrs. Park were Shim’s legal guardians and requested that Shim complete a Residency Analysis Form (RAF). When Shim did not respond to that initial communication Rutgers sent her another letter, dated June 17, 2003, requesting the same information. Having received no immediate response, on July 11, 2003, Rutgers issued Shim a tuition bill for the fall of 2003, charging her the higher tuition rate for an out-of-state resident.

On July 30, 2003, Dennis Lim, Shim’s youth pastor at Emmanuel Church in Philadelphia, sent Rutgers a letter attesting that he had known Shim for three years and that during that time she had resided with her aunt and uncle in Mount Laurel, New Jersey. Lim also noted that, to his knowledge, “Ezrina has no interest[ ] in returning to Korea after she graduates from college” and “her life is here in the United States, not in Korea.”

Upon receipt of Lim’s letter, Rutgers again asked whether Mr. and Mrs. Park were Shim’s legal guardians and requested that Shim complete the RAF. Rutgers also indicated that if Mr. and Mrs. Park were Shim’s legal guardians, they should submit documentation supporting their claim to be New Jersey domiciliaries.

Shim responded on November 8, 2003, after she had enrolled but within the timeframe specified by Rutgers in its Policy Statement on Student Residency for Tuition Purposes. In her response, Shim formally requested a change of residency status and enclosed a partially-completed RAF.

On her RAF, Shim indicated that she had moved to New Jersey “to live permanently in the United States.” She also claimed that she hoped to finance her college expenses through financial aid.¹ Shim did not claim to be financially independent, a dependent of a New Jersey resident parent or legal guardian, or a spouse of a New Jersey resident. Consequently, she did not complete Parts II and III of the RAF, which, per the form’s instructions, are to be filled out by the financially independent student, his/her spouse, or the New Jersey resident parent or legal guardian of a dependent student. In support of her claim, however, Shim submitted an “Enclosures List” with fourteen documents,² a “Description of Facts” detailing her relationship to New Jersey, and an “Argument” which she later supplemented with an addendum.

Shim set out the basis for her request for in-state tuition in her “Argument.” There, she noted that under N.J.SA 18A:62-4, all students who are domiciled in New Jersey are entitled to in-state tuition rates, and individuals who have lived in the state for twelve months prior to enrollment in a public university are presumed domiciliaries. As Shim had lived in the state for over four years before her enrollment at Rutgers, she argued that she should have been presumed eligible for, and received, in-state tuition rates.

In arguing, Shim recognized that N.J.AC. 9A:5-l.l(f) establishes a counter-presumption that dependent students with parents domiciled outside of the state are non-domiciliaries for tuition purposes. According to Shim, that regulatory presumption conflicts with the above-mentioned legislative presumption and therefore should be set aside. Alternatively, Shim argued that even if the two presumptions did not directly conflict, the administrative regulation should be declared void as an unauthorized exercise of agency power.

Finally, Shim claimed that she had rebutted the regulatory presumption of non-domicile and proved her domicile through the documentary evidence she provided with her RAF. As a legal adult, Shim contended that she possessed the capacity to choose her own domicile and had submitted evidence sufficient to show that (1) she is physically present in New Jersey and (2) intends to remain here. Accordingly, Shim maintained that Rutgers should have acknowledged her as a domiciliary and granted her in-state tuition rates.

On December 4, 2003, Rutgers’ Admissions Office rejected Shim’s request for in-state residency status.³ In its letter, Rutgers explained that N.J.AC. 9A:5-1.1 and 9A:9-2.6 mandate that an undergraduate student is presumed to have the residency status of her parents, unless the student proves that she is “independent” as defined in the Policy Statement and the state regulations. Because Shim never claimed that she was “independent,” and provided no evidence to that effect, Rutgers continued to presume that she was a non-resident of New Jersey for tuition purposes.

Further, Rutgers noted that the evidence Shim provided was “of residence in New Jersey for the sole purpose of attending school,” and that fact plus “a presence in the state [was], in and of itself, insufficient to establish residence for the purpose of in-state tuition.” In essence, Rutgers found that Shim’s residence in the State for twelve months prior to enrollment was irrelevant to its domicile determination because it was unrelated to the “controlling provision in [the] case,” namely that Shim is a dependent student on out-of-state parents and thus presumed to be a non-domiciliary for tuition purposes.

Shim timely appealed that decision through Rutgers’ administrative process. Her appeal was denied at every stage for the same reasons that Rutgers had previously stated. In addition, Rutgers added that a dependent student can overcome the presumption of shared domicile “if the student has special and unusual family circumstances that have resulted in a condition of financial independence.” According to Rutgers, Shim had not shown she had established her own domicile in New Jersey because “a student who remains financially dependent upon his or her parents has not truly severed the bonds which connect that student to the parents’ home.”

Having exhausted her administrative appeals, Shim, represented by counsel, filed a complaint in lieu of prerogative writs in the Superior Court, Law Division,⁴ seeking a declaratory judgment that she was an in-state resident for tuition purposes. Shim also sought to be reimbursed for tuition overcharges for the 2003-2004 academic year. Shim and Rutgers filed cross-motions for summary judgment. After oral argument, the trial judge granted Rutgers’ motion.

Shim appealed and, in a split decision, the Appellate Division held that Rutgers’ denial of Shim’s application for in-state residency status was arbitrary and capricious because it was based upon an erroneous application of the relevant regulatory standard. Shim v. Rutgers, 385 N.J.Super. 200, 203, 896 A.2d 1118 (App.Div. 2006). The panel remanded the case to Rutgers to consider the totality of the evidence in determining whether Shim had overcome the regulatory presumption of non-domicile and established entitlement to in-state tuition. Because there was a dissent in the Appellate Division, Rutgers now appeals to this Court as of right. R. 2:2-l(a)(2).

II.

Rutgers argues that its decision was based upon substantial evidence in the record and was neither arbitrary, unreasonable, nor capricious; that the regulations that establish a presumption of non-domicile are fully consonant with the statute; and that Shim was correctly classified as a dependent of her parents in Korea, thus rendering her legally ineligible for in-state tuition.

Shim reiterates her contentions that the regulatory presumption of non-domicile is ultra vires; that financial dependence cannot be dispositive of domicile; and that she has satisfied the standards necessary to be afforded an in-state tuition rate.

III.

Our role in reviewing an administrative agency’s final decision is limited. In re Taylor, 158 N.J. 644, 656, 731 A.2d 35 (1999). We will not reverse an agency’s decision unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record. Ibid.

Generally, courts afford substantial deference to an agency’s interpretation of a statute that it is charged with enforcing. R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175, 729 A.2d 1 (1999). An appellate court, however, is “in no way bound by the agency’s interpretation of a statute or its determination of a strictly legal issue.” In re Taylor, supra, 158 N.J. at 658, 731 A.2d 35 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93, 312 A.2d 497 (1973)). That is the standard of review against which this dispute must be assessed.

IV.

For over a century, New Jersey has afforded residents more favorable tuition rates at state institutions than their non-resident counterparts. See, e.g., L. 1903 (2d Sp.Sess.), e. 1 § 190; L. 1932, c. 217, § 1; N.J.S.A. 18A:64-13. Prior to 1979, the regulatory standard that governed in-state tuition eligibility was absolute— only twelve months residency in New Jersey prior to enrollment would suffice. See, e.g., N.J.AC. 9:5-l.l (1973) (amended by 12 N.J.R. 661(a) (changing regulation in light of passage of N.J.S.A 18A:62-4); expired on April 1, 1996 pursuant to Executive Order No. 66 (1978)).

In 1979, the Legislature enacted N.J.S.A. 18A:62-4, the statute at issue here. It provides:

Persons who have been resident within this State for a period of 12 months prior to enrollment in a public institution of higher education are presumed to be domiciled in this State for tuition purposes. Persons who have been resident within this State for less than 12 months prior to enrollment are presumed to be nondomiciliaries for tuition purposes. Persons presumed to be nondomiciled or persons who are presumed to be domiciled, but whose domiciliary status is challenged by the institution, may demonstrate domicile according to rules and regulations established for that purpose by the Commission on Higher Education. Residence established solely for the purpose of attending a particular educational institution is not domicile for the purposes of this act.

[Y.J.S.A 18A:62-4.]

The Senate Education Committee statement to the bill that became N.J.S.A 18A:62-4 identified its core purpose:

Present law requires that a student be a resident for 12 months prior to enrollment. The State Board of Higher Education cannot make an exception to this regulation. This penalizes individuals who have moved to New Jersey and established legal domicile less than a year prior to a student’s enrollment in college. Under this bill, the State Board of Higher Education could make an exception for individuals who can demonstrate that they are legally domiciled in New Jersey. [Senate Education Committee, Statement to Senate Bill No. 1387, at 1 (February 20,1979).]

That legislative history is critical to any analysis of the statute. It underscores that in enacting N.J.S.A. 18A:62-4, the Legislature had no intention of making it more difficult for a student who had actually resided here for a year prior to enrollment to establish instate status for tuition purposes. Instead, that statute was enacted to broaden the class of students who might qualify for in-state tuition by softening the prior bright line rule of twelve-months residency. It is against that backdrop that we must interpret the statute.

V.

A student seeking in-state tuition bears the burden of proving that she is domiciled here. Apropos of that obligation, in enacting N.J.S.A. 18A:62-4, the Legislature established, as the statute’s point of departure, a set of presumptions regarding domicile.

A.

Unlike an inference, which is a conclusion that may be drawn from a proven fact, a presumption is a conclusion that the law directs must be drawn. State v. Corby, 28 N.J. 106, 114, 145 A.2d 289 (1958), overruled on other grounds by State v. Taylor, 46 N.J. 316, 217 A.2d 1 (1966). Put another way, a presumption is a mandatory inference that discharges the burden of producing evidence as to a fact (the presumed fact) when another fact (the basic fact) has been established. N.J.R.E. 301; Ahn v. Kim, 145 N.J. 423, 438-39, 678 A.2d 1073 (1996). In essence, a presumption has the effect of compelling a particular conclusion in the absence of contrary evidence. To overcome a presumption, evidence that “tends to” disprove the presumed fact, thereby raising a debatable question regarding the existence of the presumed fact, must be adduced. Ahn v. Kim, supra, 145 N.J. at 439, 678 A.2d 1073. If reasonable people would differ regarding the presumed fact, the presumption is overcome. See N.J.R.E. 301 (stating rebuttal of presumed fact sends issue to trier of fact unless reasonable persons would not differ as to existence or nonexistence of presumed fact); Harvey v. Craw, 110 N.J.Super. 68, 73, 264 A.2d 448 (App.Div.) (same), certif. denied, 56 N.J. 479, 267 A.2d 61 (1970).

However, the production of evidence that creates a debatable question and thus rebuts a presumption does not preclude the possibility that the presumed fact may nevertheless be true. See Ford Motor Co. v. Edison Twp., 127 N.J. 290, 312, 604 A.2d 580 (1992) (stating once presumption is overcome fact question must be decided based on preponderance of evidence adduced by both parties). The trier of fact should thus consider all of the evidence in resolving the question at issue. Ibid.

B.

Under N.J.S.A. 18A:62-4, twelve months residence in New Jersey is the basic fact that the Legislature has said establishes the presumed fact of domicile. Accordingly, length of residence is the preliminary inquiry. If the twelve-month standard has been satisfied, there is a mandatory inference that the student is a domiciliary. If not, there is a contrary mandatory inference that the student is a non-domiciliary.

At that point, the institution has two choices: it can either accept the student’s presumed domicile, or it can challenge that status.⁵ The gravamen of such a challenge is found in the last sentence of N.J.S.A 18A:62-4, which declares that “[residence established solely for the purpose of attending a particular educational institution is not domicile for the purposes of this act.” In other words, the Legislature itself has declared that residence in New Jersey solely for the purpose of obtaining admission and instate tuition at a state college or university will not satisfy the statute. Accordingly the institution may challenge a student who has lived here for more than twelve months on that basis.

Upon such a challenge, N.J.S.A 18A:62-4 declares that the student, like her presumptively non-domiciled counterparts, “may demonstrate domicile according to the rules and regulations established for that purpose by the Commission on Higher Education.” Thus, the student, who is in the best position to do so, has the burden of producing the evidence enumerated in the applicable regulations. In particular,

(a) For the purposes of N.J.AC. 9A:5-1.1, a student may present and/or an institution may require the following as primary evidence of being domiciled in New Jersey:

1. Copies of the student’s New Jersey income tax return or evidence of withholding of New Jersey income tax, and/or copies of the parent’s(s’) or legal guardian’s (s’) income tax return or evidence of withholding of income tax.

2. Evidence of ownership of or a long-term lease on a permanent residence in this State by the student or the student’s parent(s) or legal guardian(s).

(b) A student may present and/or an institution may require supplementary evidence of being domiciled in New Jersey, which may include the following:

1. A New Jersey driver’s license;

2. A New Jersey motor vehicle registration;

3. A New Jersey voter registration card;

4. A sworn, notarized statement from the student and/or his or her parent(s) or legal guardian(s) declaring domicile in New Jersey;

5. Any other supplementary evidence that the institution deems necessary to support the student’s claim of domicile in New Jersey, including, but not limited to, evidence regarding the domicile of a student’s parent(s) or legal guardian(s) for students whose domicile is determined by the institution to be with their parent(s) or legal guardian(s).

(c) If primary evidence of domicile is not available due to the loss or destruction of records or other unusual circumstances, the institution may make a determination based exclusively on supplementary evidence.

(d) In every instance, the institution shall keep with the student’s records copies of the evidence it used in determining domicile pursuant to this section.

[N.J.A.C. 9A:5-1.2.]

However, the mere fact that a student has been challenged does not negate the presumption of domicile. Nothing in the statutory language suggests, even obliquely, that the mere existence of a challenge by an institution vitiates that presumption. The student remains clothed in the presumption until evidence is adduced that is sufficient to overcome it. Once it is overcome, the student bears the burden of persuading the trier of fact, without the benefit of the presumption and on the basis of all the evidence, that “her true, fixed, permanent home and principal establishment” is in New Jersey and “whenever ... she is absent, ... she has the intention of returning.” See N.J.AC. 9A:5-l.l(a) (defining domicile). That is the paradigm for our inquiry.

VI.

Rutgers first argues that Shim’s residence in New Jersey as a minor does not count toward domicile, and therefore the statute defines her as presumptively non-domiciled. However, the language of the statute does not support that argument. It states that “persons who have been resident ” in New Jersey for a year or more are entitled to the domicile presumption. Indeed, the Senate Education Committee specifically substituted the term “resident” for the term “domiciled” in an amendment to the statute prior to its passage. The Committee did so in order to “make it clear that the intent of the change is to presume persons who have been resident for 12 months as domiciled for purposes of tuition.” Statement for Senate Amendments to Senate Committee Substitute for Senate No. 1387, Adopted May 7, 1979. In short, the Legislature intended exactly what it said in N.J.S.A 18A:62-4 — that any person who has resided in New Jersey for twelve months or more is to be presumed domiciled here.

Although it may be that an unemancipated minor cannot change her domicile of her own will, Pieretti v. Pieretti, 13 N.J. Misc. 98, 102, 176 A. 589 (Ch. Ct.1935), nothing in our law suggests that such a minor cannot establish a residence or that her residence as a minor cannot count towards the statutory presumption after she comes of age. Accordingly, it is clear that Shim is entitled to the benefit of the presumption of domicile.

VIL

That brings us to the regulations and Rutgers’ application of subsection (f) of N.J.AC. 9A:5-1.1, which declares that “[dependent students as defined in the rules of the Higher Education Student Assistance Authority at N.J.A.C. 9A:9-2.6⁶ are presumed to be domiciled in the state in which their parent(s) or legal guardian(s) is domiciled” and that “[djependent students whose parent(s) or legal guardian(s) is not domiciled in New Jersey are presumed to be in the State for the temporary purpose of obtaining an education and presumed not to be domiciled in New Jersey.”

N.J.A.C. 9A:5-l.l(f) is subject to at least two possible interpretations. One, adopted by Rutgers, is that despite having been resident for twelve months, if a student is dependent on parents, both of whom or even one of whom is not a domiciliary of New Jersey, she not only loses the statutory presumption but is also subject to the contrary regulatory presumption of non-domicile. The problem with that interpretation is that it goes too far and, thus, runs afoul of the statute. N.J.S.A 18A:62-4 states that “persons residing in New Jersey for a period of 12 months prior to enrollment ... are presumed to be domiciled in this State.” N.J.S.A 18A:62-4. That language offers no indication that some segment of the qualifying student population was intended by the Legislature to be subject to a confounding presumption.

Although we defer to the rulemaking authority of administrative agencies, In re Adoption of N.J.A.C. 7:26B, 128 N.J. 442, 449, 608 A.2d 288 (1992) (stating that agency’s regulations enjoy presumptive validity), if a regulation is “plainly at odds with the statute, [the Court] must set it aside.” In re Freshwater Wetlands Protection Act Rules, 180 N.J. 478, 489, 852 A.2d 1083 (2004). Because Rutgers’ interpretation would render the regulation plainly at odds with the statute, that interpretation cannot be countenanced.

However, N.J.A.C. 9A:5-l.l(f) is amenable to an alternative interpretation that does not contravene the statutory framework and that conforms with the law governing presumptions. Subsection (f) can reasonably be read as intending to declare that evidence of a student’s financial dependence on her out-of-state parents is sufficient to raise a material issue of fact regarding the student’s domicile, thus overcoming the presumption that flows from twelve months of residence here. Under that reading, which aligns with the law on presumptions, the playing field is evened and the student must prove her case, based on all the evidence, with no presumption either way.

That is the only interpretation of subsection (f) that renders the statute and regulations a coherent and seamless whole. Pursuant to it, a student who has lived in New Jersey for twelve months prior to enrollment is presumed to be a domiciliary for tuition purposes. If that student is, in fact, dependent on out-of-state parents, that dependence creates a genuine issue regarding domicile and the presumption in her favor is neutralized. Importantly, that does not give rise to the contrary presumption that she is a non-domiciliary. Rather, she is neither presumed a domiciliary nor presumed a non-domiciliary. Rutgers must then fully, fairly, and dispassionately consider all submitted evidence, including but not limited to evidence of the student’s dependence on out-of-state parents. If a preponderance of the evidence indicates that the student’s domicile is in New Jersey as defined in N.J.A.C. 9A:5-l.l(a)⁷, then it must classify her as a domiciliary for in-state tuition purposes.

VEIL

In this case, Shim established that she lived in New Jersey for four years prior to her enrollment at Rutgers at age eighteen. Thus, under N.J.S.A. 18A:62-4, she was a presumed New Jersey domiciliary. Rutgers rejected that presumption under the terms of N.J.AC. 9A:5-l.l(f), flatly stating that “[Reflective of the applicable state regulations ... an undergraduate student is presumed to have the residency status of her parents, unless she proves herself ‘independent’ as that term is defined[.]” Rutgers erred in applying that presumption of non-domicile and in refusing to consider the evidence Shim proffered that, notwithstanding her financial dependence on out-of-state parents, her domicile was, in fact, in New Jersey. To be sure, the financial details of Shim’s support by her out-of-state parents were relevant to her domiciliary status and created a fact issue that overcame the presumption in her favor. However, financial support alone did not create a counter-presumption of non-domicile and thus could not be outcome determinative. Rather, Rutgers was required to fully and fairly weigh all the other evidence proffered by the student with no presumption either way. Only after doing so, could Rutgers have determined that Shim was a non-domiciliary, and then only if the weight of the evidence on the record supported its conclusion.

By standing on what it incorrectly understood to be a presumption of non-domicile and limiting consideration of Shim’s evidence to that which bore on her parents’ financial support, Rutgers interpreted the regulations in a way that violated N.J.S.A. 18A:62-4 and denied Shim a fair opportunity to prove her domicile. We therefore affirm the judgment of the Appellate Division and remand the ease to Rutgers for reconsideration in light of the principles to which we have adverted.

1 Shim did indeed fund some of her college expenses through financial aid, but also received financial support from her parents.

2 The enclosures were: (1) Shim’s birth certificate; (2) passport; (3) high school transcript; (4) driver’s license; (5) Motor Vehicles Certificate of Title; (6) voter registration card; (7) original memo from Commerce Bank confirming Shim’s account; (8) 2002 federal income tax return; (9) 2002 New Jersey state income tax receipt; (10) 2002 Form W-2 reflecting New Jersey earnings; (11) 2003 Form W-4 and 2003 Form NJ-W4 reflecting New Jersey earnings; (12) Mount Laurel Board of Education pay stubs; (13) 2003 Form W-4 and 2003 Form NJ-W4 reflecting New Jersey earnings; and (14) letters of support, sent under separate cover.

3 Around that time, the Admissions Office also received letters of support on behalf of Shim from: her high school counselor (received on November 29, 2003); her uncle, Mr. Gihong Park (received on December 17, 2003); and her Sunday School teacher at Emmanuel Church (received December 20, 2003).

4 Given our recent holding in Infinity Broadcasting Corp. v. New Jersey Meadowlands Commission, 187 N.J. 212, 225, 901 A.2d 312 (2006), and Rutgers’s status as “an instrumentality of the State for the purpose of providing public higher education," Lipman v. Rutgers-The State Univ. of N.J., 329 N.J.Super. 433, 441, 748 A.2d 142 (App.Div.2000), it is clear that an appeal from a final decision by Rutgers in respect of a student's domicile must lie in the Appellate Division pursuant to R. 2:2-3(a)(2).

5 Obviously if the presumption is of non-domicile, it will be the student who is the challenger.

6 N.J.A.C. 9A:9-2.6 defines a dependent student as "any student who does not meet any of the eligibility criteria listed in (a) or (b) ... for independent student status." N.J.A.C. 9A:9-2.6(c). Independent student status is defined in that regulation as a student who (1) "[i]s 24 years of age or older by December 31 of the award year"; (2) "[i]s an orphan or ward of the court or was a ward of the court until age 18”; (3) "[i]s a veteran of the Armed Forces of the United States”; (4) "[i]s a married individual”; (5) "[h]as legal dependents other than a spouse”; or (6) "[i]s a student for whom a financial aid administrator makes a documented determination of independence by reason of other unusual circumstances as provided under Title IV of the Higher Education Act of 1965, as amended, 20 U.S.C. § 1087w, and its implementing regulations and rules.” N.J.A.C. 9A:9-2.6(a) & (b)

7 N.J.A.C. 9A:5-l.l(a) defines a domicile as "the place where a person has his or her true, fixed, permanent home and principal establishment, and to which, whenever he or she is absent, he or she has the intention of returning.” NJ.A.C. 9A:5-l.l(a). This definition is the same as the common-law definition of domicile. See Kurilla v. Roth, 132 N.J.L. 213, 215, 38 A.2d 862 (Sup.Ct.1944).