Before Judges Baime, Eichen and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
This appeal raises an issue of first impression respecting financial responsibility among school districts. *fn1 Specifically, when the parents of a minor child live in different school districts and the child lives with each parent in alternate weeks under a joint custody arrangement; and the child requires out-of-district special education; should one district or both be responsible for the expense of the child's special education? We hold that on the facts presented, both districts must share the child's education costs.
The child in this case was born on May 12, 1984. The family lived in Somerville and the child was enrolled in Somerville's public school system. In 1989, the child was classified as neurologically impaired. There is no dispute that federal and state law entitle this child to a free special education. See Individuals With Disabilities Education Act, 20 U.S.C.A. §§ 1400 to -1490 (IDEA); N.J.S.A. 18A:46-1 to -46.
The child's parents were divorced in 1990, and we are informed that the divorce judgment provides that the parents have "joint legal custody" of the child and also share joint physical custody. Since the divorce, the child has lived with each parent in alternate weeks. The child's mother has lived in Manville since the divorce, while her father continues to live in Somerville. Until 1993, the child attended the Somerville public schools.
The IDEA requires each child who has been identified as having a disability, as defined by 20 U.S.C. § 1401(3), to have an Individualized Education Program ("IEP") developed for him or her by an Individualized Education Program Team ("IEP Team"). 20 U.S.C. § 1414 (a) and (d)(1)(A) and (B). This child's IEP was originally developed by Somerville pursuant to N.J.A.C. 6A:14-3.7, and the child was placed in the Midland School in North Branch, New Jersey in 1993 pursuant to that plan. The child has attended the Midland school since. Prior to the child's enrollment at Midland, the Directors of Special Services for the Manville and Somerville school districts entered into an oral agreement to share the costs of the child's special education on an alternating year basis. The respective boards of education never formally adopted or reduced this agreement to writing; however, Somerville paid the child's tuition at Midland for the 1993-94, 1995-96, and 1997-98 school years, while Manville paid the child's tuition for 1994-95, and part of the 1996-97 school years. In November 1996, a new Director of Special Services in Manville determined that Manville would no longer pay the child's tuition, on the ground that the child was not a Manville domiciliary.
Somerville then instituted this action, seeking an order declaring that the child has a dual domicile in Somerville and Manville; that the 1996-97 oral agreement to pay the child's tuition is valid and enforceable; that Somerville and Manville must continue to provide the child with an appropriate education on an alternating year basis; and that Manville is estopped from disavowing its agreement to provide educational services to the child. Manville denied any liability for the child's educational expenses and counterclaimed for reimbursement of sums previously paid for the child's tuition at Midland.
On the districts' cross-motions for summary judgment, the Law Division determined that the child is a Somerville domiciliary for purposes of obtaining a free public education and that Somerville would be solely responsible in the future for providing the child with an appropriate special education. The motion court did, however, hold Manville responsible for the balance of the child's 1996-97 tuition under the districts' oral agreement. Somerville appeals that portion of the order finding the child "to be a Somerville domiciliary for purposes of obtaining a free public education" and finding Somerville solely responsible for the child's future educational expenses. *fn2
On appeal, Somerville argues that the child has an alternating domicile which entitles her to a free and appropriate education from both Manville and Somerville. Manville contends that the child cannot have two domiciles and that her current domicile is Somerville, where her parents maintained the marital home prior to the divorce. Amicus, the New Jersey Department of Education, contends that the principle of "educational continuity" should control, and that because the child ...