On appeal from the State Board of Education, Agency Docket No. 433-11/06.
The opinion of the court was delivered by: Sapp-peterson, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Sapp-Peterson, and Alvarez.
Respondent, the Board of Education of the City of Margate (Board), appeals from the final decision of the State Board of Education (State Board) finding that A.D.S. is entitled to a free public education as a domiciled student of Margate and directing the Board to "take such steps as are necessary to provide [A.D.S.] with the free public education to which he is entitled by law." We affirm.
Petitioner, A.M.S., is the father of A.D.S. He adopted A.D.S. after marrying A.B., A.D.S.'s biological mother. When A.D.S. first attended school, the family was living in Jackson Township, and A.D.S. attended public school in that school district. In 2001, petitioner enlisted in the United States Army. After his enlistment, petitioner performed tours of duty in South Carolina, Arizona, Washington, Iraq, New Jersey and Germany. Petitioner's family accompanied him on a number of these assignments. On July 8, 2005, A.B. died suddenly while the family was living in Germany. Petitioner was afforded siX weeks of bereavement leave and spent the time at a condominium (condo) owned by his parents that is located in Margate. Petitioner previously resided at the condo for a period of time after graduating from college in 1994. While there during his bereavement leave, he changed a number of documents, including his driver's license, insurance, and vehicle registration, to reflect the Margate address.
In September 2005, petitioner was assigned to Fort Monmouth. He moved to Eatontown but did not take A.D.S. at the time because he "wasn't able to give [A.D.S.] the attention that he needed." His parents, who lived in Yardley, Pennsylvania, agreed to temporarily care for A.D.S. until alternative arrangements could be made. They executed the requisite forms to secure free public education for A.D.S. as a non-resident student and enrolled him in the Pennsbury public school system in Yardley.
In executing the forms, petitioner's mother averred that she and her husband intended to care for A.D.S. continuously and not merely through the school year. However, she qualified her averment with handwritten statements on a number of the forms:
[A.D.S.]'s father, [petitioner], is in the military, and will be stationed at Ft. Monmouth, N.J. We are [A.D.S.]'s grandparents and taking care of him on a temporary basis. [Petitioner] is his father and guardian. He is supporting [A.D.S.] and responsible for his care. We are providing a temporary home and have [p]ower of [a]attorney to make all decisions necessary for his well[-]being. [P.M.S.]
Father in military and will be living at Ft. Monmouth, N.J., in Sept. Mother died July 8, 2005. We, the grandparents, are caring for [A.D.S.] on a temporary basis. We have [p]ower of [a]attorney to register [A.D.S.] for school and are caring for him until other arrangements can be made.
We are not guardians but do have [p]ower of [a]attorney to register [A.D.S.] for school and to care for his needs.
Petitioner never relinquished his parental rights. During the period of time that A.D.S. lived with his grandparents, while petitioner was stationed at Fort Monmouth, he spent weekends with his father either in Eatontown or at the Margate condo.
A.D.S. and his grandparents spent the summer of 2006 in the Margate condo and petitioner visited them every weekend. At the beginning of the new school year, A.D.S.'s grandparents attempted to enroll A.D.S. in the Margate school system. They were advised, in writing, by the Board's solicitor that A.D.S. could not attend the Margate school system because petitioner did not meet the residency requirements for A.D.S.'s enrollment. In October 2006, A.D.S.'s grandparents enrolled him, at their own expense, at the Bancroft NeuroHealth School in Haddonfield (Bancroft), as they were no longer able to provide the care he needed.
Petitioner appealed the Board's eligibility determination. The Board filed an answer and a counterclaim seeking reimbursement of tuition from A.M.S. "for the period of A.D.S.'s ineligible attendance . . . ." The Commissioner transferred the matter to the Office of Administrative Law as a contested case for a hearing before an administrative law judge (ALJ).
At the hearing, the parties entered into a number of stipulations, including: (1) petitioner had not lived at the condo between January 1, 2003 and the date of the hearing "except from July 29, 2005 through September 9, 2005, and for several days during a two[-]week period while [petitioner] was on leave in the summer of 2004"; (2) while stationed at Fort Monmouth from September 2005 to December 2006, petitioner resided in Eatontown; (3) when reassigned to Fort Meade in December 2006, petitioner moved to Maryland, where he was still residing at the time of the hearing in May 2007; and (4) petitioner did not own the condo and had never paid any taxes or utility bills for the condo. It was also stipulated that petitioner's driver's license, vehicle registration and title, referenced the Margate address and that his DOD (Department of Defense) Form 2058 designated Margate as his domicile.*fn1
Subsequent to the hearing, the ALJ issued an initial decision finding that petitioner is domiciled in Margate based upon the "numerous steps" he took "that manifest a desire to make Margate his domicile." The ALJ specifically found that between July 2005, after the death of his wife, and September 10, 2005, petitioner took "decisive action to establish domicile" at his parents' condo, as evidenced by such proofs as his voter registration, bank accounts, driver's license, and the title, registration and insurance for his vehicle. The ALJ also noted that not only did petitioner take steps locally to establish Margate as his domicile but that "[h]e filed [DOD] Form 2058 with the Army, formally declaring . . . Margate as his legal residence." Finally, the ALJ observed that petitioner was summoned for jury duty and that the notice was mailed to the Margate address.
Quoting Roxbury Twp. v. Heydt, 6 N.J. Tax 73 (Tax 1983), the ALJ rejected the Board's argument that petitioner had not established domicile at the Margate address because he had not maintained a physical presence at the condo:
Margate argues that [petitioner] could not establish domicile because he lacked a physical presence at the condo. Margate notes that [petitioner]'s physical occupation of the premises was essentially limited to the period July 29 through September 10, 2005. Margate points out that [petitioner] has spent far longer time periods physically ...