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K.L. v. Board of Education of the Borough of Kinnelon


January 4, 2010


On appeal from the State Board of Education. Lentz & Gengaro, attorneys for appellants (George M. Holland, of counsel and on the brief).

Per curiam.


Submitted September 15, 2009

Before Judges Grall and Messano.

K.L. and K.L., on behalf of their minor children, C.L. and M.L., appeal from the final order of the Commissioner of Education (the Commissioner) that 1) adopted the findings of the administrative law judge (ALJ) reached on summary disposition; and 2) dismissed their petition. They contend that they were denied their due process rights by not being provided with a full hearing before the Board of Education of the Borough of Kinnelon (the Board), and by the ALJ's conversion of the Board's motion to dismiss into one for summary disposition. Furthermore, petitioners argue that the Commissioner erred as a matter of law by concluding that their children were not domiciled in the school district for purposes of N.J.S.A. 18A:38-1, and therefore entitled to an education "free of charge."

We have considered these arguments in light of the record and applicable legal standards. We affirm.

In May 2007, petitioners purchased a single-family home in Kinnelon but did not occupy it during renovations. On July 3, 2007, they executed an "affidavit of anticipated residency" furnished by the Board. The document indicated that petitioners anticipated establishing permanent residency in Kinnelon as of October 2007. Attached to the affidavit was a copy of the Board's policy #5111 that provided,

A nonresident child otherwise eligible for attendance whose parent(s) or legal guardian(s) anticipates district residency and has entered a contract to buy, build or rent a residence in this district may be enrolled without payment of tuition for a period of time not greater than 5 weeks prior to the anticipated date of residency. If any such pupil does not become a resident of the district within 5 weeks after admission to school, the situation will be reviewed and the need to assess tuition will be determined.

On October 8, 2007, the Board's Business Administrator/Secretary Alice M. Robinson, sent a letter to petitioners requesting "an update on [their] home renovations." The letter further advised petitioners that beginning October 15, the Board would charge "$998 per month per child until a Certificate of Occupancy [wa]s issued." Robinson indicated she was available to discuss the situation with petitioners.

Instead of contacting the Board, on October 22 petitioners filed two Verified Petitions each seeking a due process hearing before the Bureau of Controversies and Disputes in the Department of Education.*fn1 They alleged that "due to unanticipated building/construction requirements," they were "unable to complete the renovations required" on their house in Kinnelon. Despite this fact, petitioners averred that their home in Kinnelon was their "true, fixed and permanent home" and that of their children. The petition sought an order 1) declaring that the Board violated applicable law "by not providing... proper written notice of [its] intention to cease providing" free education to their children; 2) violated applicable law by failing to provide proper notice "of what documentation was needed to establish proof" of their children's domicile; 3) finding that the children "ha[ve] been and continue[] to be domiciled" in Kinnelon and "eligible to receive a public education free of charge"; and 4) awarding petitioners counsel fees and costs.

The Board's attorney responded by writing to petitioners' counsel, noting that in light of the administrative filing, if petitioners waived "the ineligibility procedures" before the Board, "the parties could move forward for summary decision." Petitioners' counsel indicated they were not waiving "any of the procedures afforded" to them.

The Board then moved to dismiss the petition in lieu of filing an answer. It raised two arguments: First, that the Commissioner lacked jurisdiction over a "contract dispute" between the parties; second, that since it was not seeking to remove the children from the district, no notice or informal hearing was required, and the matter was "not ripe for adjudication."

The motion was transferred to the Office of Administrative Law and assigned to an ALJ. Sua sponte, she converted the matter to a motion for summary decision. The ALJ determined that the Commissioner had jurisdiction over the dispute, and further determined, based on the papers and briefs filed, that petitioners' children were not domiciled in Kinnelon. She dismissed the petition.

Exceptions were filed by petitioners with the Commissioner, and the Board filed its reply. Petitioners objected to the conversion of the motion to one for summary disposition, noting that they were denied the opportunity to testify and furnish additional evidence as to "why they considered their new home in Kinnelon to be their domicile." This additional information included copies of petitioners' drivers' licenses, their voter registration forms, and a preliminary 2007 real estate tax bill, all of which demonstrated that Kinnelon was their domicile. On the merits of the dispute, petitioners argued that the ALJ reached the wrong decision as a matter of law.

The Board argued that the ALJ properly converted the motion to dismiss into one for summary decision because there were no material facts in dispute. It argued that petitioners had never established the Kinnelon home as their residence because they never lived there.

The Commissioner adopted the findings of the ALJ. She dispatched petitioners' procedural arguments, noting that since they sought a determination that their children were domiciled in Kinnelon, petitioners were "estopped from complaining that the ALJ" exceeded her authority. The Commissioner further found that the ALJ properly converted the motion to dismiss into one for summary disposition because "there were sufficient undisputed, material facts" to make the decision. The Commissioner also determined any remand to the Board for a hearing would cause "administrative resources to be wasted...."

After reviewing applicable case law and administrative rulings, the Commissioner concluded that "petitioners... had never lived in Kinnelon before the 2007-2008 school year and d[id] not appear to have lived in Kinnelon at any time during that school year."*fn2 She dismissed the petition and this appeal followed.

Petitioners reiterate the same arguments before us. The Board contends that the Commissioner correctly decided the issue of petitioners' domicile and that "judicial estoppel" bars them from now arguing that the matter "was not ripe for adjudication." In her statement in lieu of formal brief, the Commissioner argues her determination was not "arbitrary or capricious,... [wa]s consistent with applicable statutes, administrative regulations and case law[,]" and should be affirmed.

We briefly review the statutory and regulatory scheme. "Public schools shall be free to... persons... who [are] domiciled within the school district[.]" N.J.S.A. 18A:38-1(a). However,

[i]f the... school district finds that the parent... of a child who is attending the schools of the district is not domiciled within the district... the superintendent... may apply to the board of education for the removal of the child. The parent... shall be entitled to a hearing before the board and if in the judgment of the board the parent... is not domiciled within the district..., the board may order the transfer or removal of the child from school. The parent or guardian may contest the board's decision before the

[C]commissioner within 21 days of the date of the decision and shall be entitled to an expedited hearing before the [C]commissioner and shall have the burden of proof by a preponderance of the evidence that the child is eligible for a free education under the criteria listed in this subsection. The board of education shall, at the time of its decision, notify the parent or guardian in writing of his right to contest the decision within 21 days. No child shall be removed from school during the 21-day period in which the parent may contest the board's decision or during the pendency of the proceedings before the [C]commissioner. If in the judgment of the [C]commissioner the evidence does not support the claim of the parent or guardian, the [C]commissioner shall assess the parent or guardian tuition for the student prorated to the time of the student's ineligible attendance in the schools of the district. [N.J.S.A. 18A:38-1(b)(2).]

"Any person not resident in a school district, if eligible except for residence, may be admitted to the schools of the district with the consent of the board of education upon such terms, and with or without payment of tuition, as the board may prescribe." N.J.S.A. 18A:38-3(a).

The regulations further provide, "A student is domiciled in the school district when he or she is living with a parent... whose permanent home is located within the school district. A home is permanent when the parent or guardian intends to return to it when absent and has no present intent of moving from it, notwithstanding the existence of homes or residences elsewhere." N.J.A.C. 6A:22-3.1(a)(1). N.J.A.C. 6A:22-3.4(a) provides a non-exhaustive list of documents a school district may consider in determining "a student's eligibility for enrollment...." It is "the totality of information and documentation offered by an applicant" that must inform the district's decision. N.J.A.C. 6A:22-3.4(c).

We begin by addressing petitioners' arguments that they were denied due process because the Board did not accord them a hearing and because the ALJ converted the Board's motion to dismiss into one for summary decision. In large part, petitioners are responsible for the unusual procedural history that unfolded.

Petitioners executed an affidavit that recognized their children were not entitled to free education in Kinnelon because they did not reside there when the school year commenced. As the affidavit indicated, petitioners intended to move into the municipality by October. The Board permitted their children to attend school in the district without tuition and under such terms set by the Board in the exercise of its discretion. It is undisputed that petitioners and their children did not move into their new home by October, thus, triggering the Board's letter of inquiry.

Rather than await the Board's formal notice of ineligibility, N.J.A.C. 6A:22-4.2, petitioners appealed directly to the Commissioner, something that the regulation specifically permits them to do if they were aggrieved after a hearing before the Board. Thus, we fail to see why petitioners, who themselves sought the Commissioner's immediate review of the issue, may now complain that they were denied the opportunity to present the issue to the Board.*fn3

We also agree that all the necessary material facts were undisputed, and that the matter could properly be resolved in summary fashion. N.J.A.C. 1:1-12.5 provides that "[a] party may move for summary decision upon all or any of the substantive issues in a contested case." The ALJ's power over the conduct of the proceedings is quite broad, however, and the regulations specifically permit her to "convert any form of proceeding into another, whether more or less formal or whether in-person or by telephone." N.J.A.C. 1:1-14.6(d). In addition to the specific powers listed in the regulations, the ALJ may take any "other actions... necessary for the proper, expeditious and fair conduct of the hearing or other proceeding, development of the record and rendering of a decision." N.J.A.C. 1:1-14.6(p).

Although petitioners did not have the opportunity to furnish some documents to the ALJ when they responded to the Board's motion to dismiss, they did so when they filed their exceptions with the Commissioner. The record does not support petitioners' contention that were denied the opportunity to present any other documents.

To the extent they now contend that the denial of an opportunity to testify before the ALJ was significant, we reject that assertion. Petitioners not only provided all of their information regarding their Kinnelon home and their intention to make it their future residence, they also explained in adequate detail why they were delayed in moving into the district. For purposes of her decision, the Commissioner accepted these facts as undisputed, as we do. The issue was essentially a legal one and therefore appropriate for summary disposition.

Turning to the merits of the appeal, petitioners argue that the Commissioner erred in determining that their Kinnelon home was not their "domicile" for purposes of N.J.S.A. 18A:38-1(a), citing, in particular, In re Unanue, 255 N.J. Super. 362 (Law Div. 1991), aff'd, 311 N.J. Super. 589 (App. Div.), certif. denied, 157 N.J. 541 (1998), cert. denied sub. nom., UnanueCasal v. Goya Foods, Inc., 526 U.S. 1051, 119 S.Ct. 1357, 143 L.Ed. 2d 518 (1999). They argue that it was undisputed that they intended to occupy the Kinnelon home as soon as possible, but they were delayed by unforeseen construction delays and by the approval and permitting processes.

Although not a case involving education law, Unanue, is instructive on the general issue of "domicile" as a legal concept. "'In a strict legal sense, the domicile of a person is the place where he has his true, fixed, permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning, and from which he has no present intention of moving.'" Unanue, supra, 255 N.J. Super. at 374 (quoting Kurilla v. Roth, 132 N.J.L. 213, 215 (Sup. Ct. 1944)); accord D.L. v. Bd. of Educ. of Princeton Regional School Dist., 366 N.J. Super. 269, 273 (App. Div. 2004).

In considering whether a change of domicile has occurred, three elements must be considered: 1) whether there had been an actual and physical taking up of an abode in a particular state; 2) whether the subject had an intention to make his home there permanently or least indefinitely; and (3) whether the subject had an intention to abandon his old domicile. The court must evaluate all of the facts of the case to determine the place in which there is the necessary concurrence of physical presence and an intention to make that place one's home. [Unanue, supra, 255 N.J. Super. at 376 (citing Lyon v. Glaser, 60 N.J. 259, 264-65, (1972)) (emphasis added).]

We think it obvious from these general principles that petitioners and their children were never domiciled in Kinnelon. While they may have possessed a present intention to reside there when renovations were complete, it is undisputed that petitioners and their children never did reside in the district during the 2007-2008 school year. As such, their intention to do so is irrelevant. They had never established an "actual and physical... abode" in Kinnelon, and therefore they lacked the "necessary concurrence of physical presence and an intention to make that place one's home" upon which the legal concept of domicile rests. See Ibid.

"Our scope of review is limited to a determination of whether the [Commissioner]'s decision is 'unreasonable, unsupported by the record or violative of the legislative will.'" D.L., supra, 366 N.J. Super. at 273 (quoting Capodilupo v. Bd. of Educ., 218 N.J. Super. 510, 515 (App. Div.), certif. denied, 109 N.J. 514 (1987)). Although we are not bound by an administrative agency's legal opinions, Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., Div. of Youth and Family, 157 N.J. 161, 170 (1999)), the "'agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)).

We conclude that the Commissioner properly interpreted the enabling legislation and implementing regulations in this case. We find no basis to disturb her decision that because petitioners failed to establish that their Kinnelon home was their domicile for purposes of N.J.S.A. 18A:38-1(a), their petition must be dismissed.


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