Decision No. 12,629

(January 9, 1992)

SOBOL, Commissioner.--Petitioners appeal from respondents' determination that they are not residents of the Spackenkill Union Free School District (the district), and their refusal to allow petitioners' son to attend the district's schools without the payment of tuition. Petitioner Stewart Reifler filed a separate appeal in July 1991, alleging that respondent board of education and the superintendent improperly refused to count his vote in the 1991-92 school budget and board of education trustee election. In that petition, he also alleges that respondents' refusal to allow him to run for trustee was in violation of the Fourteenth Amendment to the United States Constitution and Education Law ''2101 and 2012. Since the facts underlying respondents' determinations are the same, the two appeals are consolidated for decision. The appeals must be dismissed.

The facts are not in dispute. Petitioners have lived on Spratt Avenue in the Poughkeepsie City School District for several years. On January 16, 1990, they purchased a house on Spackenkill Road in respondents' district. In April 1990, they enrolled their son in respondents' district where he began attending kindergarten at the Hagan Elementary School the following September. On September 6, 1990, respondents' principal informed petitioners in writing that, because they were not physically living in the district, they would have to pay tuition for their son to continue to attend school there. On September 10, 1990, in a meeting with respondents' district clerk, petitioners claimed that their Spackenkill Road address was their legal residence where they "physically resided" even though they did not actually live there. On the same date, petitioners received a letter from respondent superintendent acknowledging that they owned property in the district but concluding that it was not their legal residence because they did not physically reside there. Based on his determination, the superintendent informed petitioners in writing on October 1, 1990, of their right to request a hearing (See 8 NYCRR 100.2(y)).

At the hearing, petitioners submitted, among other things, voter registration forms, drivers' licenses, income tax returns and a school tax receipt, all listing their Spackenkill Road address. Petitioners also submitted bills and letters apparently mailed to the Spackenkill Road address as well as detailed plans for the renovation of the house at that address. Petitioners explained that because the house at Spackenkill Road required extensive renovations before it was habitable, they had no plans to occupy it until the renovations were complete. Petitioners testified that they hoped to complete the renovations and move into the house by the end of the school year. In the second petition, filed in July 1991, petitioner Stewart Reifler indicated that he hoped to have enough work completed to enable the family to move into the house on Spackenkill Road by September 1, 1991.

It is uncontested that as of the date the petitions were filed, petitioners had never lived in the house located in respondents' district. Although petitioners continued to live outside the district in their home on Spratt Avenue, where they have resided for several years, they, nonetheless, unequivocally declared 50 Spackenkill Road their permanent residence. Petitioners offered a real estate listing of their property on Spratt Avenue as evidence of their intent to sell that home.

On October 12, 1990, following the hearing, the superintendent informed petitioners in writing, once again, that, based on his determination that they were nonresidents of the district, they would have to pay tuition for their son to attend school there. Respondents also declined to bus petitioners' son from his home on Spratt Avenue during the pendency of this appeal. Petitioners agreed to pay tuition under protest and filed the first appeal.

The sole issue presented is whether petitioners, who admit that they have never lived in the house they own in respondents' district, have nonetheless established residency there. Petitioners argue, in essence, that their unequivocal statement of intent to leave their home on Spratt Avenue and their declaration that 50 Spackenkill Road is their legal residence is sufficient to establish domicile in a place they have never inhabited. Respondents argue that since petitioners have never occupied the house at Spackenkill Road, they have not met their burden of proof to establish their residency in the district.

Section 3202 (1) of the Education Law provides, in pertinent part, that

Section 2102 of the Education Law requires, among other things, that school district officers be residents of the district prior to election. To vote in such elections, a person must be over the age of eighteen and a resident in the district (Education Law '2012). For purposes of school attendance and school board elections, the term "residence" as used in the Education Law is the same (see, Op. Atty Gen., 1934, 51 St. Dept. 123; Op Educ. Dept., 1941, 64 St. Dept. 127).

It is well settled that "residence" is acquired by one's physical presence as an inhabitant within the district combined with an intent to remain (Matter of Whiteman, 24 Ed Dept Rep 337) (emphasis added). As defined in Education Law, the term "residence" means "domicile" (See State v. Collins, 78 AD2d 295, 297 [1981]). While "residence means living in a particular locality, . . . domicile means living in that locality with intent to make it a fixed and permanent home. To establish a residence, bodily presence as an inhabitant in a given place [is a prerequisite], while domicile requires bodily presence in that place and also an intention to make it one's domicile." (Matter of Newcomb, 192 NY 316, 320; see also, Restatement 2d, Conflicts of Law, '16).

Whether petitioners intend to make the house on Spackenkill Road their "legal residence" or "domicile" does not appear to be an issue in dispute. Because petitioners have never lived in the district, however, they have failed to satisfy an essential element for establishing either a residence or domicile in the district. As recognized by the State Court of Appeals "[i]n order to acquire a new domicile there must be union of residence and intention. Residence without intention, or intention without residence is of no avail" (Matter of Newcomb, supra). Although petitioners may intend to sell their home on Spratt Avenue, they continue to live there. At the same time, by petitioners' own admission, the house they own on Spackenkill Road was uninhabitable at the time these appeals were filed. As such, petitioners also admit that they had never spent even one day and night there. It is well settled that a residence once established is deemed to continue until another residence is gained (see Appeal of Tunstall, 27 Ed Dept Rep 144). Because petitioners continue to live without interruption outside the district in the same home where they have resided for the past several years, I am constrained to find that they have not met the burden of proof to establish their residence in respondents' district.

The cases upon which petitioners rely to support their claim that they are residents of respondents' district are inapposite. Those cases recognize that a residence is not automatically lost when people temporarily relocate outside their district of residence. Here, petitioners declare as their residence an address in respondents' district where they intend to move at some future date but where they have never lived. As the cases emphasize, the general rule is "that a residence is not lost until another residence is established through both intent and action expressing such intent" (See, Appeal of Tunstall, supra; Appeal of Aufiero, 26 id. 406; Matter of Whiteman, 24 id. 337; Matter of Manning, 24 id. 33; Appeal of Richards, 25 id. 38; Matter of Buglione, 14 id. 220; Matter of Lundborg, 12 id. 268; Matter of Callahan, 10 id 66) (emphasis added).

Despite petitioners' stated intent to make the Spackenkill Road address their legal residence, the record establishes that they continue to reside in their home on Spratt Avenue. Because they had never lived even for a brief period in respondents' district during the time in question (cf., Appeal of Tynan, 28 Ed Dept Rep 4) petitioners have not sustained their burden to establish the Spackenkill Road address as their legal residence. Without evidence that petitioners actually lived in the house they own in the district, the petitions must be dismissed.

THE APPEALS MUST BE DISMISSED.

END OF FILE

---