Appeal of R.S., on behalf of his son J.S., from action of the Board of Education of the Red Creek Central School District regarding residency.

Decision No. 17,626

(April 25, 2019)

Ted A. Barraco, Esq., attorney for petitioner

Harris Beach PLLC, attorneys for respondent, Edward A. Trevvett, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Red Creek Central School District (“respondent”) that his son (“the student” or “J.S.”) is not a district resident entitled to attend respondent’s district without payment of tuition.  The appeal must be dismissed.

The record reflects that prior to the events leading to this appeal, petitioner, his spouse and their two sons, J.S. (the student who is the subject of this appeal) and N.S., (collectively, “the students”) resided at a location outside of respondent’s geographical boundaries (the “out-of-district address”).  Petitioner paid tuition to respondent for J.S. and N.S. to attend respondent’s schools as non-residents.

In a custody agreement executed on May 14, 2015 (the “custody agreement”), petitioner and the students’ mother agreed to share “joint legal custody” of J.S. and N.S.[1]  In the custody agreement, petitioner and the students’ mother further agreed that, with respect to J.S., the students’ mother would have “primary physical residency,” and petitioner would have “secondary residency.”  According to the custody agreement, petitioner’s “secondary residency” status meant that J.S. would reside with him on Monday evenings, every other weekend, and alternate vacation periods and holidays.  By contrast, with respect to N.S., petitioner and the students’ mother agreed that she and petitioner would have a “shared residency” of N.S. whereby N.S. would reside with petitioner Monday through Wednesday, every other weekend, and alternate vacation periods and holidays.  According to the record, the students’ mother continued to reside at the out-of-district address.  It is unclear where petitioner resided; nevertheless, petitioner and the students’ mother continued to pay non-resident tuition to respondent on J.S.’s behalf, including for the fall 2018 semester.

By letter dated September 19, 2018, respondent’s superintendent informed petitioner that J.S. was not considered a district resident “due to the custody agreement ... whereby mother has primary physical custody of [J.S.] and mother lives outside [the] district.”  However, the superintendent indicated that N.S. could be considered a district resident, and that N.S. would be permitted to attend respondent’s schools tuition-free, if petitioner established that N.S. resided with petitioner within respondent’s district.  The superintendent further informed petitioner that J.S.’s enrollment would be discontinued at the end of the school day on Friday, September 28, 2018, unless “payment of tuition [was] made in full.”  Petitioner appealed this determination to respondent.

By letter dated October 18, 2018, the superintendent notified petitioner that respondent had upheld his determination that J.S. was not a district resident based upon “the custody agreement dated May, 2015.”  This appeal ensued.

Petitioner maintains that he purchased a residence within respondent’s district in August 2018 and intends to reside therein with J.S.  Petitioner requests a determination that J.S. is a district resident entitled to attend respondent’s schools without the payment of tuition.  Petitioner further requests that I direct respondent to refund the tuition which he paid on J.S.’s behalf for the fall 2018 semester or, in the alternative, to refund the tuition in an amount that reflects “the school taxes paid on [his] property located within the district.”

Respondent claims that the appeal must be dismissed because petitioner failed to effectuate proper service of the petition.  Respondent also asserts that petitioner has not met his burden of demonstrating a clear legal right to the relief requested.  Respondent maintains that the determination to deny petitioner’s request to have J.S. attend its schools tuition-free was reasonable.  Respondent also maintains that petitioner’s request for a refund of tuition costs is premature.

Respondent claims that the appeal must be dismissed because petitioner did not serve a copy of the petition on an individual authorized to accept service on behalf of the district.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939). 

Here, the affidavit of service filed with the petition indicates that the petition was served upon Christine Tuttle, who is identified in the affidavit as a “receptionist.”  According to the affidavit of the process server (who is also counsel for petitioner in this appeal), Ms. Tuttle represented to him that she was authorized to accept service for the district.  However, respondent submits an affidavit of Ms. Tuttle in which she states that:

[O]n Tuesday, November 13, 2018, a gentleman came into the main office in the afternoon and handed me the Petition in this matter, [h]e asked me my name but did not provide me with his name, and I did not sign for the paperwork .... At no time have I ever been designated or appointed as a person authorized to accept service of legal papers .... 

In reply, petitioner’s attorney states that upon entering an office marked “Superintendent and Assistant Superintendent,” he stated: “I have legal papers to serve on the district,” to which Ms. Tuttle responded: “[r]ight here.”  He argues that, by this statement, Ms. Tuttle represented that she had actual authority to accept service on behalf of respondent.  In a sur-reply affidavit, Ms. Tuttle disputes petitioner’s attorney’s description of events, indicating that she replied “[r]ight here” in response to the process server’s question: “Is this the District office?”  Ms. Tuttle avers that she did not hear the process server state that he had legal papers to serve on the district.

Respondent bears the burden of establishing any affirmative defenses (see Application of Simmons, 53 Ed Dept Rep, Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  Based upon the conflicting evidence submitted by the parties, I cannot find that respondent has met its burden of proving that petitioner failed to effectuate personal service of the petition on an individual authorized to accept service.  It is apparent from the parties’ affidavits that there was substantial confusion surrounding service of the petition, and there is no basis in the record to credit one party’s recollection or interpretation over the other’s.  Therefore, I decline to dismiss the appeal for improper service.

Turning to the merits, Education Law §3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).  A child’s residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 aff’d, 196 NY 551; Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187).  In cases where parents have joint custody, the child’s time is “essentially divided” between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of T.P., 45 id. 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935).  However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Rousseau, 45 id. 567, Decision No. 15,418).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Here, the custody agreement states that the students’ mother has “primary physical residency” of J.S., and that petitioner has “secondary physical residency” of J.S. on Monday evenings, every other weekend, and alternating vacation periods and holidays.  Based on the agreement, J.S. is not essentially dividing his time between his parents’ residences (see e.g. Appeal of Franklin-Boyd and Graham, 45 Ed Dept Rep 33, Decision No. 15,251).  Therefore, petitioner and the students’ mother are not entitled to designate respondent’s district as J.S.’s district of residence and J.S.’s residency must be determined by the traditional test of physical presence and intent to remain therein.

As indicated above, the custody agreement provides J.S.’s mother with “primary physical residency” of J.S., which is defined as physical custody each week from Tuesday through Friday, every other weekend, and alternating vacation periods and holidays.  Thus, during a typical week (i.e., without holidays), J.S. spends the majority of his time – either four or six days per week – with his mother at the out-of-district address.  Petitioner asserts in the petition only that J.S. “spends residential time with [him] under the terms of [the] Joint Custody Agreement.”[2]  Therefore, on this record, I find that J.S. physically resides outside of respondent’s district with his mother and, thus, is not entitled to attend respondent’s district without payment of non-resident tuition.  Accordingly, I cannot conclude that respondent’s determination in this respect was arbitrary or capricious.

Petitioner also contends that he purchased a residence located within respondent’s district in August 2018 and intends to reside therein with J.S.  However, petitioner has submitted no proof indicating that he purchased such property.  In any event, even assuming, arguendo, that petitioner resides in the district, he asserts that J.S. resides with him in accordance with the custody agreement.  Therefore, even if established, the fact that petitioner and J.S. reside at an address located within respondent’s district would not affect the fact that J.S. physically resides with his mother outside of respondent’s district, as noted above.

Finally, petitioner states that “pursuant to [the] custody agreement,” J.S. and N.S. “are both to attend Red Creek Central School.”  Although the custody agreement does include a provision stating: “[b]arring a substantial change in circumstances, the parties agree that the children will attend school in the Red Creek School District,” I do not find that this provision renders J.S. and N.S. residents of respondent’s district.  At the time of the agreement, petitioner and the students’ mother lived outside of respondent’s district and paid tuition on behalf of N.S. and J.S. so the students could attend respondent’s district.  This provision, then, appears to evince the intent of petitioner and the students’ mother with respect to the school district they would like their sons to attend and does not address the issue of residency.  In any event, even if the agreement purported to dictate what school district the students would attend, such a provision of a custody agreement would remain subject to the residency requirements of Education Law §3202(1) (Appeal of D.E.F. and D.M.M., 51 Ed Dept Rep, Decision No. 16,295).

In light of the above determination that J.S. is not a district resident entitled to attend respondent’s schools tuition-free, petitioner’s request for a tuition “refund” for J.S. is academic, as any such determination would be advisory in nature (see e.g. Appeal of Morris, 57 Ed Dept Rep, Decision No. 17,175; Appeal of Strassburg, 56 id., Decision No. 16,931; Appeal of L.B. and T.B., 55 id., Decision No. 16,832.  It is well-established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of Q.H., 57 Ed Dept Rep, Decision No. 17,299; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  In addition, and to the extent that petitioner alternatively seeks a tuition “refund” offset by any school taxes paid, I note that the Commissioner has historically declined to award tuition in residency appeals (Appeal of S.T.V., 57 Ed Dept Rep, Decision No. 17,371; Appeal of M.S. and M.R.F., 57 id., Decision No. 17,347).  Although, as noted above, petitioner has not submitted any proof that he has purchased property in the district, I note that to the extent an individual who pays non-resident tuition also pays school taxes on an in-district property, he or she is entitled to a reduction of tuition pursuant to Education Law §3202(3) (see Appeal of S.T.V., 57 Ed Dept Rep, Decision No. 17,371; Appeal of Lin, 48 id. 166, Decision No. 15,827).

Although the appeal must be dismissed for the reasons described above, I note that petitioner has the right to reapply for admission on behalf of J.S. at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

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