Decision No. 13,095

(January 14, 1994)

J. Russell Clune, P.C., attorney for petitioner, Edward A. Frey, Esq., of counsel

Peter Carparelli, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her son is not a resident of the Harrison Central School District and cannot attend the schools of that district tuition-free. The appeal must be dismissed.

Petitioner's son, Michael, has been enrolled in respondent's educational program since sometime during the 1991-1992 school year. His enrollment was apparently based upon petitioner's claim that she and her children resided in Harrison. Prior to that time, petitioner lived with her husband and children in White Plains. In or about November 1992, the assistant superintendent notified petitioner and her husband by letter that he was reviewing the status of Michael's legal residence. Apparently petitioner's husband still resides in White Plains.

Subsequently, petitioner and her husband met with the assistant superintendent and provided him with documents relating to petitioner's alleged residence in the Harrison school district. The documents included petitioner's voter registration certification, a New York State driver's license, copies of telephone bills and rent receipts. The voter registration certification indicated that petitioner voted in Harrison at the general election in November 1992. The driver's license revealed a Harrison address and indicated that it was issued on November 20, 1992. The telephone bills from the Harrison address reflected various dates between May 1992 and June 1993. The rent receipts were signed by petitioner's mother for a residence she owned and dated from April 1991 through April 1993. At the interview, petitioner and her husband also stated that they had separated, although there was no court order to that effect.

During the course of his review, the assistant superintendent appointed an attendance officer to investigate petitioner's residence. The attendance officer observed petitioner's husband leaving his home in White Plains at 8:00 a.m. on Friday, November 20, 1992 with petitioner's children, Michael and Christopher. He proceeded by car to the address in Harrison claimed by petitioner to be her legal residence. On Tuesday, November 24, 1992 petitioner's husband was observed leaving his home in White Plains in a car in which he was the only occupant. The attendance officer then drove to the home in Harrison and at approximately 8:15 a.m. observed petitioner's husband arrive with petitioner's two children in his car. The attendance officer was then directed to discontinue his investigation.

In April 1993, the assistant superintendent requested the attendance officer to resume his investigation. The investigation report contains four more observations, made between April 27, 1993 and May 5, 1993. On April 27, the attendance officer saw Mr. Flynn leaving his home in White Plains with Michael at 8:04 a.m. On April 29, Mr. Flynn left the White Plains address with both children in his car. On May 4, 1993, the officer observed petitioner leaving the White Plains address with both children in her car. She proceeded from there to the school attended by the older child in Harrison. On May 5, 1993, petitioner left the White Plains address with her two children at 8:15 a.m., and dropped off the older child at the school he attends in Harrison.

The attendance officer also alleges in his affidavit that the telephone bills submitted by petitioner in support of her residency in Harrison reveal very similar figures for each month, all being minimal amounts with little indication of any usage, and no record of messages, long distance or toll services. The officer alleges that he made approximately ten calls to the phone number listed on the bills at various times of the day and evening. On each occasion an answering machine responded to the call. The attendance officer also states that the assistant superintendent sent a certified letter to petitioner at the Harrison address on May 10, 1993. After two notices, the letter was returned unclaimed. A certified copy of the same letter was delivered to the White Plains address on May 11, 1993 and was received and signed for by petitioner at that address. Respondent has also provided copies of petitioner's White Plains voter registration card. It reveals that between 1988 and the November 1992 elections, petitioner was registered to vote and did vote as a resident of White Plains. As noted above, respondents have also provided a copy of a voter registration card dated November 1992, in which petitioner purports to be registered to vote at an address in Harrison. On that card, petitioner asserts that she has resided at the Harrison address for two years.

In the reply, petitioner's husband explains one instance where he was observed with his children by stating that he was not required to work the night of Thursday, November 19, 1992, and the boys stayed with him at his home in White Plains. As for November 24, petitioner's husband alleges that he passed the investigator while he was alone in his car. Petitioner's husband does not offer any explanation for arriving at the home in Harrison only fifteen minutes later with the two children in his car. Petitioner's husband also asserts that the attendance officer's April 27, 1993 observation is mistaken since the boy who was in his car lived next door to him and he was driving that student to a private school in Harrison. Petitioner's husband also claims he was not scheduled to work on November 19 and April 28, 1993 and that the boys stayed with him those nights.

Petitioner's reply also offers an explanation for the May 4 and May 5 observations by respondent's attendance officer, stating that for the period May 1, 1993 through May 8, 1993 she stayed at the White Plains address with her two children because her mother's home in Harrison was being repaired and repainted. She asserts that during this period her husband stayed at another address in North White Plains. Petitioner asserts that she has no recollection of her precise schedule for the period when respondent's attendance officer telephoned her at her private number on April 27, April 30, May 3 and June 2, 1993, but asserts that on June 2 she recalls being out of the house to watch her son play a little league baseball game. With respect to the additional observations of her family, petitioner asserts in the reply that their custody and visitation arrangements allow her husband to have custody of the children on weekends and on days when he is not scheduled to work. The remainder of the time she asserts that the boys stay at her mother's house during the week. Petitioner has not offered any explanation for the discrepancy in the voter registration cards for White Plains and Harrison.

Petitioner contends that her son's legal residence is with her in Harrison. Petitioner argues that she has explained all the alleged discrepancies raised by respondent's observation of her husband and her family, and that respondent's determination that her son resides outside of the Harrison district is based upon errors of law, is arbitrary and capricious and represents an abuse of discretion. Respondent contends that its review and investigation of petitioner's child's residency provides substantial evidence that the child does not reside in the Harrison school district, and that its determination is neither arbitrary nor capricious and is not an abuse of discretion.

For purposes of Education Law '3202, an individual can have only one legal residence (Matter of Wadas, 21 Ed Dept Rep 577, 580). Based upon the record, it is clear that prior to the purported move to Harrison, petitioner and her child did reside with her husband in White Plains. As a party alleging a change in residence, petitioner has the burden of proving she abandoned her former residence and established another one in another district (Appeal of Gibson, 31 Ed Dept Rep 284, 287). One acquires a residence in a particular district by establishing physical presence as an inhabitant, coupled with the intent to remain (Appeal of Reifler, 31 Ed Dept Rep 235, 237).

Respondent's observation reports place petitioner's children at petitioner's husband's residence on multiple occasions. Additionally, I am greatly troubled by some of the evidence which has been introduced by petitioner, particularly that relating to petitioner's voter registration records and the affidavits concerning the purported custody arrangement. The two registration cards are obviously in conflict. In one, petitioner asserts that she had been a resident of Harrison for two years prior to November 20, 1992, while the other reflects that she voted as a resident of White Plains in November 1992. Either petitioner's vote as a White Plains resident in November 1992 or her registration as a two-year resident of Harrison that same month is a falsehood. Under Election Law ''17-104 and 17-132(3), a voter who registers to vote at an address at which he does not reside or votes from an election district where he does not maintain a residence commits a felony. In view of this discrepancy, the credibility of petitioner's statements concerning the alleged residence of her children is seriously in question.

There are also discrepancies between petitioner's various affidavits regarding the informal custody arrangement between petitioner and her husband. In the first affidavits, submitted before respondent's answer, petitioner and her husband alleged that their children would stay with Mr. Flynn on weekends, specifically, Friday, Saturday and Sunday nights. When respondent's answer contained observations showing that the children were also seen leaving Mr. Flynn's house on days other than Friday, Saturday and Sunday the affidavits subsequently submitted were changed to now allege that the children stayed with Mr. Flynn ". . . on weekends and on additional days when he is off." (emphasis supplied) This conflict clearly detracts from the affidavits' credibility.

Accordingly, on the record before me, petitioner has failed to prove that she abandoned her residence in White Plains to move to Harrison. The discrepancies in petitioner's registration records, the conflicting affidavits, respondent's visual observations, and the receipt of the certified letter at the White Plains address, all cast doubt on petitioner's assertions. Moreover, the investigator's inability to contact petitioner at the Harrison address, as well as the limited usage reflected in the telephone bills, further weigh against petitioner's contention that she resides with her children in Harrison. Therefore, on the facts before me, I am constrained to dismiss the petition.

For the balance of this semester, petitioner can either arrange with respondent to pay tuition until such time as she provides competent evidence that she has indeed established residence with her children in the Harrison district, or arrange with the White Plains district for Michael's enrollment and attendance in the schools maintained by that district.

THE APPEAL IS DISMISSED.

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