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Decision No. 13,660

Appeal of REV. PHILLIP and SHEILA ELLIOTT, on behalf of their children, BRANDON AND PHILESHA ELLIOTT, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 13,660

(August 26, 1996)

Gerald Gardner Wright, P.C., attorneys for petitioners, Gerald G. Wright, Esq., of counsel

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, LLP,

attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Baldwin Union Free School District ("respondent") that they and their children are not residents of the district. The appeal must be sustained.

Petitioners are the parents of two children, Brandon and Philesha. Philesha is a junior at respondent's high school. The facts are in dispute regarding the class placement of petitioners' son, Brandon. Petitioners claim that he is a senior at respondent's high school, but respondent contends that he is a junior and does not have sufficient credits to be considered a senior. In October 1995, petitioner Phillip Elliott was appointed the pastor of a church located in Hempstead, New York, outside respondent's district. While he has use of a parsonage located in Hempstead, petitioners also own property in Roosevelt, New York, within the district, where they have resided for the past ten years.

On or about December 1995, respondent hired a private investigator to conduct a surveillance of petitioners' Roosevelt domicile after petitioners listed the Hempstead telephone number on school documents. The surveillance was conducted on seven days between December 1, 1995 and December 13, 1995. Petitioners' children were observed leaving the Hempstead address in the mornings and arriving there in the afternoons. On January 10, 1996, petitioners met with respondent's representative to discuss the residency issue. By letter dated January 12, 1996, respondent informed petitioners that it would exclude their children from the district's high school, effective January 23, 1996. This appeal ensued. Petitioners' request for interim relief pending a determination on the merits was granted on February 8, 1996.

Petitioners allege that they reside in respondent's district and that they are only temporarily living outside the district because of petitioner Phillip Elliott's pastoral duties. They seek a determination that they and their children are residents of the district. Respondent contends that petitioners have left their previous domicile in the district and have established a new one outside the district in Hempstead. Respondent further contends that Brandon is not a high school senior and therefore is not eligible to complete his senior year at its high school despite his non-resident status. Respondent also contends that, with rare exceptions, it does not accept non-resident students.

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220).

In this case, it is undisputed that petitioners own property in respondent's district. The record also establishes that petitioners occupy the parsonage in Hempstead and surveillance conducted by respondent indicates that petitioners and the children are present at the Hempstead address. Petitioners submit the affidavit of Minister Richard Wilson, who affirms that he resides at petitioners' address in the district, that petitioners and their children have furniture and clothing on the premises, and that when the petitioners are out of town, Minister Wilson watches their children at the address within the district. Petitioners do not deny that due to petitioner Phillip Elliott's pastoral obligations, petitioners and their children stay at the parsonage in Hempstead. The issue here is whether the Hempstead parsonage has become their legal residence.

For purposes of Education Law '3202, a person can have only one legal residence (Appeal of Britton, 33 Ed Dept Rep 198; Matter of Wadas, 21 id. 577). A residence is not lost, moreover, until it is abandoned and another is established through action and intent (Matter of Wadas, supra; Appeal of Gibson, 31 Ed Dept Rep 284; Appeal of Reifler, 31 id. 235). Residence is acquired by one's physical presence as an inhabitant within the district combined with an intent to remain (Appeal of Reifler, supra). For a change to a new domicile to be effected, there must be a union of residence in fact and an "absolute and fixed intention" to abandon the former and make the new locality a fixed and permanent home (Hosley v. Curry, 35 NY2d 447; Matter of Newcomb, 192 NY 238). Furthermore, a change of location for convenience in one's work does not necessarily constitute a change of domicile (NY Jur 2d Domicile and Residence '25; Re Sawyers Will, 190 Misc 659).

The evidence in this record shows that petitioners are physically present at the Hempstead address. However, petitioners have indicated that the only reason they are present at the Hempstead address is petitioner Phillip Elliott's pastoral responsibilities and that his pastoral assignment may change in the near future. Petitioners do not own the residence in Hempstead and the record establishes that it is church property. Furthermore, the affidavit of Minister Wilson indicates that petitioners are also physically present on occasion at their home within the district and that significant personal property, including furniture and clothing, remains at that address. Given the nature of petitioner Phillip Elliott's work, it is not unreasonable to conclude that the pastoral assignment in Hempstead is temporary and could change in the future. Therefore, I cannot conclude that petitioners have, by action or words, abandoned their residence in Roosevelt and established a new one in Hempstead with an intent to remain there.

In light of the foregoing disposition, it is unnecessary to address the dispute between the parties concerning Brandon's class status.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent immediately admit Brandon Elliott and Philesha Elliott to the schools of the Baldwin Union Free School District without the payment of tuition.

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