Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Merrick Union Free School District ("respondent") that her son is not a resident. The appeal must be sustained.

Petitioner is the mother of Barak, a student in respondent's elementary school. Petitioner and the student's father own a home within respondent's district. Due to marital conflict between petitioner and her husband, petitioner and her children left the marital residence in March 1996 and moved in with her parents in Levittown, outside respondent's district. Petitioner and her husband continued to dispute the ownership of the marital residence in pending divorce proceedings. Respondent became aware of this conflict and petitioner's relocation to Levittown in June 1996.

By letter dated June 7, 1996, respondent's representative asked petitioner to contact him regarding the information he had obtained that she and her son no longer resided in Merrick. On June 14, 1996, respondent's representative spoke to petitioner, who told him that she had moved to her parents' home in Levittown due to marital conflict, but that she hoped to return to the marital residence by September 1996.

By letter dated August 18, 1996, petitioner's attorney in the matrimonial action wrote to respondent that petitioner was forced to leave the marital residence due to domestic strife, but that petitioner's son was still entitled to attend district schools. Respondent's attorney contacted petitioner's attorney and discussed the matter. Respondent then determined that petitioner's son could continue to attend district schools based on the representation by petitioner's counsel that she was making a motion in the divorce proceedings for exclusive use of the marital residence.

On September 16, 1996, petitioner's attorney sent respondent a copy of an order of protection issued by Nassau County Family Court on September 6, 1996 against petitioner's husband. Respondent's attorney noted that the order of protection listed petitioner's address as Levittown. By letter dated September 17, 1996, respondent's attorney advised petitioner's attorney that the order of protection listed the Levittown address for petitioner and reminded petitioner's attorney of her obligation to keep him apprised of the pending legal proceedings between the student's parents. By letter dated September 24, 1996, petitioner's attorney advised respondent that an order of protection was granted in petitioner's favor, that a motion was being made to give petitioner sole use and occupancy of the residence within the district and that since petitioner's residence in Levittown was temporary, she requested the student's continued enrollment in respondent's schools. The parties continued correspondence dated September 27, October 6, December 6, 9 and 31, 1996, and January 13 and February 17, 1997 concerning these issues.

On February 28, 1997, respondent determined that Barak was not a resident of the district and would be excluded from attending school effective March 14, 1997. This appeal ensued. Petitioner's request for interim relief pending a final determination on the merits was granted on April 3, 1997, with instructions to the parties that any relevant orders from State Supreme Court concerning the divorce proceeding and possession or occupancy of the marital residence be served upon respondent and filed with SED's Office of Counsel.

Petitioner alleges that she is a resident of the district and that her residence has remained unchanged despite her temporary relocation to Levittown due to marital conflict. Respondent contends that petitioner is not a resident of the district and that the petition should be dismissed. Respondent also objects to the late reply submitted by petitioner.

I will address respondent's procedural objection to petitioner's reply. Petitioner originally submitted a reply dated April 29, 1997. On May 16, 1997, my Office of Counsel notified petitioner that her reply was not verified or served and did not comply with the Commissioner's regulations relating to appeals (8 NYCRR 275). Petitioner resubmitted a reply which was served on respondent on June 4, 1997. Respondent objects to petitioner's reply and seeks its exclusion. The Commissioner's regulations (8 NYCRR 275.14) require that a reply be submitted within 10 days after service of the answer. Since the answer in this matter was served on March 31, 1997, both the original reply and the resubmitted reply exceed the time limitation set forth in the regulation. Therefore, petitioner's reply will not be considered.

I will now turn to the merits of the appeal. Education Law '3202(1) provides, in pertinent part:

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). 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, 104 NYS 122 aff'd 196 NY 551, 109 NYS 403; Appeal of Helms, 36 Ed Dept Rep 95; Appeal of Juracka, 31 id. 282; Appeal of Forde, 29 id. 359). A residence is not lost, moreover, until it is abandoned and another is established through action and intent (Appeal of Reifler, 31 Ed Dept Rep 235; Appeal of Gibson, 31 id. 284; Matter of Wadas, 21 id. 577). Residence is acquired by one's physical presence as an inhabitant within the district combined with an intent to remain (Appeal of Reifler, supra).

The record in this case indicates that there was significant marital discord between petitioner and her husband and a longstanding dispute over possession of the marital residence. Respondent contends that since petitioner physically resided in Levittown, used the Levittown address in court proceedings and for mailing purposes, she therefore relinquished her residence in the district. I do not find that the record in this case supports that position. Rather, petitioner claimed that she did not intend to relocate her residence to Levittown and only did so temporarily since she perceived her husband to be a threat to her and her children. The record in this case supports that belief, since petitioner sought several orders of protection against her husband. While respondent relies on my decision in Appeal of Helms, supra, that a relocation due to marital separation constitutes a change in residence for school district purposes, the facts in that appeal are distinguishable. In Helms, there was no evidence of significant marital discord, but merely an assertion by a custodial father that he intended to return to the district at some future date if he was awarded custody of the child. In this case, there was a dispute over possession of the marital residence and petitioner asserted that her relocation to her parents' home was temporary until she could regain possession of the marital residence. Petitioner further offers evidence of payment of the mortgage and taxes on the marital residence of which she sought possession. While respondent disputes petitioner's reasons for leaving the marital residence, argues that she was not "forced" to leave it and offers an affidavit from Mr. Dahan concerning the circumstances of her departure, I do not find that argument persuasive. The record is clear that petitioner is involved in a divisive matrimonial action and, in view of this fact, I do not find the statements of her husband dispositive of petitioner's residence in this matter.

Consequently, the record before me indicates that petitioner temporarily resided with her parents outside the district during a period where she attempted to regain control of the marital residence. She did not establish another residence outside the district since her intention was never to abandon her residence within the district. Therefore, respondent's determination that the student was not a resident of the district was improper and should be overturned.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit Barak Robert Dahan to its schools without the payment of tuition.

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