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Decision No. 12,782

Appeal of VIRGINIA L. from action of the Board of Education of the Tuckahoe Union Free School District regarding residency.

Decision No. 12,782

(August 19, 1992)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, Rochelle L.

Auslander, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner is the mother of two school age children. She brings this appeal to challenge respondent's determination that she is not a resident of the Tuckahoe Union Free School District and that, therefore, her children are not entitled to attend the public schools of the district without payment of tuition. Petitioner asks that I find that she is a resident of the district and direct respondent to admit her children to district schools tuition free. The appeal must be dismissed.

The record before me indicates that petitioner's children have attended school in the Tuckahoe Union Free School District since February 1991. At that time, petitioner indicated that she resided at 17 Midland Avenue in respondent's district. In August 1991 school officials received a copy of a report card for the 1991 summer session issued to petitioner's daughter by the Mount Vernon City School District. On the report card petitioner's address was listed as 36 Palmer Avenue, located in the Mount Vernon school district. Thereafter, respondent conducted an investigation to determine petitioner's residence. According to respondent, an investigator visited the house at 17 Midland Avenue at various times on four separate occasions between October 3 to November 17, 1991. Each time the investigator found no one at home. A deed indicates that the property at 17 Midland Avenue is co-owned by petitioner and one of her daughters, Diana. At one point the investigator visited Diana at her home at 140 Prospect Avenue and inquired where the children lived. According to the investigator, she indicated that they lived with her mother at 36 Palmer Avenue in Mount Vernon. On the evening of October 13, 1991, the investigator telephoned the house at 36 Palmer Avenue and spoke with petitioner.

On December 17, 1991, respondent's assistant superintendent wrote to petitioner indicating that, based on the information provided by its investigator, it appeared she did not reside in respondent's district. The assistant superintendent also notified her that she could set up a meeting to discuss the matter. On January 7, 1991, petitioner met with respondent's assistant superintendent, a principal and an employee in respondent's business office to present documentation to support her claim that she resided in the district. The documentation included:

-a contract of sale and deed indicating that the property located at 17 Midland Avenue is owned by petitioner and her daughter, Diana;

-a mortgage on the Midland Avenue property listing her daughter, Diana, as mortgagor;

-an insurance binder and electric bills for the Midland Avenue property billed to petitioner;

-water bills and mortgage payments for the Midland Avenue property, neither listing the name of the owner;

-an appointment of power of attorney from her daughter, Diana, to petitioner dated December 1990.

After reviewing the documentation, respondent's assistant superintendent, who had been designated by the board of education to make residency determinations pursuant to 8 NYCRR 100.2(y), notified petitioner of his determination that petitioner was not a resident of the district and that her children could no longer attend school there without payment of tuition.

Petitioner initiated this appeal. On February 5, 1992, an interim order was issued directing respondent to permit petitioner's children to continue to attend school in the district until a final decision on the merits. Since that time, both parties have submitted additional evidence which is now part of the record before me.

In addition to the aforementioned documents submitted to the assistant superintendent on January 7, petitioner submits her own affidavit explaining that she was permitted to enroll her daughter in summer school in the Mount Vernon School District because she also owns the Palmer Avenue property in that district. She further states that she uses the Palmer Avenue property for business purposes only and she does not reside there. Respondent submits as part of its answer an affidavit from its investigator attesting to the facts contained in his report. Respondent also submits the affidavit of a second investigator indicating that, during his investigation, conducted in February 1992, he discovered that mail is delivered to 17 Midland Avenue addressed to both petitioner and someone with the name "LaCroix"; that there are two mailboxes at the Midland Avenue address but only one electrical line and one meter box; that cars registered to Alquilele and Debra LaCroix were observed at the Midland Avenue address; that he observed a woman, other than petitioner, leaving the 17 Midland Avenue house and driving the car registered to Debra LaCroix; that petitioner's license lists her address as 36 Palmer Avenue, and that she is listed in the residential pages of the 1990, 1991 and 1992 telephone books at her Palmer Avenue address.

Education Law '3202(1) provides that a person over five years of age and under twenty-one is entitled to attend public school on a tuition free basis in the district in which the person resides. For petitioner's children to be entitled to attend school tuition free in respondent's district, petitioner must establish that her address in the district is her actual and only place of domicile (Matter of VanCurran, et al., 18 Ed Dept Rep 523). In this case, the facts establish that, at a minimum, petitioner owns property in respondent's district. However, by her own admission, she also owns the property that respondent alleges to be her domicile in Mt. Vernon. In such cases, a determination of residence can only be made after considering the totality of circumstances (Matter of Roy, 31 Ed Dept Rep ___, Decision No. 12713, dated June 16, 1992). As the party challenging petitioner's residency, the board of education had the burden of establishing at its hearing that petitioner does not reside in its district (Appeal of Bonfante-Ceruti, 31 Ed Dept Rep 38; Appeal of Juracka, 31 id. 282). The weight of the evidence supports respondent's determination that petitioner and her children do not reside in the district and, therefore, her children are not entitled to attend its schools on a tuition free basis.

The documents petitioner submits as evidence of residency, while relevant, are not conclusive. Her contract for sale and deed for the 17 Midland Avenue property, while evidence of her ownership, is not conclusive evidence of her residency. In addition, although petitioner may receive mail at that address, it is not determinative of residence. Therefore, I find the fact that bills are sent to petitioner at 17 Midland Place, a property undisputedly owned in part by petitioner, not conclusive in establishing her residence at that address. At the same time, I find no evidence that petitioner actually lives at 17 Midland Place.

Respondent provides affidavits of two investigators, who swear that, although they surveiled the Midland Place address on several occasions, they never observed petitioner or her children at that location. The second investigator's report indicates that two individuals by the name of LaCroix reside at the Midland Avenue address. In addition, I find the following evidence, when considered together, sufficient to establish that petitioner resides in Mt. Vernon and not in respondent's district: the report card issued by the Mount Vernon school district listing petitioner's address as Palmer Avenue; the admission of petitioner's daughter stating that the two children live with her mother in Mount Vernon; petitioner's license listing her address as Palmer Avenue; and the residential telephone numbers listing petitioner's address as Palmer Avenue for the past three years. Although neither an investigator's report, nor any other single piece of evidence, would, of itself, be sufficient to draw such a conclusion, after reviewing the totality of the evidence presented in this case, I find that respondent met its burden of proof and properly concluded, based on competent evidence, that petitioner is not domiciled in the Tuckahoe Union Free School District.

To the extent petitioner pays school taxes on her property in respondent's district, she is entitled to a deduction from the established tuition in the amount of such tax, as provided in Education Law '3202(3).