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Decision No. 14,142

Appeal of RACHEL RAZZANO, on behalf of ANN MARIE PALMER, from action of the Board of Education of the North Colonie Central School District regarding residency.

Decision No. 14,142

(June 4, 1999)

Louis M. Realbuto, Esq., attorney for petitioner

David W. Morris, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the North Colonie Central School District ("respondent" or "the district") that her daughter is not a district resident. The appeal must be dismissed.

At the start of the 1998-99 school year, petitioner’s daughter, Ann Marie Palmer, attended the Blue Creek Elementary School in respondent’s district. Ann Marie’s father, Michael Palmer, resides at 61 Spring Avenue, Latham, within respondent’s district. Petitioner resides at 209 23rd Street Watervliet, within the Watervliet City School District. In September of 1998, respondent commenced an investigation to determine whether Ann Marie resided in its district.

On approximately fifteen dates between September 2, 1998 and November 12, 1998, Nancy O’Neill, respondent’s employee charged with investigating residency matters, conducted surveillance at petitioner’s Watervliet residence. On each of those occasions, Ms. O’Neill observed petitioner leave her Watervliet home with Ann Marie and drop the child off at either the Blue Creek School or her father’s Latham residence.

Based on these observations, district officials met with petitioner and Ann Marie’s father on either Friday, November 13, 1998 or Monday, November 16, 1998 to discuss Ann Marie’s residency. Although the substance of the parties’ discussion at that meeting is unclear from the record, it appears that the district did not make any determination at that time regarding Ann Marie’s residency, but agreed with Ann Marie’s parents to continue its investigation.

Following the November meeting, Ms. O’Neill conducted surveillance of petitioner on approximately thirteen occasions between November 17, 1998 and December 22, 1998. On each of those occasions, Ms. O’Neill observed petitioner either leave the Watervliet residence with Ann Marie in the morning, or return to this address with Ann Marie at the end of the school day.

Following this second round of surveillance, school district officials met with petitioner and Ann Marie’s father to discuss Ann Marie’s residence on December 23, 1998. By letter dated that same day, respondent’s superintendent of schools provided petitioner with a copy of respondent’s surveillance report and informed petitioner that "[t]he documentation certainly indicates Ann Marie’s primary residence is with you in Watervliet", and notified her that unless she moved into the district, she was required to transfer Ann Marie to the Watervliet schools by the end of January. The superintendent invited petitioner to contact her if petitioner had additional information to share with the district, and informed petitioner that she had a right to appeal the district’s determination to the Commissioner. This appeal ensued. On February 4, 1999, petitioner’s request for interim relief was denied.

Although, petitioner requests that I declare her daughter to be a resident of the district, she has failed to supply any documentation to counter respondent’s surveillance evidence or otherwise establish that Ann Marie resides with her father in the district pursuant to a joint custody arrangement. Instead, petitioner simply asserts in conclusory fashion that she and Ann Marie’s father share joint custody of Ann Marie, and that Ann Marie resides with her father at the Latham address within the district. Although Ann Marie’s father, Michael Palmer, is not named as a petitioner in this proceeding, petitioner has submitted an affidavit from him stating that Ann Marie resides with him 50% of the time at the Latham address pursuant to a joint custody arrangement, and that he and petitioner have designated this address as the child’s legal residence.

In opposing the petition, respondent points out that petitioner has never supplied the district with any information indicating that Ann Marie’s parents have established a joint custody arrangement. Respondent contends that its determination was proper because petitioner failed to present any evidence that Ann Marie resides in the district. Respondent submits an affidavit from its employee, Nancy O’Neill, detailing the results of her surveillance of petitioner. In addition to the surveillance conducted prior to the December 23, 1998 meeting, Ms. O’Neill details her observations of petitioner on six dates between January 4, 1999 and January 22, 1999. On each of those occasions, Ms. O’Neill observed petitioner leave her Watervliet residence with her daughter and drop the child off at the Blue Creek School.

In her reply, petitioner contends that she was denied a meaningful opportunity to challenge respondent’s surveillance results because she was not provided with this information at the mid-November meeting. Although these allegations were contained in petitioner’s memorandum of law, they were not included in the petition. In her reply, petitioner also specifies nine dates for which she disputes respondent’s surveillance results, contending that on those days, her daughter resided with her father.

By letter dated February 23, 1999, respondent objected to petitioner’s reply on the ground that it is untimely.

I will first address two procedural matters. Petitioner’s memorandum of law contains numerous unsworn factual assertions concerning Ann Marie’s residency, as well as a claim that she was not given an opportunity to submit information concerning her daughter’s right to attend school in the district, neither of which are contained in the petition. The purpose of a memorandum of law is to allow a party to present arguments of law (8 NYCRR "276.4). It may not be used to add assertions that are not contained in the pleadings (Appeal of O’Shaughnessy, 35 Ed Dept Rep 57; Appeal of Coombs, 34 id. 253). Accordingly, I have not considered those portions of petitioner’s memorandum of law that contain new facts and allegations that were not in the petition.

Regarding the timeliness of petitioner’s reply papers, I note that my Office of Counsel granted petitioner an extension until February 19, 1999 to file her reply and that petitioner filed it on that date. Accordingly, I find that the reply is timely, notwithstanding the fact that respondent’s receipt of these papers was delayed by an address error. However, with regard to the content of petitioner’s reply, I note that much of the material contained in petitioner’s reply, including her assertion that respondent’s officials failed to provide her with the surveillance dates at the mid-November meeting, is improper. The purpose of a reply is to respond to procedural defenses or new material contained in an answer, and is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been part of the petition (8 NYCRR "" 275.3 and 275.14; Appeal of Morris, 38 Ed Dept Rep 427; Appeal of Foshee, 38 id. 346). Accordingly, I will not consider those portions of the reply that constitute new allegations or evidence which is not responsive to new material or affirmative defenses set forth in the answer. Moreover, as discussed below, even if I were to consider this proof, it would not alter my conclusion that petitioner has failed to establish that her daughter resides in the district.

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 Morgan, 38 Ed Dept Rep 207; Appeal of Bogetti, 38 id. 199). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Dimbo, 38 Ed Dept Rep 233). A child’s residence is presumed to be that of his parents or legal guardians (Appeal of Morgan, supra). Where a child’s parents live apart, the child can have only one legal residence (Appeal of Plesko, 37 Ed Dept Rep 238). Where a court order awards joint legal custody to both parents, and the child’s time is essentially divided between two households, it is the parents’ prerogative to designate the child’s residence for education purposes (Appeal of Cortes, 37 Ed Dept Rep 114).

In an appeal to the Commissioner of Education pursuant to Education Law "310, the petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Plesko, supra). The only proof submitted by petitioner to support her claim that Ann Marie is a resident of respondent’s district is the blanket statements of petitioner and Ann Marie’s father that they share joint custody of Ann Marie and have designated the Latham address as the child’s residence. I have previously held that where a court awards joint custody of a child and the child’s time is essentially divided between two households, the parents may designate the child’s residence (Appeal of Cortes, supra). However, in this case, I find that petitioner has failed to sustain her burden of establishing either that she and Ann Marie’s father have a joint custody arrangement, or that pursuant to such an agreement, Ann Marie divides her time between the two households. In the absence of such proof, I cannot find that petitioner and Anne Marie’s father are entitled to designate her residence for education purposes. Rather, the child’s residency must be determined by examining the traditional residency factors, physical presence as an inhabitant in the district and an intent to reside in the district (Appeal of Dimbo, supra).

Respondent’s surveillance results provide compelling evidence that Ann Marie resides with her mother in Watervliet, outside respondent’s district. Respondent’s employee conducted surveillance on approximately 35 random school days between September 29, 1998 and January 22, 1999. Without exception, on each of those occasions, Ms. O’Neill observed petitioner leave in the morning with her daughter from the Watervliet address, or return there in the afternoon with her daughter. Petitioner has offered no proof to counter respondent’s surveillance evidence, or otherwise explained why respondent might consistently find Ann Marie at petitioner’s Watervliet address. I do not find persuasive petitioner’s assertion that respondent’s survey is insufficient because "it relies on a sample of less than 50% of all days within the period." Respondent conducted surveillance on a significant number of school days over a four-month period. The fact that surveillance was not conducted at a greater frequency during this period does not alter my conclusion that the consistency of the observations compels the finding that Ann Marie resides with her mother outside the district.

I note that in her memorandum of law and reply affidavit, petitioner contends that respondent’s surveillance findings for certain specified dates are "in error". Even if I were to consider this belated information, petitioner's blanket assertions, without either explanation or substantiating documentation are insufficient to overcome respondent’s proof. In short, the evidence before me is insufficient to conclude that respondent acted arbitrarily or capriciously in determining that Ann Marie does not reside in respondent’s district.