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Decision No. 16,372

Appeal of D.F., on behalf of his daughter M.F., from action of the Board of Education of the East Williston Union Free School District regarding residency.

Appeal of D.F., on behalf of his son J.F., from action of the Board of Education of the East Williston Union Free School District regarding residency.

Decision No. 16,372

(July 18, 2012)

John L. Maccarone, Esq., attorney for petitioner

Guercio & Guercio, LLP, attorneys for respondent, Barbara P. Aloe, Esq., of counsel

KING, JR., Commissioner.--In two separate appeals, petitioner challenges determinations of the Board of Education of the East Williston Union Free School District (“respondent”) that his children, M.F. and J.F., are not residents of the district.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Petitioner and his wife, G.Z., who is M.F. and J.F.’s mother, are married but live apart.  Petitioner owns a home and resides on Sherwood Lane (“Sherwood”) within the district.  G.Z. rents a dwelling on Peachtree Lane (“Peachtree”) outside the district.

The district’s assistant superintendent for business (“assistant superintendent”) avers that questions arose concerning the children’s residency after district officials became aware during the 2009-2010 school year that G.Z. had submitted a transportation request to and from Peachtree for A.F., the younger sibling of M.F. and J.F.  The district conducted a residency hearing on February 1, 2010.  Petitioner appeared alone and explained that he and his wife were in the midst of a trial separation.  He stated that M.F. and J.F. resided with him most of the time but that A.F., who was only two years old, stayed primarily with his mother.  Petitioner also stated that he paid for his wife’s rental unit and that the two older children were free to see their mother on weekends.  Based on this information, the assistant superintendent notified petitioner by letter the same day that the district determined that his children were residents of the district and would permit them to continue to attend school there.

The assistant superintendent avers further, however, that the district continued to receive information that M.F. and J.F. were residing outside the district with their mother.  Accordingly, the district commenced an investigation, which included surveillance at both addresses, between March and June 2011.  Based on the investigation, the assistant superintendent scheduled a second residency hearing for June 23, 2011.  At the hearing, petitioner again appeared without his wife and testified, among other things, that he and his wife were separated but had no formal separation agreement; that the children lived with him and slept at Sherwood; that they took the bus or he drove them to school from Sherwood; and that his mother met them at the bus and supervised them after school.

By letter to petitioner and his wife dated June 28, 2011, the assistant superintendent determined that M.F. and J.F. were not district residents based on evidence in the surveillance report that contradicted petitioner’s testimony.  These appeals ensued.  Petitioner’s requests for interim relief were denied on August 4, 2011.

Petitioner contends that M.F. and J.F. reside with him at Sherwood, that he is their sole support for food, shelter and clothing, and that he exercises control over their activities and behavior.  Petitioner asserts that M.F. and J.F. use Peachtree as a “way station” for before- and after-school activities, but that they return to sleep at Sherwood, which he refers to as the “marital” residence.  He seeks a determination that his children are district residents entitled to attend school in the district without the payment of tuition.

Respondent contends that the appeals must be dismissed.  It asserts that the surveillance report supports its determination that M.F. and J.F. are not district residents and, therefore, its determinations are rational and neither arbitrary nor capricious.

I must first address two procedural issues.  Respondent requests that I disregard the affidavit of petitioner’s wife, G.Z., attached in Exhibit A to each petition.  An affidavit is defined as “[a] written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation” (Black’s Law Dictionary 58 [6th ed 1990]).  I find G.Z.’s “affidavit” defective in several respects.  The purported affidavit contains ten numbered paragraphs on one and one-third typewritten pages.  However, although there is ample room for her signature directly below these paragraphs, G.Z.’s signature is on a separate, third page which is otherwise blank.  Thus, in the first instance, it is unclear whether G.Z. actually signed the “affidavit” or a blank piece of paper.

Secondly, while the third page contains a notary public’s stamp, the notary did not provide an adequate oath.  “While there is no specific form of oath required in New York (see General Construction Law §36), an oath is to be ‘calculated to awaken the conscience and impress the mind of the person taking it in accordance with his or her religious or ethical beliefs’ (CPLR 2309[b])” (New Millennium Psychological Services, P.C., v. Unitrin Advantage Ins. Co., 32 Misc 3d 69).  Moreover, “[a]n oath is to be administered in such a way as to impress upon the person making the oath that the material to which the person is swearing is true” (Greystone Staffing, Inc. v. Vincenzi, 7 Misc.3d 1024[A]; seealso People v. Grier, 42 A.D.2d 803).  In addition, a notary, in the absence of a showing to the contrary, is presumed to have acted within his or her jurisdiction and to have carried out the duties required by law” (Furtow v. Jenstro Enterprises, Inc., et al., 75 AD3d 494, citing Feinman v. Mennan Oil Co., 248 AD2d at 504 [citations omitted]). 

Here, however, there is no attestation that G.Z. was duly sworn or that she had actually appeared before the notary public (cf. Furtow v. Jenstro Enters., Inc., et al., 75 AD3d 494 [form of affidavit was adequate where it recited that affidavit was “duly sworn” and contained a jurat stating that the affidavit was “sworn to before” a notary public, who signed and stamped the document]). On the third page, to the side of G.Z.’s signature, it merely states, “Sworn to the __ [d]ay of July, 2011.”  Moreover, while the notary’s signature appears on G.Z.’s purported affidavit in the appeal regarding J.F., it does not appear on such document in the appeal regarding M.F.  In contrast, the same notary signed and notarized petitioner’s verification attached to each petition, using the oath:  “Subscribed and sworn to before me this 25th day of July 2011.”  Notably, although represented by counsel, petitioner failed to submit a reply to address these inconsistencies and defects or the objections in respondent’s answer.  I find that the collective defects in G.Z.’s document constitute more than mere defects in form and render the purported affidavit inadequate (seeNew Millennium Psychological Services, P.C., v. Unitrin Advantage Ins. Co., 32 Misc 3d 69).  Accordingly, while I have reviewed the document, I have not considered it as, or given it the weight of, an affidavit.

Respondent also objects to an unsworn letter included as part of Exhibit A to each petition.  While I have accepted the letter, I have not considered it as, or given it the weight of, an affidavit since the statement was not made under oath.

Turning now to the merits, 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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 affd, 196 NY 551; Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288).  In cases where parents have joint custody, the child’s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeals of Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

At the hearing, petitioner testified that he works various hours beginning as early as 7:00 a.m. and does not arrive home until between 6:00 and 10:00 p.m.  He also stated that “I usually take the kids to school and stuff in the morning before I go” or they take the bus; that “the kids stay with me and the mother could have them any time she wants;” that his mother meets the children at the bus after school because he is at work; and that “at night when I am home [the children] belong to me . . . one hundred percent of the time.”  In his petition, petitioner refers to Peachtree as a “way station” and contends that “the fact that a child may leave for school from a different address other than his or her residence is totally within the norm of present day America and has no bearing on where her residence is located.”

In this case, petitioner has provided no credible evidence that he and his wife are separated or that the children are dividing their time between them.  Where a child’s parents claim to live apart, but do not produce proof of the child’s time being divided between households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (seeAppeal of Parhami, 50 Ed Dept Rep, Decision No. 16,085).  I find that petitioner has failed to meet his burden of proof here.

The surveillance report contradicts petitioner’s assertions in several respects.  The district’s investigation was conducted over 13 days from March 31, 2011 through June 23, 2011.  Regarding M.F., surveillance revealed that on seven mornings, including the morning of the second residency hearing on June 23, 2011, an investigator arrived at Peachtree between 5:15 a.m. and 6:00 a.m. and observed M.F. and her mother exit the house slightly after 8:00 a.m. and drive off.  Surveillance also revealed that on three different dates, the investigator observed M.F. arrive at Peachtree in the same vehicle between 4:15 p.m. and 4:30 p.m.  On two of those occasions, a second investigator stationed at Sherwood observed M.F. exit a district bus at a bus stop on Sherwood Avenue, and then enter a house down the street from petitioner’s residence.  This investigator then observed petitioner’s wife pick up M.F. at that house and drive away in the same vehicle later observed by the first investigator arriving at Peachtree.

Similarly, with regard to J.F., surveillance revealed that he also exited Peachtree on the same seven mornings M.F. was observed exiting there, albeit usually at a later time because the elementary school he attends commences classes later in the morning.  He was also observed exiting there on two additional mornings when M.F. was not seen exiting there.  In addition, on the three dates of afternoon surveillance at Sherwood, J.F. was observed exiting the bus near petitioner’s residence and then entering a car with M.F. and their mother, which was later observed arriving at Peachtree.  Finally, on two weekday mornings between 5:50 a.m. and 9:20 a.m., the investigators failed to observe petitioner, M.F. or J.F. exit Sherwood, and at no time did they observe either student entering petitioner’s home on Sherwood after exiting the bus.  Nor did the investigators ever observe petitioner dropping off the children at Peachtree in the early morning, although an adult male, presumably petitioner, was observed exiting there with one or both children on several occasions hours after the investigators arrived in the morning.

Petitioner has presented no evidence to substantiate his statements that the children sleep at Sherwood or that he sometimes drops them off at Peachtree.  Indeed, the statements in G.Z.’s unsworn document, including that petitioner sometimes drops off M.F. and J.F. very early in the morning, and that G.Z. has “recently begun to sleep at” Sherwood, are contradicted by the reports of the investigators, who on nine weekday mornings arrived at Peachtree as early as 5:00 a.m. and never observed petitioner drop off his children there.

Nor has petitioner presented any evidence to rebut the surveillance evidence, which revealed both students exiting Peachtree between 8:00 and 9:15 a.m. on several occasions and being driven to school from there.  Petitioner submits one unsworn letter from the instructor of an after school program in which J.F. is allegedly enrolled.  Although the instructor states that J.F. resides at Sherwood, I find this letter unpersuasive because it is unsworn and provides no basis on which to substantiate the instructor’s bald assertion regarding J.F.’s residency.  I similarly find unpersuasive an affidavit from a rabbi submitted on petitioner’s behalf.  Although this document is sworn, the fact that the rabbi has counseled the entire family at Sherwood, which petitioner refers to as the “marital residence,” is not dispositive for purposes of residency, and is insufficient to overcome respondent’s evidence to the contrary.

Accordingly, petitioner has failed to meet his burden of proving that M.F. and J.F. are physically present in the district.  Based on the record before me, I cannot find that respondent’s determinations were arbitrary or capricious.

Although the appeals must be dismissed, I note that petitioner retains the right to apply for admission to the district on his children’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.