As the per pupil cost of education continues to rise and available financial resources continue to decrease, the issue of student domicile has become an important source of concern for local boards of education. Boards can recover back tuition payments from students not domiciled within the district and, if they choose, can require the student to pay tuition. As a result, boards are increasingly devoting significant resources to investigate students' domicile, and to initiate actions to recover tuition.
In recent months, this firm has prevailed in two cases brought pursuant to N.J.S.A. 18A:38-1, each of which makes it more economically sensible to bring actions to recover tuition in domicile disputes. In the first matter, Board of Educ. of the Twp. of Livingston v. Luwisch, Commissioner Leo Klagholz found that parents acted in "bad faith" by enrolling their two children in Livingston while maintaining their domicile in Staten Island, New York, and allowed the Board to recover all accrued tuition and pre-judgment interest. In the second case, Board of Educ. of the Twp. of Livingston v. Monawar, we assisted the Board in recovering its attorneys' fees in this domicile dispute. This case represents the first time a board has successfully recovered attorneys' fees in a domicile dispute. Together, these decisions serve to place parents on notice that they not only face the obligation to repay the board for tuition costs, but they also risk having to pay the board attorneys' fees, interest and costs of suit.
Domicile: An Overview
N.J.S.A. 18A:38-1 entitles all persons over five (5) and under twenty (20) years of age domiciled within a particular school district to a free public education in that school district. The statute places the burden of proving domicile on the parents, requiring them to establish by a preponderance of the evidence that the child is entitled to a free public education. The child is entitled to a free public education provided that either he/she lives with his/her parents who are domiciled within the school district, or the child resides with a person who is (a) domiciled within the district, (b) is supporting the child gratis, (c) is assuming all personal obligations for the child relative to school requirements, and (d) intends to keep and support the child gratuitously for a longer time than merely through the school term. N.J.S.A. 18A:38-1(b)(1).
Domicile disputes often arise out of the confusion surrounding the distinction between one's domicile and one's residence. In an attempt to clarify this distinction, the Commissioner has recognized:
"Domicile" is the place where a person "has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning . Residence, on the other hand, though parallel in many respects to domicile, is something quite different in that the elements of permanency, continuity and kinship with the physical, cultural, social and political attributes which inhere in a 'home' according to our accepted understanding, are missing. Intention adequately manifested is the catalyst which converts a residence from a mere place in which a person lives to a domicile."
Lee v. Holmdel Twp. Bd. of Educ., 95 N.J.A.R. 2d (EDU) 214, OAL Dkt. No. EDU 4176-94 (OAL Mar. 24, 1995), aff'd, (Comm'r of Educ. May 11, 1995), aff'd, (State Bd. of Educ. Sept. 6, 1995) (citing State v. Benny, 20 N.J. 238, 250-51 (1955)), aff'd in part, remanded in part on other grounds, (App. Div. Oct. 9, 1996). Therefore, domicile requires that parents show not only the intention to remain indefinitely, but also physical presence. Fort Lee Borough Bd. of Educ. v. Kintos, 93 N.J.A.R. 2d (EDU) 837, OAL Dkt. No. EDU 161-92 (OAL Aug. 26, 1994), aff'd, (Comm'r of Educ.Apr. 13, 1994), aff'd, (State Bd. of Educ. April 13, 1994), aff'd, (App. Div. Oct. 13, 1995) (relying on Lyon v. Glaser, 60 N.J. 259, 264 (1972)); see Matter of Unanue; 255 N.J. Super. 362, 376 (Law Div. 1991) (choice of domicile will be honored by the court provided there are sufficient objective indicia supporting the actual existence of that domicile).
A person can have only one true domicile. Thus, the acquisition of a second residence does not lead to multiple domiciles. Matter of Unanue, supra at 375. Rather, the person retains one true domicile, that which is synonymous with the common understanding of the word "home" and forms the center of his or her domestic, social and civil life. Id. at 374-75; see In the Matter of Lione, Dkt. No. A-5989-94T3 (App. Div. Oct. 28, 1996); see also Black's Law Dictionary, 6th Ed. (1990) (the legal domicile of an individual is important, for "it, rather than the actual residence, often controls the jurisdiction of the taxing authorities and determines where a person may exercise the privilege of voting and other legal rights and privileges").
The procedures for contesting domicile are straightforward. If the superintendent or administrative principal finds that the child neither resides with a parent domiciled within the school district, nor with an individual domiciled within the school district supporting him/her gratuitously, the superintendent or principal may apply to the board for the removal of the child. The parent or guardian is entitled to a hearing before the board. If the board finds against the parent or guardian, the board may order the transfer or removal of the child from school. Parents may contest the board's decision within twenty-one (21) days, and the parents are entitled to an expedited hearing before the Commissioner. If the Commissioner finds in favor of the board, he shall assess the parent or guardian the tuition for the student prorated according to the time of the student's ineligible attendance. N.J.S.A. 18A:38-1(b)(2).
Pre-Judgment Interest: Board of Education of the Township of Livingston v. Luwisch
In August 1990, the Luwisches, domiciliaries of Staten Island, New York, registered their children, K.L. and J.L., for enrollment for the coming school year. At the time of registration, the Luwisches represented to the Board that they were in the process of building a house in Livingston and planned on moving into the house by the end of September 1990. On the basis of this representation, the Board agreed to the registration. Construction delays prevented the Luwisches from relocating to Livingston, and on October 19, 1990, the district informed the Luwisches that they had to begin paying non-resident tuition. After the Luwisches failed to pay the required tuition, the Board filed a petition with the Commissioner on February 21, 1991.
The Honorable Edith Klinger, A.L.J., found in favor of the Board and assessed the Luwisches back tuition. The Commissioner affirmed and required the Luwisches to pay pre-judgment interest, finding "that the denial of the monetary claim was an action taken in bad faith ." See N.J.S.A. 6:24-1.16(c)(1). In this case, the Commissioner focused on the following facts:
Given [the Luwisches'] evolving posture in the face of accurate and consistent notification from the Board, their evasive testimony at the OAL . their 'obviously untrue' responses before an administrative law judge, together with a record which wholly belies their continuing claim that they have 'tried to resolve this matter for seven and a half years,' . the Commissioner finds that the Board is entitled to an award of pre-judgment interest.
The Luwisch decision is significant in that the Commissioner willingly exercised his rarely invoked power to award pre-judgment interest against parents or guardians. Because domicile disputes can be particularly lengthy proceedings, pre-judgment interest is an important disincentive for parents who attempt to avoid paying tuition.
Attorneys' Fees & Costs: Board of Education of the Township of Livingston v. Monawar
The Livingston Board of Education filed a petition with the Commissioner against Malika Monawar, seeking back tuition for the 1995-96 and 1996-97 school years. During this time, the Monawars were domiciled in East Hanover.
The Commissioner granted the Board summary decision, assessing tuition of $13,190 against Ms. Monawar. The Board requested attorneys' fees, which the Commissioner denied on the grounds that the Commissioner felt he does not have the power to award such fees. The Commissioner recognized that boards are financially constrained from enforcing domicile statutes because attorneys' fees typically are higher than the cost for tuition, resulting in a net financial loss each time a board challenges the domicile of a student. The Commissioner acknowledged that he would award attorneys' fees if, "he is granted statutory authority or the imprimatur of the Courts of New Jersey to do so." As a result, the Board filed a lawsuit in Superior Court seeking to impose attorneys' fees on Ms. Monawar.
The Court awarded the Board's attorneys' fees in their entirety, plus interest and costs of suit, and acknowledged that prevailing boards are entitled to recover their attorneys' fees in a domicile dispute. This is the first decision in which a board has been able to recover attorneys fees in a domicile dispute in New Jersey, and it shall serve as valuable precedent for the future.
Conclusion
The Luwisch and Monawar decisions represent significant victories for boards of education in their fight to enforce N.J.S.A. 18A:38-1 and to ensure the attendance of only those students domiciled within the district. In being able to recover pre-judgment interest and attorneys' fees, boards may now be able to avoid suffering financial losses when challenging students' domiciles. Also, because of the prospect of large awards from tuition, interest and attorneys' fees, boards will enjoy a much stronger bargaining position in settlement negotiations.
