BOARD OF EDUCATION OF THE TOWNSHIP OF PISCATAWAY, ETC. VS. A.V. and S.V., ETC. (NEW JERSEY COMMISSIONER OF EDUCATION)

Court: New Jersey Superior Court Appellate Division
Date filed: 2021-09-27
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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4113-19

BOARD OF EDUCATION
OF THE TOWNSHIP OF
PISCATAWAY,
MIDDLESEX COUNTY,

          Petitioner-Respondent,

v.

A.V. and S.V., on behalf of minor
children, N.V. and T.V.,

     Respondents-Appellants.
____________________________

                   Submitted September 20, 2021 – Decided September 27, 2021

                   Before Judges Vernoia and Firko.

                   On appeal from the New Jersey Commissioner of
                   Education, Docket No. 232-8/16.

                   A.V., appellant pro se.

                   David B. Rubin, attorney for respondent Board of
                   Education of the Township of Piscataway.

                   Andrew J. Bruck, Acting Attorney General, attorney for
                   respondent Commissioner of Education (David L.
            Kalisky, Deputy Attorney General, on the statement in
            lieu of brief).

PER CURIAM

      A.V., the father of two children, N.V. and T.V., appeals from a

Commissioner of Education (Commissioner) final decision adopting an

administrative law judge's (ALJ) findings and conclusion that the children were

not entitled to a free education in the Township of Piscataway public schools,

and directing that A.V. pay $8,830.08 in tuition reimbursement to the Board of

Education of the Township of Piscataway (BOE). 1 We affirm.

                                       I.

      The BOE filed a complaint in the Law Division "alleg[ing] that, for

several months during the 2010-[2011] school year, . . . A.V. and [S.V.] were

'not domiciled within [the Piscataway] school district,' but that their children

attended its schools."2 Piscataway Tp. Bd. of Educ. v. A.V., No. A-2991-12



1
  The Commissioner's final decision also ordered that S.V., who is A.V.'s wife
and the children's mother, pay $8,830.08 in tuition reimbursement to the BOE.
S.V. did not appeal from the Commissioner's final decision and has not
participated in this appeal.
2
   In our prior decision, we refer to the mother of the children as "S.S." In the
present matter, the children's mother is referred to as "S.V." We understand that
although she is referred to by different initials in the two cases, S.S. and S.V.
are the same person.
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(App. Div. June 11, 2015) (slip op. at 1-2).          The BOE sought tuition

reimbursement under N.J.S.A. 18A:38-1(b)(2) for the children's "'ineligible

attendance' in its schools." Id. at 2. The court held a bench trial, found A.V.

and S.V. were not domiciled in Piscataway during a period the children attended

schools in the district, and awarded the BOE damages. Id. at 10. We vacated

the court's judgment and remanded to the Law Division for referral of "the

matter to the Commissioner . . . for administrative adjudication on the issue of

domicile, the issue of whether tuition is due, and, if tuition is due, the amount

of tuition due." Id. at 18. Following our remand, the Law Division referred the

matter to the Commissioner, who transmitted it to the Office of Administrative

Law as a contested case.

      An ALJ held a hearing over seven days, and issued a detailed written

Initial Decision following the submission of post-hearing briefs. The ALJ noted

the BOE presented the testimony of T.V.'s eighth grade teacher, Mary Juffey;

school psychologist, Allyson Brown; the Piscataway school district's former

director of student personnel services and current homeless liaison , Diane

Janson; the district's past superintendent, Robert Copeland; and the district's

current superintendent, Teresa Rafferty. A.V. testified, and he and S.V. also

presented the following witnesses: the BOE's former supervisor of enrollment


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and attendance, David Ford; and Bridgewater-Raritan Regional School District

residency officer, Walter Kalicki. Based on the testimony of the witnesses and

documentary evidence presented at the hearing, the ALJ made detailed findings

of fact.

      The ALJ found that A.V. and his family began living in Piscataway "in or

around 2006 and lived at various locations in the Piscataway school district prior

to the 2010-2011 school year." In May 2010, S.V. and her mother signed an

"Affidavit of Residency of Student" which included a representation that S.V.

"and her . . . children[,] N.V., T.V. . . . were residing at [S.V.'s] mother's home

in Piscataway."3    The affidavit further stated S.V. understood it was her

responsibility to inform the BOE of any change in residence.

      The ALJ further found the evidence established that in the "spring of

2010," A.V. became employed as a superintendent of a housing complex in

Raritan, which is outside of the Piscataway school district. A.V. was permitted

to reside in the housing complex as a condition of his employment, and he was



3
   The affidavit also referenced S.V.'s third child, A.V., who shares the initials
of appellant A.V. here. We do not address any issues concerning S.V.'s third
child because the ALJ did not recommend awarding any tuition reimbursement
based on that child's attendance in the Piscataway school district, and the
Commissioner did not order any tuition reimbursement based on that child 's
attendance at a district school.
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provided a lease for an apartment in the complex with a term commencing on

April 17, 2010 and ending on August 17, 2010. The lease identified S.V., N.V.,

and T.V. as residents of the apartment. The lease also included an addendum

stating A.V. would occupy the premises "in connection with [his] employment"

and providing "the apartment is provided to him as an incident to his

employment." The ALJ noted that the lease and addendum were not signed.

      The ALJ further found that A.V.'s employment was terminated in August

2010, and he was provided a notice to vacate the apartment. The record,

however, established A.V. did not vacate the apartment until a landlord-tenant

complaint was filed against him in October 2010. A subsequent warrant of

removal directed that A.V. vacate the apartment by December 20, 2010.

      The ALJ explained that during the 2010 school year, N.V. was in sixth

grade, T.V. was in eighth grade, and they attended schools in the Piscataway

school district. The ALJ also explained that by January 2011, A.V. and the

children were domiciled in Piscataway. Thus, the ALJ found the issue presented

was whether the children were domiciled in Piscataway during the period from

the commencement of the school year on September 3 to December 21, 2010.

      The ALJ recounted the testimony she found established N.V. and T.V.

were not domiciled in Piscataway during the relevant period. Based on Juffey's


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and Brown's testimony, the ALJ found that in December 2010, T.V. reported she

was upset because her family was being evicted from the Raritan home in which

they had been living. T.V. said the family had been living in Raritan because

that is where her father, A.V., was employed. In response to T.V.'s report,

Janson spoke with S.V., and recommended that S.V. contact Social Services in

Somerset County for housing services because that is where Raritan is located.

In response, S.V. did not say the family lived in Piscataway.

      The ALJ further found Janson advised Ford about what she had learned

because Ford conducted BOE investigations, which included interviewing

homeless families within the district. The BOE subsequently informed S.V. in

writing that she and A.V. owed tuition because S.V., N.V., and T.V. did not

reside in the district from September 3, 2010, when school started, to December

21, 2010, when A.V., S.V., and the children were evicted from the Raritan

apartment and returned to Piscataway.

      The ALJ further noted Copeland's testimony that he had a telephone call

with A.V. in the spring of 2011, during which A.V. raised "education issues"

concerning his children. During the phone call, Copeland asked A.V. where he

and his family were living during the fall of 2010, and A.V. said, "[y]eah, we

weren't living [in Piscataway] then but that's beside the point." The ALJ further


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found A.V. told Copeland "he lived in Raritan at that time" and that, "[b]ased

on what [A.V.] told him during the conversation, Copeland understood that

[A.V.] and his family were living in Raritan during the fall of 2010. "

Additionally, Rafferty testified she was present during Copeland's call with

A.V., and A.V. said "we were living in Raritan at that time[,] but I really didn't

want my kids to go to school in Raritan."

      The ALJ further cited to Ford's testimony that in December 2010, Janson

informed him T.V.'s family was homeless.         Ford testified he was "really

shocked" because S.V. had provided the May 2010 affidavit of residency stating

that she and the children were residing in her mother's Piscataway home, and

the family had not reported any change in address. Ford also testified he met

with A.V. after being informed the family was homeless in December 2010, and

A.V. said that he and S.V. had been residing in Raritan but the children had been

living with S.V.'s mother in Piscataway. Ford informed A.V. that the children

should have been enrolled in the Bridgewater-Raritan school district while A.V.

and S.V. lived in Raritan because S.V.'s mother did not have guardianship of the

children.

      The ALJ detailed A.V.'s testimony that he became employed at the Raritan

apartment complex in April 2010 and was later permitted to live in one of the


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                                        7
apartments with the children. A.V. testified the children lived with him in the

apartment during the summer of 2010. According to A.V., he inquired about

enrolling the children in the Bridgewater-Raritan school district, determined he

could not provide the paperwork required to enroll the children in that district,

and understood his children were ineligible to attend school in the district.

      The ALJ found A.V. testified that the children returned to live with their

grandmother in Piscataway in September 2010 and remained living there

through December.      According to A.V., following the termination of his

employment, he left the Raritan apartment in December 2010, and he, S.V. and

T.V. lived in a motel. The ALJ further detailed A.V.'s testimony concerning the

places he and his family had resided while attending schools in the Piscataway

school district prior to 2010, his interactions with Copeland and Ford, and his

contention his children resided with S.V.'s mother in Piscataway during the fall

of 2010 and resided with him in Raritan only during the summer of 2010.

      The ALJ also recounted Kalicki's testimony refuting A.V.'s claim that

Kalicki required that A.V. produce particular documents to enroll the children

in the Bridgewater-Raritan school district. Kalicki testified his records showed

A.V. contacted him only in March 2011, not during the summer of 2010, and




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                                        8
Kalicki had no recollection of ever speaking with A.V. in 2010 about the

possible enrollment of A.V.'s children in the district.

      After summarizing the testimony and evidence, the ALJ determined the

"pivotal issue" was whether A.V.'s "two children were eligible to attend the

Piscataway schools during the period of September 3 to December 21, 2010,

pursuant to the statutory and regulatory requirements." The ALJ found A.V.

bore the "burden of proof by a preponderance of the evidence that the [children

are] eligible for a free education" under N.J.S.A. 18A:38-1(b)(2).

      The ALJ found the BOE's witnesses credible, including Copeland and

Rafferty with respect to their testimony concerning A.V.'s admissions that his

family lived in Raritan during the fall of 2010. The ALJ also found A.V. was

not a credible witness based on the inconsistencies in his testimony, including

his conflicting accounts of his family's living arrangements, the conflicts

between his testimony and other evidence and testimony the ALJ found credible,

and the inconsistencies between his testimony and T.V.'s reports to Juffey and

Brown. The ALJ further noted A.V. did not present any family members

supporting his version of the events, and the two witnesses he presented, Ford

and Kalicki, contradicted his version of the events.




                                                                         A-4113-19
                                        9
        The ALJ concluded A.V. failed to present credible evidence establishing

N.V. and T.V. were eligible for a free education in the Piscataway school district

during the period from September 3 to December 21, 2010. The ALJ determined

the evidence established the children were not domiciled in Piscataway during

that time. The ALJ found there was no credible evidence the family was

homeless during that period because S.V. executed the affidavit of residency in

May 2010 stating the children would reside with her and her mother in

Piscataway, and the credible evidence established A.V. and the children lived in

the Raritan apartment thereafter until the warrant for removal was effective on

December 20, 2010. The ALJ determined the BOE is entitled to $8,830.08 in

tuition reimbursement from A.V. based on a per diem rate of $61.32 for each

child for the seventy-two school days between September 3 and December 21,

2010.

        A.V. filed exceptions to the ALJ's decision. The Commissioner adopted

the ALJ's findings, conclusions, and recommended decision, and determined

A.V. failed to sustain his "burden of establishing that [his children] were

domiciled in Piscataway from September to December 2010, for the reasons

thoroughly detailed in the [ALJ's] Initial Decision." This appeal followed.




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                                        II.

      We will reverse an agency's final decision only if there is a "'clear

showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair

support in the record[.]" In re Pontoriero, 439 N.J. Super. 24, 34 (App. Div.

2015) (alteration in original) (quoting Circus Liquors, Inc. v. Middletown Twp.,

199 N.J. 1, 9 (2009)). An action is arbitrary, capricious, or unreasonable if it

(1) violates the law, including express or implied legislative policies, (2) is

unsupported by substantial evidence in the record, or (3) "in applying the

legislative policies to the facts, the agency clearly erred in reaching a conclusion

that could not reasonably have been made on a showing of the relevant factors."

In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J.

370, 385-86 (2013) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).

"[W]e will 'intervene only in those rare circumstances in which an agency action

is clearly inconsistent with its statutory mission or with other State policy. '"

Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176, 182 (App. Div. 2011)

(quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

      Here, we consider A.V.'s claim the Commissioner erred by finding he

failed to prove his children were entitled to a free public education in

Piscataway. "Public schools shall be free to . . . persons over five and under


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                                        11
[twenty] years of age" who are "domiciled within the school district." N.J.S.A.

18A:38-1(a).   "A child's domicile is normally that of his or her parents."

Somerville Bd. of Educ. v. Manville Bd. of Educ., 332 N.J. Super. 6, 12 (App.

Div. 2000) (citations omitted), aff'd, 167 N.J. 155 (2001).

      A student is deemed to be "domiciled in the school district when he or she

is the child of a parent or guardian whose domicile is located within the school

district." N.J.A.C. 6A:22-3.1(a)(1). A student who does not live with his

parents may be deemed domiciled where the student is

            kept in the home of another person domiciled within the
            school district and is supported by such other person
            gratis as if he were such other person's own child, upon
            filing by such other person with the . . . board of
            education of the district, . . . a sworn statement that he
            is domiciled within the district and is supporting the
            child gratis and will assume all personal obligations for
            the child relative to school requirements and that he
            intends so 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).]

      When a board of education determines a child is not domiciled within the

district, a parent or guardian may "contest the board's decision before the

commissioner . . . and shall be entitled to an expedited hearing before the

commissioner."    N.J.S.A. 18A:38-1(b)(2).      In the proceedings before the

commissioner, the parent or guardian has "the burden of pro[ving] by a

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                                       12
preponderance of the evidence that the child is eligible for a free education. "

Ibid.

        To satisfy that burden, A.V. was required to prove by a preponderance of

the evidence that his children were domiciled in Piscataway from September 3,

2010, to December 21, 2010. Ibid. A domicile is legally defined as a permanent

home from which a person does not intend to move. Lipman v. Rutgers-State

Univ. of N.J., 329 N.J. Super. 433, 444 (App. Div. 2000). A person may have

multiple residences, but they can only have one domicile, which is their

permanent home. Somerville, 332 N.J. Super. at 12.

        We have carefully reviewed the record and are satisfied that based on the

ALJ's credibility determinations and findings of fact, which the Commissioner

adopted, A.V. did not meet his burden.             The evidence supports the

Commissioner's determination that A.V.'s children were domiciled in Raritan

during the fall of 2010 because they resided with A.V. in Raritan during that

time. Indeed, T.V. said as much when she reported, in a manner consistent with

the evidence showing the warrant of removal from the Raritan residence became

effective on December 20, 2010, that her family had been evicted from their

Raritan home. T.V.'s report is wholly inconsistent with A.V.'s testimony that

the children were, at the time, residing with S.V.'s mother in Piscataway.


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                                       13
Moreover, A.V. admitted during the phone call with Copeland and Rafferty that

his family lived with him in Raritan during the fall of 2010.

      Against the substantial evidence A.V. and his children were domiciled in

Raritan, A.V. did not present any evidence the Commissioner deemed credible

establishing he or his children were domiciled in Piscataway during the first half

of the 2010-2011 school year. He failed to produce any evidence that his

children had a home in Piscataway that was a "true, fixed, permanent home and

principal establishment, and to which, whenever [they were] absent, [they had]

the intention of returning, and from which they had no present intention of

moving." Kurilla v. Roth, 132 N.J.L. 213, 215 (Sup. Ct. 1944).

      Additionally, although A.V. claimed the children lived with S.V.'s mother

in Piscataway, he failed to introduce evidence S.V.'s mother filed a sworn

statement with the BOE stating she was domiciled in Piscataway, she supported

N.V. and T.V. gratis as if they were her own, and she assumed all personal

obligations for them relative to their school requirements and intended to keep

them for a period longer than the school year. See N.J.S.A. 18A:38-1(b)(1).

Thus, there was no basis in the evidence for the Commissioner to conclude th e

children were domiciled with S.V.'s mother at her Piscataway home. Ibid.




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                                       14
      In his pro se brief on appeal, A.V. argues the court erred by interpreting

the evidence in a manner unfavorable to him. We reject his arguments because

there is substantial credible evidence supporting the Commissioner's

determination that he failed to prove his children were domiciled in Piscataway

within the meaning of N.J.S.A. 18A:38-1 and N.J.A.C. 6A:22-3.1(a)(1) during

the relevant time period. See Quest Acad., 216 N.J. at 385-86. Accordingly,

A.V.'s children were not eligible for a free education in Piscataway for the

seventy-two school days between September 3, 2010 to December 21, 2010, and

the BOE is entitled to tuition reimbursement in the amount of $8,830.08.4

      Any of A.V.'s arguments we have not expressly addressed are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




4
  The Commissioner's determination of the tuition amount is supported by the
evidence and is calculated in accordance with N.J.S.A. 18A:38-1(b)(2). A.V.
does not contend otherwise.
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