(dissenting):
I dissent. The appellants proffered substantial evidence (most of which was not controverted by the University) that they had been Utah residents since 1971. It was therefore error to grant summary judgment against them. I would reverse for an evidentiary trial on the question.
The University in denying their application gave as its reasons that appellants had not complied with Rules I.D. and I.E. As I will attempt to demonstrate, those rules are flawed because they introduce as tests of residency factors which cannot be properly relied upon to deny a student residency status.
I. RULE I.D.
The Board of Regents in promulgating Rule I.D. seriously deviated from the authority given to it by the Legislature to promulgate supplementary rules and regulations to assist institutions in classifying students as residents or non-residents. Contrary to the statement in the majority opinion, Rule I.D. does not “closely parallel” the language of § 53-34-2.2. It is at odds with that section. Moreover, Rule I.D. cannot be lightly dismissed, as does the majority opinion, by characterizing its effect as “simply providing] some reasonable flexibility to the one year rule.”
I have no quarrel with the statement in Part I of the majority opinion that a state may charge higher tuition for non-resident students than it does for resident students and that it may require a student to be a resident for one year before he qualifies for the lower rate. The cases cited there support that proposition. However, none of them deal with the problem now confronting us, which is whether absence from the state for more than 30 days necessarily breaks the running of the continuous one year residency period.
The basic error of the majority opinion is that it misperceives the meaning of § 53-34-2.2 which defines a “resident” student. The majority opinion erroneously ascribes to that section the requirement that the student must physically remain within the borders of Utah for one year to qualify. On the basis of that erroneous interpretation, the majority opinion then justifies Rule I.D. as an “amelioration” of the stringent one year requirement by extending the student 30 days of grace. I do not agree with that analysis.
Section 53-34-2.2 is very explicit in its direction as how to determine whether a student is a “resident” for tuition purposes. Subsection (1) directs that the meaning of the word “resident” shall be determined by reference to the “general law on the subject of domicile.” Subsection (2) adds three requirements, however, which must be observed in so doing:
An adult who has come to Utah and established residency here for the purpose of attending an institution of higher education (1) must maintain continuous Utah residency status for one full year ... and ... (2) must demonstrate by additional objective evidence the establishment of a domicile in Utah and (3) that the student does not maintain a residence elsewhere. [Italics and numbers added.]
Subsection (7) authorizes the Board of Regents to make rules and regulations “not *1167inconsistent with the provisions of this section ” concerning the definition of resident and non-resident students, and establishing procedures for classifying and reclassifying students and criteria for judging claims of residency, domicile, emancipation, abandonment and other related matters. In my view, Rule I.D. is inconsistent with the statute in that contrary to subsections (1) and (2) it introduces an additional and arbitrary requirement, viz., that a student may not leave the borders of the state, irrespective of his intent in so doing, for more than 30 days without losing his Utah residency. This requirement is imposed even where the student leaves in order to work during summer vacation.
A. Certainly there is nothing in the “general law on the subject of domicile” which subsection (1) directs us to follow that would give basis for such a rule. Under the general law on the subject of domicile, an adult couple, such as the appellants here, who leave the state during the summer to lecture and to collect materials and photographs in pursuit of their vocation but always maintain the intent to return for the resumption of school in the fall, would not lose their residency status. In 25 Am.Jur.2d Domicil § 31 (1966) it is written:
A domicil, once established, is not lost by by an absence from it for months or even years, for the purpose of business or pleasure or the like, if during such absence there exists an intent to be absent merely temporarily and an intent to resume residence in the place of domicil following the completion of the purpose of the absence. [Citing cases.]
It should be emphasized that in the instant case we are not dealing with a student who is single, who has never severed ties with the home of his parents, who comes to Utah for the school year and returns home during the summer vacation. We have here students who are a married couple. Years ago each of them left the state where his (or her) parents reside. When they left Utah during the summer of 1978 it was not to return to- be under the roof of the parents of either of them. Rather, it was to travel in pursuit of earning their living. The appellants support themselves by their free-lance writing and photography. The fact that they may have visited Mr. Frame’s parents briefly during the summer is inconsequential. They did not move back with parents nor did they move to a former residence of their own. The Restatement (Second) Of Conflict Of Laws, § 18 (1971) recognizes this critical distinction in Illustrations 13 and 14:
13. A, a young man aged twenty one, leaves his father’s home to enter the X university. A returns to his father’s home for vacations. These facts tend to show that A does not intend to make his home near the university and that his domicil remains unchanged.
14. A, a young man just graduated from college, definitely leaves his former home, marries and goes with his wife to state X where he enters a professional school. He takes a house there, intending to live there until he secures his professional degree. These facts tend to show that A intends to make his home in X and has acquired a domicil of choice there.
In sum, Rule I.D. does violence to the general law of domicile which as pointed out above is that a person does not lose his residency by being temporarily out of the state in pursuit of his employment or career when he intends to return to the state after that sojourn ends. Thousands of people, including lecturers, artists, entertainers and athletes spend many months away from their domicile without losing it. This principle has been recognized by our Legislature in respect to residency for voting purposes. In § 20-2-14(d) it is provided that:
A person must not be considered to have lost his residence who leaves his home to go into a foreign country or into another state or precinct within the state for temporary purposes merely with the intention of returning; provided, he has not exercised the right to elective franchise in such state or precinct.
*1168The Legislature has not shown any intent to deny resident students the same latitude and Rule I.D. should not be permitted to rob them of it.
B. Furthermore, Rule I.D. is inconsistent with subsection (2) which requires only the “residency status” or “domicile” to be maintained for one full year. (The two words are used interchangeably there). It does not state that the student must dwell in or have his abode in the state for one year, in which case it could be contended that he must remain within the borders of the state for that time. The statute clearly focuses on the status or domicile of the student, which is not affected by his temporary absence from the state while in pursuit of his career.
C. Rule I.D. also is out of harmony with subsection (2) because it provides for the loss of residency by a student who is outside the borders of the state even though there is no evidence that during that time he established residency outside of Utah. The appellants here have demonstrated that they do not maintain “a residence elsewhere” as the statute requires. The majority opinion has completely ignored this part of the statute and has failed to mention and give emphasis to the fact that there is no evidence whatever that the appellants had a residence elsewhere. If the appellants did in fact lose their Utah residency by being outside of this state for more than 30 days, then it follows that they had to establish a residency somewhere else. The Restatement (Second) Of Conflict Of Laws, § 19 (1971) states:
A domicil once established continues until it is superseded, by a new domicil. Neither the University nor the majority opinion has suggested where the appellants’ residency might have been. A person’s residency cannot be floating but must be fixed at some location. Before it can be concluded that the appellants lost their Utah residency by leaving the state during the summer, it should be decided where their residency was during that period of time. Was it in New Jersey where Mr. Frame lived with his parents before 1964 and where the appellants spent part of the summer in a vacation cottage on the seashore? Was it in California where Mrs. Frame resided with her parents prior to her marriage? Was it in Alaska where Mr. Frame lived when he entered the Army?
II. RULE I.E.
In addition to the fact that the appellants were not physically present in the State of Utah for 11 of the 12 months, the University gave as a second reason for denying their application “that they had not met the requirement of showing objective evidence of intent to remain in Utah as described in [Rule I.E.] such as purchasing property, acceptance of non-temporary employment or other evidences that would be of a nature to show that they in fact intended to remain in the state after graduation.” The denial of appellants’ application for this second reason is equally erroneous. In the first place, Rule I.E. does not require evidence that the student intends to remain in the state after graduation. Indeed, college graduates traditionally know that they must go where employment opportunities open. This applies to native born Utahns as well as to students who move here from out of state to attend a university such as the appellants. It cannot be seriously contended that this eventual possibility prevents them from being residents while they are here attending college. Restatement (Second) Of Conflicts Of Laws, § 18 (1971) states:
To acquire a domicil of choice in a place, a person must intend to make that place his home for the time at least. [Italics added.]
In the comment which follows in the Restatement, it is stated that:
If there is an intention to make a home at present, the intention is sufficient although the person whose domicil is in question intends to change his home upon the happening of some future event. [Italics added.]
As illustrations, the Restatement furnishes the following:
*11695. A, after graduation from college, leaves his father’s house, teaches for several years and then comes to the law school of a university. His expenses are paid partly from his own money and partly from money borrowed from his father which he is under obligation to repay. He has a domicil in the university town if he intends to make his home there while attending the university.
6. A leaves his father’s home, establishes another dwelling place, and earns his own living for several years. He comes to a university to attend the undergraduate department. He has a dom-icil in the university town if he intends to make his home there while attending the university.
We recently held in Bustamante v. Bustamante, Utah, 645 P.2d 40 (1982) that an alien who does not know whether he may be accorded the right to remain indefinitely or permanently in our country, may nevertheless establish the requisite residency necessary to bring a divorce action in this state. We stated that under those conditions the alien may have a dual intent — an intent to remain if that may be accomplished, and at the same time an intent to leave if the law so commands.
Furthermore, Kelm v. Carlson, 473 F.2d 1267 (6th Cir.1973) cited in the main opinion invalidated a university regulation that required acceptance of post-graduate employment within the state in order to acquire resident student status. Therefore, in my opinion the reliance of the University on the fact that the appellants had not shown evidence that they intended to remain in Utah after graduation was ill-placed and violated its own rule.
The only evidence proffered to the trial court as to the plans of the appellants after their graduation from the University came from the deposition of Mr. Frame, wherein he stated that he wanted to stay in Utah upon graduation and become employed as a wildlife ecologist and continue his freelance writing and photography on the side. The University did not dispute this intent. It was therefore improper for the University to deny appellants’ application on the ground that they had not proved that they intended to remain in Utah after graduation.
The University’s reliance upon the fact that the appellants had not accepted non-temporary employment in Utah is equally fallacious. The appellants are full-time students seeking to become wildlife ecologists. Until they finish their university work they do not intend to seek employment in that field. While students, they have chosen to be self-employed by their free-lance writing and photography. The University's insistence that they accept non-temporary employment by a Utah employer makes little sense in their case.
The remaining reason for the University’s rejection of appellants’ application was that they had not shown evidence that they had purchased “property.” Rule I.E. does not specify what kind of property the student should purchase. It suffices to say that thousands of native born Utahns who have resided here all of their lives have not and do not own real property. No one can seriously contend that the lack of ownership of real property should be a disqualification to attaining residency. This test, like acceptance of employment from a Utah employer, is arbitrary and unreasonable.
III.
Having answered the University’s reasons for denying residency status to the appellants in Part I and Part II of this dissenting opinion, I turn to an analysis of the evidence proffered by the appellants to prove their Utah residency. The majority opinion does not seem to dispute that the appellants became Utah residents when they returned here from Africa in March of 1978 and registered at the University. From that month until September when their classes began, they were away from Utah. First, they delivered a lecture at the Philadelphia Academy of Natural. Sciences. Following that, they spent time in New Jersey and Pennsylvania collecting materials and photographs of the animals of the Atlantic tidal marshes — something they *1170could not accomplish m Utah. Mr. Frame spent some time in the Philadelphia Academy of Natural Sciences researching materials on cheetahs for his Ph.D degree. During two of the months they lived in a seaside vacation cottage on the coastline in New Jersey.
Before returning to Utah to attend classes, they purchased an automobile which they drove here and registered here upon arrival. From 1971 to 1975, Mr. Frame had a Utah driver’s license which expired while appellants were in Africa. He therefore obtained a temporary New Jersey driver’s license in order to drive the automobile to Utah. The New Jersey license expired on October 23, 1978, at which time he acquired a permanent Utah driver’s license.
The appellants claimed to have registered to vote in Utah in 1971, 1978 and 1980 and to have voted by absentee ballot in either 1972 or 1976, and voted in person in 1978. They did not register to vote nor did they vote in any state other than Utah from 1971 to 1979.
Appellants continuously maintained a bank account in a Logan, Utah bank from 1971 to the present time. In addition, they claimed to have filed Utah State income tax returns for 1976, 1978 and 1979. (They were not required to file for the other years because of insufficient income). Except while they were in Africa, they have used no other address than their address at Utah State University since 1971. They likewise attended no other university during that period of time. Both of them deposed that they came to Utah in 1971 with the intent to live here primarily because of this state’s wilderness areas. As heretofore noted in this opinion, there was no evidence that they had any ties to any other place. Mr. Frame deposed that he had not lived with his parents nor been dependent on them since 1964. He had obtained a B.S. degree from the University of Alaska and had worked in that state as an oceanographer until he was drafted into the Army. While stationed with the Army in California, he met Mrs. Frame; and, following his discharge from the Army, they married and came directly to Utah. While the University did dispute the appellants’ claim of voting and filing income tax returns, it proffered no evidence that since appellants arrived in this state in 1971 they have had a residency elsewhere. Nor did it proffer evidence of any other residency from March 1978 to March 1979, which is the crucial period here under examination.
Rule I.E. authorizes the University to deny residency status to a student who registers to vote out of state, registers a motor vehicle out of state, obtains an out of state driver’s license or receives significant out of state support. The appellants did none of the above except that Mr. Frame obtained a temporary two-month New Jersey driver’s license in order to drive his newly purchased automobile to Utah.
At the very minimum, appellants made a substantial showing that they meet most of the indicia of residency listed in Rule I.E. I would reverse the summary judgment and remand for a trial.
DURHAM, J., concurs in the dissenting opinion of HOWE, J.