NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2085-17T3
M.K. and M.K., on behalf of
minor child, M.K.,
Petitioner-Appellant,
v.
BOARD OF EDUCATION OF
THE BRIDGEWATER-RARITAN
REGIONAL SCHOOL DISTRICT,
SOMERSET COUNTY,
Respondent-Respondent.
Submitted May 30, 2019 – Decided July 5, 2019
Before Judges Alvarez and Reisner.
On appeal from the Commissioner of Education,
Docket No. 363-12/15.
Pasquale Marago, attorney for appellants.
The Busch Law Group LLC, attorneys for respondent
Bridgewater-Raritan Regional School District Board of
Education (Elizabeth Farley Murphy and Nicholas
Celso, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Commissioner of Education (Joan M.
Scatton, Deputy Attorney General, on the statement in
lieu of brief).
PER CURIAM
M.K. (Tom) and M.K. (Mary), on behalf of their son M.K. (Sam), a minor,
appeal from the Commissioner of Education's June 5, 2017 final agency decision
adopting without modification the initial decision of an Administrative Law
Judge (ALJ). The ALJ found that Sam was not domiciled in the Bridgewater-
Raritan Regional School District during the 2015-2016 school year and yet
attended public school in the District. Based on that determination, the
Commissioner ordered Tom and Mary to pay $38,329.20 for tuition costs to
defendant, the Board of Education of the Bridgewater-Raritan Regional School
District. We now reverse and remand.
The appeal began after the Bridgewater-Raritan Regional Board of
Education finance/facilities/transportation committee held a hearing and ruled
that Sam was not domiciled in the District, and should be disenrolled and pay
tuition costs of "$212.94 for each day [the] child attended school during the
ineligible period." Tom and Mary appealed to the Commissioner, who
transferred the matter to the Office of Administrative Law to be heard as a
contested case. N.J.S.A. 52:14B-1 to -15; N.J.S.A. 52:14F-1 to -13. The ALJ
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2
decided the matter based on his review of some documentation and his
credibility rulings. He found the school's attendance officer to be very "credible
and persuasive[,]" while Tom and Mary, and Tom's parents, were incredible
witnesses.
The family testified that Tom, Mary, and Sam resided with Tom's parents
in Bridgewater in a basement apartment where they had lived for years. The
school's attendance officer conducted surveillance on sixty days over the course
of one and a half school years. On thirty-five occasions, he observed the mother
and the minor child at Mary's mother's home in South Bound Brook, a separate
school district. On each occasion, Mary drove the child to school in
Bridgewater. On at least two occasions, the investigator saw Mary pick Sam up
from school and take him to the South Bound Brook residence. He did not
conduct surveillance at the Bridgewater residence. The investigator never saw
the child at South Bound Brook when he surveilled the home in the summer.
Two family vehicles registered in Mary's name are listed at the South
Bound Brook address, as is a rental agreement for a storage unit. Mary claimed
her mother co-signed the loan for those vehicles, and thus her mother's address
in South Bound Brook had to be given. She also said her mother paid for the
storage unit rental, and she therefore gave her mother's address.
A-2085-17T3
3
Tom and Mary proffered documents from 2015 listing Mary's address in
Bridgewater, including: Mary's driver's license, her food stamp allotment, a
vaccination certificate for the family pet as well as a reminder from the vet that
the animal was due for another booster, a life insurance certification, bank
statements, and insurance identification cards for a pickup truck and Mazda.
Mary testified that she and Tom file their returns with the IRS listing the
Bridgewater address. They submitted letters from neighbors in Bridgewater and
South Bound Brook stating that Mary lives in Bridgewater.
During the course of his testimony, Tom said Sam spent his evenings after
school at Bridgewater with him, engaging in typical every day after-school
activities, and went to bed there. Mary frequently would not be in the house,
however, when he awakened during the night, which would cause the child to
have an anxiety attack. Sam's struggles with the condition were verified by a
letter from a pediatric psychiatrist. When the child became anxious and upset,
either Mary would pick up the child and return to South Bound Brook, or Tom
would drive him over. Tom's father claimed he too would drive the child to
South Bound Brook.
Mary started staying overnight in South Bound Brook mainly because her
mother suffered from life-threatening pulmonary diseases that often necessitated
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4
someone's presence at night, and she had a very elderly grandmother at a
different South Bound Brook address who also required her assistance. Mary
said she started keeping the child with her overnight, and that the child was with
her in South Bound Brook on weekends when school was not in session.
The ALJ concluded the family concocted this story to avoid Sam's
disenrollment in Bridgewater. He found it inherently suspect that parents of a
child suffering from severe anxiety and behavioral struggles would add to his
stress by frequently transporting him from his home in the middle of the night
to the home of his ailing grandmother. Thus the ALJ decided that Tom and
Mary failed to meet their preponderance of the evidence burden of proof.
We do not question the ALJ's judgment that the parents' and the in-law's
testimony was unreliable. We do question his ultimate conclusion, however,
that the testimony and the attendance investigator's observations established that
Sam was domiciled outside of the District in the 2015-2016 term.
The ALJ made no mention of N.J.A.C. 6A:22-3.1(a)(1). That regulation
provides that a student is considered domiciled in the school district in which
the parent or guardian is domiciled. The ALJ made no findings with regard to
Tom's statement that the child lived with him in Bridgewater. Nor did the ALJ
in any fashion consider whether Mary intended to establish a permanent abode
A-2085-17T3
5
in South Bound Brook or was there merely to temporarily assist her mother and
grandmother, taking the child with her. A temporary relocation with the child
does not necessarily mean that the child's domicile changed. The regulations
embody the principle that a minor child is domiciled where the parent is
domiciled. P.B.K. v. Bd. of Educ. of Borough of Tenafly, 343 N.J. Super. 419,
427 (App. Div. 2001).
We note Tom's testimony that he spent some time in a drug rehabilitation
facility, and Mary's testimony about her mother's serious illness. Given the
family's situation, including a father struggling with drug addiction, and a
mother struggling with responsibilities for an ailing parent and grandparent, it
is legally possible that she and the child could have been found to have had two
simultaneous residences, although only one domicile. See D.M. v. Bd. of Educ.
of Princeton Reg'l Sch. Dist., 366 N.J. Super. 269, 274-75 (App. Div. 2004).
Because of her life circumstances, Mary may well have been temporarily living
in two residences without intending to make her mother's home her domicile.
The real question is not where Sam resides, but where he is domiciled. And that
question is answered by examining where Mary and Tom are domiciled. See
N.J.A.C. 6A:22-3.1(a)(1). The investigator's statements that over the course of
270 school days he observed Sam at the South Bound Brook residence thirty-
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five times is insufficient to decide the matter. The investigator never surveilled
mother and child at the Bridgewater residence.
The ALJ's skepticism was well-grounded. But given the peculiar facts
here, there was simply insufficient evidence in the record for a determination of
domicile. Accordingly, we remand the matter for a further hearing to clarify the
issue. We express no view as to the ultimate outcome.
Reversed and remanded. We do not retain jurisdiction.
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M.K. AND M.K., ON BEHALF OF MINOR CHILD, M.K. VS. BOARD OF EDUCATION, ETC. (COMMISSIONER OF EDUCATION)
Combined Opinion