M.O. and H.O., on behalf of minor children, Z.O., A.O., J.O., and E.O. v. Board of Education of the Borough of Tenafly, Bergen County, 10/12/21, (#214-21)

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214-21
New J ersey Commissioner of Education
Final Decision

M._O. and H.O., on behalf of minor children, Z.O., A.O.,
J.O. and E.O.,

Petitioners,
Vv.

Board of Education of the Borough of Tenafly,
Bergen County,

Respondent.

Synopsis

Petitioner appealed the determination of the respondent Board that their children are not entitled to a free public
education in the Tenafly School District. Petitioners and their children moved from Maryland to Alpine,
New Jersey, in December 2020, residing with family and enrolling the children in the Alpine school district for
the remainder of the 2020-2021 school year. Petitioners subsequently purchased a home in Tenafly in
March 2021 but did not move in immediately as the home needed substantial renovations, estimated to take six
to eight months to complete. Petitioners attempted to register the children in the Tenafly district for the 2021-
2022 school year but were denied as they were not yet living in the Tenafly house. Petitioners argue that they
are legally domiciled in Tenafly and that domicile was established, inter alia, by the purchase of the home, the
payment of the mortgage and utility bills on the property. The Board contended that it is the policy of the
district that residency is not established until a family is physically domiciled in the home and filed a motion for
summary decision.

The ALJ found, inter alia, that: there are no material facts at issue here, and the matter is ripe for summary
decision; the sole issue is whether petitioner’s children are eligible to attend respondent’s public schools free of
charge in accordance with NJ.S.A. 18A:38-1; established case law has addressed the issue not only of intent to
move to a location as evidence of domicile, but also the necessity of having already lived at the new location;
the burden of proof is on the petitioner to show that they are legally domiciled in Tenafly; nothing in the
petitioners’ legal argument effectively counters the necessity that for domicile to be established, there must be
an “actual and physical taking up of an abode”. The ALJ concluded that: at no time relevant to this action were
petitioners domiciled in Tenafly; the decision to deny enrollment of the children was not an unreasonable
exercise of the Board’s discretion; the children are not currently entitled to a free public education in Tenafly
and will remain ineligible as long as they remain domiciled in a municipality other than Tenafly. The Board’s
motion for summary decision was granted, and the petition was dismissed.

Upon review, the Commissioner concurred with the findings and conclusions of the ALJ and adopted the
Initial Decision of the OAL as the final decision in this matter. The petition was dismissed.

This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It has
been neither reviewed nor approved by the Commissioner.

1
214-21
OAL Dkt. No. EDU 05938-21
Agency Dkt. No. 97-6/21
New Jersey Commissioner of Education
Final Decision
M.O. and H.O., on behalf of minor children,
Z.O., A.O., J.O., and E.O.,
Petitioners,
v.
Board of Education of the Borough of Tenafly,
Bergen County,
Respondent.
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. The parties did not file exceptions.
In this matter, petitioners are challenging the Board’s determination that they
were not domiciled in Tenafly and their minor children were therefore ineligible to attend school
in the district. Petitioners purchased a home in Tenafly in March 2021 but were unable to move
in as the home needed substantial renovations which were estimated to take six to eight months
to complete. When petitioners attempted to enroll their minor children in the district in
May 2021, the Board denied their request on the basis that they did not yet live in Tenafly. The
Administrative Law Judge (ALJ) found that petitioners did not meet their burden of
demonstrating that they are residents of Tenafly because at no time relevant to their appeal were
they domiciled in that municipality. Accordingly, the ALJ concluded that the minor children
were not eligible to attend school in the district, and the Board was not arbitrary, capricious or

2
unreasonable in failing to admit the children under the policy that gives the Board the discretion
to admit nonresident students.
Upon review, the Commissioner concurs with the ALJ, for the reasons thoroughly
set forth in the Initial Decision, that petitioners are not domiciled in Tenafly and the minor
children are therefore ineligible to attend school in the district. The Commissioner further
concurs with the ALJ that the Board did not abuse its discretion by refusing to enroll the minor
children.
Accordingly, the Initial Decision of the OAL is adopted as the final decision in
this matter, and the petition is hereby dismissed.
IT IS SO ORDERED.1
ACTING COMMISSIONER OF EDUCATION
Date of Decision:
Date of Mailing:
1 This decision may be appealed to the Appellate Division of the Superior Court pursuant to N.J.S.A.
18A:6-9.1. Under N.J.Ct.R. 2:4-1(b), a notice of appeal must be filed with the Appellate Division within
45 days from the date of mailing of this decision.
October 12, 2021
October 14, 2021

New Jersey is an Equal Opportunity Employer
INITIAL DECISION
OAL DKT. NO. EDU 5938-2021
AGENCY DKT. NO. 97-6/21
M.O. and H.O. ON BEHALF OF MINOR CHILDREN,
Z.O., A.O., J.O., and E.O.
Petitioner,
v.
BORO of TENAFLY BOE, BERGEN
COUNTY,
Respondent.
Julie Warshaw, Esq. for petitioners (Warshaw Law Firm, attorneys)
Steven R. Fogarty, Esq. for respondent (Fogarty & Hara, attorneys)
Record Closed: August 23, 2021 	Decided: August 27, 2021
BEFORE: MATTHEW G. MILLER, ALJ
STATEMENT OF THE CASE
Petitioners, M.O. and H.O., the parents of minor children Z.O., A.O., J.O. and E.O.,
(Petitioners or family) have challenged the determination made by the respondent, Board

OAL DKT. NO. EDU 03915-17
2
of Education of the Boro of Tenafly, Bergen County, that their children are not entitled to
a free public education in Tenafly because Petitioners and their children were not
domiciled in the Tenafly School District (Respondent or District).
PROCEDURAL HISTORY
On or about May 26, 2021, Respondent notified Petitioners that their four children,
Z.O., A.O., J.O. and E.O. (the children), were ineligible to receive free educations in the
Tenafly due to non-residency. 	The Petitioners filed a Residency Appeal with the
Department of Education on or about June 14, 2021. 	On or about July 6, 2021,
respondent filed a Motion to Dismiss in Lieu of Answer. 	The Department of Education
transmitted this matter to the Office of Administrative Law (OAL) on July 13, 2021, for
hearing as a contested case. N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13.
An initial conference was held on August 4, 2021 and it was agreed by the parties
that this matter could be resolved by summary decision and at that time, per N.J.A.C. 1:1-
12.5, the Motion to Dismiss was converted to a Motion for Summary Decision. The record
remained open for the submission of additional documentation and legal argument, which
was received on August 7, 2021 and August 11, 2021. Following oral argument on August
23, 2021, the record closed on that date.
FINDINGS OF FACT
The facts of the case are not in dispute:
1. 	On December 3, 2020, Petitioners, who had been residing and were
domiciled in Maryland sold their only home and moved to Alpine, New
Jersey into a home where H.O.’s parents resided. 	The children were
enrolled in the Alpine school district and remained enrolled there through
the conclusion of the 2020-21 school year.

OAL DKT. NO. EDU 03915-17
3
2. 	On March 23, 2021, Petitioners purchased a home located at 11 Stanton
Road in Tenafly. 	(Exhibit P-1). 	Petitioners’ Residency Appeal certified
that this is the address where the family is “located”. (Exhibit P-2). This
property is the only “home” owned by Petitioners.
3. 	Since purchasing the property at 11 Stanton Road, Tenafly, the children
have registered in Tenafly-based youth sports programs, the family is
paying utility bills for the Tenafly property and both H.O. and M.O. listed
the Tenafly address on their newly issued New Jersey driver’s licenses.
Smoke detector and carbon monoxide alarm compliance certificates have
also been issued for the property. (Exhibits P-3, P-4, P-5, P-6)
4. 	However, the home itself has “needed extensive renovations and was
not habitable” and the family continues to reside in Alpine. (Petitioner’s
brief at 3). 	Per an email supplied to the District on or about May 11,
2021, it was estimated that the renovations “will take around 6-8 months
to complete” from the time of the issuance of all necessary permits.
(Exhibits P-7 and P-8).
5. 	On or about May 6, 2021, Petitioners reached out to the District expressing
interest in enrolling the children in the Tenafly school system. In reply, the
Interim Registrar of the Tenafly Public Schools responded that “district
policy is firm in requiring that students be physically residing in Tenafly
before they can be registered”, given the circumstances, a further review
would be undertaken. 	She requested that more specific information be
provided, including information from the contractor as to a start date for
the work and an estimated completion date and their current residential
address. (Exhibits P-9 and P-10).
6. 	Tenafly 	School 	District 	Policy 	5111 	covers 	the 	“Eligibility 	of
Resident/Nonresident Students”. (Exhibit R-1).

OAL DKT. NO. EDU 03915-17
4
7. 	After a substantial amount of back-and-forth between Petitioners and
the Board, on May 12, 2021, Petitioners were advised by Shauna C.
DeMarco, Superintendent of the Tenafly School District, that because
they were not domiciled in Tenafly and since “there is no exception for
a future residents (sic) who are renovating a home they have not lived
in”, the children would not be registered in the District until they were
actually living at 11 Stanton Road. A follow-up email from Ms. DeMarco
on May 13, 2021, noted that she had consulted with the Board attorney
prior to making her decision. (Exhibits P-11 and P-12).
8. 	The colloquy between Petitioners and the District continued and on May
26, 2021, Jocelyn Schwarz, the President of the Tenafly Board of
Education, wrote to Petitioners and advised them that on May 24, 2021,
the Board “affirmed the Superintendent’s denial of your request” and that
“Policy 5111 does not permit your children to enroll in the District under
the circumstances presented”. (Exhibit P-13).
9. 	The parties have stipulated that there are only 2 issues in dispute;
a. 	Whether the family was domiciled in Tenafly for the purposes
of the children receiving a free public education.
b. 	If the answer to a. is “no”, then whether the District abused its
discretion in failing to admit the children to the Tenafly public
schools per Policy 5111.
LEGAL ARGUMENTS
Petitioners
Domicile
Petitioners argue that given the totality of the circumstances, they are legally
domiciled in Tenafly and that domicile was established by the purchase of the home at
11 Stanton Road, the payment of a mortgage on the property, their payment of utility bills,

OAL DKT. NO. EDU 03915-17
5
the issuance of New Jersey driver’s licenses with the Tenafly address, the hiring of the
contractor and the registration of their children in Tenafly-based sports activities. 	They
also emphasize their roots in the community, with H.O. having been raised in Tenafly and
attended District schools and that it is their intent to move into the home as soon as
renovations are completed and to raise their children in Tenafly.
First and foremost, however, Petitioners argue that they are domiciled in Tenafly,
citing to A.M.S. ex rel. A.D.S. v. Board of Educ. of City of Margate, 409 N.J. Super. 149
(App. Div. 2009) and N.J.A.C. 6A:22-3.1, citing the following paragraph;
N.J.A.C. 6A:22-3.1(a)(1) HN9 provides that students "over
five and under 20 years of age" are "eligible to attend school
in a district if the student is domiciled within the district" and
sets forth various living arrangements from which a student's
domicile may be established, including:
1. A student is domiciled in the school district when he or she
is living with a parent or legal guardian whose permanent
home 	is 	located 	within 	the 	school 	district. 	A 	home 	is
permanent when the parent or guardian intends to return to it
when absent and has no present intent of moving from it,
notwithstanding 	the 	existence 	of 	homes 	or 	residences
elsewhere.
[Id. at 161.]
Petitioners argue that case law supports their contention that so long as the home
is owned by them and they intend to live there, they should be considered domiciled in
Tenafly. 	This is particularly true when N.J.A.C. 6A:22-3.3(a) states that a student’s
eligibility for a free public education in a particular district “shall not be affected by the
physical condition of an applicant’s housing” or if they were displaced “from the original
residence…(due to occurrences) such as fire, flood, hurricane, or other circumstances
that render the residence uninhabitable.” N.J.A.C. 6A:22-3.2(h(1)(iii).

OAL DKT. NO. EDU 03915-17
6
Abuse of Discretion
Assuming, arguendo, that it is found that Petitioners are not domiciled in Tenafly,
it is argued that Respondent abused its discretion by failing to admit the children as
permitted by Policy 5111, citing to the following passage;
The admission of a nonresident student to school free of
charge must be approved by the Board. No student otherwise
eligible shall be denied admission on the basis of the student’s
race, color, creed, religion, national origin, ancestry, age,
marital status, affectational or sexual orientation or sex, social
or economic status, or disability. The continued enrollment of
any 	nonresident 	student 	shall 	be 	contingent 	upon 	the
student’s maintenance of good standards of citizenship and
discipline.
Petitioners also point to N.J.A.C. 6A:22-2.2, which, under a headnote that reads
“Discretionary admission of nonresident students”, states;
Nothing in this chapter shall be construed to limit a district
board of education’s discretion to admit nonresident students,
or the ability of a nonresident student to attend school with or
without payment of tuition with the accepting district board of
education’s consent, pursuant to N.J.S.A. 18A:38-3(a).1
In addition, they cite to N.J.A.C. 6A:22-3.1(a)(1)(i)(ii)(1), which discusses the
domicile of a student whose parents/guardians are located in different school districts and
how it is determined.
Petitioners 	also 	reference 	the 	difficulties 	that 	the 	COVID-19 	pandemic 	has
effectuated not only on their children, but also on the educational system as a whole.
Petitioners supplied multiple citations to publications from the New Jersey Department of
Education, the New Jersey School Boards Association and like organizations detailing
1 N.J.S.A. 18A:38-3(a). Any person not resident in a school district, if eligible except for residence, may be
admitted to the schools of the district with the consent of the board of education upon such terms, and
with or without payment of tuition, as the board may prescribe.

OAL DKT. NO. EDU 03915-17
7
“strategies to support student engagement”, how to enhance remote and hybrid learning
experiences and how to avoid chronic absenteeism. Emphasized was a quote from the
State’s return to school plan, The Road Back, Restart and Recovery Plan for Education2,
in which it is noted that schools must be “prepared to accommodate students’ unique
needs during this unprecedented time”. Id. at 8.
Continuing in that vein, Petitioners supplied a May 22, 2021 letter from a
psychiatrist and a May 23, 2021 letter from a Licensed Social Worker, both of whom argue
that not being permitted to enroll in the Tenafly schools would cause “unnecessary
consequences” and has already “precipitated great angst and anxiety” and that given the
“trauma” the children have suffered over the past year, the “mental health of these
children” must be considered when considering whether they should be permitted to start
the school year in Tenafly or have to transfer there later in the year. (See, 5/22/21 letter
of Barry L. Feinberg, M.D. and 5/23/21 e-mail of Gwen Crystal, L.S.W., attached hereto
as Exhibits P-9 and P-10).3
Petitioners also point to various circumstances, including their long-term affiliation
with Tenafly, the affirmative steps that they have taken to demonstrate that they intend to
move to Tenafly as soon as possible as well as the effects of the pandemic on both the
educational system and their children in particular.
They further point to a variety of what they deem to be administrative errors made
by Respondent in its denial of admission, including;
1. 	That the May 26, 2021, notice of ineligibility was deficient.
2. 	That statements made by the President of the Tenafly
Board 	of 	Education 	were 	“false 	and 	misleading”
concerning the definition of “domicile”.
2 https://www.nj.gov/education/reopening/NJDOETheRoadBack.pdf
3 Please note that these documents were not presented as “expert reports” and will not be considered as
such. There is no indication that either of these licensed professionals conducted an examination of any
family members, reviewed any documents or expressed their opinions to within a reasonable degree of
probability. Further, neither of them cited to any academic or scientific support for their conclusions. See
generally, Vitrano by Vitrano v. Schiffman, 305 N.J. Super. 572 (App. Div. 1997)

OAL DKT. NO. EDU 03915-17
8
3. 	That 	the 	Superintendent 	“misled” 	the 	Petitioners
concerning appellate timeframes.
It was argued that these administrative deficiencies, while not sufficient to warrant
a finding of domicile or to compel the Respondent to be compelled to admit the children,
are evidence that it failed to consider all relevant circumstances in denying admission and
that it abused its discretion in doing so.
Respondent
Domicile
Respondent asserts that the case law is crystal clear that Petitioners are not
domiciled in Tenafly since they have never lived in the 11 Stanton Road home. Without
having lived there, they “are missing a necessary element of domicile; residence in
Tenafly”. 	(Respondent’s brief at 3).
In support of its position, Respondent cites to In re Unanue, 255 N.J. Super. 263
(Law Div. 1991), 311 N.J. Super., 589 (App. Div. 1998), certif. denied, 157 N.J. 541
(1998), cert. denied sub. nom., Unanue-Casal v. Goya Foods, Inc., 526 U.S. 1051, 119
S. Ct. 1357, 143 L. Ed. 2d 518 (1999).
Respondent further cites to K.L. and C.L. o/b/o N.L. v. Board of Educ. of Freehold,
AOL Dkt. No. EDU 441-01 (Initial Decision June 26, 2001), adopted (Comm’r Aug. 13,
2001) and Board of Educ. of Twp. of Livingston v. H.L. and D.L. o/b/o K.L. and J.L., OAL
Dkt. No. EDU 11593-96 (Initial Decision Apr. 3, 1998) where it was determined, in general,
that since a house was not habitable during the school year, the family could not be
considered to domiciled there.
Abuse of Discretion
Concerning Petitioners’ “abuse of discretion” position, Respondent noted that;

OAL DKT. NO. EDU 03915-17
9
The Board denied (the) request based on a plain reading of
the Policy, which disallows enrollment to nonresidents except
those expressly contemplated therein. 	The Policy does not
make exception for people who have purchased a house in
Tenafly, but who have not yet moved into it due to it being
uninhabitable, 	i.e., incapable 	of 	living in. 	Certainly, 	the
Board’s decision, rooted in the plain language of the Policy,
had a legitimate, rational basis.
[Respondent’s brief at 11.]
Respondent argues that case, administrative and statutory law all strongly support
the position that a District has broad discretionary authority in deciding when to admit out-
of-district students and that the considerations cited by it clearly demonstrate that the
decision to deny admittance to the children was not “patently arbitrary”, “without rational
basis” or “induced by improper motives”. Parsippany-Troy Hills Educ. Ass’n v. Board of
Educ. of Parsippany-Troy Hills, 188 N.J. Super. 161, 167 (App. Div. 1983) (cit. omitted).
LEGAL ANALYSIS AND CONCLUSION
Summary decision may be granted “if the papers and discovery which have been
filed, together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to prevail as a matter of law.”
N.J.A.C. 1:1-12.5(b). The OAL summary decision rule is essentially the same as the
summary judgment rule under the New Jersey Court Rules, which states:
The judgment or order sought shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show
that 	there 	is 	no 	genuine 	issue 	as 	to 	any 	material 	fact
challenged and that the moving party is entitled to a judgment
or order as a matter of law. An issue of fact is genuine only if,
considering the burden of persuasion at trial, the evidence
submitted by the parties on the motion, together with all
legitimate 	inferences 	therefrom 	favoring 	the 	non-moving
party, would require submission of the issue to the trier of fact.

OAL DKT. NO. EDU 03915-17
10
[R. 4:46-2(c).]
The New Jersey Supreme Court has modified and clarified the analysis required
when considering a motion for summary decision/judgment. In Brill v. Guardian Life
Insurance Co. of America, 142 N.J. 520, 540 (1995), the Court adopted the summary
judgment standard utilized by federal courts:
Under this new standard, a determination whether there exists
a “genuine issue” of material fact that precludes summary
judgment requires the motion judge to consider whether the
competent evidential materials presented, when viewed in the
light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party. The “judge's function
is not himself [or herself] to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial.” [Anderson v. Liberty Lobby, 477 U.S.
242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212
(1986).] . . . If there exists a single, unavoidable resolution of
the alleged disputed issue of fact, that issue should be
considered insufficient to constitute a “genuine” issue of
material fact for purposes of Rule 4:46-2. Liberty Lobby,
supra, 477 U.S. at 250, 106 S. Ct. at 2511, 91 L. Ed. 2d at
213. The import of our holding is that when the evidence “is
so one-sided that one party must prevail as a matter of law,”
Liberty Lobby, supra, 477 U.S. at 252, 106 S. Ct. at 2512, 91
L. Ed. 2d at 214, the trial court should not hesitate to grant
summary judgment.
[Id. at 540.]
The burden is on the moving party to exclude all reasonable doubt as to the
existence of any genuine issue of material fact, and all inferences of doubt are drawn
against the moving party and in favor of the non-moving party. Saldana v. DiMedio, 275
N.J. Super. 488, 494 (App. Div. 1994). 	The critical question therefore is “whether the
evidence presents a sufficient disagreement to require [a hearing] or whether it is so one-
sided that one party must prevail as a matter of law.” Brill, supra, 142 N.J. at 533 (citation
omitted). If the non-moving party's evidence is merely colorable, or is not significantly

OAL DKT. NO. EDU 03915-17
11
probative, summary judgment should not be denied. See, Bowles v. City of Camden, 993
F. Supp. 255, 261 (D.N.J. 1998).
The sole issue in dispute is whether Petitioner’s four children are eligible to attend
respondent’s public schools free of charge in accordance with N.J.S.A. 18A:38-1.
Any child between the ages of five and twenty years old is entitled to a free public
education in the school district in which he is domiciled. N.J.S.A. 18A:38-1(a); N.J.A.C.
6A:22-3.1(a). See V.R. ex rel A.R. v. Hamburg Bd. of Educ., 2 N.J.A.R. 283, 287 (1980),
aff’d, State Bd., 1981 S.L.D. 1533, rev’d on other grounds sub nom.; Rabinowitz v. N.J.
State Bd. of Educ., 550 F. Supp. 481 (D.N.J. 1982) (New Jersey requires local domicile,
as opposed to mere residence, in order for a student to receive a free education).
Per N.J.S.A. 18A:38-1(b)(2), the resident “shall have the burden of proof by a
preponderance of the evidence that the child is eligible for a free education”. 	See,
generally, D.L. v. Board of Educ. of Princeton Regional School Dist., 366 N.J. Super. 269
(App. Div. 2004).
A student is domiciled in a school district if his parent or guardian has a permanent
home in the district such that “the parent or guardian intends to return to it when absent
and has no present intent of moving from it, notwithstanding the existence of homes or
residences elsewhere.” 	N.J.A.C. 6A:22-3.1(a)(1); State v. Benny, 20 N.J. 238, 250
(1955); In re Unanue, 255 N.J. Super. 362, 374 (Law Div. 1991), aff’d, 311 N.J. Super.
589 (App. Div.), certif. denied, 157 N.J. 541 (1998), cert. denied, 526 U.S. 1051, 119 S.
Ct. 1357, 143 L. Ed. 2d 518 (1999).
The domicile of an unemancipated child is that of his parent, custodian or guardian.
Somerville Bd. of Educ. v. Manville Bd. of Educ., 332 N.J. Super. 6, 12 (App. Div. 2000),
aff’d, 167 N.J. 55 (2001); P.B.K. o/b/o minor child E.Y. v. Board of Ed. of Tenafly, 343
N.J. Super. 419, 427 (App. Div. 2001). 	A child may also be considered domiciled in a
school district if he lives with an adult domiciled in that school district, as long as the child

OAL DKT. NO. EDU 03915-17
12
is financially supported by that adult as if he were their own child, upon submission of a
sworn affidavit to the board of education. N.J.S.A. 18A:38-1(b)(1).
This case hinges, obviously, on the definition of domicile, and this was addressed
in tremendous detail in In re Unanue, 255 N.J. Super. 362 (Law Div. 1991), aff’d 311 N.J.
Super. 589 (App. Div. 1998), certif. denied, 157 N.J. 541 (1998), cert. denied sub. nom.,
Unanue-Casal v. Goya Foods, Inc., 526 U.S. 1051, 119 S. Ct. 1357, 143 L. Ed. 2d 518
(1999). While Unanue concerned a probate case, the concept of domicile was key to the
dispute between the potential heirs to Goya Foods, Inc., a sizable food manufacturer and
distributor. 	Ironically, the case also involved Tenafly and a question as to whether the
decedent, Prudencio Unanue, was domiciled there or in Puerto Rico.
The Court provided a comprehensive review of the law, noting;
When a man has acquired a domicile in a particular place, that
place remains his domicile until he acquires another domicile".
In 	re 	Dorrance, 	115 	N.J. 	Eq. 	268, 	274, 	170 	A. 	601
(Prerog.Ct.1934), 	aff'd 	13 	N.J. 	Misc. 	168, 	176 	A. 	902
(Sup.Ct.1935), aff'd 116 N.J.L. 362, 184 A. 743 (E & A 1936),
cert. den. 298 U.S. 678, 56 S.Ct. 950, 80 L.Ed. 1399 (1936),
reh den. 298 U.S. 692, 56 S.Ct. 957, 80 L.Ed. 1410 (1936). In
considering whether a change of domicile has occurred, three
elements must be considered: 1) whether there had been an
actual and physical taking up of an abode in a particular state;
2) whether the subject had an intention to make his home
there permanently or least indefinitely; and (3) whether the
subject had an intention to abandon his old domicile. The
court must evaluate all of the facts of the case to determine
the place in which there is the necessary concurrence of
physical presence and an intention to make that place one's
home. Lyon v. Glaser, supra, 60 N.J. at 264-265, 288 A.2d 12.
See also, Mercadante v. The City of Paterson, 111 N.J. Super.
35, 39-40, 266 A.2d 611 (Ch.Div.1970), aff'd o.b. 58 N.J. 112,
275 A.2d 440 (1971).
[Unanue, supra, 255 N.J. Super. at 376.]
The Court in Lyon, supra addressed the issue not only of intent to move to a
location as evidence of domicile, but also the necessity of having already lived at that
location;

OAL DKT. NO. EDU 03915-17
13
A very short period of residence in a given place may be
sufficient to show domicil, but mere residence, regardless of
its length, is not sufficient. It has been said that concurrence,
even for a moment, of physical presence at a dwelling place
with the intention of making it a permanent abode, effects a
change 	of 	domicil. 	And 	once 	established, 	the 	domicil
continues until a new one is found to have been acquired
through an application of the same tests. In re Fisher, supra;
Cromwell v. Neeld, 15 N.J. Super. 296, 300-301 (App. Div.
1951); In re Dorrance, 115 N.J. Eq. 268, 274-275 (Prerog. Ct.
1934), aff'd per curiam sub nom. Dorrance v. Thayer-Martin,
13 N.J. Misc. 168 (Sup. Ct. 1935), aff'd o.b. 116 N.J.L. 362 (E.
& A. 1936); Slater v. Munroe, 313 Mass. 538, 48 N.E. 2d 149
(1943); State ex rel. Orr v. Buder, 308 Md. 237, 271 S.W. 508
(1925); In re Appleby's Estate, 106 N.Y.S. 2d 294 (Sur. Ct.
1951), aff'd mem. 279 App. 993, 112 N.Y.S. 2d 493 (1952);
Schillerstrom v. Schillerstrom, 75 N.D. 667, 32 N.W. 2d 106
(1948); 25 Am. Jur. 2d Domicil, §§ 16, 17, pp. 13-15 (1966);
Restatement (Second) of Conflicts of Laws, §§ 15-19, pp. 61-
79 	(1971). 	Since 	the 	concept 	of 	domicil 	involves 	the
concurrence of physical presence in a particular State, and an
intention to make that State one's home, determination of a
disputed issue on the subject requires an evaluation of all the
facts and circumstances of the case.
[Id. at 264-65.]
Along those lines, the Court in In re Fisher’s Will, 13 N.J. Super. 48 (App. Div.
1951) put it very succinctly;
It is also settled that to effect a change in domicile "* * * the
residence at the place chosen for the domicile must be actual;
to the factum of residence there must be added the animus
manendi; * * *." Harral v. Harral, 39 N.J. Eq. 279, 285 (E. & A.
1884). In other words, in order to acquire a new domicile there
must be a union of residence and intention. Residence without
intention, or intention without residence, does not effect a
change of domicile. See also Rinaldi v. Rinaldi, 94 N.J. Eq.
14, 20 (Ch. 1922); In re Gilbert, 18 N.J. Misc. 540, 548 (Essex
Cty. Surr. Ct. 1940).
[Id. at 53.]

OAL DKT. NO. EDU 03915-17
14
The case at bar practically mirrors the factual scenario in K.L. v. Board Educ, 2010
N.J. Super. Unpub. LEXIS 11 (App. Div. 2010). In K.L., the plaintiffs purchased a home
in Kinnelon, New Jersey in May, 2007 and “anticipated establishing residency (there) as
of October, 2007”. 	The Kinnelon Board of Education had established a policy which
permitted a student to enroll “not greater than 5 weeks prior to the anticipated date of
residency” in the town when the family “has entered a contract to buy, build or rent a
residence” in the district.” Id.
When the Board requested “an update on [their] home renovations” in early
October and advised that it would be charging monthly tuition beginning on October 15,
the plaintiff filed the petition which led to a referral to the Office of Administrative Law. Id.
at 1-2.
In the underlying OAL matter, the judge detailed a factual scenario similar to that
in the case at bar.
a. 	Family lives outside of district.
b. 	Family buys home in district.
c. 	Family 	does 	not 	move 	into 	home 	due 	to 	need 	for
renovations.
The judge determined that, largely because the family had never moved into the
home (nor eaten in, slept in or entertained in it), even though they intended to do so in
the future, that it was not domiciled in Kinnelon, and a summary decision was entered on
behalf of the district. See, K.L. and K.L. on behalf of Minor Child M.L. v. Bd. of Educ. of
Kinnelon, EDU 1191-08, Initial Decision (April 24, 2008).4
The judge’s decision was upheld by the Commissioner of Education, largely for the
reasons 	expressed 	in 	the 	underlying 	decision. 	Of, 	note, 	however, 	is 	that 	the
Commissioner distinguished the case of A.P., Sr., on behalf of minor child D.K. v. Board
4 This matter was consolidated with K.L. and K.L. on behalf of Minor Child C.L. v. Bd. of Educ. of
Kinnelon, EDU 1192-08.

OAL DKT. NO. EDU 03915-17
15
of Education of the Bordentown Regional School District, Burlington County, EDU 541-
06, OAL Initial Decision (December 5, 2006), Comm’r Decision (January 18, 2007). 	In
A.P., there was evidence that the petitioner had purchased and lived in the same home
located in the district, had moved out when extensive damage had been done to it while
he was away on duty in the National Guard and that he and D.K. had moved back into
the home three (3) months after the school year had begun and while construction was
ongoing. The Commissioner emphasized that in K.L.;
By way of contrast, petitioners in this case had never lived in
Kinnelon before the 2007-2008 school year and do not appear
to have lived in Kinnelon at any time during that school year.
They lived in Butler and could have sent their children to the
Butler public schools without payment of tuition. In short, the
Commissioner 	finds 	petitioners’ 	arguments 	concerning
domicile to be unpersuasive.
See, K.L. and K.L. on behalf of Minor Child M.L. v. Bd. of
Educ. of Kinnelon, EDU 1191-08, Comm’r Decision (July 23,
2008) at 7.
The court upheld the Commissioner’s decision, citing to Unanue;
Although not a case involving education law, Unanue, is
instructive on the general issue of "domicile" as a legal
concept. "'In a strict legal sense, the domicile of a person is
the place where he has his true, fixed, permanent home and
principal establishment, and to which whenever he is absent,
he has the intention of returning, and from which he has no
present intention of moving.'" Unanue, supra, 255 N.J. Super.
at 374 (quoting Kurilla v. Roth, 132 N.J.L. 213, 215, 38 A.2d
862 (Sup. Ct. 1944)); accord D.L. v. Bd. of Educ. of Princeton
Regional School Dist., 366 N.J. Super. 269, 273, 840 A.2d
979 (App. Div. 2004).
In considering whether a change of domicile has
occurred, three elements must be considered: 1)
whether there had been an actual and physical taking
up of an abode in a particular state; 2) whether the
subject had an intention to make his home there
permanently or least indefinitely; and (3) whether the
subject had an intention to abandon his old domicile.

OAL DKT. NO. EDU 03915-17
16
The court must evaluate all of the facts of the case to
determine the place in which there is the necessary
concurrence of physical presence and an intention to
make that place one's home.
[Unanue, supra, 255 N.J. Super. at 376 (citing Lyon
v. Glaser, 60 N.J. 259, 264-65, 288 A.2d 12, (1972))
(emphasis added).
[K.L. v. Board of Educ., supra at 4.]
The court found it “obvious” that the family was “never domiciled in Kinnelon” and
that while “they may have possessed a present intention to reside there when renovations
were complete”, there was no dispute that they “never did reside in the district”. 	It
concluded;
They had never established an "actual and physical abode" in
Kinnelon, 	and 	therefore 	they 	lacked 	the 	"necessary
concurrence of physical presence and an intention to make
that place one's home" upon which the legal concept of
domicile rests.
[Id. at 4.]
The cases cited by the Petitioners in their brief are either clearly distinguishable
[A.P. v. Lower Merion Sch. Dist., 389 F. Supp. 3 rd 322 (E.D.Pa. 2019) (domicile case
where the petitioners were ‘living’ part-time in 2 different school districts)] or are entirely
consistent with the cases cited above. 	For example, in S.H. and C.H. o.b.o Minor
Children, C.H., S.H. and S.H. v. Township of Alloway Board of Education, Salem County,
OAL Initial Decision (February 11, 2019), Comm’r Decision (March 26, 2019), the court
largely adopted language from Unanue, supra and V.R. ex rel A.R., supra and includes
the “intention of returning” language, while the facts of that case involved whether the
plaintiffs had moved back to a residence where they had formally resided.
Further, concerning the aspect of Petitioner’s argument that her roots in Tenafly
should be considered in determining domicile, while not entirely on point (since the case
involved a person who had moved away from her old hometown, but maintained a home

OAL DKT. NO. EDU 03915-17
17
“so she could see her few remaining friends in New Jersey, when she wished”), the court
in Lyon, supra, held, that;
A mere sentimental attachment does not hold an old domicile.
Lyon v. Glaser, 60 N.J. 259 at 272, cit., District of Columbia v.
Murphy, 314 U.S. 441, 456, 62 S. Ct. 303, 86 L. Ed. 329, 338
(1941).
With that final finding, it is clear that nothing in the Petitioners’ legal argument
effectively counters the clear necessity that for domicile to be established, there must be
an “actual and physical taking up of an abode”. Unanue, supra, 255 N.J. Super. at 376.
That simply has not been established by Petitioners here.
Abuse of Discretion
The law is clear that a student may attend school in a district in which he is not
domiciled, with or without payment of tuition, at the discretion of the school district.
N.J.S.A. 18A:38-3(a); N.J.A.C. 6A:22-2.2. 	A superintendent or administrative principal
may also have a non-domiciled student removed from that school, on application to the
board of education. N.J.S.A. 18A:38-1(b)(2).
Tenafly has adopted a specific policy concerning this issue, which reads as follows;
Nonresident Students
Effective December 6, 2004, the Board generally ceased accepting
new nonresident tuition-paying students. 	This restriction does not
apply 	to 	the 	special 	education 	program 	for 	autism, 	pre-school
disabilities or language learning disabilities self-contained program,
for students who successfully apply to the program.
A. Exceptions to paying tuition by nonresident students may occur
under the following situations:

OAL DKT. NO. EDU 03915-17
18
1. 	Nonresident School Faculty and Staff. Children of full time
Board of Education employees who work a minimum of 35
hours a week in one particular position may attend Tenafly
schools at no tuition cost providing such accommodations
place no hardships on school district resources such as,
but 	not 	limited 	to 	personnel, 	facilities 	and 	program
expenses. 	All stipulations and conditions listed above in
this policy shall be applicable to the children of nonresident
school faculty and staff seeking to attend or actually
attending the Tenafly Public Schools. 	If such hardships
should evolve, the student shall no longer be granted a
waiver of tuition. Application for admission must be made
to the Superintendent of Schools at least sixty calendar
days prior to the anticipated enrollment dates. 	A new
application must be submitted for each school year.
2. 	Special Students. 	American Field Service students and
other students approved by the National Association of
Secondary School Principals may be admitted at no tuition
cost at the discretion of the Superintendent.
3. 	High School Seniors. A student who is a senior and whose
family moves from Tenafly or a sending school district after
January 1, may be allowed to complete the senior year
without further tuition payment.
B. Annual Board of Education – Superintendent of Schools Review of Policy.
The Superintendent of Schools and the Board of Education
will annually review the practical results of policy 5111 for the
year in progress and discuss implementation of the policy for
the coming school year. 	Particular attention will be given to
anticipated enrollments, space and staffing needs. 	This
annual review will be so scheduled that any conclusions
reached may be appropriately reflected in the school budget
for the coming school year.
The admission of a nonresident student to school free of
charge 	must 	be 	approved 	by 	the 	Board. 	No 	student
otherwise eligible shall be denied admission on the basis of
the student’s race, color, creed, religion, national origin,
ancestry, 	age 	marital 	status, 	affectational 	or 	sexual
orientation or sex, social or economic status, or disability.
The continued enrollment of any nonresident student shall be
contingent 	upon 	the 	student’s 	maintenance 	of 	good
standards of citizenship and discipline.
[Exhibit R-1 at 8-9.]

OAL DKT. NO. EDU 03915-17
19
When a local board determines that a child is not properly domiciled in its district,
N.J.S.A. 18A:38-1(b)(2) provides a right of appeal for the parents as follows:
The parent or guardian may contest the Board's decision
before the Commissioner within 21 days of the date of the
decision and shall be entitled to an expedited hearing before
the Commissioner and shall have the burden of proof by a
preponderance of the evidence that the child is eligible for a
free education under the criteria listed in this section.
Similar policies have been upheld as within the discretion of school boards. See,
M.M. and V.M. ex rel R.M. v. Bd. of Educ. of Hillsborough, EDU 6744-98, Initial Decision
(Oct. 19, 1998), adopted, Comm'r (Oct. 29, 1998).
The Respondent also points to N.J.A.C. 6A:22-2.2, which is brief and to the point;
Nothing in this chapter shall be construed to limit a district
board of education's discretion to admit nonresident students,
or the ability of a nonresident student to attend school with or
without payment of tuition with the accepting district board of
education's consent, pursuant to N.J.S.A. 18A:38-3.a.
N.J.S.A. 18A:38-3(a) reads;
Admission for nonresident of school district; parent on active
duty
a. Any person not resident in a school district, if eligible except
for residence, may be admitted to the schools of the district
with the consent of the board of education upon such terms,
and with or without payment of tuition, as the board may
prescribe.
b. Any person not resident in a school district, if eligible except
for residence, and if that person previously was a resident of
the district, shall be admitted to the schools of the district
without payment of tuition if that person’s parent or guardian
is a member of the New Jersey National Guard or a member
of the reserve component of the armed forces of the United
States and has been ordered into active military service in any

OAL DKT. NO. EDU 03915-17
20
of the armed forces of the United States in time of war or
national emergency, resulting in the relocation of the student
out 	of 	the 	district. 	A 	school 	district 	admitting 	a 	student
pursuant 	to 	this 	subsection 	shall 	not 	be 	obligated 	for
transportation costs.
While Petitioners argue that the District abused its discretion in failing to admit the
children, the burden it faces in attempting to demonstrate same is daunting. As noted in
K.L. and K.L. on behalf of Minor Child M.L. v. Bd. of Educ. of Kinnelon, EDU 1191-08,
Initial Decision (April 24, 2008);
Although there is no explicit authority for a public school
district to contract with parents to enroll their children within
the district, neither is there explicit authority that denies them
this authority. Local boards do possess this authority since
they are given a great deal of discretion in determining
whether to enroll out-of-district students.
[Id.]
When combined with the statutory and administrative laws detailed above, it is
clear that the District has the discretionary power to admit or deny admittance to a non-
resident student.
The issue of discretion was discussed at length in Parsippany-Troy Hills Educ.
Ass’n v. Board of Educ. of Parsippany-Troy Hills, 188 N.J. Super. 161 (App. Div. 1983),
where the Court held;
These 	statutory 	provisions 	and 	implementing 	code
regulations leave little doubt that the choice of which courses
to offer and, necessarily, the content of those courses, is a
discretionary decision left to the local boards of education,
subject only to the periodic review of the Commissioner and
State Board of Education. In such a case "the decision is
entitled to a presumption of correctness and will not be upset
unless there is an affirmative showing that such decision was
arbitrary, capricious or unreasonable." Thomas v. Morris Tp.
Bd. of Ed., 89 N.J. Super. 327, 332 (App.Div.1965). An "action

OAL DKT. NO. EDU 03915-17
21
of the local board which lies within the area of its discretionary
powers may not be upset unless patently arbitrary, without
rational basis or induced by improper motives." Kopera v.
West 	Orange 	Bd. 	of 	Ed., 	60 	N.J. 	Super. 	288, 	294
(App.Div.1960).
[Id. at 167-68.]
In explaining the decision not to discretionarily admit the children, Ms. DeMarco
noted that Policy 5111 “makes clear that you must be residing in you Tenafly home prior
to registering your children for school (and) that owning a home in Tenafly and paying
taxes on it does not result in the right to enrollment in our schools.” She emphasized the
difference between a resident that had been forced to move out of a temporarily
uninhabitable residence where they had already been living and “future residents who are
renovating a home they have not lived in”. (Exhibit P-11)
Ms. DeMarco also advised Petitioners that she consulted the Board attorney prior
to making her decision;
Kindly note that I did consult with the Board attorney prior to
my recent response to you to be sure there were no avenues
for enrollment that I was overlooking in my review of your
documents. 	It was his shared interpretation that the highly
strict 	enrollment 	policy 	in 	Tenafly 	did 	not 	support 	your
children’s enrollment at this time based on the information you
have shared with us. To assist President Schwarz with your
appeal, I share (sic) the attorney’s opinion on this matter with
her.
[Exhibit P-12.]
Respondent further argues that if the Board were to make an ad hoc exception to
the non-resident student policy, it would “lose integrity” and that it would be “opening the
door” to additional non-resident children being enrolled “based on circumstances outside
the Board’s control”. 	The integrity of the policy itself, “is a legitimate, rational basis to
deny Petitioners’ request”.

OAL DKT. NO. EDU 03915-17
22
I agree with Respondent. 	The decision to not enroll was clearly not arbitrary,
capricious or unreasonable. The policy itself was very narrowly written, with an expressed
position 	that 	since 	December 	2004, 	“the 	Board 	generally 	ceased 	accepting 	new
nonresident tuition-paying students”. 	Then, it very carefully reviewed the Petitioners’
situation, acknowledging that “(w)hile our district policy is firm…we recognize that your
particular situation suggests further review”. (Exhibit P-10).
It is clear from the correspondence with Ms. DeMarco that the matter was taken
seriously, leading to a review not only by her, but by the Board attorney, whose opinion
was shared with the Board of Education prior to its final decision to deny enrollment. Even
assuming that Petitioners’ allegations that there were some technical deficiencies in how
the decision and subsequent filing deadlines were communicated are true, there is no
basis to even suggest that the District’s decision was arbitrary or capricious. 	Further,
while a rational person may disagree with the decision to deny enrollment, that alone is
certainly no indication that the decision was unreasonable.
As noted above, the policy was very narrowly written, with three limited exceptions,
which themselves are limited by the language contained within the exceptions clauses.
None of these exceptions can be said to apply to Petitioners’ situation even tangentially
(unlike Kinnelon’s policy in K.L. and K.L. on behalf of Minor Child M.L., supra, where a
five week “move-in window” was included). 	The decision to deny enrollment by the
District 	was 	consistent 	with 	the policy elucidated in Policy 5111 and, even after
considering the detailed factual scenario presented by Petitioners, was not unreasonable.
CONCLUSIONS
Given the totality of the evidence, I CONCLUDE that at no time relevant to this
action were/are Petitioners domiciled in Tenafly.

OAL DKT. NO. EDU 03915-17
23
I further CONCLUDE that in addition to being neither arbitrary nor capricious, the
ultimate decision to deny enrollment to children was not an unreasonable exercise of
discretion.
Given the above, I therefore further CONCLUDE that the children are not currently
entitled to a free public school education in the Tenafly Boro School District.
I further CONCLUDE that Petitioner’s children will continue to be ineligible to
receive a free education in the Tenafly Boro School District as long as they remain
domiciled in a municipality other than Tenafly, New Jersey.
ORDER
Based on the foregoing, Respondent's determination that petitioner’s children re
ineligible for a free education in the Tenafly Boro School District is hereby AFFIRMED.
It is hereby ORDERED that summary decision be ENTERED on behalf of
respondent and that the Petitioner’s appeals are DISMISSED.
I 	hereby 	FILE 	this 	initial 	decision 	with 	the 	COMMISSIONER 	OF 	THE
DEPARTMENT OF EDUCATION for consideration.
This 	recommended 	decision 	may 	be 	adopted, 	modified 	or 	rejected 	by 	the
COMMISSIONER OF THE DEPARTMENT OF EDUCATION, who by law is authorized
to make a final decision in this matter. 	If the Commissioner of the Department of
Education does not adopt, modify or reject this decision within forty-five days and unless
such time limit is otherwise extended, this recommended decision shall become a final
decision in accordance with N.J.S.A. 52:14B-10.

OAL DKT. NO. EDU 03915-17
24
Within thirteen days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the COMMISSIONER OF
THE DEPARTMENT OF EDUCATION, ATTN: 	BUREAU OF CONTROVERSIES AND
DISPUTES, 100 Riverview Plaza, 4th Floor, PO Box 500, Trenton, New Jersey 08625-
0500, marked "Attention: Exceptions." 	A copy of any exceptions must be sent to the
judge and to the other parties.
August 27, 2021
DATE 	Matthew G. Miller, ALJ
Date Received at Agency: 	August 27, 2021
Date Mailed to Parties: 	August 27, 2021
MGM/mm

OAL DKT. NO. EDU 03915-17
25
APPENDIX
WITNESSES
For petitioner:
None
For respondent:
None
EXHIBITS
For petitioner:
P-1 	May 23, 2021 deed to 11 Stanton Road, Tenafly, N.J.
P-2 	June 14, 2021 residency appeal petition
P-3 	Tenafly sports registrations
P-4 	11 Stanton Road utility bills
P-5 	Copy of driver’s licenses issued March 25, 2021
P-6 	11 Stanton Road, Tenafly, N.J. smoke detector and carbon monoxide
detector certificate.
P-7 	May 11, 2021 e-mail from petitioners to District, re: home renovations
P-8 	Undated letter from contractor to District, re: home renovations
P-9 	May 6, 2021 e-mail from Petitioners to District, re: Tenafly school enrollment
P-10 	May 7, 2021 e-mail from District to Petitioners, re: request for home
renovation information
P-11 	May 12, 2021 e-mail from District to Petitioners, re: denial of request to
enroll
P-12 	May 13, 2021 e-mail from District to Petitioners, re: consultation with Board
attorney
P-13 	May 26, 2021 letter from District to Petitioners, re: confirmation of Board of
Education decision to deny enrollment

OAL DKT. NO. EDU 03915-17

For respondent:
R-1 Tenafly Board of Education Policy Guide 5111

26