Classification Determinations SECTION NO. 4

Effective Date: September, 1985

FUNDAMENTAL REQUIREMENTS OF LAW

The subsection of G.S. 116-143.1 may be highlighted as follows:

1. Subsection (a). There is a distinction between legal residence and residence for tuition purposes. The requirements of the law are applicable to all students or applicants for attendance at every public university, community college, or technical institute of this State.
   
   
2. Subsection (b). To qualify as a resident for tuition purposes, a person must become a legal resident and remain a legal resident for at least twelve months immediately prior to classification.
   
   
3. Subsection (c). Twelve months legal residences means more than simple abode in North Carolina. In particular, it means maintaining a domicile (permanent home of indefinite duration) as opposed to maintaining a mere higher education. The burden of establishing facts which justify classification of a student as a resident entitled to in-state tuition rates is on the applicant for such classification.
   
   
4. Subsection (d). Being classified a resident for tuition purposes is contingent on the student's providing all information that the institution may require in making the residence determination.
   
   
5. Subsection (e). If an individual, irrespective of age, has living parent(s) or court-appointed guardian of the person, the domicile of such parent(s) or guardian is, prima facie, the domicile of the individual; but this prima facie evidence of the individual's domicile may or may not be sustained by other information. Further, non domiciliary status of parents is not deemed prima facie evidence of the applicant child's status if the applicant has lived (though not necessarily legally resided) in North Carolina for the five years preceding enrollment or re-registration.
   
   
6. Subsection (f). Marriage alone does not prevent a person from becoming or continuing to be a resident for tuition purposes, not does marriage in any circumstances insure that a person will become or continue to be a resident for tuition purposes. Marriage and the legal residence of one's spouse are, however, relevant information in determining residentiary intent.
   
   
7. Subsection (g). If both a husband and his wife are legal residents of North Carolina and if one of them has been a legal resident longer than the other, then the longer duration may be claimed by either spouse in meeting the twelve month requirement for in-state tuition status.
   
   
8. Subsection (h). A North Carolinian who serves outside the State in the armed forces does not lose North Carolina domicile simply by reason of such services.
   
   
9. Subsection (I). If a person (1) has been a bona fide legal resident, (2) has consequently been classified as a resident for tuition purposes, and (3) has subsequently lost North Carolina legal residence while enrolled at a public institution of higher education, that person may continue to enjoy the in-state tuition rate for a grace period of twelve months measures from the date on which North Carolina legal residence was lost. If the twelve months ends during an academic term for which the person is enrolled at a State institution of higher education, the grace period shall extend, in addition, to the end of that term. The fact of marriage to one who continues domiciled outside North Carolina shall not by itself cause loss of legal residence, marking the beginning of the grace period.
   
   
10. Subsection (j). If minor's parents live apart, the minor's domicile is deemed to be North Carolina for the time period(s) that either parent, as a North Carolina legal resident, may claim and does claim the minor as a tax dependent, even if other law or judicial act assigns the minor's domicile outside North Carolina. A minor thus deemed to be a legal resident by operation of subsection (j) will not, upon achieving majority before enrolling at an institution of higher education , lose North Carolina legal residence if that person (1) upon becoming an adult, acts, to the extent that the persons degree of actual emancipation permits, in a manner consistent with bona fide legal residence in North Carolina and (2) begins enrollment at an institution of higher education not later than the fall academic term next following completion of education prerequisite to admission at such institution.
    
    
11. Subsection (k). If a minor has lived for five or more consecutive years with relatives (other than parents) who are domiciled in North Carolina and if the relatives have functioned during this time as if they were personal guardians, the minor will be deemed a resident for tuition purposes for an enrolled term commencing immediately after at least five years in which these circumstances have existed. If under this subsection a minor is deemed to be a resident for tuition purposes immediately prior to his or her eighteenth birthday, that person on achieving majority will be deemed a legal resident of North Carolina of at least twelve months duration. This subsection acts to confer in-state tuition status even in the face of other provision of G.S. 116-143.1 to the contrary; however, a person deemed a resident for twelve months duration pursuant to subsection (k) continues to be a legal resident of the State only as long as she does not abandon North Carolina domicile.
    
    
12. Subsection (l). If a student ceases enrollment at or graduates from an institution of higher education while classified a resident for tuition purposes and then both abandons and reacquires North Carolina domicile within a twelve month period, that person, if he or she continues to maintain the reacquired domicile into re-enrollment at an institution of higher education, may re-enroll at the in-state tuition rate without having to meet the twelve month durational requirement of subsection (b). However, any one person may receive the benefit of this subsection only once.
    
    

ASPECTS OF INTERPRETING AND APPLYING THE BASIC STATUTORY PROVISIONS

The concept of domicile

Domicile and its duration are the basis for the classification system used to determine resident status for tuition purposes under G.S. 116-143.1. The definition of domicile set forth in Section 11.B., above, describes some of its attributes, including its reliance on subjective intent as measured by overt acts of the individual. More specifically, the concept of domicile, or legal residence, embodies two elements: residential presence in a state coupled with a particular intent referable to that presence. The general law of North Carolina on this subject is summarized in a North Carolina Supreme Court case as follows:

• Precisely speaking, residence and domicile are not convertible terms. A person may have his residence in one place and his domicile in another. Residence simply indicates a person's actual place of abode, whether permanent or temporary. Domicile denotes one's permanent, established home as distinguished from a temporary, although actual place of residence. When absent there from, it is the place to which he intends to return; it is the place where he intends to remain permanently, or for an indefinite length of time, or until some unexpected even shall occur to induce him to leave. Two things must concur to constitute a domicile: First, residence; second, the intent to make the place of residence a home.
  
  
• One who lives in a place for a temporary purpose with the design of leaving when that purpose has been accomplished is a mere sojourner. Therefore, a residence for specific purpose, ...in which the animus revertendi accompanies the whole period of absence, effects no change of domicile.
  
  
• A domicile, once required [sic] is presumed to continue. It is never lost until a new one is established, and the burden of proof rests upon the person who alleges a change. To effect a change of domicile there must be (1) an actual abandonment of the first domicile, accompanied by the intention not to return to it and (2) the acquisition of a new domicile by actual residence at another place, coupled with the intention of making the last acquired residence a permanent home.
  
  
• [Hall v. Board of Elections, 280 N.C. 600, at 600-608 (1972). The Hall case is a voting rights case, and since the Hall decision in 1972 there has developed a line of voting rights cases modifying the law of domicile as it relates to voting rights. Although Hall continues to reflect the general law of domicile, the quotations from Hall in this Manual have been made to reflect Hall as Hall has been amended in the voting rights context by subsequent holdings of the North Carolina Supreme Court.]

The beginning point of inquiry in determining domicile

While some students are minors under law (under age 18) and so by general law are presumed to have the domicile of their parents, the great majority of students, being 18 or older, have the legal capacity, exercised or not, to establish their own domicile. The Hall case makes clear, however, that this capacity must indeed be demonstrably exercised if domicile other than that of the parents is to be recognized.

The presumption is that a student who leaves his parent's home to enter college is not domiciled in the college town to which he goes. However, this presumption is rebuttable. It is an inference of fact based on probabilities and the common experience of mankind under the circumstances. [Hall, supra, at 608.]

The beginnings of residentiary inquiry are further related to parental domicile by G.S. 116-143.1(e), which explicitly makes that beginning point the parental domicile by rendering the parental domicile, prima facie, the domicile of the student child (with, of course, the exception under the five year rule described in paragraph IV.A.5.). Hall then provides the guideline for the next step of the residentiary inquiry by noting:

An adult student may acquire a domicile at the place where his university or college is situated, if he regards the place as his home, or intends to stay there indefinitely....if he goes to a college town merely as a student...he does not acquire a domicile there. [Ibid.]

This distinction of the general law, between transitory and permanent residentiary intent (one constantly manifest in the higher education context), is reiterated in the requirements of G.S. 116-143.1{c}, whereby the applicant for resident tuition status must prove bona fide residentiary intent by demonstrating a motive for presence in the State greater than mere temporary residence or abode incident to enrollment. The student who has living parents or court-appointed guardian of the person rebuts or reinforces the statutory prima facie evidence of his or her domicile by all the other information supplied by the student; the student having no such parent or guardian or being under the coverage of the five year rule has domicile determined from all the information without a statutorily supplied domiciliary beginning point.

The nature of domiciliary evidence

To determine whether a student has established a domicile in North Carolina, as distinguished from a mere temporary abode, a conclusion about the intent of the student, as measured by objectively verifiable conduct, must be reached; that is, does the conduct of the student, taken in total, manifest an intention to make North Carolina his or her permanent dwelling place.

A student's physical presence in the college town....demonstrably fulfills the residency requirement of domicile. However, the court must rely upon both his words and his actions to determine whether the student has the requisite intent to make the town his home and to remain there indefinitely, the animus manendi.

A person's testimony regarding his intention with respect to acquiring a new domicile or retaining his old one is competent evidence, but it is not conclusive of the question. All of the surrounding circumstances and the conduct of the person must be taken into consideration. The rule is well stated in 25 Am. Jur. 2d. Domicile '' 91 and 93 (1966): The determination of domicile depends upon no one fact or combination of circumstances, but upon the whole, taken together, showing a preponderance of evidence in favor of some particular place as the domicile.

A person's own testimony regarding his intention with respect to acquiring or retaining a domicile is not conclusive; such testimony is to be accepted with considerable reserve, even though no suspicion may be entertained of the truthfulness of the witness.. Conduct is of greater evidential value than declarations. Declarations as to an intention to acquire a domicile are of slight weight when they conflict with the facts. [Hall, supra, at 609.]

This verifiable conduct, or domiciliary action, is of the type described in paragraph 11.B.6 and may be characterized as information favorable and unfavorable to a domiciliary claim.

The following factors, if actually present in the case, would tend to support a finding that the student did not intend to establish a domicile in North Carolina:

1. The student first arrived and established his or her abode in North Carolina coincident with enrollment in an institution of higher education, with no indication of any substantial motivation other than educational pursuits as explanation for his or her presence; thus, it could be inferred that he or she is present in the State for the limited purpose of pursuing an education, with the reasonably inferred expectation that he or she will leave the State upon completion of that limited objective.
   
   
2. The student lives part of the year in the college town and returns to the home of his or her parents during holiday and/or vacation time; thus, it could be inferred that the student treats the presence in the State as temporary, incident only to accomplishment of the limited purpose of acquiring an education, rather than as being incident to the maintenance of his or her home.
   
   
3. The student is supported financially, either totally or in substantial part, by his or her parents during the period of presence in North Carolina while attending the institution; thus, it could be inferred that the home of his or her parents remains the base of operations and actual home. Stated differently, the inference could be that the student has not yet undertaken a degree of independence which bespeaks the establishment of his or her own home.
   
   
4. The student leaves his or her basic permanent possessions, or personal property, at the home of the parents, while possessing in North Carolina only those items which are necessary for temporary residential needs; thus, it could be inferred that the residence in North Carolina is only a temporary character, with an intention to return ultimately to the home of his or her parents.
   
   
5. The student does some or all of the following acts in a state other than North Carolina: registers to vote; files income, personal property, or real property tax returns; registers or licenses a motor vehicle; acquires a driver's license; owns a real property; is employed; maintains memberships in social, fraternal, religious, or other organizations; maintains bank accounts.

The following factors, if actually present in the case, would tend to support a finding that the student did intend to establish domicile in North Carolina:

1. The student moves to North Carolina for a significant period of time prior to enrollment in an institution of higher education, during which period he or she is employed or engaged in other substantial activity unrelated to education pursuits; the possible inference is that educational pursuits were not the exclusive motivation for coming to the State or perhaps the continuing sole motivation therefore.
   
   
2. The student comes to North Carolina with a spouse and/or children, either significantly before or immediately coincident with his enrollment; the possible inference is that the student is the head of an independent household who is establishing a family home in this State.
   
   
3. The student purchases a residence in the State where he or she resides, with or without other family members (i.e., spouse and/or children); the possible inference is that the student has put down roots on a permanent basis and, incident thereto, is engaged in educational pursuits.
   
   
4. The student does some or all of the following acts in North Carolina: registers to vote; files income, personal property, or real property tax returns; registers or licenses a motor vehicle; acquires a driver's license; owns real property; is employed; maintains membership in social, fraternal, religious, or other organizations; maintains banking accounts.

WEIGHING AND BALANCING DOMICILIARY EVIDENCE; BURDEN OF PROOF

As noted in Hall, the favorable and unfavorable evidence of residentiary (domiciliary) intent is to be weighed in light of probabilities and the common experience of mankind under the circumstances. For a student to be classified a resident for tuition purposes, the balancing of all this evidence must produce a preponderance of the evidence supporting the assertion of in-state residence. More precisely, this evidence must reflect a cluster, focus or accumulation of favorable information such that there is a point at least twelve months prior to the residentiary classification where the greater part of the information points to North Carolina.

1. Under G.S. 116-143.1(e) a showing that the student's parents are legal residents of North Carolina is prima facie evidence that the student is also a legal resident of North Carolina, but, as prima facie evidence, it is a favorable factor to be weighed with all other considerations in reaching a conclusion with respect to the student's contention that he or she is a legal resident for tuition purposes. Necessarily rebutting such prima facie evidence would be a showing that the student is an adult and has never entered North Carolina, where the student's parents now reside; the student, then, would lack the fundamental requirement (of physical presence) for acquiring domicile of choice and the first showing of domicile through the parents would be negated. If a student's parents are not residents of North Carolina, then the student starts out on the minus side in his or her effort to establish by a preponderance of all the evidence the right to in-state status. However, this negative evidence, too, might be rebutted by other residentiary information tying the student to North Carolina.
   
   
2. Normal variation among cases renders the residentiary inquiry more a function of reasonable surmise than formula computation. For example, one person may be active in community affairs, demonstrating obviously a putting down of local roots; another person may be passive about such involvement but invest heavily in local financial opportunities. Both persons appear more than transient, though the evidence in support of their claims of residence would differ considerably. So, too, human preferences could render the same residentiary factor of differing significance form one applicant to the next: one student might not possess a North Carolina driver's license because he got a driver's license in New York just last year, demonstrating thereby a continued reliance on the benefits of another sovereign state in direct conflict with residentiary claims in this State and potentially with the North Carolina Uniform Driver's License Act.
   
   
3. The provisions of G.S. 116-143.1{c}, in accord with the general laws of domicile, require that the successful applicant for in-state tuition status demonstrate the required preponderance of favorable evidence reflecting bona fide residentiary intent in contrast to intent to maintain a mere temporary residence or abode incident to enrollment in an institution of higher education. The statute requires scrutiny, then, not only of what residentiary actions have been performed but of why they were performed. For example, a student accomplishes a so-called favorable pattern of typical residentiary acts and that pattern has a focus in North Carolina as of a point in time at least twelve months prior to the residentiary classification. Those actions may be taken as some evidence of residentiary intent. However, if the student has shown by express statements or other actions appearing in the record that entry into the State was motivated solely by academic enrollment and that the stay in North Carolina is a temporary one governed in length by academic concerns, then the intent behind the ostensibly residentiary actions must be taken as other than bona fide residentiary intent and the application for in-state status under G.S. 116-143.1 must fail.
   
   

In sum, all factors of record come together and they are assessed as to whether or not an individual has shown by a preponderance of the evidence in the reporting of all demonstrable evidence that he or she has become a domiciliary of North Carolina and has been so far at least the twelve months immediately preceding the residentiary classification.

SPECIAL RULES UNDER THE LAW OF DOMICILE

The assessment of domicile, though governed by the rules and procedures of general law and statute described in this Section B, above, is also affected by special rules derived, again, from both general and statutory law.

A. Domicile of a minor

1. A person under 18 years of age is a minor by North Carolina law and deemed under the common law dependent on his or her parents for domicile.
   
   
2. As between living parents, a minor's domicile is presumed by common law to be that of the father, subject to rebutting evidence.
   
   
3. If one parent is deceased, the minor's domicile is that of the surviving parent.
   
   
4. If the parents are divorced or legally separated, the minor's domicile is that of the parent to whom custody of the minor has been awarded by court order.
   
   
5. If no custody has been granted by virtue of court order, the domicile of the minor is that of the parent with whom he or she lives.
   
   
6. If the minor lives with neither parent, in the absence of a custody award, the domicile of the minor is presumed to remain that of the father, again, subject to rebutting evidence.
   
   
7. If the minor lives for a part of the year with each parent, in the absence of a custody award, the domicile of the minor is presumed, rebuttably to remain that of the father.
   
   
8. If a minor is an orphan and has no court-appointed guardian of the person, the minor's domicile is that of the person with whom he or she lives; otherwise, the minor's domicile remains at the place where he or she last acquired a domicile through a parent or court-appointed guardian of the person.
   
   
9. If legal adoption of a minor has occurred, the minor's domicile is that of the adoptive parents, subject to the foregoing rules concerning relationships between husband and wife vis-a-vis the domicile of a child.

The foregoing principles pertain to the domicile of a minor by reason of strong common law presumption and should be contrasted to the prima facie evidence rules of G.S. 116-143.1(e), which pertain to all persons irrespective of age but which are rebuttable. Similarly, the proviso of G.S. 116-143.1(e), which renders the prima facie rules inoperative in specified circumstances, would yield to the common law presumption if in conflict with it.

Under G.S. 116-143.1(j) and (k) two narrowly defined subclasses of minors are conferred special, favorable treatment in the residence/tuition context sometimes at variance with the nine foregoing legal principles.

Subsection (j) provides that a minor whose parents, pursuant to legal proceeding or simple act, are living apart, may claim legal residence in North Carolina for the time period that either parent is a North Carolina legal resident entitled to claim and claiming the minor as a dependent under the North Carolina Revenue Act provisions concerning individual income tax.

Under the Act, at G.S. 105-149(a) (5), a dependent is a son, daughter, stepson or stepdaughter over half of whose support, for the calendar year in which the taxable year of the [parent] taxpayer beings, was received from the [parent] taxpayer. Because it is the person's relationship to North Carolina that causes application of subsection (j), all cases should be assessed relative to an 18 year old age of majority, even if the minor is in the legal custody of a parent residing in a state having a 21 year old age of majority.

Further, because the North Carolina Revenue Act references the dependence test to support over an entire calendar year, a student may be credited under subsection (j) with an entire year of North Carolina legal residence irrespective of when in that year the support to the minor actually began unless it appears that for part of the calendar year at issue the parent was not a North Carolina legal resident.

For example, if a minor received all his or her financial support in December 1980 to pay off debts for maintenance of the minor incurred throughout calendar 1980 and if the parent providing that support had been a North Carolina legal resident for all of 1980 and if that parent claimed the minor on 1980 North Carolina resident individual income tax return, the minor should be considered a North Carolina legal resident of twelve months duration irrespective of how long, if at all, the minor had been physically present in this State. On the other hand, if the parent had become a legal resident of North Carolina only in December 1980, still providing indicated support and making the same dependency claim, the minor could claim at most one month of legal residence in North Carolina as of January 1, 1981.

Most person deemed to be legal residents while minors pursuant to subsection (j) become adults (reach age eighteen) during their senior high school year or in the summer immediately following completion of high school, times when many persons, practically speaking, cannot conveniently exercise their capacity to establish new domiciles in their own right.

Therefore, to preserve during the transition from high school to college the legal residence first conferred by legal fiction on the young adult as a minor, subsection (j) provides that legal residence first conferred on the person as a minor by subsection (j) can be retained by the minor who has become an adult if that person thereupon acts like a North Carolina resident as much as possible, and if the person enrolls at the institution of higher education not later than the fall term after completion of education prerequisite to admission (usually high school graduation).

Aided by G.S. 116-143.1(j), a person might accrue the twelve month period of North Carolina domicile necessary for resident tuition status in several ways, because periods of dependency on one or another resident parent, emancipated residence in North Carolina, and resident adulthood in North Carolina all may be pieced together to derive the necessary twelve months. Some of the more likely applications of G.S. 116-143.1(j) are as follows:

1. Qualifications of the minor and claiming of the minor as dependent on the individual income tax return of the minor's North Carolina resident parent filed for the last full calendar year prior to the academic term for which resident tuition status is sought plus apparent qualifications of the minor and parental intent to claim the minor as such a dependent for the calendar year commencing between the completed calendar year and the academic term for which resident tuition status is sought.
   
   
2. Qualification of the minor and claiming of the minor as a dependent of one North Carolina resident parent for the last full calendar year prior to the pertinent academic term plus apparent qualification of the minor and parental intent to claim the minor as a dependent by the other parent is such other parent is a North Carolina resident for the next calendar year, commencing between the completed calendar year and the pertinent academic term.
   
   
3. Qualification of the minor and claiming the minor as a dependent of one North Carolina resident parent for the last full calendar year prior to the pertinent academic enrollment, which is not later than the fall academic term next following high school graduation, plus achievement of majority before the pertinent academic term accompanied by demonstration of bona fide North Carolina residentiary intent under the terms of subsection 116-143.1(j).
   
   
4. Qualification of the minor and claiming of the minor as a dependent of one North Carolina resident parent for the last full calendar year prior to the pertinent academic term plus continued dependence of the minor on a resident parent during the calendar year commencing between the completed calendar year and the pertinent academic term, until the minor achieves and maintains in North Carolina (1) emancipation as described at section b, below and/or (2) majority, if such emancipation and/or majority were accompanied by acts of the person that would support a finding of North Carolina residentiary intent.

Under subsection (k) the benefit conferred is resident status for tuition purposes, not legal residence as accorded under subsection (j). The subclass of minors benefited under subsection (k) are those minors who immediately prior to the term for which in-state status is sought (1) have lived for five or more consecutive years continuing to such term in North Carolina in the home of an adult relative, other than a parent, domiciled in this State; and (2) for whom the adult relative has functioned during those years as a de facto guardian and has exercised day-to-day care, supervision, and control of the minors. In further distinction to subsection (j) it should be noted that subsection (k) rests in part upon actual care of the minor, not necessarily financial support of the minor.

The circumstances leading to the adoption of subsection (k) suggest that a proper interpretation of its provisions would allow a minor to satisfy the five-year requirement by demonstrating consecutive periods of the requisite guardianship (as with two or more relatives) each of less than five years but in total equaling or exceeding five years.

Subsection (k) also contains provisions for allowing unbroken enjoyment of in-state status by a person who as a minor had received or qualified for resident tuition status under subsection (k) but then become an adult (an 18-year-old), thus acquiring the legal capacity to establish legal residence in his or her own right. Subsection (k) accomplishes this by statutorily declaring that a person deemed a resident for tuition purposes while a minor qualifying under the act, is on his or her eighteenth birthday deemed a legal resident of at least twelve months duration. Therefore, achieving majority either before initial enrollment or after it does not of itself remove enjoyment of in-state status under subsection (k); only by abandonment of North Carolina domicile does the adult beneficiary of subsection (k) cease to receive that benefit. [The benefit, even then, may not cease if the twelve month grace period of subsection (I) has application.]

Although the textual treatment of subsections (j) and (k) occupies the greater part of this review of the domicile of a minor, it should be remembered that most minors will have their domicile and residentiary status for tuition purposes determined solely under the nine legal principles generally applicable to minors under the common law concerning the emancipated minor, rather than under subsection (j) or (k).

THE EMANCIPATED MINOR

Even though a person has not achieved the chronological age required by law for adulthood, under certain circumstances the person may be treated by the law as being sufficiently independent from the parents as to enjoy a species of adulthood for legal purposes. The consequence, for present purposes, of such circumstances is that the affected person is made capable of establishing a domicile independent of that of the parents. It remains for such a person to demonstrate that a separate domicile in fact has been established.

In North Carolina emancipation is effected by court order pursuant to procedures and standards set forth in G.S. Chapter 7A, Article 5. The process, in general, involves the issuance of a decree of emancipation by a District Court judge of the minor's county after petition by the minor and review of the minor's socio-economic circumstances.

In other states emancipation may be achieved by statute or, more likely, by the common law standards of (1) marriage or (2) parental disclaimer of entitlement to the minor's earnings and the minor's proclamation and actual experience of financial independence from the parents, with the actual establishment and maintenance of a separate and independent place of residence. Whether the student claims statutory or common law emancipation, the facts supporting its realization must be presented by the claimant in the process of residentiary classification.

POLICY CONCERNING MEMBERS OF THE ARMED FORCES

1. Qualifications as a resident for tuition purposes under G.S. 116-143.1. The domicile of a person serving in the armed forces is not necessarily affected by assignment in or reassignment out of North Carolina. Such a person may establish domicile for self and dependents by the usual requirements of residential act plus intent. All the residentiary evidence is collected and assessed. In the military context this may include the State of Legal Residence Certificate (DD Form 2058), residentiary information on the Leave and Earnings Statement, and the home of record. The weight to be given the Leave and Earnings Statement may vary greatly depending upon how recently the LES was declared. Also, some branches do not permit a change in a previously declared home of record.

2. Eligibility to be charged less than the out-of-state tuition rate under G.S. 116-143.3 is dependent on the "maximum available tuition assistance" available to the service member through his service component.

B. To calculate the fee and tuition charge, take the "maximum" military tuition assistance rate (now set at $250 per credit hour), then subtract the Education and Technology fee (calculated on a per student credit hour basis). The amount left is the tuition to be charged.

A. One who does not qualify under this Manual as a resident for tuition purposes may be eligible to be charged tuition at the in-state rate plus mandatory fees if the service person does not receive tuition assistance from his service.

Note: the previous military service personnel section and the following section of the Manual concerning active duty military personnel has been updated by the UNC-CH Residence Status Committee chairperson's office to reflect the latest changes in the law for this section. This section does not necessarily represent the State Residence Committee's (SRC) format or narrative, but we trust it is as accurate as we can make it given the SRC's information that this section's information is based upon.

By reference to G.S. 116-143.3 and to conditions established pursuant to G.S. 116-143.3 (amended 9/03) by the respective Boards of the institutions of higher education, the conditions for being a beneficiary are these:

1. The beneficiary must be a member of the armed services as defined by G.S. 116-143.3(a), that is, a member of the United States Air Force, Army, Coast Guard, Marine Corps, Navy, North Carolina National Guard, or a Reserve component of the foregoing.
2. The beneficiary must be on active duty.
3. The beneficiary must qualify for admission to the institution at which the benefit is sought.

Dependent relatives of members of the armed services

If otherwise qualifying under the statute, dependent relatives of members of the armed services are eligible to be charged the in-state tuition rate. The benefit of the in-state rate is conditioned as follows:

1. The beneficiary must be the dependent relative of a service member who concurrently satisfies the conditions of (1) [a] and [b], above. Additionally, the service member must be on active duty, stationed in North Carolina on permanent change of station status.
   
   
2. The dependent relative must be sharing the service member's abode in North Carolina; provided, that a dependent relative after becoming eligible for the benefit may continue to be eligible for the in-state rate during the remainder of the academic year in which the supporting service member moves his or her abode from North Carolina.
   
   
3. The dependent relative must have complied with the requirements of the Selective Service System, if applicable. Under federal law all male United States citizens born on or after January 1, 1960, who are 18 but not yet 26 years old must register with the Selective Service System. Further information concerning those required to register and those exempt from registration is set forth at Appendix E.

Definitions

In determining eligibility for the benefits of G.S. 116-143.3, the following definitions shall pertain

1. The term abode means the place where a person actually lives, whether temporarily or permanently; the term abide means to live in a given place.
   
   
2. A service member is deemed to have moved his or her abode from North Carolina when he or she either (1) voluntarily ceases living in North Carolina other than for vacation or leave purposes or (2) involuntarily is absent from the State under military orders; provided that duty on routine maneuvers and exercises and temporary assignments shall not be deemed to cause a change in abode.
   
   
3. The term dependent relative means any of the following who has military dependent status under a sponsoring service member:
   
   
   1. The spouse of the service member.
   2. A son or daughter of the service member, or a descendant of either.
   3. A stepson or stepdaughter of the service member.
   4. A brother, sister, stepbrother or stepsister of the service member.
   5. The father or mother of the service member, or an ancestor of either.
   6. A stepfather or stepmother of the service member.
   7. A son or daughter of a brother or sister of the service member.
   8. A brother or sister of the father or mother of the service member, or
   9. A son-in-law, daughter-in-law, father-in-law, mother-in-law, brother-in-law, or sister-in-law of the service member.
   
   
4. The term academic year means the period of time commencing with the first day of classes of the fall semester, term, or quarter of an institution of higher education and ending with the last day of the semester, term, or quarter immediately preceding the succeeding fall semester, term, or quarter of that institution.
   
   
5. The term amounts payable to the institution or the service member from the service member's employer by reason of enrollment means amounts from a federal or state government in whose employ the service member is on active duty and may or may not be present in North Carolina and which amounts are available only as military education assistance to satisfy, or reimburse for, tuition charges by the enrolling institution with respect to the service member.

Procedural Conditions

1. Eligibility to be charged less than the out-of-state tuition rate under G.S. 116-143.3 must be established through submission to the pertinent institution of an application similar to that set forth in Appendix D.
   
   
2. The required application for a reduced tuition rate must be submitted in proper order before the first day of classes of the first enrolled term of each academic year for which the benefit of G.S. 116-143.3 is sought. This means that the benefit once awarded does not self-renew for subsequent academic years but must be reacquired prior to the first enrolled term of subsequent academic years. Failure to make proper application prior to the commencement of the first enrolled term of a given academic year means that the enrolled term next following the submission of a proper application is the earliest term to which the benefit may apply.
   
   
3. Appeals from determinations of eligibility for a reduced tuition rate under G.S. 116-143.3 may be taken as prescribed in paragraph 111.F., above, with respect to residence status classifications under G.S. 116-143.1.
   
   
4. Receipt of the benefit of a reduced tuition rate under G.S. 116-143.3 alone may not provide the basis for receiving or conferring on another the benefits of G.S. 116-143.1(g), (h), (I), (j), (k), or (l).

Policy concerning federal personnel

The domicile of a person employed by the Federal Government is not necessarily affected by assignment in or reassignment out of North Carolina. Such a person may establish domicile for self and dependents by the usual requirements of residential act plus intent.

Policy concerning aliens

Aliens whether classified as immigrant or non- immigrant are subject to the same considerations as citizens in the determination of residentiary status for tuition purposes unless either of the following pertains:

1. The alien abides in the United States under a visa conditioned at least in part upon intent not to abandon a foreign domicile. B, F, and J visas are so conditioned. (The F visa is for students: the J visa is issued to students, researchers, and professors as well as others participating in programs of the Secretary of State.)
   
   
2. The alien abides in the United States under a visa issued for a purpose so restricted as to be fundamentally incompatible with the assertion by the alien of bona fide residentiary intent. C, D, and M visas are deemed under this manual to be so restricted. (The C visa is issued to an alien for purposes of transit into and out of the United States; the D visa is issued to alien crewmen of vessels or aircraft for purposes incident to crew service; the M visa is issued for the period of time needed to complete a course of study.)

An alien is deemed to abide in the United States under a visa identified described in subsection (1) or (2), above, even if it has been physically surrendered to immigration authorities and is considered to be subject to that visa's restrictions until the alien is issued by immigration authorities a document described in the next paragraph. Documentation of absence of the visa restrictions identified above may include the following:

1. Possession of an A, E, G, H, I, K, or L visa or an immigrant visa;
   
   
2. Possession of Form I-151 of Form I-551 (both entitled Alien Registration Receipt Card);
   
   
3. Possession of Form I-181b (Memorandum of Creation of Record of Lawful Permanent Residence);
   
   
4. Possession of Form I-94 (Arrival-Departure Record), endorsed to show parol status or refugee status;
   
   
5. Possession of a document issued Immigration authorities announcing or conferring a status on the alien recipient that will later be evidenced by issuance to the recipient of one or more of the documents identified immediately above; or
   
   
6. Possession of a document issued by Immigration authorities conferring on the alien recipient the privilege of entering or remaining in the United State for an indefinite period pending the outcome of an outstanding application or re-application by the recipient for one or more of the documents identified immediately above. (I-512 or other)

An alien possessing a document identified in any of the immediately foregoing six classes of credentials is not by reason of that possession deemed to have any special residentiary advantage; such an alien is with respect to G.S. 116-143.1 considered only to have the opportunity to claim and seek to prove entitlement to in-state tuition status under the same residentiary criteria and burden of proof required of United States citizens.

And, in making domiciliary determinations of aliens, institutional officials should consider the precise basis for any entry into the United States and its documentation as part of the residentiary information upon which to assess the alien's residentiary claim. With respect to the twelve month durational requirement of G.S. 116-143.1(b) the claims to domicile of aliens possessing documents identified in any of the six classes set forth above should be assessed relative to a time frame beginning not earlier than the effective date fo the pertinent document subject to the general provisions for retroactive change of tuition status set forth in Section 111.B.1., above.

Policy concerning prisoners

A person neither establishes nor loses legal residence in a state solely by reason of being imprisoned there. While a prisoner is not absolutely precluded from proving that he or she has changed legal residence, generally a person's domicile is not changed by involuntary confinement in a penitentiary or other prison, but in such case the former domicile remains. As a practical matter, it is extremely difficult for a prisoner to demonstrate a change in legal residence since a prisoner is unable to perform most of the actions which are used as indicia of residentiary intent and since any declarations of intent must be weighted against the fact that the prisoner is being confined against his or her will.

The domicile of individuals who are married

The provisions of G.S. 116-143.1(f) make clear that married persons of either sex are neither favored nor disadvantaged by virtue of the fact of marriage in the determination of domicile while being classified for tuition status. The statutory provision thus eliminates from tuition status classifications the common law presumption that a wife's domicile is presumed to follow that of her husband. Therefore, the domicile of married persons is identified under the same basic procedure as all other persons - on the merits of all collected relevant residentiary information.

G.S. 116-143.1(f) also makes clear, however, that the fact of marriage is part of such residentiary information. In weighing the significance of marriage, though, it is apparent that the General Assembly intended that events and circumstances surrounding the marriage be examined to give the marriage itself any residentiary significance. [See subsections (f)(1), (f)(2), (f)(3), and (I).] This requires, then, consideration of both husband and wife's circumstances when a married individual is classified for tuition purposes. By way of special note, though, as to the consideration of loss of residence for purposes of invoking the twelve month grace period, even the derived residentiary significance of the marriage cannot be such that the occasion of the marriage per se marks the loss of bona fide legal residence for one of the other spouse.

Rather, such time of loss, or culminations circumstance must be related to some other event or circumstance but which, of course, might well render the marriage date the time of, if not the legal cause of, change of residence. [Note. Even though the domicile of a married person is identified under the same test as that for a single person, G.S. 116-143.1(g) provides that husband and wife who have both met that test as to North Carolina may claim the residentiary duration of the two which is the longer.] In application, the various statutory provisions concerning spouse pairs would function in the marital context as follows:

1. A husband and a wife are inferred to have the legal capacity for separate domiciles because the wife's domicile is not presumed to follow that of her husband. It (and the husband's domicile) must be demonstrated rather than presumed.
   
   
2. When a man and woman marry, they acquire a new legal relationship that expands their legal capacity for a shared existence. The collective experience of mankind shows that the great majority of newlyweds do share that existence within their newly acquired status. The events subsequent to the marriage and, to some extent prior thereto, however, must be considered if the sharing of domicile of a husband and wife is to be a consequence or facet of the marriage or a continuing aspect of the marriage.
   
   
3. Evidence that suggests a shared domicile is common abode, interrelated personal affairs (bank accounts, tax returns, property ownership, etc.), and interdependent social and professional lives. For example, husband and wife (H and W) live in a college town, H completes his education, perhaps a graduate degree, and W works so as to support what appears to be a family unit. Meanwhile, personal affairs are characterized by joint ownership of property, of at least common access thereto.
   
   
4. Further evidence is needed to determine other specifics of the domicile, which is taken to be shared. Is the domicile, though shared, determined by the intent and events of one spouse rather than the other? Perhaps domicile is determined by W who is supporting the family unit; perhaps it is the enrolled spouse H, whose present education and future career opportunities are understood by the spouse pair to dictate location of the family unit. (If H were the determiner of domicile, the substantiality of H and W's residentiary presence would be called into question by G.S. 116-143.1{c}), which renders educational intent alone insufficient to demonstrate residentiary presence.)

   Or possibly, W, a college graduate herself, is simply working to make ends meet, and H just wants to finish up his degree though he knows there is no present market for his education specialty. In such a case domiciliary intent may be a product of intentions of both H and W, neither of whom has given much thought to tomorrow. In such a case, events even before marriage may take on greater significance. Perhaps a parent of H or W promised one of the spouses a job if H and W could not maintain their own circumstances apart from the parental nest.
   
   

5. Whether one spouse or both H and W together determine the domicile and whether or not their residentiary intent and actions are well delineated, H and W must each have a domicile somewhere, and the conclusions to be drawn about its location may well be judgment call subject to the standard of reasonableness in assessing where the preponderance of the evidence lies.
   
   
6. If H and W, each before marriage, acquire domicile in North Carolina an dif, under the inquiry discussed herein, it is determined that H and W both continued as domiciliaries after marriage, then the spouse having the shorter length of domicile in this State would accede to benefit of the longer domicile for purposes of satisfying the twelve month durational requirement. [See G.S. 116-143.1(b) and (g).]
   
   
7. If either H or W is determined to be a domiciliary of this state and if the other spouse, though a non domiciliary even after the marriage then becomes a domiciliary of this State, the longer domiciliary duration could be claimed by the spouse possessing the shorter duration in meeting the requirements for resident status for tuition purposes.
   
   
8. The capacity of either H or W to acquire a domicile independently of the other implies that either souse could abandon a present domicile independently. This could occur where facts established that a domicile was no longer shared (or coincided) in North Carolina. The cessation of shared events and actions described in paragraph 3, above, would signal a possible abandonment. These events occur most often in the case of divorce or legal separation but they might also occur when a husband and wife, by mutual accord, determine to pursue separate professional and/or social goals.

   Usually, separate domiciles would be accompanied by separate abodes. (Also see the hypothetical case set forth in Section V.B., below, for circumstances in which further inquiry might permit a finding that H abandoned a common domicile in this State.) If in fact domicile were abandoned, individually or jointly, the spouse(s) to so abandon domicile in this State would each be required to test the circumstances of his or her abandonment against the requirements of G.S. 116-143.1(I) in seeking benefit of the twelve month tuition grace period.

The statutory grace period following loss of domicile

By provisions of G.S. 116-143.1(I), if a person has been properly classified as a resident for tuition purposes and enjoyed that status while enrolled at a State institution of higher education, a change in that person's state of residence thereafter does not affect in all cases an immediate, automatic loss of entitlement to the in-state tuition rate.

The extent of this grace period (during which the in-state rate will be applicable in spite of the fact that the individual is not a legal resident of North Carolina) shall be twelve months from the date of the change in legal residence, plus any portion of a semester or academic term remaining, as of the expiration date of the twelve month period, in which the student is enrolled. In short, no change in applicable rates attributable to expiration of the basic twelve month grace period will be effected during a semester, quarter or other academic term in which the student is enrolled. To qualify for the grace period, one must satisfy the following conditions:

1. The individual must have been properly classified as a resident for tuition purposes, on the basis of a valid finding that such individual in fact was a legal resident of North Carolina and had been such for the requisite twelve month period prior to classification;
   
   
2. At the time of subsequent change of legal residence to a state other than North Carolina, the individual must have been enrolled in a public institution of higher education in North Carolina. Enrolled as here used shall include both persons who are actually attending the institution during an academic term as well as those whose consecutive attendance of academic terms has been interrupted only by institutional vacation or summer recess periods. A person who effects a change in legal residence during a period while not enrolled is not entitled to the benefit of the grace period.
   
   
3. Entitlement to the grace period, once perfected, is thereafter applicable for its duration at any public institution of higher education in the State.
   
   
4. A married person, under the provisions of G.S. 116-143.1(g) may accede to the benefit of the spouse's residentiary duration if it is longer than his or her own. Therefore, acquisition of in-state status may be partially derivative of the marriage context, but loss of domicile is the consequence of each spouse's actions (though reliance on the other spouse's domiciliary status may contribute ultimately to that loss).

   In the context of determining the beginning point of the tuition grace period, though, G.S. 116-143.1(I) precludes the fact of marriage alone from precipitating loss of domicile. Further, if H and W have both been deemed to have been domiciled in North Carolina for twelve months, the benefit of the grace period may be accorded only that spouse who loses domicile while enrolled in a State institution of higher education. That is, enrolled status of one spouse is not bestowed upon the other spouse with respect to eligibility for the tuition grace period.