Examples of Appropriate Residence Classifications SECTION NO. 5

Effective Date: September, 1985

TYPICAL CASES NOT REQUIRING EXTENSIVE ANALYSIS

Although the statutory mandate, when coupled with other preexisting general law and statutory requirements of the State of North Carolina, will generate some cases which necessitate an extensive and detailed analysis of facts bearing on the question of domiciliary intent (as discussed here in above), a substantial number of cases can be dealt with in summary fashion, consistent with the terms of the basic statute and the provisions of other well-established legal principles. The following hypothetical examples illustrate the correct disposition of such cases:

1. Assume the case of a minor applicant for the fall term of 1981, who has resided with his family since birth (or other extensive period of time) in North Carolina and whose family still resides in the State at the time of admission: The student will be classified as a resident and accorded the in-state tuition rate because his domicile is North Carolina and has been for more than twelve months.
   
   
2. Assume the same set of facts as in example 1, except that in November of 1981, following enrollment, the student's family moves to and establishes a domicile in another state, while the student is still a minor: Upon registration for spring term of the 1981-1982 school year, the student will be classified as a non resident because, as a minor, his domicile is controlled by that of his parents. However, application of the grace period concept to these facts would preclude an immediate change in applicable tuition rate for the prescribed period of time. [Note: Should the parents of an adult student move from the State under otherwise similar circumstances, the student not only might undertake continued residence in North Carolina, but might demonstrate such a continued residence under an evidentiary burden made lighter by the fact of the student's staying behind, if such staying behind were indeed the case.]
   
   
3. Assume that a family moves to North Carolina in July 1980; a college-age son registers for the fall term of 981 beginning in August; assume that the parents have done those things necessary to become domiciliaries of the State in July 1980: The student will be classified as a resident and accorded the in-state rate because, without regard to minority or majority status of the student, he has resided in North Carolina for more than a year and because the fact of his parents' domicile in the State is controlling prima facie evidence of his domicile, in the absence of rebutting evidence. (Rebutting evidence might be a showing that the son was an adult and had physically remained in the prior state, never entering North Carolina.)
   
   
4. Assume that a family moves to North Carolina in December of 1980 and established their domicile; a college-age son registers for the fall term of 1981 in August: The student will be classified as a non resident for tuition purposes for the fall semester because he has not resided in the State for the required twelve months, without necessary references to the question of whether or not the time so spent in North Carolina was domiciliary in character.
   
   
5. Assume the same facts as in example 4, except that the registration is for the spring term of the 1981-1982 school year: The student will be classified as a resident because he has been present in the State for the requisite twelve months prior to registration for the term in questions; and, because the preceding year spent in the State coincided with the domicile of his parents in North Carolina, it may reasonably be found, in the absence of rebutting evidence, that such enrollment time was spent by the student as a bona fide domiciliary.
   
   
6. Assume that a family moves to North Carolina in July of 1981 and a college-age son registers for the fall term of 1981 in August: The student will be considered a non resident. He would be eligible, likely, for reclassification as a resident one year thereafter; i.e., the fall term of 1981, assuming that the parents had established domicile at least twelve months prior to fall term 1982, that they had remained domiciled in North Carolina, and that the son's residentiary activity was consistent with that of his parents.
   
   
7. Assume that a person who has not previously lived in North Carolina and whose parents are domiciled in a state other than North Carolina registers for the fall term of 1981 in August, at the age of seventeen: The student will be classified as a non resident for tuition purposes because, as a minor, his domicile is that of his parents, i.e., a state other than North Carolina.
   
   
8. Assume that a person who has not previously lived in North Carolina and whose parents are domiciled in a state other than North Carolina registers for the fall term of 1981 in September at the age of 18: The student will be classified as a non resident for tuition purposes. The student will not have resided in North Carolina for the requisite twelve months prior to registration, without necessary references to the question of domiciliary intent.
   
   
9. Assume the case of a 22 year old person, married and the father of one child, who has completed his undergraduate education in a state other than North Carolina, whose parents do not live in North Carolina, who has not previously lived in North Carolina, and who registers for the fall term of the first year of graduate school in August 1981: The student will be classified as a non resident for tuition purposes because he has not been present in North Carolina for the year prior to registration, without necessary reference to the quality of that presence.

Cases Requiring Extended Analysis

In many cases, it will be necessary, under the terms of G.S. 116-143.1, to conduct a more extensive inquiry, involving analysis of the question of domiciliary intent.

1. Assume that a student is enrolled as a freshman at a State institution of higher education; his first presence in North Carolina coincided with his enrollment; prior thereto he had lived with his parents in another state, where his parents continue to maintain their domicile. Upon enrolling for the fall term of his sophomore year, following a period of twelve consecutive months of presence in North Carolina, the student petitions for reclassification as a resident for tuition purposes, alleging that he is a bona fide domiciliary of the State entitled to the in-state tuition rate. Without the benefit of additional facts, the consecutive inquiries necessary to proper analysis of the case, prior to making an investigation of domiciliary intent, are:

1. Is the student a minor or an adult? If he is a minor, his residence is that of his parents during his minority, and since the parents are domiciled in a state other than North Carolina, he does not qualify for classification as a resident for tuition purposes. Consequently, the matter could be disposed of in summary fashion. However, if at the time of application for reclassification the student is an adult, he is presumptively capable of establishing his own residence, independent of that of his parents, and further inquiry is necessary.
   
   
2. Assuming the student is an adult, presumptively capable of establishing a domicile independent of that of his parents, how long has he had adult status? If he has been an adult for less than a full year prior to the filings of his petition, he cannot satisfy the requirement that he be a bona fide domiciliary of the State for twelve months; reference to the twelve month qualifying period alone is enough to disqualify him, without reference to the question of whether the insufficient period of adulthood was in fact spent as a legal resident of North Carolina. However, if the student was an adult for the full twelve-month period of his presence in North Carolina, an inquiry into the character and quality of his presence in North Carolina during that period is required, viz., was he a domiciliary (legal resident)? Thus the question of domiciliary intent must be addressed.
   
   

   The ultimate question presented, then, is whether the student has satisfied the requirements of the statute that he be a bona fide domiciliary of the State for a period of twelve months prior to eligibility for classification as a resident for tuition purposes. The aggregate of the activities of the individual in and out of North Carolina as required to be reported to the relevant institution will be assessed by officials to determine whether or not the preponderance of all the evidence is favorable to a claim of residence for twelve months. The student starts in this assessment process prima facie (or initially) as a non domiciliary because of his parents' non residence. He then either overcomes or remains subject to that initial evidence in light of all other evidence. The burden of overcoming the prima facie evidence of non domiciliary status in effect increases the student's burden in establishing in-state status, by a preponderance of all the evidence.

2. Assume the student in example 1 fails in his attempt to achieve resident status but under non resident status completes a four-year undergraduate degree course and one year of law school at the same or another State institution of higher education. At the outset of fall term his second year of law school, the student re-petitions for in-state status. Again, all relevant residentiary information would be collected and assessed . This time, however, the student would not be considered at the outset to be a non domiciliary, because he had lived (not necessarily been domiciled) in North Carolina for the five years preceding re-registration for the second year of law school. [See G.S. 116-143.1(e).] He would carry only a burden to come forward with a preponderance of the evidence in his favor, showing domicile in this State for the preceding twelve months, unencumbered by an adverse evidentiary beginning point.

3. Assume that the student in example 2 failed again at the outset of his second year of law school to establish his claim to in-state status or even to domicile as the outset of the second year of law school. Assume further that the student then continued in law school and married a life long resident of North Carolina during fall term of that second year. Assuming also that the new wife's resdientiary intent and manifestations thereof continued at and after marriage, the wife, a life long domiciliary, would continue to be eligible for the in-state tuition rate. (The fact of continued residence by the wife would itself be the subject of a residence classification inquiry upon her request for resident status at a State institution of higher education.)

4. Assume the law student in example 3 reapplied for resident status at the end of the fall term in his second year of law school and that the institution found him to be a legal resident of this State but for only two months preceding his re application. At the outset of spring term in the second year of law school, however, the student might receive benefit of the in-state rate. This is because his residence and that of his wife co-existed in North Carolina, so that her longer legal residence was conferred on him in meeting the twelve month durational requirement for resident status for tuition purposes. The conferral of this durational benefit would require, however, a residence determination concerning the wife as well. [See G.S. 116-143.1(g).]

5. Assume that the law student in example 4 completed spring term of the second year of law school but that, depressed by protracted intensive studies and unsuccessful adjustment to his new marriage, he moved out of the marital abode in North Carolina, took a law clerk's job for the summer in Virginia, and then returned for the final year at the same law school, in hopes ultimately of practicing law with the firm in Virginia. First, the facts suggest that the law student's departure in the summer to clerk in Virginia may or may not have been with residentiary intent for Virginia. If all the circumstances would suggest to reasonable persons that there was a reasonable doubt about the validity of the prior residence classification, he would be obligated under paragraph 111.B.2., above, to notify institutional officials so as to initiate a re classification inquiry.

The residentiary intent and actions undertaken in Virginia would be pivotal in this re inquiry. This would either confirm the change of circumstance or at least clarify a seemingly ambiguous circumstance. If a change in residence to Virginia, i.e., abandonment of North Carolina domicile, were found by institutional officials, the law student would, nevertheless, continue by statutory grace to enjoy resident tuition status for the twelve months following the determined loss of domicile. This would appear to carry the student through his third and final law school year and might suggest that re inquiry is unnecessary. It should not be assumed, however, that the student will not falter scholastically and thereby prolong his academic career or that completion of his law degree necessarily will end his studies at the institution.

6. Assume that the student in example 5, at the outset of fall term of his third year of law school, satisfied institutional officials that he had not abandoned North Carolina domicile for that of Virginia during the immediately preceding summer, and assume that the student satisfactorily then complete fall term of the third year under in-state tuition status. Assume further that the law student, again adversely affected by scholastic and personal pressures, withdraws from law school between fall term and spring term of the third year of law school. The student then goes immediately thereafter to Virginia, intending to establish Virginia as his domicile, and beings working as a paralegal assistant in the law firm for which he had clerked.

Assume that in the months intervening between withdrawal from law school and the close fo the succeeding summer, the student resolves to finish that final law school term and thereby get his law degree. Assume that the student is readmitted for the succeeding fall term at his prior law school. At what tuition rate will he attend? Because there has been a change in material facts concerning the student=s resident status, the student is obligated under paragraph 111.B.2., above, to initiate a reclassification inquiry at the institution where he has re enrolled. (If institutional officials charged with making residence classifications also are aware fo the events in Virginia, the institution also has such obligations.) Because the student had withdrawn from enrollment and then sough to re-enroll, there must be a re classification inquiry, also, pursuant to Section 111.A., above.

1. If the student is found upon re- enrollment not to possess North Carolina domicile, he will pay the non resident tuition rate. Even though twelve months had not elapsed between academic withdrawal at the end of the prior fall term and the commencing of the fall term for which he had re enrolled, the student would not qualify for the grace period benefit. This is because the grace period, by statutory provision, does not apply to those losing North Carolina domicile while not enrolled.
   
   
2. If the student is found to have re acquired North Carolina domicile before re enrollment, there are two ways by which he might qualify for the in-state tuition rate:
   
   
   1. Under the provisions of G.S. 116-143.1(l) the student would be accorded in-state status because he had ceased enrollment (after fall term for his third year of law school) while classified in-state, and then abandoned North Carolina domicile but re acquired North Carolina domicile within twelve months of its abandonment and before re- enrollment for the succeeding fall term.
      
      
   2. The other opportunity to qualify for in-state status, under G.S. 116-143.1(g), would depend upon the student's marital status. If the wife had remained a domiciliary of North Carolina and if the student and his wife had not terminated their marriage under law, the wife's continued residence, being in excess of twelve months preceding re enrollment, would confer on the student husband the durational requirement for receiving residence status for tuition purposes. A Successful resident classification under subsection (g), therefore, would require a residence determination of both the student and his wife.