STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES AND MARY DUHART, ) o/b/o SERITA AND KATISHA DUHART, )

)

Petitioners, )

)

vs. ) CASE NO. 89-5898

) THE SCHOOL BOARD OF SEMINOLE ) COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Sanford, Florida, on December 28, 1989, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Harry L. Lamb, Jr.

Perry & Lamb, P.A.

135 Wall Street Suite 200

Orlando, Florida 32801

For Respondent: Ned N. Julian, Jr.

Stenstrom, McIntosh, Julian, et al.

P.O. Box 1330

Sanford, Florida 32772-1330 STATEMENT OF THE ISSUES

The issue in this case is whether Respondent properly withdrew Serita and Katisha Duhart from Lake Mary High School and enrolled them to Seminole High School because the two students were not attending the school serving their residential attendance zone.

PRELIMINARY STATEMENT

By letter dated September 27, 1989, Respondent informed Mr. Duhart that his children, Katisha and Serita, were attending Lake Mary High School in violation of School Board Policy 4.003. Consequently, the children were being administratively withdrawn from Lake Mary High School and administratively enrolled in Seminole High School, which serves their correct attendance zone.

The letter provided Petitioners with a clear point of entry.

By letter dated October 17, 1989, Petitioners requested a formal administrative hearing concerning the administrative reassignment of their two children from Lake Mary High School to Seminole High School.

At the hearing, Petitioners called four witnesses and offered into evidence two exhibits. Respondent called three witnesses and offered into evidence two exhibits. All exhibits were admitted into evidence. The policy of Respondent governing school attendance areas was also admitted as Hearing Officer Exhibit

1. At the conclusion of the hearing, Respondent was granted leave to take the deposition of Frank Johnson, who had been unable to attend the final hearing. However, no deposition transcript was filed.

   
   

   The transcript of the final hearing was filed on January 31, 1990.

   Respondent filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the appendix.

   
   

   FINDINGS OF FACT

   
   

   1. Charles Duhart resides at 956 Forest Ridge Court, Apartment 202, Lake Mary, Florida. His residence is a condominium, which he owns. He has resided there for 10 months.

      
      

   2. Mr. Duhart was married to Mary Duhart in April, 1974. The Final Judgment of Dissolution of Marriage entered October 25, 1988, which terminated their marriage, states:

      
      

      The parties shall have shared parental responsibility for the minor children of the marriage. The Wife is designated as the primary residential custodian of the minor children of the marriage.

      The non-custodian parent, the Husband,

      shall have liberal and reasonable contact and visitation with the children of the marriage, subject to reasonable notice by the Husband to the Wife. . . .

      
      

   3. Mary Duhart resides at 121 Wildwood Drive, Sanford, Florida. She and Mr. Duhart jointly bought the property in 1985, and she was awarded the property in the Final Judgment of Dissolution of Marriage.

      
      

   4. The two children in question are Katisha, who is 15 years old, and Serita, who is 14 years old. Both girls, together with a third child aged eight years, were born of the Duhart's marriage.

      
      

   5. During the 1988-89 school year, Katisha, who was in ninth grade, attended Lake Mary High School, and Serita, who was in eighth grade, attended Greenwood Lakes Middle School, as well as special programs at Lake Mary High School. Greenwood Lakes Middle School is in the Lake Mary High School attendance zone. Both girls enrolled in Lake Mary High School at the beginning of the 1989-90 school year.

      
      

   6. During the 1988-89 school year, the two children lived with their grandmother part of the time and their mother the remainder of the time. Their grandmother lived in the Lake Mary High School attendance zone. Mr. and Mrs. Duhart caused the grandmother to be appointed the legal guardian of the children, pursuant to Letters of Guardianship of the Person entered November 28,

      1988. By so doing, under a procedure no longer available, the children could attend the schools whose attendance zone serves the grandmother's residence. This guardianship has never been dissolved or terminated.

      
      

   7. At the beginning of the 1989-90 school year, the two children went to live with their father, whose condominium is in the Lake Mary High School attendance zone. Although they spend the weekends with their mother and infrequent nights with their grandmother or at friends' homes, Katisha and Serita regularly reside with their father each weeknight from Sunday through Thursday nights, inclusive. Since the beginning of the 1989-90 school year began, the children primarily have lived with their father.

      
      

   8. Since the beginning of the 1989-90 school year, Mr. and Mrs. Duhart have reduced the child support payments required of Mr. Duhart by the Final Judgement of Dissolution of Marriage. Although Mr. Duhart continues to pay the usual amount through the clerk's office, Mrs. Duhart returns to him approximately one half of the support money in recognition of the fact that he now has two of the three children most of the time.

      
      

   9. By letter dated September 27, 1989, Respondent informed Petitioners that it had determined that Katisha and Serita were attending Lake Mary High School in violation of Policy 4.003. Consequently, the children had been administratively withdrawn from Lake Mary High School and administratively enrolled at Seminole High School, which serves their correct attendance zone, according to the letter.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

       
       

   11. Respondent has adopted Policy 4.003, which, in relevant part, provides:

       
       

       . . . All students . . . must attend the school serving the student's residential attendance zone. . . .

       * * *

       A student's residence shall be defined as the residence of the student's parent(s). If a student's parents are separated, but not subject to a court entered custody order/order of shared parenting, then the parent's home in which the child primarily lives will be considered the student's residence for the purpose of this policy.

       * * *

       If a student is the subject of a custody order entered in a proceeding under chapter

       39 (juvenile proceedings), or a custody order entered under chapter 61 (domestic relations proceedings), the residence of the legal custodian/primary residential parent will be considered the student's residence for the purpose of this policy.

       The residence of a student's legal guardian (guardian of the person or person and

       property, but not guardian or [sic] property only) shall be the student's residence for the purpose of this policy. The residence, however, of the student's parent(s) will establish the residence of the student for attendance zone purposes unless the guardianship was established because the student's parent(s) are physically or mentally unable to properly care for the student. . ..

       
       

   12. The grandmother was appointed the guardian of the persons of Katisha and Serita about one month after the marriage of Mr. and Mrs. Duhart was dissolved. Until terminated, the guardianship effectively supercedes the custodial provisions of the Final Judgment of Dissolution of Marriage. In effect, these custodial provisions are null and void during the term of the guardianship.

       
       

   13. In applying Policy 4.003 to the facts, the residence of the guardian is clearly irrelevant. The residence of the students' parent(s) is the issue. Although the residence of the guardian is irrelevant, the guardianship itself is not irrelevant. Because the guardianship has superceded and, in effect, revoked the custodial provisions of the divorce decree, the residence of the students' parent(s) cannot be determined by the residence of the parent awarded custody. The provision awarding custody in the divorce decree is, at present, of no effect. In such a case, the residence should be determined by the residence of the parent with whom the children reside. In this case, the children reside with their father, whose residence is served by the Lake Mary High School attendance zone. The children should therefore be enrolled at Lake Mary High School.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that the School Board of Seminole County, Florida enter a Final Order enrolling Katisha and Serita Duhart in Lake Mary High School.

RECOMMENDED this 22nd day of February, 1990, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5898

Treatment Accorded Proposed Findings of Respondent 1-4: adopted.

5: rejected as subordinate. 6-10: adopted.

11: first sentence adopted as to children spending weekends with Mrs. Duhart and rejected as unsupported by the greater weight of the evidence as to the suggestion that they do not spend the remainder of the time with their father, with the possible exception of isolated overnight visits with friends or their grandmother. Remainder rejected as subordinate.

12: adopted.

13: rejected as irrelevant.

14: rejected as irrelevant and subordinate. 15: rejected as subordinate.

16: rejected as irrelevant.

COPIES FURNISHED:

Harry L. Lamb, Jr.

Perry & Lamb, P.A.

135 Wall St., Ste. 200 Orlando, FL 32801

Ned N. Julian, Jr.

Stenstrom, McIntosh, Julian, et al.

P.O. Box 1330

Sanford, FL 32772-1330

Robert W. Hughes, Superintendent

The School Board of Seminole County, Florida 1211 Mellonville Avenue

Sanford, FL 32772

Betty Castor

Commissioner of Education Department of Education The Capitol

Tallahassee, FL 32399-0400

Docket for Case No: 89-005898

Orders for Case No: 89-005898