Lev v. College of Marin

Opinion

DEVINE, P. J.

The question on this appeal is whether a writ of mandate was properly issued, commanding that the College of Marin admit respondents as students. Respondents admittedly are emancipated, unmarried minors, both 19 years old, who are financially independent, employed, not subject to control of their parents and living away from their parental home with the parents’ consent, and respondents reside and intend permanently to reside in Marin County.

1

Education Code section 25505.1 provides that residence for junior college attendance purposes shall be determined in accordance with Government Code sections 243 and 244 (with exceptions not relevant here). Section 243 simply says that every person has, in law, a residence. Section 244 gives these rules (besides others) of residence: “(b) There can only be one residence. ... (d) The residence of the father during his life, and after his death the residence of the mother, while she remains unmarried, is the residence of the unmarried minor child . . . . (f) The residence of an unmarried minor who has a parent living cannot be changed by his own act. (g) The residence can be changed only by the union of act and intent.”

Section 211 of the Civil Code provides: “The parent, whether solvent or insolvent, may relinquish to the child the right of controlling him and receiving his earnings. Abandonment by the parent is presumptive evidence of such relinquishment.” Respondents are not subject to their parents’ control as to where they shall live, for they are emancipated. Can it be said, then, that the residence of their fathers (or of their mothers if the fathers be dead) is their residence, as in Government Code section 244, subdivision (d)? We answer, as did the late Honorable Harold J. Haley, judge of the superior court, in the negative. When he made his adjudication, the

[491]

opinion in

Jolicoeur

v.

Mihaly,

5 Cal.3d 565 [96 Cal.Rptr. 697, 488 P.2d 1], was yet to come (more than a year later), but the judge anticipated, in effect, the exegesis of the law of emancipation which was to appear in