DOROTHY WALKER, Appellant/Cross-Appellee,

vs.

KENNETH W. HARRIS, and CITY COMMISSION OF THE CITY OF BELLE GLADE, FLORIDA, 
sitting as CANVASSING BOARD FOR THE CITY OF BELLE GLADE, FLORIDA, 
Appellees/Cross-Appellants

No. 80-106

Court Of Appeal Of Florida, Fourth District 

398 So.2d 955

May 13, 1981


Tobias Simon of Simon, Schindler & Tripp, P. A., Miami, for 
appellant/cross-appellee. Montgomery, Lytal, Reiter, Denney & Searcy, P. 
A., and Edna L. Caruso, West Palm Beach, for appellee Harris.

Before HURLEY, J. ANSTEAD, J. and WARREN, LAMAR, Associate Judge, concur.


The issue on appeal is whether the trial court's finding that appellant 
failed to establish a legal residence in the east borough of the City of 
Belle Glade and therefore was unqualified for election to the city 
commission is supported by substantial competent evidence. Our review of 
the record reveals an insufficiency of supporting evidence and, 
consequently, we reverse. 

The City of Belle Glade is divided into three boroughs. Section 6-15 of the 
city charter specifies: 

Of the five City Commissioners; one shall own property and reside in the 
North Borough; one shall own property and reside in the East Borough; one 
shall own property and reside in the West Borough; and two shall own 
property and reside anywhere in the City. All qualified electors of the 
City may vote for any candidate for City Commissioner.1  

       Appellant, Dorothy Walker, filed for election to the Belle 
Glade city commission and indicated that she was a resident of the 
east borough. She was elected to the commission on September 11, 
1979. Shortly thereafter, Kenneth W. Harris, the defeated incumbent, 
instituted suit to oust Ms. Walker and declare the election null and 
void. Mr. Harris contended that the election was fraught with 
campaign financing violations and that Ms. Walker was unqualified for 
election in that she was not a bona fide resident of the east 
borough. 



       The case was tried before the court and resulted in a finding 
that the alleged campaign financing violations were insubstantial and 
without legal consequence. The court further found that Ms. Walker 
was not a bona fide resident of the east borough and therefore, since 
she failed to satisfy an essential qualification for office, the 
court declared the election null and void and ordered a new election 
for the east borough seat. A stay was entered and this appeal ensued. 



       The court made the following findings of fact on the issue of 
residency. 



       The defendant Dorothy Walker is a black female currently 
enrolled in her third year of law school at the University of Miami 
College of Law. Ms. Walker, who retained a residence at her mother's 
house in Belle Glade during the first two years of law school, 
decided in the summer of 1979 to run for the East Borough Commission 
Seat in Belle Glade and, to that end, moved from her mother's house 
to an apartment located within the East Borough. 



       Shortly after moving to this apartment, however, the building 
in which the apartment was housed was condemned, and Ms. Walker moved 
again. On August 7, 1979, she entered into a written form lease with 
Mr. Velasco to rent a bedroom in his home located at 349 Southeast 
3rd Street, with use of all facilities therein, for $ 100.00 per 
month. The blanks of the lease appear to the Court to have been 
filled in with the defendant Walker's handwriting. On September 8, 
1979, Ms. Walker submitted a change of address form to the post 
office and Mr. Velasco testified that she does receive mail at his 
house. 



       Mr. Velasco also testified, however, that he never received 
rental payment from the defendant Walker for the month of August and 
that the first check he received was dated September 19, 1979, which 
was two days after this cause of action was filed. The Court notes 
that this check was on a joint account with Ms. Walker's mother and 
that the address printed on the check is that of defendant Walker's 
mother, which is in the West Borough. 



       The Court finds that the defendant Dorothy Walker was a legal 
intern in the State Attorney's Office at the Belle  Glade Annex 
Building, and that her duties entailed the prosecution of misdemeanor 
cases and traffic infractions. Upon questioning by the Court the 
defendant Walker admitted that she had not complied with the 
provisions of § 322.19, Florida Statutes, which requires that: 



       Whenever any person, after applying for or receiving an 
operator's or chauffeur's license, shall move from the address named 
in such application, or in the license issued to him, or when the 
name of a licensee is changed by marriage or otherwise, such person 
shall within 10 days thereafter notify the department in writing of 
his old and new names, and of the number of his license. 



       The address on Ms. Walker's driver's license is the same as 
that of her mother in the West Borough. The Court further finds that 
even though the defendant Walker may have had some of her personal 
belongings at the address in the East Borough, it was not her legal 
residence, and it was nothing more than a mail drop in an effort to 
comply with the residency requirements of the Charter of Belle Glade 
for election to the East Borough. 



       Analyzing the trial court's order, we find five factual 
determinations which tend to support the conclusion that 
appellant failed to establish a bona fide residence in the east 
borough: (1) Mr. Velasco, the landlord at 349 Southeast Third 
Street,2  testified that he never received a rental payment for 
the month of August, 1979; (2) the first rent check introduced 
into evidence was dated September 19th, 1979, two days after 
the suit was filed; (3) Ms. Walker utilized a joint checking 
account with her mother and the checks bore a printed 
inscription of the mother's address in the west borough; (4) 
Ms. Walker failed to notify the state department of motor 
vehicles of her change of address; and (5) Ms. Walker used the 
house at 349 Southeast Third Street as nothing more than a 
"mail drop." 



       Before appraising the sufficiency and legal effect of 
these findings, we wish to emphasize that an appellate court 
may not substitute its judgment for that of the trier of fact 
by reevaluating the evidence. Marshall v. Johnson, 392 So.2d 
249 (Fla.1980). Our role is properly limited. "Findings of fact 
by a trial judge are presumed to be correct and are entitled to 
the same weight as a jury verdict. Findings by a trial court 
will not be disturbed unless there is a lack of substantial 
evidence to support the court's conclusion." Strawgate v. 
Turner, 339 So.2d 1112, 1113 (Fla.1976) (citations omitted). 



       Turning to the record, we find that two of the trial 
court's findings lack any support whatsoever. Mr. Velasco, the 
landlord, never testified that he had not received the August 
rent. On the contrary, both Mr. Velasco and Ms. Walker 
testified unequivocally that the rent had been paid. No 
evidence was offered to negate their testimony and so, the 
court's contrary conclusion is without support in the record. 
The same holds true for the court's finding that Ms. Walker 
used the home at 349 Southeast Third Street as nothing more 
than a mail drop. Ms. Walker and Mr. Velasco testified that 
appellant moved her possessions onto the premises, entertained 
friends there, and regularly slept there. Again, this testimony 
was uncontradicted and, consequently, the court's first and 
fifth findings are void for lack of evidentiary support. Thus, 
we are left with three findings and the question is whether 
they are supported in the record and, if so, whether they 
constitute substantial evidence to justify the court's 
conclusion that appellant failed to establish a bona fide legal 
residence in the east borough. 



       Before considering the three remaining findings, we turn 
to the concept of "domicile" or "legal residence" and its usual 
mode of proof. In Herron v. Passailaigue, 92 Fla. 818, 110 So. 
539, 543 (1926), the court stated: 



       The rule is well settled that the terms "residence," 
"residing," or equivalent terms, when used in statutes, or 
actions, or suits relating to taxation, right of suffrage, 
divorce, limitations of actions, and the like, are used in the 
sense of "legal residence"; that is to say, the place of 
domicile or permanent abode, as distinguished from temporary 
residence. 



       A person may have several temporary local residences, 
but can have only one legal residence. A legal residence, or 
domicile, is the place where a person has fixed an abode with 
the present intention of making it their permanent home. Minick 
v. Minick, 111 Fla. 469, 149 So. 483 (1933). In Bloomfield v. 
City of St. Petersburg Beach, 82 So.2d 364 (Fla.1955), a case 
strikingly similar to the one at bar, the court held: 



       (W)here a good faith intention is coupled with an actual 
removal evidenced by positive overt acts, then the change of 
residence is accomplished and becomes effective. This is so 
because legal residence consists of the concurrence of both 
fact and intention. The bona fides of the intention is a highly 
significant factor. Id. at 368. 



   Furthermore, our courts have consistently recognized that an 
individual's intent is a subjective factor and, therefore, "the 
best proof of one's domicile is where he says it is." Ogden v. 
Ogden, 159 Fla. 604, 33 So.2d 870, 873 (1947). See also, Brown 
v. Brown, 123 So.2d 382 (Fla.2d DCA 1960). This is not to 
suggest that proof of legal residence cannot be measured by 
objective factors, but in analyzing proof of intent, a person's 
declaration is especially significant and entitled to great 
weight. 



       In the case at bar, Ms. Walker repeatedly testified that 
she moved to the east borough for the sole purpose of 
establishing a legal residence to qualify for election. She 
testified that she was aware of Section 6-15 of the City 
Charter and, despite an acute housing shortage in the east 
borough, she searched for a residence that would meet the 
charter's requirements. Ms. Walker detailed the steps which she 
took to carry out her intent: (1) she located, leased and moved 
into a home in the east borough which was in bad repair; (2) 
she spoke to a contractor and to the utilities company about 
making the first home habitable, but gave up when it was 
condemned; (3) she located the Velasco home at 349 Southeast 
Third Street, signed a lease, moved in and took up residence; 
(4) she notified the bank and the post office of her new 
address. Again, we note that the foregoing testimony was 
uncontradicted. 



       To corroborate her testimony, appellant called her 
landlord and the postmaster as witnesses. Mr. Velasco, the 
landlord, testified that on August 7, 1979, he signed a lease 
and agreed to rent a portion of his home to appellant for one 
hundred dollars per month. Rent was due on the last day of each 
rental period. He further testified that appellant moved into 
the premises and thereafter entertained friends and regularly 
slept there. Mr. Donald Sivyer, the postmaster in Belle Glade, 
produced a change of address card which appellant had filed on 
September 6, 1979, and which reflected her new address at 349 
Southeast Third Street in Belle Glade. As with the earlier 
testimony, this evidence was uncontradicted. 



       Turning again to the remaining three findings in the 
trial court's order (a) the first rental check introduced into 
evidence was dated September 19, 1979; (b) Ms. Walker utilized 
a joint checking account with her mother; and (c) Ms. Walker 
failed to notify the department of motor vehicles of her change 
of address we hold that they are so patently inconclusive that, 
either individually or cumulatively, they do not constitute 
"substantial evidence" sufficient to overturn or rebut the 
uncontradicted testimony and evidence that appellant intended 
to establish a legal residence in the east borough and took 
overt steps to accomplish this end. Appellant admitted her 
failure to notify the department of motor vehicles, but 
testified that she was unaware of the requirement and that her 
license, which had been issued several years earlier, was about 
to expire. Without question, notification to authorities and to 
the public at large is a relevant factor to consider  in 
weighing a disputed issue of legal residence. Yet, in the case 
at bar, it is unrefuted that appellant notified a local bank 
and the Belle Glade post office of her new address. Thus, the 
probative value of her failure to notify the state department 
of motor vehicles is severely undercut. As for the use of a 
joint checking account with checks bearing a printed 
inscription of her mother's west borough address, appellant 
testified that she was a full-time student with minimal funds 
and that she had resided with her mother prior to moving to the 
east borough. This was uncontradicted and so, we find no 
probative value whatsoever in this finding. Lastly, as to the 
date of the first rent check, both Ms. Walker and Mr. Velasco 
testified that the August rent had been paid, though neither 
was sure as to the exact date. Furthermore, they testified 
that, under the rental agreement, rent was due and payable on 
the last day of the 30-day period which, in this case, would 
have been September 6th. Mr. Velasco also testified that he 
knew Ms. Walker was a full-time student and that late payments 
were acceptable to him. With the uncontradicted testimony that 
the August rent had been paid, the significance of the 
September 19th check is dubious at best. 



       Bearing in mind the general principle "that the primary 
consideration in an election contest is whether the will of the 
people has been effected," Boardman v. Esteva, 323 So.2d 259, 
269 (Fla.1975), cert. denied, 425 U.S. 967, 96 S. Ct. 2162, 48 
L. Ed. 2d 791 (1976), and looking at the uncontradicted 
testimony of appellant's intent coupled with the uncontradicted 
evidence of the multiple overt acts which she took to establish 
a legal residence in the east borough of Belle Glade, we are 
compelled to hold that the trial court's remaining three 
findings, as a matter of law, do not constitute substantial 
evidence sufficient to justify the court's ultimate conclusion. 
Accordingly, the cause is reversed. 

       ANSTEAD, J. and WARREN, LAMAR, Associate Judge, concur.  

1 Trial counsel stipulated that the property ownership requirements have 
been stricken. Thus, the ordinance, only requires that three of the five 
city commissioners reside in specified districts or boroughs. 

2 This address is in the east borough.