RYAN ALCON

v.

EMMALINE COLLINS

TANENBAUM, J.

We have two appeals. In one, Ryan Alcon challenges a domestic violence injunction against him. In the other, Alcon challenges the trial court’s summary repulse of his effort to vacate that injunction based on post-injunction testimony given in another case. Both appeals stem from Alcon’s contention that Emmaline Collins—in whose favor the injunction was entered— lacked statutory standing. We agree with Alcon, consolidate the two cases for all purposes, and reverse the injunction. I. CORRECTED PAGE: pg 7 CORRECTION IS UNDERLINED IN RED MAILED: March 3, 2022 BY: FTA

Alcon contends there was not competent substantial evidence to support the trial court’s finding of standing. The only admissible evidence came as testimony given at a hearing before the trial court. Limited as the testimony was on the question of standing, here is what it showed. Alcon and Collins met on Facebook and maintained an online friendship. Alcon lived in California, and Collins lived in Florida. Alcon testified that Collins paid him three visits. During two of them, they stayed at a vacation rental, “at an “Airbnb.” The last time (when the events giving rise to the petition supposedly occurred), “we stayed for about a week in my home, but it was as a visit.” Collins presented evidence that did not differ too much from this. She testified that she stayed with him, “and it was for a two-week period. He asked me to live with him, and I was in the area looking for employment.” Still, there was no testimony from Collins about her intention to stay beyond what was necessary for her job search. She said nothing about whether, on that last visit to see Alcon, she had planned to stay indefinitely in California and not return to what had been her home in Florida. In fact, she instead testified that she had been in a committed relationship with her fiancé (not Alcon) for three years at the time. Testimony from the fiancé backed this up: “I’ve been in a romantic relationship with [Collins] for the last three years. I can attest that [she] was not romantically involved with Alcon during that period of three years.” Twice at the evidentiary hearing, Alcon challenged whether Collins had statutory standing to seek a domestic violence injunction. The first time he did, the trial court did not rule on the question. Alcon raised the question a second time at the close of testimony, when the trial judge stated that he was going to grant the five-year injunction. The exchange regarding standing went as follows:

ALCON: Yes, sir. And that said, I also wanted to raise – of course I know I’ve raised this in the beginning and I respect that you’ve made your ruling, I’m just wondering how this has standing if we have never cohabited together, as this was filed as domestic violence.

COURT: . . . you’re a bright guy, that I’ve already made my ruling. I find there is a valid basis for it.

The trial court entered a final judgment granting the domestic-violence injunction pursuant to section 741.30, Florida Statutes. Later, a hearing in California on Alcon’s petition for a restraining order against Collins produced additional testimony relevant to Collins’s lack of standing. The new testimony from Collins reiterated the fact that she and Alcon “were online friends only, and he knew that I had a relationship with my fiancé, and [Alcon] knew that I had a boyfriend.” She agreed that the relationship was “platonic,” and her lawyer sought to have Alcon’s petition dismissed because “there is no evidence of an intimate relationship. According to her lawyer, “there was no sex, there was no domestic, they weren’t living together.” (emphasis supplied).

The lawyer highlighted the fact that Collins was “clearly telling [Alcon] that there’s no relationship here,” and he suggested that Alcon perhaps “had a misunderstanding of what the relationship was.” Collins’s lawyer acknowledged her inconsistent positions in Florida and California: “So, you know, I do see a problem, you know, of what she wrote in the petition in Florida, that it went under domestic violence, and now she’s saying there wasn’t.” When Alcon’s lawyer asked Collins about her sworn statement in the Florida petition that the two had been living together “as if a family,” she answered that she made the statement because she had gone “to a domestic violence clinic, and they informed me that, even though I had been there briefly in San Francisco, that, because he assaulted me, and it was at his home, I qualified for a domestic violence restraining order.” In reliance on this new evidence, Alcon once again contested Collins’s standing to seek relief, but this time he asked that the trial court dissolve the Florida injunction that it had already been rendered. See Fla. R. Civ. P. 1.540(b)(2) (providing for relief from a final judgment based on newly discovered evidence); cf. § 741.30(10), Fla. Stat. (permitting either party to “move the court to modify or dissolve an injunction at any time”). Despite this additional evidence, which completely undermined a finding of standing, the trial court persisted in the injunction against Alcon, without explanation.

The statutory standing question is where we now turn our attention. As we explain below, Collins failed to produce any evidence that she and Alcon resided together, whether as a family or otherwise. There in turn was no evidence to support Collins’s standing to seek an injunction under section 741.30, Florida Statutes.

II.

The cause of action for a domestic violence injunction is a legislative creation. See § 741.30(1), Fla. Stat. As it is free to do, the Legislature defines who has standing to seek this relief. To have standing to sue under section 741.30, a person must show that he or she is a “family or household member” together with the target of the requested injunction. Id. (1)(a), (e). “Family or household member” is defined to include spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit. § 741.28(3), Fla. Stat. (emphasis supplied).

There is no dispute that Alcon and Collins have not been married, are not related by blood or marriage, and have no children together. Indeed, Collins indicated in her petition that she was basing her contention of standing on the text highlighted above. We simply disagree with the dissent’s assertion that the record evidence shows Alcon and Collins “resided together.” There was nothing of the sort, so the dissent’s discussion of how deep the romantic relationship (if it even was that) between the two is beside the point. Let us then focus here on whether there was any evidence to establish that Collins resided with Alcon at all. The test for where one resides is rooted in history. It is the place where she has set up

her “household goods and made the chief seat of [her] affairs and interests,” from which she “has no intention of departing,” and when she does depart from that place, she considers herself “to be away from home.” Wade v. Wade, 113 So. 374, 375 (Fla. 1927) (quoting Roman law’s definition of “domicile”).

Put simply, legal residence is “the concurrence of both fact and intention.” Bloomfield v. City of St. Petersburg Beach, 82 So. 2d 364, 368 (Fla. 1955).

This is to say, for someone to change residence, she must have a “good faith intention to move” and engage in “positive overt acts” showing “an actual removal.” Id. In the end, the person must be living “at a particular place,” and there must be “positive or presumptive proof of an intention to remain there for an unlimited time.” Wade, 113 So. at 375. Collins bore the burden of proof regarding standing. She met the burden of production when she submitted her sworn, form petition with a checked box indicating that she and Collins had been “living in one home . . . as if a family.” That sufficed to support standing to get her the ex parte temporary injunction that was entered. The statement, however, was merely a conclusion that indicated what type of standing she was relying on. Her petition did not contain any specific facts to support this assertion about standing. In turn, once Alcon raised standing as an issue at the contested evidentiary hearing (where each party attended pro se), the trial court had an obligation to inquire about the evidence supporting standing.

The trial court, however, did not do this. All we have in the way of evidence, then, is Collins’s testimony that she went to California at Alcon’s invitation and stayed with him for two weeks while she looked for a job; and the testimony of her fiancé, who insisted that he and Collins were engaged to be married the whole time and that Alcon and Collins were never romantically involved. Collins did not present any testimony or other competent substantial evidence establishing that at the time of her third visit to see Alcon, it was her intent to pull up stakes in Florida and reestablish herself indefinitely in California at Alcon’s place. Even if there was any room for doubt about this by the time the final hearing ended, that doubt was cleared up by the testimony of Collins and the statements of her lawyer given during the subsequent California hearing, which showed that moving in with Alcon indefinitely never was her intent.

Nowhere in the record evidence is there even a hint of permanence in Collins’s planned stay with Alcon, which means there was no evidentiary basis for concluding that the two ever resided together in California. Without this, Collins had no standing to seek the domestic violence injunction. We agree with the Second District’s view that for standing, “something more than a romantic relationship with overnight visits is required,” especially when the two “maintained separate residences throughout their relationship.” Slovenski v. Wright, 849 So. 2d 349, 350 (Fla. 2d DCA 2003).

III.

Because there was no competent, substantial evidence to support the trial court’s determination that Collins had standing under section 741.30, the domestic violence injunction against Alcon was rendered in error. The trial court compounded that error when it denied Alcon’s motion for relief from the injunction in the face of additional evidence conclusively refuting that earlier standing determination.

REVERSED. ROBERTS, J., concurs; MAKAR, J., dissents with opinion.