Allsup v. Swalls-Thompson

• Decision Date: 29 April 2021
• Docket Number: Court of Appeals Case No. 20A-MI-2333
• Citation: 169 N.E.3d 1128
• Parties: Nancy S. ALLSUP, Appellant-Petitioner/Contestor, v. Josie SWALLS-THOMPSON, Appellee-Respondent/Contestee.
• Court: Indiana Appellate Court

169 N.E.3d 1128

Nancy S. ALLSUP, Appellant-Petitioner/Contestor,

v.Josie SWALLS-THOMPSON, Appellee-Respondent/Contestee.

Court of Appeals Case No. 20A-MI-2333

Court of Appeals of Indiana.

FILED April 29, 2021

Attorney for Appellant: William G. Smock, Smock & Etling, Terre Haute, Indiana

Attorney for Appellee: Scott F. Bieniek, Bieniek Law, P.C., Greencastle, Indiana

Kirsch, Judge.

[1] This appeal concerns the trial court's denial of a post-election contest petition filed by Nancy S. Allsup ("Allsup"), the incumbent candidate for the office of Vigo County Treasurer, against the winning candidate, Josie Swalls-Thompson ("Swalls-Thompson"). Allsup contends that the trial court erred in denying her post-election contest petition and raises one issue on appeal, which we restate as whether the trial court erred in concluding that Swalls-Thompson met the constitutional and statutory residency requirements for county treasurer by reestablishing her Vigo County residency and was an eligible candidate when she ran for the treasurer's office.

[2] We affirm.

Facts and Procedural History

[3] On February 7, 2020, which was the deadline to seek the nomination of the Republican Party, Swalls-Thompson filed her declaration of candidacy to run against Allsup, the incumbent Democratic candidate, for the office of Vigo County Treasurer. Ex. Vol. III at 9-10. That same day, Swalls-Thompson also registered to vote in Vigo County. Id. at 18. On November 3, 2020, Allsup was defeated by Swalls-Thompson, in the general election. Tr. Vol. II at 5. Swalls-Thompson received approximately fifty-one percent of the vote, and Allsup received approximately forty-nine percent of the vote. Id. at 3-6. After the election, Allsup learned that Swalls-Thompson provided a Florida driver's license as proof of identification¹ to an intake clerk when she voted on election day. Id. at 7, 60. Allsup also learned that Swalls-Thompson had claimed a homestead exemption on her Florida real estate from fiscal years 2014 through 2020. Ex. Vol. III at 11-16; Appellant's App. Vol. Two at 18, 33.

[4] On November 11, 2020, Allsup timely filed her verified petition to contest the election of the Vigo County treasurer pursuant to Indiana Code section 3-12-8-5. Appellant's App. Vol. Two at 2-3, 17-19. On November 12, 2020, the trial court granted Allusp's motion for leave to amend, and Allsup amended her verified petition, requesting that the trial court declare her to be the elected candidate for the office of county treasurer and alleging that Swalls-Thompson was not eligible to hold office because she: (1) did not meet the residency requirements under Article 6, Section 4 of the Indiana Constitution and Indiana Code section 3-8-1-20, which require a candidate for a county office to have resided in the county for at least one year before the election; and (2) was still a Florida resident at the time of November 3, 2020 election. Id. at 3, 32-35.

[5] On November 16, 2020, Swalls-Thompson filed her answer to the amended verified petition and requested a change of venue from the trial court judge under Indiana Trial Rule 76. Id. at 4, 55-58. After the appointment of the special judge, the trial court scheduled the matter for a hearing on November 30, 2020. Id. at 103-06. On November 25, 2020, Swalls-Thompson filed a motion requesting that the trial court enter specific findings of fact and conclusions of law. Id. at 6, 134.

[6] On November 30, 2020, the trial court held the hearing on Allsup's amended verified petition to contest the election. Id. at 6. Allsup testified at the hearing that she was a resident of Vigo County and that no one other than Swalls-Thompson ran against her. Tr. Vol. II at 5, 10. She acknowledged that she had heard "hearsay" and "rumors" about Swalls-Thompson's residency "probably around October" before the election but she "didn't pay much attention to it" although she "knew [Swalls-Thompson] had a house down there, but I mean I just didn't know that she lived down there, you know her and Bob went to Florida." Id. at 10. Allsup did not raise the issue of Swalls-Thompson's residency until after the election. Id. at 10-11.

[7] Swalls-Thompson testified that she moved from California to Terre Haute in 1976 and lived in Terre Haute until 2013. Id. at 38. Swalls-Thompson worked at First Financial Bank in Terre Haute until she retired after working there for thirty-two years. Id. at 38, 52. When Swalls-Thompson was living in Terre Haute, she met and began dating Robert Thompson ("Robert"), and in 2000, she moved in with Robert at 4977 Oakridge Court ("the Indiana Residence") in Vigo County, which was a home that the two selected and purchased together but was owned by Robert's trust. Id. at 38-39, 57. The Indiana Residence also receives an Indiana homestead exemption. Id. at 66. Swalls-Thompson lived with Robert in the Indiana Residence from 2000 until the couple separated in 2013 because Swalls-Thompson was not sure if Thompson was going to marry her despite their engagement. Id. at 39, 41. Swalls-Thompson decided to leave Vigo County for Florida in 2013 after she and Robert separated. Id. at 29.

[8] In 2013, Swalls-Thompson sold two condominiums that she had also owned in Terre Haute and bought a condominium located at 14561 Glen Cove Dr. in Fort Myers, Florida ("the Florida Condominium"). Id. at 17-18, 29. After Swalls-Thompson purchased the Florida Condominium, she moved to Florida to live there, filed for a homestead exemption on the Florida Condominium, and obtained a Florida driver's license and registered her vehicle in Florida. Id. at 19. In 2013, Swalls-Thompson also notified the Indiana Bureau of Motor Vehicles that she was moving to Florida and that she had acquired a Florida driver's license. Ex. Vol. III at 34. Upon her move to Florida, Swalls-Thompson also registered to vote in Florida, and she voted by mail in Florida in 2014, 2016, and 2018. Tr. Vol. II at 20; Ex. Vol. III at 25.

[9] Swalls-Thompson and Robert began to reconcile in 2016 while Swalls-Thompson was living in Florida, and the two married on August 6, 2017 in Salida, Colorado. Tr. Vol. II at 40-42; Ex. Vol. III at 17. On the marriage license and marriage certificate, Swalls-Thompson listed her Florida address as her residence, but under the line "Return To" only the address for the Indiana Residence was listed. Ex. Vol. III at 17. After her marriage to Robert, Swalls-Thompson testified that she considered Indiana her home. Tr. Vol. II at 48. At some point after the marriage, Swalls-Thompson began to stay at the Indiana Residence with Robert. Id. at 42, 51. She also testified that she would return to Florida for the winters, spending January, February, March, and April in Florida and would also go there at other times throughout the year. Id. at 53, 56. After her marriage to Robert, Swalls-Thompson's daughter and granddaughter made the Florida Condominium their home. Id. at 23, 51.

[10] In response to whether she was "quick to move everything [she] had back up here to the state of Indiana" after her marriage, she indicated that she was not quick to do so, and she also indicated that she "had some doubts" about whether the marriage would work. Id. at 49. Swalls-Thompson also acknowledged that, if her marriage did not work out, she was "not ready to let go of Florida," and considered Indiana her home as long as the marriage continued to work but wanted somewhere to go if the marriage did not work. Id. Swalls-Thompson also planned to use the Florida Condominium as a vacation home. Id. at 56. Swalls-Thompson testified that she continued to receive the homestead exemption for her Florida Condominium until the November 2020 election and did not rescind or pay back the homestead exemption until after the election. Id. at 21-25, 55; Ex. Vol. III at 86. She acknowledged that she presented her Florida driver's license to vote on November 3, 2020 and maintained her Florida driver's license until after the election. Tr. Vol. II at 33-34.

[11] Swalls-Thompson had taxable income in 2017, 2018, and 2019 and jointly filed federal and Indiana state income tax returns with Robert in 2017, 2018, and 2019. Id. at 43-44; Ex. Vol. III at 52-63. Swalls-Thompson listed the Indiana Residence as the address on each tax return. Ex. Vol. III at 52-63. Swalls-Thompson would not have paid state income tax in Florida in any of those years because Florida has no state income tax. Tr. Vol. II at 44.

[12] Swalls-Thompson testified that she changed her name from "Swalls" to "Thompson" on her health savings account at First Financial Bank in Terre Haute, Indiana on November 20, 2018, listing the Indiana Residence on the signature card when she changed her name. Id. at 50; Ex. Vol. III at 76-77. She also testified that she maintained a safe deposit box at First Financial Bank in Terre Haute, Indiana where she stored her valuable personal belongings that she did not bring with her to Florida. Tr. Vol. II at 42-43; Ex. Vol. III at 78-81. Swalls-Thompson acknowledged that her daughter, son, and Robert also had access to the safe deposit box and that she had maintained the safe deposit box since she started working at First Financial Bank in Terre Haute. Id. at 54; Ex. Vol. III at 78-81.

[13] Swalls-Thompson and Robert purchased a 2019 Honda Accord in Terre Haute, Indiana on November 20, 2018, listing the Indiana Residence on the purchase agreement and titling the vehicle in Indiana with the Indiana Residence listed as the address on the license plate registration. Tr. Vol. II at 46; Ex. Vol. III at 64-69. On November 30, 2019, Swalls-Thompson and Robert purchased a 2011 BMW convertible in Sarasota, Florida, listing the Indiana Residence on the purchase agreement and titling the vehicle in Indiana despite purchasing it in Florida. Tr. Vol. II at 47-48; Ex. Vol. III at 70-75. The vehicle also had Indiana license plates, which used the Indiana Residence as the address, and the vehicle had never had Florida license plates....