Decided April 7, 1993.
Michael J. Downing, for the applicant.
Lee Fisher, Attorney General, for the state.
This cause came to be heard before this panel of three commissioners on July 8, 1992 at 9:00 a.m. upon the applicant's November 13, 1991 objection and notice of appeal to the October 23, 1991 decision of the single commissioner. The single commissioner had granted the applicant, Carol Lee Fox, an award of reparations for "allowable expense," as defined in In re Heery (1988), 44 Ohio Misc.2d 32, 541 N.E.2d 1097, but reduced said award by fifty percent pursuant to R.C. 2743.60(C). Counsel for the applicant and the Attorney General attended the hearing and presented testimony and oral argument for this panel's review and consideration.
The applicant had requested reimbursement for counseling expenses and attorney fees, but the counseling services were provided to the victim, Pauline E. Fox, at no cost. The attorney fees were incurred to separate the victim from the offender. The single commissioner found, however, that the majority of the attorney fees could not be reimbursed, since they were incurred relative to divorce proceedings between the offender and the applicant.
At the hearing, counsel for the applicant argued that the divorce proceedings were part and parcel of the guardianship proceedings commenced to separate the offender from the victim in the first instance. In fact, counsel represented that, due to the history of abuse involving the offender and this victim, a mentally retarded individual who was adopted by the applicant and offender, the applicant was virtually forced by the probate court to secure a divorce from the offender as a means of ensuring their continued separation and the safety and well-being of the victim.
In a prepared statement presented to the court, the Attorney General acknowledged the existence of extenuating circumstances that necessitated the divorce proceedings. In accordance with his most recent findings, the Attorney General recommended that all of the attorney fees be considered allowable expense pursuant to the prior determination of In re Heery. Heery established the principle that legal fees incurred to separate a minor-victim from an abusive parent or caretaker may be compensable as an allowable expense if the separation is reasonably necessary for the remedial treatment and care, safety, and well-being of the victim. The Attorney General further advised that he had altered his original position concerning failure to cooperate.
Both counsel argued that the applicant was unable to give a statement initially on the advice of counsel but later cooperated fully with police. Furthermore, it was later revealed that the offender had also been abusing the applicant, who was both physically handicapped and financially destitute. Nevertheless, as a result of the applicant's cooperation, the offender was convicted of sexual battery and gross sexual imposition and incarcerated for a term of years.
R.C. 2743.52(A) places the burden of proof upon the applicant to satisfy the Court of Claims Commissioners that the requirements for an award of reparations have been met by a preponderance of the evidence. In re Rios (1983), 8 Ohio Misc.2d 4, 8 OBR 63, 455 N.E.2d 1374, paragraph one of the syllabus. Black's Law Dictionary defines "preponderance of evidence" as follows:
"Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; That is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Braud v. Kinchen, La.App., 310 So.2d 657, 659. With respect to burden of proof in civil actions, means greater weight of evidence, or evidence which is more credible and convincing to the mind. That which best accords with reason and probability. The word `preponderance' means something more than `weight'; it denotes a superiority of weight, or outweighing. The words are not synonymous, but substantially different. There is generally a `weight' of evidence on each side in case of contested facts. But juries cannot properly act upon the weight of evidence, in favor of the one having the onus, unless it overbear, in some degree, the weight upon the other side." (Emphasis added.) Black's Law Dictionary (5 Ed. 1979) 1064.
Ordinarily, a prima facie claim is made when the applicant files an application in accordance with R.C. 2743.56 and submits such additional material, information, and evidence as required by R.C. 2743.59. In re Williams (Mar. 26, 1979), Ct. of Cl. No. V77-0739jud, unreported. However, it is the Attorney General who bears the burden of proof by a preponderance of the evidence with respect to the exclusionary criteria of R.C. 2743.60(C). In re Williams and In re Brown (Dec. 13, 1979), Ct. of Cl. No. V78-3638jud, unreported.
From review of the file, with full consideration given to the oral argument presented at the hearing, this panel finds the Attorney General failed to prove, by a preponderance of the evidence, the applicant failed to fully cooperate with law enforcement authorities. Therefore, the November 13, 1991 objection and notice of appeal of the applicant are well taken, and the October 23, 1991 decision of the single commissioner must be reversed. Accordingly, all attorney fees incurred by the applicant relative to divorce and guardianship proceedings, in the amount of $1,476, shall be awarded as an allowable expense.
IT IS THEREFORE ORDERED THAT:
1. The October 23, 1991 order of the single commissioner is REVERSED;
2. Judgment is rendered against the state of Ohio and the Office of Budget and Management as its agency for payment of the award in the amount of $1,476.00;
3. The Clerk shall certify this judgment to the Director of the Office of Budget and Management for payment to the applicant pursuant to R.C. 2743.191;
4. This award is expressly conditioned upon the subrogation provisions of R.C. 2743.52, which require any benefits or advantages received from any collateral source, including the offender, be repaid to the state of Ohio;
5. This order is entered without prejudice to the applicant's right to file a supplemental reparations application pursuant to R.C. 2743.60(D) or R.C. 2743.68; and
6. Costs be assumed by the reparations fund.
WILLIAM A. CARROLL, STEVEN A. LARSON and DALE A. THOMPSON, Commissioners, concur.