Opinion
2022-00111VI
07-15-2022
IN RE: CHERYL LYNN TULE, CHERYL LYNN TULE Applicant
Sent to S.C. Reporter 12/21/22
DECISION OF THE MAGISTRATE
DANIEL R. BORCHERT, MAGISTRATE JUDGE
{¶1} On August 10, 2021, applicant, Cheryl Tule, filed a compensation application with the Ohio Attorney General alleging that George Tule committed domestic violence against her on June 19, 2020. In her application, applicant sought compensation for replacement services, crime scene clean up, clothing damaged during medical treatment, moving expenses, and security equipment.
{¶2} On December 7, 2021, the Attorney General issued a finding of fact and decision denying applicant's claim. Therein, a summary memorandum clarified that applicant sought assistance for moving expenses and storage expenses. The Attorney General denied applicant's claim because-while she provided receipts-she did not provide documentation showing that a medical, mental health, or law enforcement official verified the need for her to move out of her home.
{¶3} On December 15, 2021, Applicant submitted a request for reconsideration. On February 11, 2022, the Attorney General rendered a Final Decision affirming the denial.
{¶4} On February 17, 2022, applicant filed a notice of appeal from the Final Decision of the Attorney General. Hence, a hearing was held before this magistrate on May 17, 2022. Assistant Attorney General Yan Chen appeared on behalf of the state of Ohio. Applicant appeared pro se.
{¶5} Applicant called April Naus as a witness. Naus testified that she helped applicant move out of her house because applicant said that she was told by the prosecutor and the victim's advocate to move out of her house as soon as she could. Applicant was afraid that if her husband, George, got out of jail, she would be in danger. According to the witness, applicant's landlord also advised her to run. Naus testified that she loaned applicant $1,600 to pay for a U-Haul and assistance moving. She also gave applicant $2,000, and someone else loaned her $1,000, to pay an attorney to help her obtain a divorce. After they helped her move her stuff into storage, she went into hiding, and her friends and family did not know where she was.
{¶6} She testified that George had previously been in a standoff with the police, but the police did nothing. He slashed applicant's tires, but the police still did nothing. Applicant had to leave her home because the police were no help even after the abuse.
{¶7} Naus further testified that, on the day of the abuse, George first swung a shovel at applicant's head but just missed her. He then threw a metal stick that was part of an outdoor pool at her leg and injured her leg.
{¶8} Applicant next called Brandy, applicant's daughter, as a witness. She testified that when she helped applicant move, they wrote down the dates and hours spent. They first moved her from her house to a shelter, moving her stuff into storage. They then had to downsize the storage. When she got out of the shelter and into a new house, her abuser found the new house. So she had to move again. Brandy testified that applicant had a protection order requiring George to stay away from her. Even when George was in jail, it was not safe for applicant to live in the house because he had an opportunity to bond out every time he went to court.
{¶9} Applicant herself then testified she did not understand why further documentation would be required to show that she needed to move out. The protection order issued by the court was all the evidence that she should have needed. She also argued that it was unreasonable to expect a victim, when told by a therapist to move to safety, to make sure to get the advice in writing. She averred that it was not a long history of abuse. There was only the one incident, and then she sought to leave.
{¶10} The Assistant Attorney General argued that applicant did not provide documentation to the Attorney General showing that it was medically necessary for her to move. Therefore, the Attorney General's Final Decision was correct and should be upheld. Whereupon, the hearing was concluded.
{¶11} R.C. 2743.52(A) places the burden of proof on an applicant to satisfy the Court of Claims that the requirements for an award have been met by a preponderance of the evidence. In re Rios, 8 Ohio Misc.2d 4, 455 N.E.2d 1374 (Ct. of Cl. 1983).
{¶12} Black's Law Dictionary Sixth Edition (1990) defines burden of proof as: "the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause. The obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court."
{¶13} Black's Law Dictionary Sixth Edition (1990) defines preponderance of the evidence as: "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."
{¶14} Allowable expenses are "reasonable charges incurred for reasonably needed products, services, and accommodations, including those for medical care, rehabilitation, rehabilitative occupational training, and other remedial treatment and care." R.C. 2743.51(F)(1).
{¶15} From a careful review of the case file and consideration of the argument presented at the hearing, it is undisputed that applicant is a victim of crime. She was assaulted by her then-husband, which left bruises visible to the responding sheriff's deputies. Reviewing the application and receipts provided by applicant, applicant seeks reimbursement for moving expenses, including storage expenses. The Attorney General denied applicant's request for moving expenses because applicant did not provide documentation in support of her need to move.
{¶16} There is case law from this court stating that moving expenses are an allowable expense for a victim when her counselor encouraged her to move to support the recovery of her mental and emotional health. In re Dillon, 63 Ohio Misc.2d 185, 620 N.E.2d 302 (Ct. of Cl. 1993). The court has awarded relocation expenses when a victim's physician advised her that returning to her home would increase her chance of suffering another heart attack. In re Miller, Ct. of Cl. No. V2006-20780tc (March 2, 2007) aff'd jud (June 25, 2007), 2007-Ohio-2268. But the Attorney General has not cited any case in support of its proposition that moving expenses are allowable only if the need to move is supported by a counselor or doctor. Rather, moving costs can also be an allowable expense when the applicant fears continuing criminal activity or if necessary to separate the victim from the abuser. In re Segebart, 61 Ohio Misc.2d 428, 579 N.E.2d 796 (Ct. of Cl. 1989); In re Fields, 61 Ohio Misc.2d 376, 579 N.E.2d 318 (Ct. of Cl. 1989). Furthermore, a review of the Order of Protection granted by the Williams County Common Pleas Court on August 10, 2020, reveals applicant was only allowed to remain in the home until August 20, 2020. At that time, applicant would have needed to move.
The Attorney General's position conflates sufficient with necessary.
{¶17} The credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The court is free to believe or disbelieve, all or any part of each witness's testimony. State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548 (1964). The court finds that applicant and her witnesses statements were credible.
{¶18} In this case, the sworn testimony of applicant and the other witnesses establishes by a preponderance of evidence that applicant reasonably feared continued violence if she were to remain at the residence she shared with her abuser. The moving and storage expenses are thus allowable expenses. This includes the expenses to move applicant again after her abuser found and followed her. Therefore, I recommend that the Attorney General's Final Decision of February 11, 2022, be reversed, and that this case be remanded to the Attorney General's Office for calculation of an award in accordance with this decision.
{¶19} A party may file written objections to the magistrate's decision within 14 days of the filing of the decision, whether or not the court has adopted the decision during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other party may also file objections not later than ten days after the first objections are filed. A party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion within 14 days of the filing of the decision, as required by Civ.R. 53(D)(3)(b).