Opinion
No. 92AA19.
Decided January 13, 1993.
Southeastern Ohio Legal Services and Robin A. Bozian, for plaintiff.
Lee Fisher, Attorney General, and Julia M. Graver, Assistant Attorney General, for defendant.
This matter is before the court on appeal of the plaintiff, Kathy Mastrodomenico, of a denial of an ADC overpayment claim. The plaintiff timely filed her appeal on January 27, 1992. The plaintiff appeals an Administrative Appeal Decision entered by the Ohio Department of Human Services, the defendant, on December 27, 1991.
The plaintiff filed her brief in support of her appeal on June 10, 1992. The Ohio Department of Human Services, defendant, filed its brief on July 9, 1992. Thereafter, on July 13, 1992, the plaintiff filed a reply brief. The matter was then continued for non-oral hearing as neither party desired to make an oral argument to the court.
Both parties are in agreement as to the facts in this case. The court finds that in March 1985, Mastrodomenico's now ex-husband's grandfather placed $3,000 in a certificate of deposit for the plaintiff's son's education. The money was placed in a certificate of deposit in a bank in the Chicago, Illinois area. The CD was titled in the names of the plaintiff and her minor son.
In July 1988, the plaintiff applied for ADC benefits because her ex-husband was not paying his child support regularly. She disclosed the certificate of deposit at that time to the defendant and stated her belief that it was inaccessible to her because it was for her son's education. She also provided copies of the certificate of deposit to the Washington County Department of Human Services. The defendant found the $3,000 certificate of deposit not to be accessible to the plaintiff and proceeded to distribute to the plaintiff the sum of $6,892 in Aid to Dependent Children payments for the period from July 1988 through September 1990. The defendant during this period of time treated the $3,000 certificate of deposit as an asset that was inaccessible to the plaintiff. In July 1990, the Washington County Department of Human Services sent a letter to the plaintiff regarding the certificate of deposit. Mastrodomenico met with officials of the Washington County Department of Human Services on August 3, 1990. The Washington County Department of Human Services then determined that the certificate of deposit, which it had known about for several years, was a resource available to Mastrodomenico which rendered her ineligible for benefits from the date of application until September 1990. Mastrodomenico on August 3, 1990, transferred the certificate of deposit from her name to the names of her mother and her son.
Mastrodomenico testified at length that this $3,000 was given to her in trust as a trustee to be held by her for the benefit of her minor son's education. It was expressly understood that it could be used only for that purpose.
The Public Assistance Manual ("PAM"), at Section 3310, General Principles Concerning Resources, reads in its relevant part:
"For a resource to be considered in determining ADC eligibility, it must be available to the applicant/recipient. Available is defined as accessible. The applicant/recipient must have the legal right to control and dispose of the property for it to be counted as a resource."
In the present case, the defendant determined that the plaintiff had the ability to control the $3,000 and was therefore ineligible to receive ADC benefits. Legal ability does not equate with legal right. The requirement of the defendant's regulation is that the plaintiff have the legal right to control the money. The only testimony presented at the hearing was from the plaintiff. There is no evidence that this CD was not a trust. Under the terms of the trust, the plaintiff has only the legal right to use this money for her son's education. To otherwise use the CD would be an illegal breach of the trust. PAM Section 3323 reads in pertinent part as follows:
"A trust is a right of property held by one party for the benefit of another. The person who holds the legal title to the property for the benefit or use of another is the trustee.
"Individual is trustee — a person who is appointed a trustee generally cannot use any funds within the trust for his own benefit. Therefore, an individual may be a trustee of a valuable trust and not be able to receive money from it since he has no access to the funds for his personal use. Under such circumstances, it is not a resource to him. If the individual is acting as a trustee for a trust he created, the trust is a resource."
The only evidence in this case is the testimony of Mastrodomenico that the money was deposited in the account for her son, as clearly indicated on the certificate, and she never took any of the money for her own use. She testified that it was the intention of her husband's grandfather that this money be used only for her son's education. The defendant argues that when the plaintiff in August 1990 took the money and placed it in her mother's name at lower interest this was done in violation of the terms of the trust. The plaintiff arguably could have done this to protect the money from being taken by the defendant. The plaintiff's actions are clearly demonstrated to have been necessary to preserve the corpus of the trust for her son's education.
A trust may be created orally. Hill v. Irons (1953), 160 Ohio St. 21, 50 O.O. 485, 113 N.E.2d 243. The only evidence in this case is that the trust was an oral trust. All of the actions of the plaintiff show a desire to preserve the corpus of the trust for the benefit of the beneficiary, i.e., her son.
The defendant argues that if the court finds a trust, based on the evidence, then the plaintiff had an obligation to attempt to make the certificate of deposit available as a resource. This court has no problem with this proposition. However, the record as stated below would indicate that this was an express trust and could only be used for a limited purpose, i.e., the education of the minor son. There is no showing at any time that there were educational needs not being met for which the plaintiff would have had an obligation to go to the trust for money. Under the terms of the oral trust, the plaintiff had no legal right to use any of the monies for the daily support of her family.
Appeals from decisions of administrative agencies of the state of Ohio are governed exclusively by the Administrative Procedure Act as found in Chapter 119 of the Ohio Revised Code. Under R.C. 119.12, a court of common pleas sits as mini-appeals court in review of the record established before the administrative agency. Chester Twp. Bd. of Trustees v. Kline (1969), 19 Ohio App.2d 63, 48 O.O.2d 125, 249 N.E.2d 921. R.C. 119.12 provides in pertinent part as follows:
"The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law."
The hearing officer in this case included in her findings of fact only the evidence presented by the plaintiff. The hearing officer did not state at any point that the oral trust was not supported by the evidence either as a finding of fact or as a conclusion of law. The only evidence in this case is the evidence presented by the plaintiff. There are no attacks on her credibility. There is no basis in this record to support the decision of the administrative hearing examiner.
The court finds that the decision entered by the Ohio Department of Human Services on December 27, 1991, from which the plaintiff appeals, is not supported by any evidence either reliable, probative, or substantial and is not in accordance with the law; accordingly, this court must reverse and vacate the prior finding.
It is ORDERED that judgment shall be entered for the plaintiff, Kathy Mastrodomenico, and costs of these proceedings shall be accessed against the defendant, the Ohio Department of Human Services. The plaintiff's attorney, Robin A. Bozian, shall prepare and submit to the court a journal entry on this decision on or before February 15, 1993.
ALL OF WHICH IS ORDERED AND ADJUDGED ACCORDINGLY.
So ordered.