A Brief Genealogy Of Court Decisions On How To Award Animals In Dissolutions

I. The Ancestral Line

A. Akers v. Sellers, 54 N.E.2d 779 (Ind. App. 1944).

The Set-Up: “This is a controversy [by husband and wife] over the ownership and possession of a Boston bull terrier dog upon which [husband], while declining to measure its true value to him in mere money, has placed an arbitrary value of $25. [W]e have in mind Senator Vest's immortal eulogy on the noble instincts of a dog so we approach the question involved without any feeling of injured dignity but with a full realization that no man can be censured for the prosecution of his rights to the full limit of the law when such rights involve the comfort derived from the companionship of man's best friend.”

The Rhetoric: “[S]even years ago there came into their lives the Boston terrier which is the subject of this controversy. What his age may have been at the time is not disclosed, but, assuming that he was then a pup, it is apparent that he is now about to enter the mellow years when those qualities most to be desired in a dog are at their peak, and the natural springtime inclination to roam, common to all males of whatever specie, is on the wane. Despite the tie and cementing influence of this little Boston terrier, the marriage of the parties proved not to have been made in heaven and the [wife] sought and obtained a divorce.”

The Decision: “Whether the interests and desires of the dog, in such a situation, should be the polar star pointing the way to a just and wise decision, or whether the matter should be determined on the brutal and unfeeling basis of legal title, is a problem concerning which we express no opinion. We recognize, however, the tragedy of his consignment to the [wife] if, in fact, his love, affection and loyalty are for the [husband]. However that may be, the [husband], insisting that legal title and the dog's best interests are in accord and both rest in him, brought this suit in replevin and upon the trial thereof was unsuccessful. We find evidence tending to prove that the dog in controversy was first given to the [husband] and by him, in turn, given to the [wife].”

The Actual Point: A dog “gifted” to a spouse during the course of the marriage confers ownership.

B. Ballas v. Ballas, 178 Cal.App.2d 570, 3 Cal. Rptr. 11 (Cal. App. 1960).

The Set-Up: “[W]ife appealed from that part of the interlocutory decree of divorce which awarded the property set out in the margin to husband and that part directing each party to deliver property to the other. [Wife] was granted the divorce on the ground of cruelty. The single complaint she makes in her brief is that the court erred in awarding a Pekingese dog and a Volkswagen to [husband].”

The Rhetoric: “From an examination of the exhibit, it appears probable that the item “Dog” was inserted as an afterthought”.

The Decision: [Husband] made no showing that the dog was community property, and [wife’s] testimony that she purchased the animal with her personal funds was without substantial conflict in the evidence. [While] the lower court found the dog was community property, the Pekingese dog should be awarded to [wife]. It is immaterial whether the dog was community property or the separate property of [wife].

The Actual Point: A dog registered to a spouse during the marriage should be treated the same as the car also registered to that spouse during the marriage.

II. The Older Generation

A. Arrington v. Arrington, 613 S.W. 2d 565 (Tex. App. 1981).

The Set-Up: [Husband] has appealed the judgment which divorced him from his wife, divided their property and made [the wife] managing conservator of Bonnie Lou, their dog.”

The Rhetoric: “Bonnie Lou is a very fortunate little dog with two humans to shower upon her attentions and genuine love frequently not received by human children from their divorced parents. All too often children of broken homes are used by their parents to vent spite on each other or they use them as human ropes in a post divorce tug-of-war. In trying to hurt each other they often wreak immeasurable damage on the innocent pawns they profess to love. Dogs involved in divorce cases are luckier than children in divorce cases they do not have to be treated as humans. The office of “managing conservator” was created for the benefit of human children, not canine.”

The Decision: “A dog, for all its admirable and unique qualities, is not a human being and is not treated in the law as such. A dog is personal property, ownership of which is recognized under the law. There was testimony that Bonnie Lou was given to Mrs. Arrington over ten years ago.”

A Little More Rhetoric Just For Good Measure: “Mr. Arrington agreed to Mrs. Arrington's custody of the dog if he could have reasonable visitation. He does not complain of lack of visitation; only that he was not appointed managing conservator. We overrule point of error no. 7 with the hope that both Arringtons will continue to enjoy the companionship of Bonnie Lou for years to come within the guidelines set by the trial court. We are sure there is enough love in that little canine heart to “go around”. Love is not a commodity that can be bought and sold or decreed. It should be shared and not argued about.”

The Actual Point: A dog can be treated as a financial asset by a spouse during the course of a marriage.

B. In re Marriage of Stewart, 356 N.W.2d 611 (Iowa App. 1984).

The Set-Up: “[Wife] contends the trial court erred in not awarding the dog, Georgetta, to her. [Husband] gave [wife] the dog in question for Christmas. When the parties separated the dog remained with [husband]. The dog accompanies [husband] to the office and spends a substantial portion of the day with [him]. The trial court found that custody of the dog should be with [husband].

The Rhetoric: “A dog is personal property and while courts should not put a family pet in a position of being abused or uncared for, we do not have to determine the best interests of a pet.”

The Decision: “We have considered the property division as a whole. We find no reason to disturb the trial court's decision on the award of the dog to Jay.”

The Actual Point: Location, location, location.

C. Jett v. Municipal Court, 177 Cal. App. 3d 664 (Cal. App. 1986).

The Set-Up: “Defendant was convicted in municipal court of the misdemeanors of subjecting an animal to needless suffering and permitting an animal to be on a street or lot without proper care or attention. It was alleged that defendant displayed his 50-year-old tortoise [“Rocky”] in a petting zoo at a shopping center and that the tortoise was suffering from various untreated ailments when it was removed from defendant's custody by the humane society. Defendant refused probation and the municipal court sentenced him to pay a fine and to relinquish control of the tortoise to a college.”

The Rhetoric and the Decision Together: “[T]he People argue Rocky should be equated with a child. Jett's rights to Rocky should be terminated as parental rights must yield when necessary to protect the child's best interest. While a child preparing for homework or cleaning a bedroom may exhibit turtle-like qualities or creep toward school in turtle pace, we decline to equate title to a tortoise to the relationship between a parent and a child. Jett owns Rocky. Parents have custody of children.”

The Actual Point: Animals are not children.

D. Nuzzaci v. Nuzzaci, Not Reported in A.2d, 1995 WL 783006 (Del. Fam. Ct. 1995).

The Set-Up: “The Court has been asked to sign a Stipulation and Order concerning the visitation of a Golden Retriever [“Zach”] with wife. Because wife's rental lease agreement does not permit Zach to stay with her more than one weekend per month and one afternoon per week, both wife and husband have asked the Court to place its blessing on what is described as a “personal property division arrangement”. The Stipulation and Order is quite detailed as to when wife shall have visitation and even goes so far as to say that, the specific weeknight to be chosen for visitation is flexible, taking into account the business engagements, vacations, and other social events of the “parents.”

The Rhetoric and the Decision Together: “[State statute] defines such terms as “Adult”, “Child”, “Family” and even “Relative”, but nowhere refers to the terms, “pet”, “animal”, or “dog”. [It] bestows equitable powers upon the Court but only where jurisdiction is otherwise conferred. A close examination of all the above legislation reveals no mention of animal husbandry visitation rights, and I am not wont to broaden the term “husband” in such a manner. [T]here is little doubt but that Zach is marital property to be distributed in some fashion by this Court, but I decline to sign an order which is in essence a visitation order in every respect, except as to the biological classification of the “object d'etre.”

[H]ow could the Court possibly be able to make a decision in the event that the parties were unable to come to an agreement as to Zach's visitation? Chapter 5 of Title 13 speaks of the Duty to Support children, spouses, poor persons, and women with child conceived out of wedlock. Nowhere does it mention any duty to support a canine, bovine, ovine or even a guppy. Chapter 7 speaks of parents and children in regard to such issues as custody and visitation. While it goes into great detail as to the factors which this Court must consider prior to determining the best interest of the child, nowhere does it mention what factors would have to be considered in the best interests of a non-human genus, should the parties not be able to agree on visitation.

And, quite truthfully, the prospect of applying the seven factors of §722(a) to a Zach, a Tabitha or even a fish called Wanda for that matter, would be an impossible task. For example, would it be abusive to forget to clean the fish bowl or have Tabitha declawed? If the door were opened on this type of litigation, the Court would next be forced to decide such issues as which dog training school, if any, is better for Zach's personality type and whether he should be clipped during the summer solstice or allowed to romp “au naturel.” I do not in any way intend to offend Husband and Wife in the present action. While their dilemma is certainly a viable one, particularly in a marriage where there have been no children, the fact is that this Court is simply not going to get into the flora or fauna visitation business. The Court only has jurisdiction to award the dog to one spouse or the other.”

The Actual Point: Enforcement problems scotch visitation benefits.

E. Bennett v. Bennett, 655 So. 2d 109 at 110 (Fla. App. Dist. 1, 1995).

The Set-Up: “Husband appeals from a final judgment of dissolution of marriage which, among other things, awarded custody of the parties' dog, “Roddy.” The husband asserts that (1) the trial court erred in awarding the former wife visitation with the parties' dog, and (2) the trial court erred in modifying the final judgment to increase the former wife's visitation rights with the dog.”

The Rhetoric: “There is no authority which provides for a trial court to grant custody or visitation pertaining to personal property. While several states have given family pets special status within dissolution proceedings, we think such a course is unwise. Determinations as to custody and visitation lead to continuing enforcement and supervision problems (as evidenced by the proceedings in the instant case). Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals.”

The Decision: “We find that the trial court lacked authority to order visitation with personal property; the dog would properly be dealt with through the equitable distribution process.”

The Actual Point: See, Jett, supra. Animals are not children.

F. Raymond v. Lachmann, 695 N.Y.S. 2d 308 (N.Y. App. Div. 1999).

The Set-Up: Court declares that plaintiff “is entitled to ownership and possession of the subject cat, Lovey, nee Merlin, conditioned upon plaintiff's payment for all veterinary expenses incurred by the cat.”

The Rhetoric and the Decision: “Cognizant of the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily, on the record presented, we think it best for all concerned that, given his limited life expectancy, Lovey, who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years.”

The Actual Point: Apparently considerations of the best interests of the animal is now the rule in New York since the Raymond decision has been described as a “change in the law” and applied to another cat in the subsequent case of Leconte v. Kyungmi Lee, 35 Misc.3d 286, 935 N.Y.S.2d 842, 2011 N.Y. Slip Op. 21452 (N.Y. City Civ. Ct. 2011).

III. The Younger Generation

A. Juelfs v. Gough, 41 P.3d 593 (Alaska 2002).

The Set-Up: “[Divorce] decree provided for shared ownership of husband and wife’s dog Coho, a chocolate Labrador retriever. [The trial court] awarded “legal and physical custody of Coho” to husband and allowed wife “reasonable visitation rights as determined by” husband. The order also stated that husband would be responsible for all of Coho's medical bills. Wife [claimed] husband was not providing her with reasonable visitation. The parties sought reciprocal restraining orders against each other as the result of an altercation between them that occurred when husband sought to regain custody of Coho after wife had taken the dog for a visit without husband’s permission.”

The Decision Without Rhetoric: “Although there is an interest in the finality of judgments, it is clear the judgment would never have been final under the circumstances that faced the court. The arrangement between Julie and Stephen assumed a state of facts, namely, cooperation between them, that proved not to exist, requiring judicial intervention. As Judge Beistline aptly noted, the arrangement between Julie and Stephen was not working: “[T]he parties were unable to share custody of Coho without severe contention.”

The Actual Point: Enforcement problems trump everything. See, Nuzzaci, supra.

B. DeSanctis v. Pritchard 803 A.2d 230 (Pa. Super. 2002).

The Set-Up: “During their marriage [wife] purchased a dog, Barney, from the SPCA. In August, 2000, pursuant to their divorce, the parties entered into an “Agreement” that purported to be a property settlement but dealt primarily with Barney's future. In the Agreement, line 2 states “Barney is [wife’s] property and she will have full custody.” Further, the Agreement provided for an arrangement allowing [wife] to visit Barney. In March of 2000, [husband] moved to Bucks County and no longer made Barney available for [wife’s ] visits. [Wife] requested the trial court to: 1) grant injunctive relief to mandate “shared custody” of Barney, 2) declare [husband] in breach of the Agreement, 3) reform the Agreement to provide for “shared custody,”

The Rhetoric: “In seeking “shared custody” and a “visitation” arrangement, [wife] appears to treat Barney, a dog, as a child. Despite the status owners bestow on their pets, Pennsylvania law considers dogs to be personal property.”

The Decision: “The Agreement in question explicitly awarded this property to [husband]. [Wife] overlooks the fact that any terms set forth in the Agreement are void to the extent that they attempt to award custodial visitation with or shared custody of personal property. As the trial court aptly noted, Appellant is seeking an arrangement analogous, in law, to a visitation schedule for a table or a lamp. This result is clearly not contemplated by the statute.”

The Actual Point: Dogs are more like lamps than people.

C. Green v. Shall, N.E.2d, 2004 WL 628649 (Ohio App. 6 Dist. 2004).

The Set-Up: “The parties owned several horses and two Australian Shepherd dogs. [Wife] argues that the trial court abused its discretion when it awarded the parties' two dogs to [husband]. [The lower court found that husband] was the legal owner of the dogs and trained the dogs and was primarily responsible for all of their expenses. The court noted that the dogs had always lived in the barn at the former marital residence, they have ample space to run, and they are cared for daily by an on-premises caretaker.”

The Rhetoric: “Notwithstanding the emotional attachment often felt by their owners, under Ohio law, dogs are considered personal property.”

The Decision: “The trial court has broad discretion in awarding personal, marital property. Based upon the evidence presented at trial, we cannot say that the trial court abused its discretion when it awarded the dogs to [husband].”

The Actual Point: With regard to who cares for the dog during the course of the marriage, the inverse of the Spiderman Rule is true: “with great responsibility comes great power”.

D. Conahan-Baltzelle v. Baltzelle, 2004 WL 1959486 (Va. App. 2004).

The Set-Up: “Husband filed a bill of complaint for divorce in the trial court. Wife filed an answer and a cross-bill against husband in which she demanded a divorce [and]distribution of the parties' real and personal property, including the family dog. At the trial, husband testified that the parties' German Shepherd was “everything to [him].” Husband found the dog at the local animal shelter where he visited with the dog until it was available for adoption. Husband testified the dog “instantly bonded to [him].” Husband stated, “To me the dog is like a child that I don't have. And ... I wanted him right from the start. I adopted him.” Husband testified that he took the dog with him everywhere he went. He also stated that when he moved away from the marital residence he decided to leave the dog there in order to avoid upsetting the dog, telling wife that she could keep the dog until she moved out of the house. The parties agreed to a visitation schedule for husband and the dog. Husband stated that when he has visitation with the dog, he takes it for hikes in the mountains, runs in the park and walks. Husband expressed concern that wife does not give the dog proper exercise. Husband also testified that the dog runs to his truck when he retrieves the dog from the marital residence for visitation and has tried to run to husband's truck when husband returns him to the marital residence. Husband acknowledged that he never took the dog to a veterinarian when the dog was in his care.

Wife testified that the dog is “a child to me” and that she has taken care of the dog's needs, including obtaining licenses for the dog, grooming him, and taking him to the veterinarian. Once the parties separated, wife paid all costs of the dog's veterinary care.”

The Decision: “[A]lthough both parties clearly have affection for the family dog, only one party could be awarded the dog. Husband presented evidence that he located the dog at the animal shelter, he adopted the dog, and he has a close bond with the dog. Under these circumstances, we cannot say the trial court abused its discretion by awarding the dog to husband.”

The Actual Point: See, Stewart, supra.

E. Wolf and Taylor, 224 Or. App. 245, 197 P.3d 585 (Or. App. 2008).
The Set-Up: In an action to dissolve a domestic partnership, a question arose about the impossibility of performance of an agreement as to visitation rights to a dog. A settlement agreement between the parties included the following provision concerning the parties' dog, Mike: “[Defendant] shall have exclusive ownership of the dog known as ‘Mike’ but agrees that [plaintiff] can have visits with him. [Plaintiff] agrees she will not allow Mike to be around other dogs, and she will ensure that he will be kept in an enclosed area, and not allowed to get loose. The specific terms of [plaintiff's] visitation with Mike will be resolved at a later date with the assistance of Judge Katherine Tennyson who agreed to retain jurisdiction of that issue.”

The Prospect: “[W]hether an agreement regarding visitation of a dog is illegal certainly is an interesting question. As plaintiff accurately reports, there are decisions from courts in other jurisdictions that hold that such provisions are unenforceable.”

F. Whitmore v. Whitmore, Not Reported in S.E.2d, 2011 WL 588497 (Va. App. 2011).

The Set-Up: “[Husband and wife] acquired a Welsh Corgi puppy from a local pet store. They paid approximately $750 for the dog, and both of their names are on the dog's American Kennel Club registration certificate. The parties separated, the dog remained [with wife] in the marital residence for most of the parties' separation, and husband had possession of the dog for periods of time during the first year. Wife testified that “it was our understanding per our discussion that [the dog] would live with me” after the separation. Husband testified that at the time he left the marital home, the parties agreed the dog would remain at the marital home with wife. However, he also stated that he believed wife would agree to share possession of the dog with him. The home in which the parties resided during the marriage was wife's separate property which she continued to own and occupy after the divorce. Husband testified he has been renting a home that has a large fenced yard for the dog.

Wife presented evidence that the dog was a gift to her from husband. Husband testified he first saw the dog in the pet store and he told wife about the dog. Husband and wife subsequently went to the pet store together to purchase the dog. Husband contends the dog was a joint purchase, not a gift solely to wife.

Both parties worked during the marriage, and they both contributed to the care, training and maintenance of the dog. Wife most often took the dog to the veterinarian and during a time period when the dog was hospitalized for five days, wife visited the dog several times per day. Husband did not visit the dog in the hospital, but he testified he chose not to do so because he did not want to excite the dog while she was ill.

Wife testified she paid the $4,000 hospital bill associated with the dog's hospitalization and most of the subsequent veterinary bills with the exception of one or two occasions when husband took the dog to the veterinarian. Husband testified that he paid the bills for the dog's hospital stay and treatment. Wife travels for work an average of four to six days per month, and she employs a pet service to walk and care for the dog during her absence from home. Wife testified she did not want to share possession of the dog with husband because he “destroyed our marriage by having an affair” and she did not want him in her life.

Both husband and wife testified they love the dog and they considered her to be a family member. Both parties presented evidence that they had a strong bond with the dog. Husband requested that the trial court award him sole possession of the dog or award shared possession of the dog and establish a visitation schedule.”

The Rhetoric: “[W]hen addressing what the trial court referred to as the “problematic” issue of placing a value on the dog, the trial court noted that a dog has a unique “intrinsic value” because the parties care for the dog and have a “significant interest” in the dog. The trial court also made clear that it did not “in any way want to minimize the significance of a pet in a person's life.” Therefore, the record shows the trial court considered the unique circumstances presented in determining the equitable distribution of the dog.”

The Decision: “Although the evidence clearly showed that both parties had bonded with and cared for the dog, we cannot say the trial court abused its discretion by awarding wife possession of the dog on the ground that the dog had resided with wife since the parties acquired her. The evidence showed that wife owned the residence, she planned to continue residing there, and she provided the dog with a stable and caring environment at the residence. We also find that the trial court did not err in declining to establish a visitation or a shared custody schedule with the dog similar to that ordered in child custody cases. Accordingly, under the circumstances of this case, we cannot say the trial court abused its discretion by awarding the dog to wife and awarding $750 to husband to acquire a similar dog.”

The Actual Point: You can always buy another one.

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