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WHO GETS FLUFFY? DIVISION OF PETS IN DIVORCE CASES
1999 National Legal Research Group, Inc.

"Old dog Tray's ever faithful, grief cannot drive him away; he's gentle, he is kind; I'll never, never find a better friend than old dog Tray."

Stephen C. Foster, Old Dog Tray

The affection that people feel for their pets is real and palpable. That affection often leads parties to a divorce to argue by analogy to custody law that possession of the family pet should be decided on a "best interests of the pet" standard, separate and apart from the principles of classification and division of marital property. The courts have long recognized and commented upon the tension between custody and property law when it comes to pets.

One of the first decisions to comment upon considerations that a divorce court must undertake when considering the ownership of a dog was Akers v. Sellers, 114 Ind. App. 660, 54 N.E.2d 779 (1944), an action in replevin. The Appellate Court of Indiana, en banc, stated the august nature of the proceedings thus:

This is a controversy over the ownership and possession of a Boston bull terrier dog upon which the [husband], while declining to measure its true value to him in mere money, has placed an arbitrary value of $25. Were we to judge the importance of these proceedings by such a fictitious standard of value we would be inclined to resent this appeal as a trespass on the court's time and an imposition on our patience, of which quality we trust we are possessed in reasonable degree. But we 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.

54 N.E.2d at 779. After this introduction, we are told that the husband was given the dog during the marriage as a gift from a veterinarian. During the divorce proceedings, there was no formal disposition of the dog. The wife, being awarded the marital home, came into possession of the dog. The husband thereafter brought a suit in replevin for the return of the dog. The appellate court opined:

Whether the interests and desires of the dog, in [the divorce proceedings], should be the polar star pointing the way to a just and wise decision or whether the matter should be deter mined on the brutal and unfeeling basis of legal title, is a problem concerning which we express no opinion. We recognize, however, the tragedy of the dog's consignment to the wife if, in fact, his love, affection, and loyalty are for the husband.

Id. The court ultimately held that the trial court's decision, based upon a finding of fact that the husband had given the dog to the wife during the marriage, was supported by the record and not subject to attack on appeal.

The divorce courts, however, have not shied away from the Solomonic task of dividing a pet, thus leading to an evolving body of law concerning who gets Fluffy. This article will review case law concerning property division principles as they are applied to pets. This article will conclude that although a best interests of the pet standard is not appropriate when awarding the family pet, the court can and should consider who would care for a pet when making its ultimate division of marital property.

One of the first cases to consider the propriety of an award of the family pet to a party in a divorce action was Ballas v. Ballas, 178 Cal. App. 2d 570, 3 Cal. Rptr. 11 (1960). In that case, the wife was granted a divorce on the grounds of cruelty. Her single complaint on appeal was that the court erred in awarding a Pekingese dog and a Volkswagon to the husband.

The wife's evidence was that, although the dog was acquired during the marriage, it was purchased with her separate funds, titled in her name, and remained in her possession up until the judgment of the court. The husband had no evidence that the dog was community property other than his listing it as such. On this basis, the appellate court reversed the trial court, holding that "it is immaterial whether the dog was community property or the separate property of plaintiff." 3 Cal. Rptr. at 13. In other words, the court awarded the dog to the wife be cause she was the one who cared for it. Clearly, if the court was stating that property division principles were irrelevant, the court was employing a best interests of the dog test.

Perhaps picking up on the best interests of the dog test in Ballas, in Arrington v. Arrington, 613 S.W.2d 565 (Tex. Civ. App. 1981), the trial court had appointed the wife as the managing conservator of the parties' dog, Bonnie Lou, granting the husband reasonable visitation rights with the dog. The husband appealed, arguing that he should have been named managing conservator of the dog.

The appeals court would have none of it, wisely refusing to apply a best interests of the dog test:

Bonnie Lou is a very fortunate little dog with two humans to shower upon her attention 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.

Id. at 569. The court went on to state that dogs are property and must be treated as such. The court then concluded that the dog was the wife's property, but it hoped that both the husband and the wife would "continue to enjoy the companionship of Bonnie Lou for years to come within the guidelines set by the trial court." Id. In essence, the court affirmed the award of the dog to the wife, with visitation rights granted to the husband. Again, although the court applied property principles to determine the ownership of the dog, a best interests of the dog test was at play. How else to explain visitation rights?

More recent cases have made the test for division of a family pet clearer. A court must first classify the pet as marital or separate property, as it would any other item of property. The court may then consider, however, when making the ultimate decision of to whom to award the pet, who would best care for the pet.

In In re Marriage of Stewart, 356 N.W.2d 611 (Iowa Ct. App. 1984), the husband gave the wife a dog for Christmas during the marriage. When the parties separated, however, the dog remained with the husband, and the dog often accompanied the husband to work. The trial court held that "custody of the dog should be with [the husband]." Id. at 613 (emphasis added). The appellate court took issue with the characterization of the award of the dog as a "custody" order:

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.

Id. The court then classified the pet as marital property and concluded: "We find no reason to disturb the trial court's decision on the award of the dog to [the husband]. We affirm the decision of the trial court." Id.; see also Gladu v. Gladu, No. 69, 1990.TN.524 (http://www.versuslaw.com) (Tenn. Ct. App. Mar. 20, 1990) (issue of award of family dog should have gone to master with other items of personal property).

The most recent case to discuss the issue of equitable distribution of a pet was Bennett v. Bennett, 655 So. 2d 109 (Fla. Dist. Ct. App. 1995). In that case, the trial court awarded "custody" of the parties' dog, Roddy, to the husband, with visitation rights granted to the wife. After judgment, the husband filed for rehearing, and the wife filed a motion for contempt and a change of custody because the husband was interfering with her visitation rights. The court granted the wife's motion, giving her visitation with the dog every other month.

The appellate court reversed, holding first that a dog is personal property, that this particular dog was the husband's premarital property, and that there simply is no authority for a court to award visitation with personal property. Of more concern to the court was the supervision problems that it envisioned were the parties to be granted visitation rights to property:

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.

Id. at 110-11. The court thus disposed of the problem by finding that the dog was premarital property. The court may have been willing to go so far as to decide to whom to award the dog if the dog had been marital property. But it certainly was not willing to grant visitation rights. Cf. In re Marriage of Tevis-Bleich, 23 Kan. App. 2d 982, 939 P.2d 966 (1997) (enforcing separation agreement granting husband right to visit family pet); In re Marriage of Patchett, 156 Or. App. 69, 964 P.2d 1114 (1998) (reversing judgment holding wife in contempt for failing to turn over pet wallaby "Skippy" to husband pursuant to separation agreement, where actions of wife were not "willful" since wallaby was known to escape on occasion).

Some courts have managed to avoid the question of the best interests of the pet by employing a Solomonic division: one pet to one party, and another pet to the other party. This was found to be acceptable in Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990). There, the court stated:

As her final point, [the wife] argues that the chancellor erred in awarding the family dog to [the husband]. The record discloses that the parties had two pets, a cat and a dog. [The wife] received the cat, and we cannot conclude that the chancellor's decision as to the dog was clearly erroneous.

796 S.W.2d at 362. But on what basis did the court award the cat to the wife and the dog to the husband? As a matter of classification, or as a matter of division? Or was the court engaging in a sexual stereotyping by affirming an award of a cat to the wife and a dog to the husband?

Finally, an interesting argument concerning the family dog was raised in S.L.J. v. R.J., 778 S.W.2d 239 (Mo. Ct. App. 1989). In that case, the husband claimed that the court erred in classifying the family pet as marital property, because the dog had been purchased as a gift for the parties' son. The court held that if it were true that the dog belonged to the parties' son, then the son would be the aggrieved party and the husband had no standing to raise the issue.

In conclusion, a family pet is an item of personal property, and principles concerning the classification of this property apply. Once it is determined, however, that the family pet is marital property or that the court has the authority to award the family pet to one party or the other, then the court may consider who would better care for the pet and who has the greater attachment to the pet. This is really no different from the many cases that award a particular piece of property to the party who asserts a greater sentimental value to an item of property. E.g., Starnes v. Starnes, 680 So. 2d 572 (Fla. Dist. Ct. App. 1996) (error to award to wife the hus band's childhood toys); Uluhogian v. Uluhogian, 86 Ill. App. 3d 654, 408 N.E.2d 108 (1980) (court should have awarded gold cross to husband, where husband's uncle gave cross to husband before marriage); In re Huffman, 493 N.W.2d 84 (Iowa Ct. App. 1992) (awarding wife her jewelry); Summer v. Summer, 206 A.D.2d 930, 615 N.Y.S.2d 192 (1994) (husband's photographs are marital property, but they should have been awarded to husband); In re Anderson, 94 Or. App. 774, 766 P.2d 1057 (1990) (trial court should have awarded wife piano and clawfoot piano stool that wife's grandmother gave to wife); see also Williams v. Williams, 613 A.2d 200 (Vt. 1992) (origin of property as family heir loom is relevant factor).

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