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June 2002
Who Let the Dogs Out?
Laura W. Morgan
The affection that people feel for their pets is real and
palpable. That affection often leads parties to a divorce
to argue to a court 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 decision to comment upon considerations
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 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 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 be 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 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 the Pekingese dog and the Volkswagen 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 because 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 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
of 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.
613 S.W.2d 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, but it hoped that both the
husband and 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 to the husband. Again, although the court applied property
principles to determine 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 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 separate, 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].” 356 N.W.2d
at 613. 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.
356 S.W.2d at 613. 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 (Tenn. Ct. App. March 20, 1990) (1990.TN.524 <http://www.versuslaw.com>)
(issue of award of family dog should have gone to master with
other items of personal property).
In Bennett v. Bennett, 655 So. 2d 109 (Fla. 1st
DCA 1995), the trial court awarded “custody” of
the parties’ dog, Roddy, to the husband, with visitation
rights 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 there simply is no authority for
a court to award visitation with personal property. Of more
concern to the court was the supervision problems it envisioned
were 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.
655 So. 2d at 110-111. 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).
The most recent case to discuss the issue was Juelfs
v. Gough, 41 P.3d 593 (Alaska 2002). In that case, the
divorce decree entered in 1993 provided for shared ownership
of the parties’ dog Coho. In March 2000, the wife filed
a motion requesting the dissolution agreement be reviewed
due to the husband’s failure to allow the wife her allotted
time with Coho. The husband opposed the motion, alleging that
two other dogs in Julie’s residence threatened Coho’s
life. The trial judge awarded legal and physical custody of
Coho to the husband, and granted the wife reasonable visitation
rights as determined by the husband. After further acrimony
between the parties when the wife visited the dog, the court
awarded sole custody of the dog to the husband. The wife appealed.
The Supreme Court held that the trial court did not err
in awarding full custody of the dog to the husband under Rule
60(b)(6), even though the dog was marital property. The trial
court’s conclusion that shared custody just wasn’t
working out between the parties warranted the granting of
sole custody.
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 wire] received the cat, and we cannot conclude that the
chancellor’s decision as to the dog was clearly erroneous.
796 S.W.2d 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 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 that asserts a greater sentimental value to an
item of property. E.g., Starnes v. Starnes,
680 So. 2d 572 (Fla. 1st DCA 1996) (error to award to wife
the husband’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 wife’s
grandmother gave to wife); see also Williams
v. Williams, 613 A.2d 200 (Vt. 1992) (origin or property
as family heirloom is relevant factor).
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