By Jared Sanders
I. Introduction
As a newly married couple, a husband surprises his wife on her birthday with an adorable puppy. Fast-forward two years and the marriage is in disarray. While the husband is out of town, the wife packs up her belongings, takes the dog, and leaves. Unable to repair the marriage, the wife files for divorce. The question at trial becomes: who gets custody of the dog? The husband argues that he should get custody because he bought the dog with his funds. On the other hand, the wife argues that she should obtain custody because she primarily cared for the dog, and they formed a close bond.[1] How should the court decide which spouse receives custody of their beloved dog? What standard should the court apply?
A national survey shows that sixty-seven percent of United States households own a pet – the equivalent of 84.9 million homes.[2] In 2019, there is an estimated $75.38 billion spent on pets in the United States.[3] Statistics show that seventy-six percent of pet owners feel guilty when they leave their pet at home, forty-one percent take their dogs on vacations with them, and thirty-eight percent “speak” to their pets on the phone when they are away on vacation.[4] While pet owners may view their beloved pets as part of the family, the majority of the law categorizes them as personal property – often referred to as “chattel.”[5] Thus, in the eyes of the court, the adorable puppy as described above is analogous to a kitchen table or a car.[6]
In a New York divorce action,[7] when children are involved, child custody is an issue that is decided under the “the best interest of the child” standard.[8] Although pet owners may feel their pets are “children,” the courts have historically applied a strict property-based approach to pets when determining custody.[9] However, New York State courts are starting to depart from a property-based approach and ask “what is in the ‘best interest for all concerned?’”[10]
Section II of this blog will provide a background of New York’s statutory approach to distribution of marital property in a divorce action. Section III will review New York tort case law and the traditional classification of household pets. Section IV will examine New York matrimonial law, demonstrating the changing approach to pet custody in marital dissolutions. Part V will explore Alaska’s groundbreaking statute instituting the standard of the “well-being of the animal,” as well as the criticism that the standard has faced. Part VI will argue that the New York legislature should amend the Domestic Relation Law to provide clarity in adjudicating marital dissolutions involving the custody of household pets.
II. Equitable Distribution of Marital Property
In a marital dissolution action between spouses, the State of New York utilizes the system of equitable distribution.[11] “The purpose of the equitable distribution law is to achieve a fair allocation of marital property upon dissolution of the marital economic partnership.”[12] The New York Court of Appeals has stated, “[e]quitable distribution of marital property in a divorce action is based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner, or homemaker.”[13] However, the “equitable distribution of marital property does not necessarily mean equal,” giving the New York Supreme Court substantial discretion in awarding equitable distribution.[14]
The New York law of equitable distribution applies to marital property, but not separate property. Subject to the exception enumerated below, marital property is defined as “all property acquired by either or both spouses during the marriage . . . regardless of the form in which title is held.”[15] In contrast, separate property includes property acquired before marriage or acquired by bequest, devise, descent, or gift from a party other than the spouse;[16] compensation for personal injuries;[17] property acquired in exchange for or the increase in value of separate property;[18] and property described as separate property by written agreement of the parties.[19] Thus, any personal or real property acquired during the marriage, such as a pet, is considered marital property and subject to equitable distribution.
Since “equitable” does not necessarily mean “equal,” the equitable distribution statute sets out an exhaustive list of factors that a court must consider when distributing marital property.[20] Some factors include the duration of the marriage and the age and health of both parties,[21] any award of maintenance,[22] and any other factor which the court shall expressly find to be just and proper.[23] It is noteworthy that these factors include “no consideration for the happiness or comfort of the articles to be divvied up between the parties-which is sensible, considering that these factors were intended to be the basis for determining title to inanimate objects.”[24] It is difficult to believe any pet owner would consider his or her pet an “inanimate object;” yet, traditionally, that is how pets have been classified under the law.
III. Household Pets Under New York Tort Law
In New York tort actions, pets are considered personal property; thus, the owner of an animal negligently killed cannot recover for their emotional distress.[25] The New York Court of Appeals in Bovsun v. Sanperi[26] recognized a cause of action called the “zone-of-danger rule.”[27] The rule allows a plaintiff to recover for emotional distress caused by the negligent infliction of bodily injury on a family member when the plaintiff observed the serious physical injury and was at risk of serious physical injury or death.[28] However, in Fowler v. Town of Ticonderoga,[29] distinguished from Bovsun, the Third Department of New York’s Appellate Division held that a dog owner may not recover under the “zone-of-danger rule” when he witnessed the defendant negligently kill his dog.[30] The court ruled the claim failed because a dog is “personal property, not a family member.”[31]
Even when a pet owner’s family shares a strong emotional attachment with a family pet, New York case law states that a pet owner may only recover for property damage.[32] Akin to a couch, it treats a family pet as if it were an inanimate object. Thus, in the most unfortunate circumstance, in which one wrongfully kills another’s dog, the dog owner’s only remedy in tort is to recover the market value of the dog.[33]
IV. New York Case Law Regarding Household Pets in Marital Dissolutions
During a marital dissolution, New York courts are tasked with deciding the equitable distribution of property.[34] However, the courts are not unanimous as to which standard to apply when determining which spouse will receive custody of the marital pets. The court in C.R.S. v. T.K.S. utilized a strict-property analysis;[35] however, several courts are slowly adopting the “best interests for all concerned” approach.[36]
The court in C.R.S. v. T.K.S. utilized a strict property analysis when awarding the wife temporary possession of the marital dog, a Chocolate Labrador Retriever, pending a final judgment.[37] There, the husband, a wealthy corporate vice president,[38] purchased a Chocolate Labrador Retriever for his wife’s 35th birthday.[39] During the midst of a dissolution action between the parties, the wife was prevented from entering the spousal residence in New York and was forced to move to their Florida residence without the dog.[40] The husband was allegedly keeping the dog to punish the wife.[41] The court granted a pendente lite order, awarding temporary custody of the dog to the wife.[42] Moving for a stay of the order, the husband claimed that the grant of temporary possession of the dog to the wife was “an impermissible prejudgment distribution of marital property” because the dog is a chattel, “no different than [sic] a sofa, home or bank account.”[43] Moreover, the husband asserted that the dog has no monetary value and does not produce income nor is the dog an asset that will increase in value.[44]
The court upheld its grant of temporary possession of the five-year-old Chocolate Labrador Retriever to the wife,[45] “based solely on the fact that the dog was an interspousal gift to her.”[46] The court’s property analysis is confirmed when they stated that “[t]he determination of the final distributive award of the dog will be made at trial. A credit for any proven value of the dog could be made at that time.”[47] “The clear implication is that the Labrador retriever was to be ‘distributed’ just like any other item of marital property subject to equitable distribution, be it a television or a set of dishes.”[48]
Prior to the decision in C.R.S., New York saw its first court utilize the “best for all concerned standard.”[49] In Raymond v. Lachmann, the First Department was tasked with determining which party was “entitled to ownership and possession of the subject cat, Lovey, nee Merlin.”[50] The court stated:
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.[51]
This is “one of the most important statements from a ‘modern court’ as to the ‘de-chattelization’ of household pets.”[52] This new approach takes into consideration the “intangible, highly subjective factors that are called into play when a cherished pet is the property at issue.”[53] The landmark decision in Raymond set the stage to allow New York courts to adopt a new standard for actions involving pet custody.[54]
A little over fourteen years later, the court in Travis v. Murray embraced the Raymond holding by following the “best for all concerned standard.”[55] In Travis, the parties to a divorce sought sole custody of a dog named Joey, who they had acquired during the marriage.[56] While the plaintiff was away on a business trip, the defendant moved out of the marital residence, taking Joey with her.[57] Plaintiff argued that Joey was her property because she used her funds to buy the dog, while the defendant argued that it was in Joey’s “best interest” to live with the defendant because she “was the one who cared for and financially supported Joey on a primary basis.”[58] The court noted that the plaintiff was asserting a strict property-based approach, while the defendant was invoking a custody analysis.[59] Utilizing the rationale in Raymond and the “best for all concerned” approach, the court explained “[t]his new view takes into consideration, and gives paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue.”[60] Ultimately, the court ordered a full hearing, applying the standard of “best for all concerned” to determine which party will receive full custody of Joey.[61]
V. Alaska’s Statutory Standard: “Well-Being of the Animal”
Alaska’s legislature passed H.R. 147, which orders courts to consider the “well-being of the animal,” when determining the ownership of the pets in a divorce action.[62] This amendment to Alaska’s divorce statute was predicated on the idea that “companion animals are often viewed as family members and have an inherent self-interest in their continued well-being and existence.”[63] This statute was groundbreaking as the first law to recognize a pet is more than mere property. In passing this statute, the legislature adopted a view that companion animals are “living property,” as distinguished from tangible personal property.[64] As defined and argued by David Favre, living property is “physical, movable living objects—not human—that have an inherent self-interest in their continued well-being and existence.”[65] The legislature looked to the Alaska Supreme Court’s opinion in Juelfs v. Gough[66] to further justify the passing of H.R. 147. In Gough, during a marital dissolution, the Alaska Superior Court granted shared custody and visitation of the marital dog, Coho.[67] Several years later, the wife appealed the superior court’s decision, arguing she should receive sole custody of Coho because her ex-husband had failed to comply with the visitation schedule.[68] The Alaska Supreme Court affirmed the holding of the superior court.[69] This outcome of Gough is noteworthy because it established visitations rights in situations where it would be in the best interest of a companion animal.[70] The court clearly distinguished companion animals from other forms of tangible personal property, as a court would not grant visitation of a couch or table. Based on the concept of “living property” and the need to clarify Alaska’s statute regarding custody of companion animals, H.R. 147 became effective on January 17, 2017.[71]
A. Criticism of the “Well-Being of the Animal” Standard
Applying the standard of the “well-being of the animal” does not come without negative criticism. One of the largest concerns of the United States court system is judicial economy.[72] In a marital dissolution, the Florida appellate court in Bennet v. Bennet reversed and remanded the district court’s grant of visitation by the ex-wife of the parties’ dog.[73] The court’s reasoning was based in part on the issue of judicial economy.[74] The court explained, such an expansion in the law is “unwise” because the court system is already overwhelmed by the enforcement and “supervision of custody, visitation, and support matters related to the protecting of our children.”[75] Essentially, the courts do not have the resources to adjudicate an influx of complex issues regarding custody and visitation of companion animals.[76]
As illustrated by the court in Bennet, there is also the issue of enforcement. In New York, the courts must consider “the best interest of the child” in orders for child custody.[77] A court may consider several factors in their determination.[78] Applying these factors to just children is a challenge; but, according to the court in Nuzzaci v. Nuzzaci, applying the factors to a companion animal is an impossible task.[79] Concerned about enforcement, the court asked, “would it be abusive to forget to clean the fishbowl or have Tabitha declawed?”[80] Expanding the law to include the “best interest of the animal” invites litigation over “which dog training school, if any, is best for [the dog’s] personality type.”[81] Commenting on the stated concerns and referring to Alaska’s “well-being of the animal” standard, Justice William W. Bedsworth wrote, “let’s say a little prayer for those Alaska judges.”[82]
VI. Conclusion
The courts and legislatures across jurisdictions are slowly embracing a changed viewpoint regarding household pets in divorce proceedings.[83] From once being viewed under the law as strict, tangible personal property, jurisdictions are adopting the view that companion animals are “living property”[84] and recognized as “a special category of property.”[85]
While New York case law is evolving to embrace this view, legislation must be passed to provide clarity in adjudicating cases involving companion animals. In light of changing perspectives, the New York legislature should amend the Domestic Relation Law to mandate courts to consider the “well-being of the animal.”
The idea that pets are the legal equivalent of furniture does not reflect the feelings of modern society. Further, the traditional property standard is inappropriate for both the parties and the pet. The parties are owed the opportunity to have their day in court to explain why they deserve custody of their pet, and how they can promote the well-being of the animal. Not only will this promote a more equitable distribution, but it will ensure that the animal, as “living property,” can continue a healthy, loving life.
[1] This hypothetical is loosely based on the facts of Travis v. Murray, 42 Misc. 3d 447 (Sup. Ct. 2013).
[2] Pet Industry Market Size & Ownership Statistics, Am. Pet Product Ass’n https://www.americanpetproducts.org/press_industrytrends.asp (last visited Sept. 15, 2019).
[3] Id.
[4] Ann Hartwell Britton, Bones of Contention: Custody of Family Pets, 20 J. Am. Acad. Matrim. Law 1, 19 (2006).
[5] See, e.g., Rowan v. Sussdorff, 147 A.D. 673, 673 (2d Dep’t 1911) (stating that a dog is property).
[6] Travis, 42 Misc. 3d at 452.
[7] Sometimes referred to as “dissolution of marriage.”
[8] N.Y. Dom. Rel. Law § 70 (McKinney 2019); see also Eschbach v. Eschbach, 56 N.Y.2d 167, 171(1982).
[9] See C.R.S. v. T.K.S., 192 Misc. 2d 547 (Sup. Ct. 2002).
[10] See Travis, 42 Misc. 3d at 453.
[11] See Dom. Rel. § 70.
[12] 1 Timothy Tippins, New York Matrimonial Law and Practice § 3:29 (2019)
[13] O’Brien v. O’Brien, 66 N.Y.2d 576, 585 (1985).
[14] Lurie v. Lurie, 94 A.D.3d 1376, 1378 (3d Dep’t 2012).
[15] Dom. Rel. § 236 pt B(1)(c).
[16] Id. § 236 pt B(1)(d)(1).
[17] Id. § 236 pt B(1)(d)(2).
[18] Id. § 236 pt B(1)(d)(3).
[19] Id. § 236 pt B(1)(d)(4).
[20] Id. § 236 pt B(5)(d).
[21] Id. § 236 pt B(5)(d)(2).
[22] Id. § 236 pt B(5)(d)(6).
[23] Id. § 236 pt B(5)(d)(14). For the complete list of factors, see id. § 236 pt B(5)(d).
[24] Tabby McLain, Adapting the Child’s Best Interest Model to Custody Determination of Companion Animals, 6 J. Animal L. 151, 168 (2010).
[25] Schrage v. Hatzlacha Cab Corp., 13 A.D.3d 150, at *5 (1st Dep’t 2004); see also Johnson v. Douglas, 289 A.D.2d 202, 202 (2d Dep’t 2001) (“[A] pet owner in New York cannot recover damages for emotional distress caused by the negligent killing of a dog.”); DeJoy v. Niagara Mohawk Power Corp., 13 A.D.3d 1108, 1108-09 (4th Dep’t 2004) (holding that an owner may not recover for loss of companionship of horse negligently killed by defendant’s electric wires).
[26] 61 N.Y.2d 219 (1984).
[27] See id. at 848. In Bovsun, the plaintiffs, mother and daughter, were sitting in their station wagon on the side of the highway while the husband-father (“Mr. Bovsun”) was at the rear of the car leaning through the tailgate window. Id. at 844. The defendant’s vehicle struck the station wagon in the rear, pinning and seriously injuring Mr. Bovsun, and also injuring the mother and daughter. Id. The mother and daughter suffered emotional distress as a result of seeing Mr. Bovsun’s injury. Id. at 844-45.
[28] See id. at 848 (emphasis added).
[29] 131 A.D.2d 919 (3d Dep’t 1987).
[30] See id. at 921.
[31] Id.
[32] Di Michele v. Filacchione, 60 Misc. 2d 619, 619-20 (N.Y. City Civ. Ct. 1969).
[33] See Melton v. South Shore U-Drive, Inc., 32 A.D.2d 950, 951 (2d Dep’t 1969). Conversely, the Supreme Court of Oregon in McCallister v. Sappingfield rejected the idea that the correct recovery for a dog wrongfully killed is its “market value.” McCallister v. Sappingfield, 72 Or. 422, 427-28 (Or. 1914). Rather, the monetary damages are the “special or pecuniary” value of the dog, ascertained by the “usefulness or services of the dog.” Id. at 428.
[34] See N.Y. Dom. Rel. Law § 236 (McKinney 2019).
[35] 192 Misc. 2d 547, 553 (Sup. Ct. 2002).
[36] See Travis v. Murray, 42 Misc. 3d 447, 453 (Sup. Ct. 2013); Finn v. Anderson, 64 Misc. 3d 273, 279 (N.Y. City Ct. 2019).
[37] C.R.S., 192 Misc. 2d at 553.
[38] Id. at 550.
[39] Id. at 548.
[40] Id.
[41] Id. at 553.
[42] Id. at 547.
[43] Id. at 549.
[44] Id. at 553.
[45] Id. at 552.
[46] Travis v. Murray, 42 Misc. 3d 447, 453 (Sup. Ct. 2013) (internal quotations omitted).
[47] C.R.S., 192 Misc. 2d at 550.
[48] Travis, 42 Misc. 3d at 453.
[49] Raymond v. Lachmann, 264 A.D.2d 340, 341 (1st Dep’t 1999).
[50] Id. at 340.
[51] Id. at 341(emphasis added).
[52] Travis, 42 Misc.3d at 455.
[53] Id.
[54] See id. at 447; Finn v. Anderson, 64 Misc. 3d 273 (N.Y. City Civ. Ct. 2019); Hennet v. Allan, 43 Misc. 3d 542 (Sup. Ct. 2014).
[55] Travis, 42 Misc. 3d at 460.
[56] Id. at 450.
[57] Id.
[58] Id.
[59] Id. at 451.
[60] Id. at 455.
[61] Id. at 460.
[62] Alaska Stat. Ann. § 25.24.160(a)(5) (West 2019).
[63] Morgan Chandler Handy, The “De-Chattelization” of Companion Animals Through Family Law Legislation: How Alaska’s H.R. 147 Has Dismantled the Traditional Property Law View of Pets, 52 Fam. L.Q. 169, 176 (2018).
[64] Alaska St. Legis., Res. Servs. Rep., Custody Awards and Protective Orders for Pets, H.R. 29-15.142, 2d Sess., at 2 (2015), http://www.akleg.gov/basis/get_documents.asp?session=29&docid=6017.
[65] Id.
[66] 41 P.3d 593 (Alaska 2002).
[67] Id. at 594.
[68] Id. at 594-95.
[69] Id. at 599.
[70] Id.
[71] Alaska H. Journal, 29th Leg., 2d Sess. 3212 (Nov. 7, 2016), http://www.akleg.gov/pdf/29/J/H2016-11-07.PDF.
[72] Courts often raise the concern of judicial economy. See, e.g., Romandetti v. Cty. of Orange, 289 A.D.2d 386, 386 (2d Dep’t 2001) (“[W]e find that consolidation [of claims] would best serve the interest of justice and judicial economy.”); In re Vistaprint Ltd., 628 F.3d 1342, 1347 (Fed. Cir. 2010) (“[J]udicial economy can be of paramount consideration.” (internal quotation and citation omitted)); Realtime Data, LLC v. Morgan Stanley, No. 6:09CV326-LED-JDL, 2010 WL 4274576, at *2 (E.D. Tex. Oct. 28, 2010) (“Courts in this District have consistently recognized the pronounced significance of judicial economy.”).
[73] Bennett v. Bennett, 655 So. 2d 109, 111 (Fla. Dist. Ct. App. 1995).
[74] Id. at 110-11.
[75] Id.
[76] Id.
[77] N.Y. Dom. Rel. Law § 240 (1)(a) (McKinney 2019).
[78] The following factors include:
[T]he quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child’s relationship with the other parent.
Elliott v. Felder, 69 A.D.3d 623, 623 (2d Dep’t 2010) (citations omitted)).
[79] Nuzzaci v. Nuzzaci, No. CN94-10771, 1995 WL 783006, at *1 (Del. Fam. Ct. 1995).
[80] Id.
[81] Id.
[82] J. William W. Bedsworth, Fight On, 59-APR Orange County Law. 71, 72 (2017).
[83] See ALASKA ST. LEGIS., supra note 64; Travis v. Murray, 42 Misc. 3d 447 (Sup. Ct. 2013).
[84] See ALASKA ST. LEGIS., supra note 64.
[85] Feger v. Warwick Animal Shelter, 59 A.D.3d 68, 72 (2d Dep’t 2008).
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