Thursday, May 15, 2014

SCOV Goes to the Dogs

Hamet v. Baker2014 VT 39

By Jeffrey M. Messina

In a divorce proceeding with no minor children and an amicable agreement on the division of property and other financial issues, SCOV's job is to determine which spouse receives the family pet. Hot dog!

The lower court based its decision on which spouse was most active in caring for the dog during the marriage. The court also said the family division would not enforce a shared visitation schedule even if the parties agreed to it. As expected, during the hearing, the parties testified to each’s strong emotional ties to the dog and the extent to which each provided care. Husband is a veterinarian who takes dog to work with him; wife spends time walking the dog in the woods near the home and is involved in the daily care of the animal.

In the end, the court awarded the dog to the husband. The court concluded that although either party would give the dog a good life, the husband gained a slight edge based on the routine of going to the clinic every day and that in essence "the husband treats the dog like a dog," while the wife was more doting and treats the dog like a child. The court determined the dog would do better with husband’s balanced attitude towards the animal.

Wife appeals, claiming the court was Goofy to refuse to consider a joint arrangement, and further argues that the finding favoring husband’s attitude toward the dog was arbitrary and not supported by the evidence. Finally, she argues the court failed to enforce the parties’ temporary agreement to share the time with the dog.

The SCOV affirms on two grounds. First, the factors considered by the court in allocating the dog were appropriate. Second, the family division cannot enforce a visitation or shared custody order for animals. Doggone it!

The SCOV states that the family court has authority to order an equitable division of marital property after weighing all relevant factors. The SCOV realizes division of property is "not an exact science, and the trial court has broad discretion in considering the statutory factors in fashioning an appropriate order."

The SCOV declares that animals are property, but concedes they are different from other property because they are alive and form emotional attachments with their owners that give rise to special concerns for well-being and humane treatment. Vermont’s High Court notes that while in most cases the pet animals have little or no market value, people spend gobs (well, I say gobsthe SCOV was far more eloquent) of money feeding them and providing care. The SCOV also points out pets frequently become close companions and an important part of life for their owners. Woof!

In its analysis, the SCOV states it has previously announced that common law rules govern the consideration of pet ownership. As an example, the court points out that if someone finds a pet and cares for it, that pet may become theirs, whereas the finder of a lost ring has no right. [What happens if the pet has ring worm; who keeps it, then? Anyway…] The court also distinguishes between the treatment of pets under divorce statutes in contrast to a child. A pet is not subject to a custody award following the determination of its best interests, however, because a pet is property. Therefore, it must be assigned to one party or the other, and that assignment is final and not subject to modification. woof.

The SCOV opines that if any of the factors relating to division of property in this context would apply, it would likely be the 10th statutory factor; that factor being "the party through whom the property was acquired." That could apply in the case of a pet obtained by one spouse alone. But it was clear by the evidence in this case that the pet in question was acquired by both husband and wife at the same time. So, that won't work here.

This SCOV does say: the family division may consider non-statutory factors such as the welfare of the animal and the emotional connection between the animal and each spousewhich includes evidence about its (yes, “its,” since right now, “it's” only property) daily routine, comfort and care. Such evidence may also concern the role of the animal in the lives of each spouse.

SCOV reiterates the lower court’s decision basically reflected its concern for the welfare of the animal. Though the court recognized how much the dog meant to both parties, the factors the court considered, being the dogs welfare and its emotional relationship with the parties, were appropriate factors and the SCOV agrees that husband showed the right "balance," while wife treated the dog like child. Treat time!

The SCOV dispenses with the enforcement of visitation challenge quite quickly. The SCOV says an order of property division is final; not subject to modification, and follows with the fact that there is no legislative authority for court to play a continuing role supervising the caring and sharing of a companion animal. Therefore, even if the stipulation was submitted, the family division would be unable to enforce it.

I think the lesson here is to always get his and hers pets. Brand them with your initials. And always have a treat in your back pocket . . . 

1 comment:

  1. Nice post. Check out my related post at: http://onlawyering.com/2014/04/the-evolution-of-the-law-will-animals-become-legal-persons/

    ReplyDelete