Enough about custody fights over children. How about a dispute about who gets to keep the dog? On March 10, 2009, the Superior Court of the New Jersey Appellate Division approved for publication a decision in a case involving custody of the family dog. In Houseman v Dare, Ms. Houseman alleged that she and Mr. Dare had a verbal agreement after Dare broke their engagement that she could keep the pedigreed dog that they had acquired during their 13-year live-in arrangement.
The trial court, after commenting favorably on Ms. Houseman's credibility, said that the parties may have had an agreement about the dog. Dare had allowed her to take the dog when she vacated their joint residence and had let her keep the dog. He exercised some visitation and had previously returned the dog to her. When Dare refused to return the dog after Houseman's trip out of town, she sued and the court ordered him to pay her $1500 (the full stipulated value of the initial cost of the dog).
Wow! Even I, a cat person, know that dogs need a lot of training and that someone had invested a great deal of effort over a three-year period to train the dog. So getting money for the dog hardly seems like a fair deal. This isn't just about the time/effort to train the dog, but also about the emotional connection to the family pet.
Houseman sued for "specific performance" of her verbal agreement with Dare. Such relief is often granted when a money damage award would not really compensate the aggrieved person for the loss. [Most often we see this in the context of something unique like a piece of lake-front property sold to another by someone who has ignored a previous promise to give the right of first refusal to another or where a family heirloom has been given or promised to one and kept by another.]
New Jersey's court of appeals held that the trial court was in error when ruling that a dog wasn't a unique property as to which specific performance could be used to compel enforcement of an oral agreement.
Quoting the court:
"The court's conclusion that specific performance is not, as a matter of law, available to remedy a breach of an oral agreement about possession of a dog reached by its joint owners is not sustainable. The remedy of specific performance can be invoked to address a breach of an enforceable agreement when money damages are not adequate to protect the expectation interest of the injured party and an order requiring performance of the contract will not result in inequity to the offending party, reward the recipient for unfair dealing or conflict with public policy."
The court stated that "specific performance is generally recognized as the appropriate remedy when an agreement concerns possession of property such as 'heirlooms, family treasures and works of art that induce a strong sentimental attachment.' That is so because money damages cannot compensate the injured party for the special subjective benefits he or she derives from possession."
According to lawyers in the ABA Family Law section, this isn't the first case deciding custody of a family pet. You may read the 13 page opinion in Houseman v Dare here.
See also Pet Support. Michigan family law attorney Elizabeth Sadowski wrote a wonderful brief on the issue of pet support. The folks in Oakland County are still laughing about this. Download Sadowski. Answer to Motion Regarding Dog Support