New Business for Courts: Pet Custody

Judges may invoke specific performance remedy, appeals panel says
By Mary Pat Gallagher
New Jersey Law Journal
March 10, 2009

When couples break up, judges can decide who gets custody of pets based on their unique sentimental value, a New Jersey appeals court ruled Tuesday, setting a precedent in the state.

The published opinion in Houseman v. Dare, A-2415-07, reverses a trial court’s finding that pets differ from personal property like heirlooms, family treasures and works of art and therefore that the equitable remedy of specific performance is not available.

Appellate Division Judges Jane Grall, Stephen Skillman and Ronald Graves found that determination erroneous as a matter of law and remanded for further proceedings.

“There is no reason for a court of equity to be more wary in resolving competing claims for possession of a pet, based on one party’s sincere affection for and attachment to it than in resolving competing claims based on one party’s sincere sentiment for an inanimate object based on a relationship with the donor,” Grall wrote.

The case arose out of the broken engagement of Doreen Houseman and Eric Dane. The couple started dating in 1993, bought a house together in Williamstown in 1999 and became engaged in 2000. In 2003, they paid $1,500 for a pug named Dexter.

Dane broke off the engagement in May 2006 and when Houseman moved out two months later, she took Dexter with her, along with what Grall described as his “paraphernalia.” After that, Dexter lived with Houseman, who allowed Dane to take the dog for visits.

In late February 2007, Houseman went on vacation and left Dexter with Dane, but he refused to surrender the dog when she returned on March 4.

She sued on March 16 to get him back and to resolve other issues related to the break-up. She sought specific performance, claiming she had an oral agreement with Dane to keep Dexter.

Gloucester County Superior Court Judge John Tomasello ruled before trial that specific performance does not apply to pets. He found at trial that Houseman proved the oral agreement but allowed Dare to keep the dog because he already had possession. The result was a judgment for Houseman of about $29,000 including $1,500 for Dexter, an amount the pair had stipulated.

In reversing, Grall stated Dexter’s special value to Houseman could be inferred from her testimony about him and her “prompt effort to enforce her right of possession.”

Her stipulation to a dollar value for Dexter “cannot be viewed as a concession that the stipulated value was adequate to compensate her for loss of the special value given her efforts to pursue her claim for specific performance at trial,” Grall wrote.

The court remanded for further proceedings on the existence of the oral agreement and the propriety of specific performance.

Absent precedent allowing specific performance for a household pet, Grall relied on cases recognizing animals have a subjective value to their owners over and above their purchase price or what it would cost to replace them.

The panel declined to adopt a best-interests-of-the-pet standard as urged by amici in the case. Grall said that although a court could decide who had a special interest in possession of a pet, it was “less confident that there are judicially discoverable and manageable standards for resolving questions of possession from the perspective of a pet, at least apart from cases involving abuse or neglect contrary to public policies expressed in laws designed to protect animals.”

Houseman’s lawyer, Gina Calogero of Oradell, says this is the first family law decision in New Jersey to recognize a special value in animals and one of only a handful of cases across the country to grapple with the issue of custody.

Dane’s lawyer, James Carter, says he is surprised by the decision and unaware of precedent in any jurisdiction for specific performance of a pet. He says his client has sufficient evidence to show on remand that he was the one who bought the dog and primarily cared for it. He says he has not discussed with Dane the possibility of an appeal.

Carter, of Hoffman DiMuzio in Turnersville, agrees with the courts’ rejection of the best-interests-of-the-pet standard based on a concern for the strain on the court system that would result from treating pets like children. “Wait until you see the backlog in the courts when we start having custody hearings on pets,” he says. “That’s the natural progression.”

Isabelle Strauss, of Toms River, the lawyer for amicus Lawyers in defense of Animals, says she pointed out to the court that trained volunteers, similar to those in the CASA program, could assist the courts with pet custody issues.

Precedent exists for appointing guardians for animals, as a federal court in Virginia did for the dozens of pit bulls owned by former Atlanta Falcons quarterback Michael Vicks, who is serving a federal prison term for his involvement in a dog fighting ring.

Sara Corcoran, a Hackensack lawyer, represented the other amicus, Animal Legal Defense Fund, based in Cotati, Calif.