PET VISITATION-IS THERE AN ENFORCEABLE BASIS FOR IT?

Although there are no established laws on pet custody or visitation in Illinois or other states in the U.S., these issues are on the rise. Judges recognize that people have a very emotional attachment to their pets, and they are treating dogs more like children than like tables or chairs.

Ten years ago, a claim asserting a quasi-parental right to shared custody of the family dog would have been laughed out of court. Judges often state that there is not a lot they can do with pet issues in court, that dogs are simply property.  Judges comment that: ‘I can only apportion them as property.” “I can’t order that the dog travel back and forth with the child and that the parent exercising custody care for it.”  “Even as part of a temporary hearing, there is no explicit provision enabling me to award temporary possession of the dog.”  “There is absolutely nothing that I can do about pets of children whose parents never married. Children are not allowed to own property.”  “Actually, guardianship of a minor’s estate is the closest tool.’

In IRMO Enders and Baker, 2015 IL.App (1^st) 142435, the Court determined that there was no basis to grant pet visitation to the Husband, as the Wife would maintain possession of the two dogs. On appeal, the husband argued that the trial court erred in denying his request for visitation with the parties’ two dogs. Specifically, husband contended that the court should make it clear that an Illinois court has the authority to order pet visitation. Husband asserted that visitation would be in the best interest of the parties. (However, the case report contains no cite by the husband as to just what this authority is.)

The Appellate Court stated that, “whether a court has the authority to order pet visitation is a question of first impression in Illinois. Although we could not find an Illinois case that addressed visitation with regard to pets, the trial court cited to a decision from New York that did not allow dog visitation. Travis v. Murray, 977 N.Y.S.2d 621, 631 (N.Y. Sup. Ct. 2013). The New York Supreme Court declined to apply the “best interests” of the dog standard because dogs do not rise to the same level of importance as children. Travis, 977 N.Y.S.2d at 631. The court applied a “best for all concerned” standard, maintaining that “household pets enjoy a status greater than mere chattel.” (Internal quotation marks omitted.) Travis, 977 N.Y.S.2d at 631. However, the court stated that awarding visitation “would only serve as an invitation for endless post-divorce litigation.” Travis, 977 N.Y.S.2d at 631.

As far as we know, the only statutory definition for a dog owner in Illinois is provided by the Animal Control Act. 510 ILCS 5/2.16 (West 2014). Pursuant to section 2.16 of the Animal Control Act, an owner is defined as “any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian.” 510 ILCS 5/2.16 (West 2014).

In the case at bar, Kimberly is the dogs’ owner under this definition because the dogs were left in her “care” when Husband moved out of the Hinsdale Residence in 2011. As a result, she is the one who “keeps or harbors” the dogs and has them “in[her] care” and acts as their regular “custodian.” 510 ILCS 5/2.16 (West 2014). Husband testified at trial that he currently resides in an apartment where the lease does not allow pets, although he contends that he has a verbal agreement with his landlord to allow the dogs periodically.

Because of the scarcity of Illinois case law addressing this issue, it is useful to look to decisions from courts of other states. In New York, the court observed that awarding pet visitation “would only serve as an invitation for endless post-divorce litigation.” Travis, 977 N.Y.S.2d at 631. Thus, in light of the New York case and the definition of a dog owner in Illinois law, we cannot say that the trial court’s decision was against the manifest weight of the evidence. “

It is interesting that the Appellate Court conducted its analysis of the definition of “owner” of the pets, in relation to the Animal Control Act. The definition of property would have allowed a similar basis for their analysis. The parties were joint owners of the dogs, although the husband did leave them in the wife’s care when he moved out. The Court was in a position to simply award the dogs to the wife as property. But, the courts did not do that. They analyzed who had cared for the dogs, etc. The court applied a “best for all concerned” standard, maintaining that “household pets enjoy a status greater than mere chattel.” I think that is a step in the right direction, even though the husband did not obtain the visitation that he wanted.

The focus of this presentation is on the rights afforded to parties when they have already entered into a Marital Settlement Agreement and have set out their intentions in writing regarding their pets. So, I ask the question:

Are courts empowered to improperly disregard both the parties’ right to share a property interest in the pet and thereby violate public policy recognizing the unique character of pets and statutory enforceability of contracts? 

1. THERE IS NO REQUIREMENT FOR THE SOLE OWNERSHIP OF PROPERTY

In the case of IRMO Dudek, 201 Ill.App.3d 995 559 N.E.2d 1078 (2nd Dist., 1990), the marriage of Joseph and Sophie Dudek was dissolved in 1985. Their property settlement agreement was incorporated into the dissolution judgment. As relevant to this appeal, the settlement agreement provided that the marital residence, which the parties held in joint tenancy, would remain in joint tenancy. Joseph had the right to reside in the home, and he became responsible for the mortgage payments, taxes, insurance, utility bills and repair costs. He had the right to any tax benefits associated with the residence and the right to lease the premises. The property settlement agreement also provided that, upon the agreement of the parties, the marital residence could be sold. From the proceeds, Joseph would receive the sum of $2,329.53; the parties would share equally in the remainder of the proceeds. If the parties were unable to reach an agreement regarding the sale of the home, a “Court of competent jurisdiction” would decide the matter.

Settlement agreements and judgments incorporating settlement agreements are interpreted under the same rules that govern the construction of contracts. IRMO Druss, 226 Ill.App.3d 470, 589 N.E.2d 874 (1st Dist., 1992).   In interpreting the terms of such an agreement, the courts apply the normal rules of construction of contracts; the object in so doing is to give effect to the intention of the parties. In re Estate of Kite, (1974), 19 Ill.App.3d 932, 934, 312 N.E.2d 366.

I do not think that the result of Dudek depends on the fact that it deals with real property held in joint tenancy. I think that the results depend on the fact that the parties made a contractual agreement regarding how them sharing the property after the divorce was over.  If the parties were to agree to have a contractual relationship with their pet after the divorce, the court should uphold it. The trial court could have stated that its intention was to finally separate the parties and their rights and obligations from each other. The Dudek court approved the agreement of the parties that they hold the property together.

1. CONTRACTUAL REMEDIES

(a)To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into an agreement containing provisions for disposition of any property owned by either of them,…

(b)  The terms of the agreement, except for those providing for the support, custody, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence, produced by the parties, on their own motion or on request of the  court, that the agreement is conscionable.

(c)  If the court finds the agreement unconscionable, it may request the parties to submit a revised agreement or upon hearing, may make orders for the disposition of property, maintenance, child support, and other matters.

(d)  Unless the agreement provides to the contrary, its terms shall be set forth in the judgment, and the parties shall be ordered to perform under such terms, or if the agreement states that its terms shall not be set forth in the judgment, the judgment shall identify the agreement and state that the court has approved its terms.

(e)  Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.

(f)  Except for terms concerning the support, custody, or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides….

Breach of Contract Remedies:

In breach of contract cases, any of the following can apply:

Cancellation: The court cancels the contract and decides that the parties are no longer bound by it.

Specific Performance: This is when the court forces the breaching party to perform the service or deliver the goods that they promised in the contract. This is typically reserved for cases when the goods or services are unique and no other remedy will suffice. http://smallbusiness.findlaw.com/business-contracts-forms/what-is-the-most-common-legal-remedy-for-breach-of-contract.

Specific Performance: A court decree that requires the breaching party to perform their part of the bargain indicated in the contract. For example, if one party has paid for a delivery of goods, but the other party did not ship them, a specific performance decree might require the goods to be properly delivered.

Contract Rescission: The former contract which is the subject of dispute is “rescinded” (cancelled), and a new one may be formed to meet the parties’ needs. This is a remedy typically given when both parties agree to cancel the contract or if the contract was created through fraud.

Contract Reformation: The former contract is rewritten with the new contract reflecting the parties’ true intent. Reformation requires a valid contract to begin with and often is used the parties had a mistaken understanding when forming the contract.

The court’s has a preference in favor of accepting the resolution of dissolution of marriage issues by agreement of the parties.  This Section 502 and the case law provide that the terms of the parties’ agreement, except those concerning the children of the parties, are binding upon the court, unless the court finds the agreement to be unconscionable, procured by fraud or coercion, or contrary to any rule of law, public policy or morals.  IRMO Maher, 95 Ill.App.3d 1039, 420 N.E.2d 1144 (2nd Dist., 1981).

750 ILCS 5/510(b) states: “The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.”  The conditions that may justify reopening a property distribution include fraud, misrepresentation, concealment, coercion, mutual mistake of fact, and the like. “Whether a trial court has jurisdiction to modify a property distribution provision pursuant to 510(b) of the Act should be construed within the confines of 2-1401 of the Code of Civil Procedure.” IRMO Hall, 404 Ill.App.3d 160, 935 N.E.2d 522 (2nd Dist., 2010). Also, see, Illinois Practice of Family Law, author’s note 17, 750 ILCS 5/510.

The test to whether the relief sought is a modification of the judgment is whether the petitioner seeks to ‘engraft new obligations onto the decree,’ in effect altering the substance of the decree.” Waggoner v. Waggoner, 78 Ill.2d 50, 398 N.E.2d 5 (1979). IMDMA Sec. 510(b) is important, because it means that under most situations, property divisions of an agreement or a judgment are not modifiable.  The non-modifiability of property dispositions pursuant to IMDMA Sec. 510(b) makes IMDMA Sec. 502(f) (agreement to limit modification) redundant in almost all circumstances insofar as property is concerned.  Supra, Illinois Practice of Family Law 750 ILCS 5/510 note 17.

Section 2-1401 applies to petitions for relief from judgments more than 30 days after the date the judgment was entered.  “The purpose of a section 2-1401 petition is to bring before the court matters of fact now known at the time of judgment and that, of know, would have altered or affected the judgment.”  The elements required to establish a section 2-1401 claim for relief are: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting the claim or defense to the circuit court in the original action; and (3) due diligence in filing the section 201401 petition. IRMO McGlothlin, 312 Ill.Ap.3d 1145, 729 N.E.2d 53 (2nd Dist., 2000).

735 ILCS 5/2-1203 provides in pertinent part that, “In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extension thereof, file a motion for a hearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.” A Motion to Reconsider must allege more than a desire that the court reexamine its decision in hopes that the court will change its mind. A party should bring before the court newly discovered evidence, changes in the law or errors in the court’s prior application of existing law.  IRMO Sawicki, 346 Ill.App.3d 1107, 806 N.E.2d 701 (3rd Dist., 2004).

The court should be bound by the parties’ contractual agreement regarding the pet in the Judgment for Dissolution of Marriage unless an appropriate basis is found to vacate that provision, as described above.  Is it appropriate for a court to decline to enforce an agreed-to visitation of the pet provision, based on the fact that Illinois law does not presently recognize or endorse pet visitation per the Enders v. Baker case cited on page 1 above?  Would this be an example of the pet visitation agreement being contrary to the rule of law (per 750 ILCS 5/510)?

1. DO EQUITABLE PRINCIPLES APPLY?

A remedy in equity is when the court orders someone to do something. This can also be called “injunctive relief.” There is a difference of opinion in Illinois appellate decisions as to whether equitable principles apply in divorce cases. One line of case law essentially indicates that because divorce law is statutory in nature, you cannot apply equitable principles. Another line of case law, including In re Marriage of Tollison, In re Marriage of Rogers, In re Marriage of Henry, and In re Marriage of Ramsey, clearly allows the application of equitable principles in domestic relations cases. Despite there being no explicit statutory vehicle under the Illinois Marriage and Dissolution of Marriage Act in this regard, the application of equitable principles was employed to grant a remedy in several cases. IRMO Ramsey is a property case, and the other cases are related to support issues. The Ramsey court agreed with Tollison and stated,”

We do not read Strukoff [76 Ill.2d 53, 389 N.E.2d 1170 (1979) to prohibit trial courts from exercising equitable powers consistent with the Dissolution Act. … this court has held that where no prior remedy exists, courts are empowered to create equitable remedies.” In Tollison, that court found that a former husband who overpaid both maintenance and child support “cannot be denied relief simply because no procedural mechanism or current legal theory exists to undo the error”. (Citing In re Marriage of Tollison, 208 Ill.App.3d 17, 20, 566 N.E.2d 852, 854 (1991).) Ramsey, 339 Ill.App.3d 757, 792 N.E.2d 342. See Equitable principles and their application to domestic relations cases, By Paulette Gray, ISBA Family Law Newsletter, October 2004, vol. 48, no. 1.  The Ramsey ex-wife argued that the trial court lacked jurisdiction to do anything but mechanically apply the formula set out in a prior order of the court, while the ex-husband argument relied on the court’s equitable power to prevent “unjust enrichment”. See, Ramsey, supra.

735 ILCS 5/11-101 provides for a Temporary Restraining Order, “No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon….”  The elements of a TRO are 1) a protectible right 2) an inadequate remedy at law 3) a likelihood of success on the merits, and sometimes 4) a balancing of harms.  Potential defenses are 1) waiver 2) laches 3) impossibility 4) estoppel 5) unconscionability 6) impracticability 7) unclean hands and 8) duress. See Equitable Relief: TROs to Permanent Injunctions, www.acc.com/chapters/chic/upload/Holland-Knight-_-Material-1.pdf.

The Michigan State website provides a plethora of information regarding companion animal issues. You will find the cite to the article, Detailed Discussion: Knick-Knack, Paddy-Whack, Give the Dog a Home? Custody Determination of Companion Animals Upon Guardian Divorce, by Tabby T. McLain.  I am including cites to the cases he discusses, but note that they are not Illinois cases for the most part. Just as parents share custody of their children or have scheduled visitation time, some parties have argued for such a solution regarding their companion animals. “In a divorce action, there is no requirement that the joint ownership of property by the parties be abolished and that title be vested in only one spouse.” Clarke v. Clarke, 414 So.2d 121, 124 (Ala.Civ.App.1984) quoting Coffelt. See Coffelt v. Coffelt, 390 So.2d 652, (Ala.Civ.App. 1980)   The parties jointly own a lot which is adjacent to the home of the parties. The judgment did not mention the lot. Therefore, each party presently retains the same right, title, claim or interest therein which they were granted by the conveyance to them. When the trial judge did not alter ownership, that, in and of itself, disposed of the issue.

In a divorce action, there is no requirement that the joint ownership of property by the parties be abolished and that title be vested in only one spouse. In such cases, an equitable and open division of jointly-owned property might well be no division thereof with the title to that particular property being left undisturbed by the judgment. It is important to consider that one of the goals of property division in divorce is final separation of the parties. (Lee R. Russ, Annotation, Divorce: Equitable Distribution Doctrine, 41 A.L.R.4^th 481 2(a) 1985)

Now, what if the companion animal were titled in both names and it was not mentioned at the time of the entry of Judgment? You would have the same right, title, claim or interest therein which you had been granted by the titling of the companion animal.

Courts often reject requests for shared custody or visitation of companion animals, citing reasoning such as a lack of statutory authority to support shared custody of personal property, DeSanctis v. Pritchard, 803 A.2d 230, 232 (Pa.Super.Ct. 2002), appeal denied, 818 A.2d 504 (Pa. 2003) hesitation to “open the floodgates” or judicial economy, Bennett v. Bennett, 655 So.2d 109, 110 (Fla.Dist.Ct.App. 1995) and the problems that would be presented in attempting to enforce such a decree (consider methods of enforcement and which agency would take responsibility for ensuring proper participation by the parties). Id. at 110-11.

Courts are also required to enforce visitation orders (through an injunction or restraining order, but not through damages, 27C C.J.S. Divorce Sec. 1043 (2009).  See Eller v. Eller, 524 N.Y.S.2d 93 (N.Y.App.Div.2d Dept. 1988) and sometimes also by suspending the violating parent’s visitation rights 27C C.J.S. Divorce Sec. 1044 (2009) See Robbins v. Robbins, 460 So.2d 1355, 1357 (Ala.Civ.App. 1984) involving children, 27C C.J.S. Divorce Sec. 1042 (2009). See Hartzell v. Norman T.L., 629 N.E.2d 1292, 1295 (Ind.Ct.App. 1994) which may add to judges’ hesitancy to create such an order for a companion animal, considering the complications required enforcement would effect.

1. MEDIATED AGREEMENTS

I have attached language for a mediated agreement that the parties can put together, either to be used as part of the divorce agreement or on its own. If the court were to award possession of the pet to either party, pending their agreement about visitation, it is quite likely that the possessing party may not use all resorts to fashion an appropriate visitation agreement with the non-possessory party. A mediated agreement would, of course, be most helpful.

The following cases illustrate the courts reluctance to get involved in pet disputes and the court’s approval of appropriate language about the pet agreement in the Marital Settlement Agreement.

For example, in Sullivan v. Ringland, 376 A.2d 130, 131 (N.H. 1977), a couple owned a dog jointly at the time of their divorce, which should have classified the dog as divisible property.   Instead of awaiting the court’s decree as to custody of the dog, the husband gave it away to a friend; the court refused to proceed with the wife’s replevin action. Id.  Although some courts have successfully incorporated such an agreement into the divorce decree, many courts adopting this approach have subsequently had to modify the order.   Some couples adamant upon this approach but rejected by the court due to lack of legal authority, have been successful in drawing up agreements for custody and visitation outside of court, Pauline Askin, Forget the Cutlery! Its Pets Making Divorces Bitter, Reuters, Apr. 24, 2008, leaving contractual remedies available.

• InJuelfs v. Gough, 41 P.3d 593 (Alaska 2002), the husband and wife had agreed to shared ownership of their dog, which the lower court incorporated into its order.   Based on danger the dog faced by other dogs in the wife’s home and increased contention between the parties, the lower court next gave the husband custody with an order for the wife’s visitation, and finally awarded sole custody to the husband. at 595.  The state’s Supreme Court affirmed the modified order, stating that, “The arrangement between Julie and Stephen assumed a set of facts, namely, cooperation between them, that proved not to exist, requiring judicial intervention.”Id. at 597.
• A lively case, that of Lanier v. Lanier in Pulaski, Tennessee, involved a wife arguing for custody of a divorced couple’s dog based on evidence that she had kept him away from “ill-bred bitches,” ensured that he attend a weekly ladies’ Bible class, and prevented others from drinking alcohol in his presence; the husband argued for custody based on the facts that he had taught the dog numerous tricks, including to ride on the back of his motorcycle, and had himself refrained from drinking beer in front of the dog. Jim T. Hamilton, Dog Custody Case Attracts Nationwide Attention, in Tales From Tennessee Lawyers 180-81 (William Montel ed. 2005) The judge granted joint custody of the dog, ordering a switch in custody every six months (an order the wife violated by moving to Texas); for this case, the judge received national attention, including a segment on the television program 20/20. Id. at 181-182.
• In Bennett v. Bennett, supra, the trial court awarded the wife visitation of the dog, but the appellate court overturned the order based on the fact that the trial court lacked authority to order visitation with personal property, and remanded that the dog be allocated according to the state’s equitable distribution doctrine.   The court there further illuminated its holding with comments that it was concerned with judicial economy: “Determinations as to custody and visitation lead to continuing enforcement and supervision problems (as evidenced by the instant case).   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 with animals.” 
• In Desanctis v. Pritchard, 2990 EA 2001, 2002 Pennsylvania Sup. Ct., July 5, 2002 the trial court dismissed a couple’s complaint asking it to enforce a settlement agreement that provided for shared custody of the dog, and the appellate court upheld the dismissal with comments that “[a]ppellant is seeking an arrangement analogous, in law, to a visitation schedule for a table or lamp,” and that “any terms set forth in the [a]greement are void to the extent that they attempt to award custodial visitation with or shared custody of personal property.” Id.
• The court in Nuzzaci v. Nuzzaci, CN94-10771, 1995 WL783006 (De.Fam.Ct. Ap. 19, 1995), refused to sign a stipulation and order (prepared by the parties and signed by each of them and their attorneys) concerning visitation of the divorcing couple’s dog, stating that the court can only award the dog in its entirety to one party or the other, advising the couple to come to their own agreement, and reasoning that the court has no jurisdiction in the matter and further no way to side with one party or the other in the event of a future dispute.
• The court bestowed special status upon companion animals in divorce proceedings in Arrington v. Arrington  613 S.W.2d 565, 569 (Tex.Civ.App. 1981), classifying them as personal property but for which visitation should be allowed. Arrington agreed to Mrs. Arrington’s custody of the dog if he could have reasonable visitation. He does not complain of lack of visitation; only that he was not appointed managing conservator. We overrule point of error no. 7 with the hope that both Arringtons will continue to enjoy the companionship of Bonnie Lou for years to come within the guidelines set by the trial court. We are sure there is enough love in that little canine heart to “go around”. Love is not a commodity that can be bought and sold or decreed. It should be shared and not argued about.
• While the wife retained primary custody of the divorcing couple’s dog in the caseIn re Marriage of Fore, “the husband was granted access ‘with/to Rudy during the first seven days of every month.’   If the wife intended to board Rudy for any reason she was required to give the husband ‘the opportunity to spend the additional time with Rudy rather than putting him in a kennel.’” Rebecca J. Huss, Separation, Custody, and Estae Planning Issues Relating to Companion Animals, 74 U.Colo.L.Rev. 181 n.282 (Winter 2003) (citing Dickson v. Dickson, No. 94-1072 (Ark.Garland County Ch.Ct. Oct. 14, 1994)(also citing IRMO Fore, No. DW 243974 (Minn.Dist.Ct. Nov. 9, 2000).  This arrangement was unsuccessful, resulting in “an ex parte order requiring the county sheriff to pick up Rudy from the husband and return him to the wife.” Fore,
• “Just as with visitation schedules with children, people can also structure their visitation with pets to occur during a block of time during the year.  In Assal v. Barwick, 164421 (Md.Cir.Ct. Dec. 3, 1999) the husband was given a thirty day visitation period during each summer.”
• In the case In re Marriage of Tevis-Bleich, 939 P.2d 966 (Kan.Ct.App. 1997), the couple had agreed to a divorce settlement granting the husband visitation of their dog, which agreement the court incorporated into its order.   The wife later sought to have that provision removed, but the trial court stated that it lacked jurisdiction for such a modification, which the appellate court affirmed, leaving visitation intact.
• In Fitch v. Eiseman, S-9322, 2000 WL 34545801, at *1, *2 (Alaska Apr. 19, 2000), the trial court incorporated into the divorce decree the couple’s agreement for the dogs to remain with the children, which involved travel between the parties’ homes as part of the children’s shared custody agreement; when the wife failed to abide by the agreement, the state Supreme Court remanded the matter to the trial court to determine sole ownership by one of the parties.
• The issue and litigation over pet custody has gone so far that a Virginia woman, Jennifer Kidnell, had launched the petcustody.com website. When you visit the site, you can purchase addendums to separation or divorce for parties who have animal companions (formally known as “pets”), which parties are encouraged to give to their attorneys. That document would establish rights for each companion and establish criteria for resolving custody of the animal companion during a separation or divorce.
• In spite of the Judge’s decision, the Houseman case is of special attention today, as it employed the concept of specific performance and oral agreements. Houseman v. Dare, 405 N.J. Super 538 (App. Div. 2009).  In the Houseman case, a couple that had been dating bought a pedigree pug dog, which they named Dexter, together. The dog cost $1,500. After significant time had passed that the dog became accustomed to both parties, the couple decided to break-up. Houseman wound up taking the dog. A few months after Houseman had taken the dog, she decided to go on vacation and left the dog with Dare. When Houseman returned from her vacation, Dare refused to give her back the dog. Houseman then filed suit. The trial court judge awarded Houseman the sum of $1,500, for the value of the dog. However, this was not enough for Houseman; she wanted her dog back, not just the money it cost to initially purchase him. She appealed to the Appellate Court of New Jersey.

The issue before the court was whether specific performance was appropriate with regard to the parties’ verbal agreement that Dare would return the dog to Houseman upon her return from her vacation. The dog was to be considered personal property; however, he was to be distinguished from other forms of property because he had a “unique sentimental value.” The Appellate Court followed the contract principles of specific performance as a way to remedy the situation. The court held that awarding Houseman with monetary damages was not sufficient compensation for her loss.

Once remanded to the Trial Court, the court held that the dog would still be treated as an item of personal property and that Houseman and Dare would share joint possession over the dog. The Trial Court judge clearly articulated that a best interest standard was not to be followed and that the idea of pet custody was not to be touched.

Good Luck