On March 10, 2009, the Appellate Division issued a precedential (reported) decision on the issue of the possession of a dog in the case of Houseman v. Dare.  To see the full text of the case, click here.

The parties were together for 13 years.  In 1999 they purchased a house together.  In 2000, they got engaged (but never married).  In 2003, they purchased a pedigree dog for $1,500.  Both parties were listed as the owners on the papers filed with the American Kennel Club.

In May 2006 Dare decided to end his relationship with Houseman. At that time, he wanted to stay in the house and purchase her interest in the property for $45,000 which was what he represented half of the equity to be. In June 2006, she signed a deed transferring her interest in the house to him.  When she vacated the residence in July 2006, Houseman took the dog and its paraphernalia with her. 

There seems to be little dispute that there was an oral agreement that Houseman was going to take the dog with her as her own when the parties separated.  However, thereafter, she allowed Dare to visit with the dog.  On one occasion in 2007 after watching the dog while Houseman was on vacation, he refused to give the dog back and the lawsuit ensued wherein she sought specific performance of their agreement that she keep the dog.  

Prior to trial, the court determined that pets are personal property that lack the unique value essential to an award of specific performance. As such, because Dare had possession of the dog, the Court awarded Houseman $1500 which was the stipulated intrinsic value of the dog.

Houseman appealed claiming that the pre-trial ruling was erroneous as a matter of law.  The Appellate Division agreed.

The decision was not based upon a determination of the best interests of the dog, as two amicus curiae (the Animal Legal Defense Fund and Lawyers in Defense of Animals) argued.  In fact, the court held that a court could not make such a determination.

Rather, the case came down to contract law.  The Appellate Division held:

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.  …

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." (Citations omitted)  That is so because money damages cannot compensate the injured party for the special subjective benefits he or she derives from possession.

The Court further noted that "…The special subjective value of personal property worthy of
recognition by a court of equity is sentiment explained by facts and circumstances — such as the party’s relationship with the donor or prior associations with the property — that give
rise to the special affection."

As such, the Court held "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 upon a relationship with the donor." 

As a result, the Court concluded that  the trial court erred by declining to consider the relevance of the oral agreement alleged on the ground that a pet is property and further, that agreements about property jointly held by cohabitants are material in actions concerning.  As such, they may be specifically enforced when that remedy is appropriate.

As noted in a post by me on October 27, 2008 entitled "Is Pet Custody and Support Upon Us",   there was a proposed bill in the New Jersey Assembly which would require a court to make orders respecting custody of  domestic companion animals in divorce upon request. To see that post, click here.  That bill has not yet been passed into law but if it does get passed, we will blog further.