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Going to the Dogs

Will Medlin addresses legal issues surrounding ownership of pets in divorce This article originally appeared in Family Forum, a newsletter published by the Family Law Section of the North Carolina Bar Association. 7/31/2015

by William T. Medlin, IV

As a family law attorney and a dog lover, I know first-hand how important dogs are becoming to people. When I was a child, most dogs were outdoor pets, at least during the day. Now, however, dogs are pampered. They do not live outside. They do not even hang around outside while we are at work. Doggie daycare facilities abound (a Goggle search showed more than 15 doggie daycares in Charlotte). Dog walkers will come to your home to care for your pooch while you are at work. Mobile veterinarians will come to your home. Pet insurance is available. Companies provide dog waste services, coming to your home and cleaning up your yard with pooper scoopers. The list goes on and on. Dogs are not just pets; they are part of the family.

With this enhanced status, legal issues are sure to follow. I recently tried a "who-gets-the-dog" case in which an unmarried couple who adopted a dog together subsequently broke up. The adoption records listed only the boyfriend as owner. The girlfriend took the dog when she left, and the boyfriend later sued her for return of the dog, claiming the dog was his property. After a bench trial, the judge found that the parties had jointly decided to adopt a dog, adopted the dog together, named the dog together, listed both names on various veterinary records, and both contributed to the dog's needs - financially and otherwise. The judge concluded that the evidence rebutted the boyfriend's argument that the adoption records controlled ownership. The judge determined that the parties jointly owned the dog and neither had superior rights to the other. Therefore, the boyfriend's claims, whether classified as conversion or trespass to chattel, must fail and the dog could not be forcibly returned to the boyfriend.

As a professed dog guy, I believe that a best interest test should be applied in disputes between co-owners about pet ownership regardless of the marital status of the owners. I hazard a guess that about half of you reading this might feel the same way. When I have told people about my dog ownership trial, I have heard in equal measure: "I would do the same for my dog in a heartbeat; and "One of the litigants should just get a new dog."

The law lags behind my views, though. In North Carolina, as in most other jurisdictions, dogs are personal property, nothing more. Therefore, unless unmarried people adopt a dog together or one partner grants an ownership interest in the dog to the other partner, the original owner will have the only legitimate claim to the dog, despite the bond that might have formed between the other partner and the dog during the relationship. The problem can come in determining who owns the dog if parties dispute ownership.

The North Carolina appellate courts have apparently not addressed what it takes to prove ownership of dogs specifically, and dogs are not titled assets. Therefore, in predicting how North Carolina law may evolve, it is helpful to look at what other states have done and consider those positions in conjunction with North Carolina's basic view on personal property.

I found two leading views of dog ownership. In Illinois, documentary title of a dog is only prima facia evidence of ownership and can be rebutted by facts showing otherwise. Buczkowicz v. Lubin, 80 I1. App.3d. 200 (1980). In Louisiana, a dog is corporeal moveable, and ownership is presumed by possession. Terral v. I.ouisiana Farm Bureau Casualty Insurance Company, 892 So. 2d 732 (2005).

New York is an outlier. An appellate court in New York at least once made a determination that, while the lower court required return of a cat to the plaintiff, it would be best for all concerned to leave the almost-10-year-old cat with the defendants, as the cat had lived, prospered, loved and been loved by them for the four years before the decision and had a limited life expectancy. Raymond v. Lachmann, 264 A.D.2d. 340 (1999). This ruling was clarified by subsequent case law not to establish a best interest test in general, but remains important as it has acknowledged a change in the tide in pet ownership law, and other New York courts are apparently following suit by applying a "best for all concerned" standard with pets. Travis v. Murray, 42 Misc.3d 447 (2013).

The North Carolina Supreme Court has held that people generally own the property they possess, and possession is presumptive proof of ownership. Beaman v. Ward, 132 N.C. 68 (1903). That view falls in line with the Louisiana view of dogs; however, I posit that because dogs can have adoption documents, AKC or other registration forms, and so forth, the court might apply a presumption in favor of the documents or registration forms. Regardless of any presumption applied, the court will look at other evidence of ownership, so as a practical matter, the presumption in a case like this likely is not going to be impossible to overcome.

While dogs are personal property, they are also living, breathing, thinking and feeling mammals. Your fax machine is personal property just like your dog. You can kick your fax machine, but you cannot kick your dog. N.C.G.S. § 14-360. Still, North Carolina law does not treat dogs the way most dog owners currently treat dogs. Dogs are part of the family unit, whatever form the family unit takes, and deserve better than to be treated the same as a television set. North Carolina has taken a step in the right direction in Chapter 50B. Parties in a 50B proceeding can be awarded possession of pets, and a provision prohibiting cruel treatment or abuse of a pet can be included in a domestic violence protective order.

Judges typically have more leeway in distributing property in equitable distribution cases than in ownership cases between unmarried people. While courts of most states have been extremely hesitant to allow a true best interest test for animals even in property division proceedings, some appellate courts have allowed a best interest determination not labelled as such. For example, the Tennessee Court of Appeals found no error in the trial court's consideration of dogs' needs and parties' ability to care for them. Baggett v. Baggett, 422 S.W.3d. 537 (2013). As referenced above, the New York courts are apparently open to a "best for all concerned" standard. Travis v. Murray, 42 Misc.3d 44 (2013). The Vermont courts can consider the welfare of the pet and the emotional connection between the pet and each spouse. Hament v. Baker, 2014 VT 39 (2014).

Under North Carolina law, as long as the trial judge identifies the dog, classifies it and values it, the judge should be able to use his or her discretion in determining which spouse receives it, assuming of course that it is classified as marital property. In my opinion, that determination should include an analysis of which spouse is more strongly bonded with the dog, which spouse provided more or better care during the marriage, which spouse can provide better care prospectively, and so forth; in essence a best interest test, although it would not be wise to call it a best interest test in the judgment.

To sum it up, if you have a dispute over distribution of a pet in an equitable distribution case, make the same best interest argument you would make in a custody case, but do not call it a best interest test. If you want to adopt a pet and are unmarried but in a relationship with somebody who might be spending a lot of time/energy/money with and on the pet, draft a contract that designates rights upon break-up, and if your partner will not sign it, dump him or her. Your pet will probably love you more than your partner anyway. If you end a relationship in which you and your partner have adopted a pet together, take the pet with you when you leave and call me.

William T. Medlin IV practices with Horack, Talley, Pharr & Lowndes, P.A. in Charlotte. His practice is dedicated to family law, with emphasis on equitable distribution, child custody, child support, alimony, post-separation support, step-parent adoptions and post-judgment practice including contempt proceedings. Will practices in Mecklenburg, Gaston and the surrounding counties. Will is certified as a family law specialist by the North Carolina State Bar Board of Legal Specialization.

Family Forum, Vol. 35, No. 4, summer 2015



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