top

TBJ OCTOBER 2021

Pets in Family Law

Who gets the dog in a divorce?

Written by Mary Evelyn McNamara


This article will provide an overview of the law in Texas regarding pets in family law cases and touch on the recent enactment of pet custody statutes in a handful of other states. The article will also review several Texas appellate opinions regarding pets in divorces, including how the courts addressed disputes about the dogs Bonnie Lou, Clementine, Lucky, and Sassy, and the horse Pflamenco.

In Texas, the primary consideration in child custody cases is the best interest of the child.1 But a pet in Texas is personal property not subject to a best interest determination. This stems from the 1897 U.S. Supreme Court holding that dogs are personal property.2 This has since been the prevailing law throughout the U.S., including Texas.3 In the 1981 Arrington v. Arrington divorce case, the husband sought to be designated managing conservator of the parties’ dog, Bonnie Lou, although he agreed that his wife would have custody of the dog.4 The appellate court opined that “Bonnie Lou is a very fortunate little dog with two humans to shower upon her attentions and genuine love frequently not received by human children from their divorced parents.”5 Nevertheless, the appellate court determined that, because a dog is personal property, it is not subject to managing conservatorship, adding that “[d]ogs involved in divorce cases are luckier than children in divorce cases in that they do not have to be treated as humans. The office of ‘managing conservator’ was created for the benefit of human children, not canine.”6 Note, though, that pets can be protected in Texas cases involving family violence. When issuing a protective order, a court may prohibit a party from removing a pet, companion animal, or assistance animal from the possession or care of a person named in the order.7

In a few states, a court may take into account the best interest of a pet in a divorce case and even order shared custody. Alaska, in 2016, was the first state to enact a pet custody law.8 An Illinois law followed in 2018,9 then a California law went into effect in 2019.10 New Hampshire also enacted a pet custody law in 2019, which includes that although a pet is tangible property, in a divorce case, a court “shall address the care and ownership of the parties’ animals, taking into consideration the animals’ wellbeing.”11 At the time of the submission of this article in July 2021, “best interest” of pet legislation in New York has passed both legislative chambers and is pending approval or veto by the governor.12 A pet custody bill in Rhode Island failed to get traction in the state’s 2021 legislative session.13

Although managing conservatorship of a pet is not available in a Texas divorce case, a court may determine whether a pet is community property (acquired during marriage) or separate property (owned before marriage or acquired by gift or inheritance), leading to the award of the pet to one spouse or the other in a disputed case. In the Calder v. Calder case, for example, the only issue at trial was the ownership of Clementine the Chihuahua.14 Because it was undisputed that Clementine was purchased before marriage, with circumstantial evidence supporting the wife’s claim that the dog was her separate property, Clementine was confirmed to the wife as her separate property.15 In the Schneider v. Schneider case, though, the appellate court disagreed with the trial court’s characterization of the dog, Lucky, as the wife’s separate property.16 The appellate court found that because neither spouse proved that Lucky was purchased with that spouse’s separate property funds, the most the evidence demonstrated was that they owned Lucky as tenants in common.17 For this and other reasons, Schneider was reversed and remanded for a new property division.18

In re Hutcherson, a procedurally complex case, involved the ownership of Sassy, a Pomeranian/Yorkie mix.19 During trial, the wife testified that Sassy was her property. The husband disputed this claim, testifying that the dog belonged to his parents and that he had supporting documentation. The trial court offered to withhold its ruling until the husband provided the paperwork, but the husband said he wanted to be divorced. The judge awarded the dog to the wife as community property, after which the husband filed a motion for new trial. At the hearing on his motion for new trial, the husband presented evidence that the wife, in writing, gave up ownership of the dog to the husband’s parents. The trial court denied the motion for new trial, and the husband appealed. The appellate court reversed and remanded, finding the dog neither separate nor community property, and also reversed because the approximate $50 value of the dog materially affected the division of the modest community estate.20

Even if the community or separate character of a pet is not in dispute, divorcing couples may still disagree about who should keep the pet. In the Oldenburg v. Oldenburg case, it was undisputed that the shih tzu (unnamed in the opinion) was community property; the dispute was as to who would be awarded the dog.21 At trial, there was conflicting testimony about who primarily cared for the dog. The husband admitted that he may have written letters to the wife saying he would never take the dog away from her, and the wife admitted that she did not know who took care of the dog while she was confined in a county jail for 40 days for assault.22 The trial court awarded the dog to the wife, which the appellate court affirmed. Despite the conflicting testimony, it was undisputed that the wife selected the dog, adopted it, brought it home, and had at least a part in its care.23

As evidenced in Hutcherson, the value of a pet can be an issue in a divorce case. A pet’s value, as personal property, is limited to the market or actual value of the animal; non-economic damages for loss of a pet are not available.24 In Lloyd v. Hensley, after the divorce was granted, the husband withheld the wife’s German shepherd (unnamed in the opinion), determined to be her separate property, and other personal property awarded to the wife.25 Within 18 months after the divorce, the wife filed three motions seeking orders for the husband to give her property to her. At the hearing on the wife’s second enforcement motion, the trial court ordered a supersedeas bond of $650 for the value of the dog.26 In Williams v. Williams, the husband asserted that the trial court erred in confirming the horse, Pflamenco, as the wife’s separate property.27 The appellate court agreed and determined that Pflamenco was community property. Because there was no evidence of the horse’s value, however, the mischaracterization had no more than a de minimus effect on the division of the community estate.28

Given that a pet is treated as personal property in a contested divorce case, a couple may avoid a pet “custody” dispute with a prenuptial agreement or post-marital agreement that includes who would get a pet in the event of a divorce and could even include a pet visitation agreement. But with pet custody legislation enacted in four states and pending in another, will Texas courts one day be tasked with determining the best interest of pets in divorce cases?TBJ

 

Notes
1. Tex. Fam. Code § 153.002.
2. Sentell v. New Orleans & Carrollton R.R. Co., 166 U.S. 698 (1897) (also opining that while “the higher breeds” of dog “rank among the noblest representatives of the animal kingdom,” other dogs are “little better than a public nuisance”).
3. Strickland v. Medlen, 397 S.W.3d 184, 185, 192 (Tex. 2013) (recognizing pet dogs as a “special form of personal property”).
4. Arrington v. Arrington, 613 S.W.2d 565 (Tex. Civ. App.—Fort Worth Mar. 16, 1981, no writ).
5. Id. at 569.
6. Id.
7. Tex. Fam. Code § 85.021(1)(C).
8. Alaska Stat. § 25.24.160 (in divorce case, court may provide for joint ownership of pet, considering well-being of pet).
9. 750 Ill. Comp. Stat. 5/452, 5/501-503.
10. Cal. Fam. Code § 2605.
11. N.H. Rev. Stat. § 458:16-a(II-a).
12. S.B. S4248, 2021-2022 Leg., Reg. Sess. (N.Y. 2021); available at nysenate.gov/legislation/bills/2021/S4248, last visited July 14, 2021.
13. AKC Government Relations, Update: Rhode Island Adjourns—No Concerning Dog Bills Adopted (Jul. 7, 2021); available at akc.org/legislative-alerts/update-rhode-island-adjourns-no-concerning-dog-bills-adopted, last visited July 14, 2021.
14. Calder v. Calder, No. 03-09-00614-CV (Tex. App.—Austin Aug. 25, 2010, no pet.) (mem. op.).
15. Id. at *5.
16. Schneider v. Schneider, No. 02-02-00075-CV (Tex. App.—Fort Worth Feb. 12, 2004, pet. dism’d) (mem. op.).
17. Id. at *14.
18. Id. at *25.
19. In re Hutcherson, 12-18-00345-CV (Tex. App.—Tyler Sept. 27, 2019) (mem. op.).
20. Id. at **6-7.
21. Oldenburg v. Oldenburg, No. 02-11-00227-CV (Tex. App.—Fort Worth Mar. 15, 2012, no pet.).
22. Id. at **2-3.
23. Id. at *5.
24. Strickland, 397 S.W.3d at 198; see also Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 568 (Tex. App.—Austin 2004, no pet.) (affirming replacement and out-of-pocket costs for loss of dog, Licorice, but reversing mental anguish and loss of companionship awards).
25. Lloyd v. Hensley, No. 07-18-00224-CV (Tex. App.—Amarillo Feb. 10, 2020, no pet.) (mem. op.).
26. Id. at *6.
27. Williams v. Williams, 02-08-00033-CV (Tex. App.—Fort Worth Dec. 11, 2008, no pet.) (mem. op.).
28. Id. at **13-15.



Mary McNamaraMARY EVELYN McNAMARA
is a partner in Rivers McNamara in Austin. She is certified in family law by the Texas Board of Legal Specialization and is an American Academy of Matrimonial Lawyers fellow. McNamara’s practice focuses on divorces and other family law cases involving complex property and children’s issues, as well as family law appeals.

{Back to top}

We use cookies to analyze our traffic and enhance functionality. More Information agree