Travis v. Murray

• Decision Date: 29 November 2013
• Citation: 42 Misc.3d 447,2013 N.Y. Slip Op. 23405,977 N.Y.S.2d 621
• Parties: Shannon Louise TRAVIS, Plaintiff, v. Trisha Bridget MURRAY, Defendant.
• Court: New York Supreme Court

42 Misc.3d 447

977 N.Y.S.2d 621

2013 N.Y. Slip Op. 23405

Shannon Louise TRAVIS, Plaintiff,

v.Trisha Bridget MURRAY, Defendant.

Supreme Court, New York County, New York.

Nov. 29, 2013.

Rhonda J. Panken, Esq., New York, for the Plaintiff.

Sherri Donovan, Esq., New York, for the Defendant.

MATTHEW F. COOPER, J.

People who love their dogs almost always love them forever. But with divorce rates at record highs, the same cannot always be said for those who marry. All too often, onetime happy spouses end up as decidedly unhappy litigants in divorce proceedings. And when those litigants own a dog, matrimonial judges are called upon more and more to decide what happens to the pet that each of the parties still loves and each of them still wants. This case concerns one such dog, a two and a half year-old miniature dachshund named Joey.

Joey finds himself in a tug-of-war between two spouses in the midst of a divorce proceeding to end their extremely short and childless marriage. In fact, the only issue in this case is what will become of the parties' beloved pet. Plaintiff, Shannon Louise Travis (plaintiff), alleges that the defendant, Trisha Bridget Murray (defendant), wrongfully took Joey at the time the couple separated. Consequently, by way of this motion, she seeks not only an order requiring defendant to return Joey to her, but an order awarding her what she terms “sole residential custody” of the dog.

Background

The first divorce case I heard involving a dog was a post-judgment proceeding in 2010. The dog in question, Otis, was a fifteen year-old yellow Labrador retriever. The ex-wife alleged that her ex-husband had taken Otis from her home without her permission and had refused her and their children access to him. As a result, she filed a motion seeking an order giving her “full custody” of the dog. During the same time period, the February 1, 2010 issue of New York magazine hit the newsstand. The magazine's cover featured a photograph of a Boston terrier staring up with a face exhibiting equal parts bemusement and bewilderment. Like many of us, the dog was no doubt considering the question that appeared next to the photograph: “A Dog Is Not a Human Being Right?”

With its finger on the pulse of our collective New York psyche, the issue's lead story, “The Rise of Dog Identity Politics,” vividly described a canine-centric city where dogs play an ever more important role in our emotional lives (John Homans, The Rise of Dog Identity Politics, New York, Feb. 1, 2010 at 20). It detailed many aspects of what the writer referred to as the “humanification” of our pets, from the foolishness of high-end doggie boutiques to the morality of spending untold sums of money to prolong a dog's naturally limited life with extensive medical procedures. I intended to discuss the story in my Otis decision.

However, before that decision was complete, the ex-wife, for reasons that included Otis's advanced age and failing health, withdrew her motion. Sadly, Otis died a few months later, thus in his own way resolving once and for all the strife that had surrounded him during the last year of his life. Because Joey, the dog at issue here, is so young, with a life span of at least another 10 years, it is unlikely that the battle being fought over him will be abated by death, as was the case with Otis. Rather, all indications are that this court will be called upon to decide with whom Joey will spend the rest of his years.

Coincidently, with a new canine case before me, another of New York City's major publications ran an opinion piece examining the unique relationship between dogs and people. The piece, “Dogs Are People, Too,” which appeared in the Sunday Review section of the New York Times, urges that dogs be granted what the author calls “personhood.” In taking this position, the author, a neuroscientist, relies on M.R.I. scans that he contends show dogs to have a range of emotions similar to those of human beings (Gregory Berns, Dogs Are People, Too, New York Times, Oct. 6, 2013, § SR at 5, col. 1).

The earlier New York magazine story and the more recent Times opinion piece highlight the distinct trend towards looking at dogs as being far more than property, a trend that has only intensified over the last few years. Whereas the New York story looked at “dog humanization” from a slightly ironic perspective, the Times piece, with its insistence upon dog-personhood, is quite serious in its call for dogs to be treated much the same way we treat people.

Neither of the two articles mention dog custody. In fact, it appears that the last time the subject was discussed in the New York press was on August 22, 1999, when the Times ran a story in the Style Section entitled “After the Breakup, Here Comes the Joint–Custody Pet” (Alexandra Zissu, After the Breakup, Here Comes the Joint–Custody Pet, New York Times, Aug. 22, 1999, § S). What is even more surprising, considering New Yorkers' dedication to their dogs and their propensity for litigation, is that there are so few reported cases from the courts of this state dealing with pet custody in general and no cases at all making a final award of a pet to either side in the context of a divorce. As a result, courts are left with little direction with respect to questions surrounding dog custody: Can there be such a thing as “custody” of a canine? If so, how is a determination to be made? And if not, how does the court decide what happens when a couple divorces and each of them wants the beloved dog as her own?

Facts and Parties' Contentions

Plaintiff and defendant were married on October 12, 2012. Before their marriage, they resided in the same Upper Manhattan apartment that they continued to occupy after the marriage. On February 6, 2011, while the parties were living together but before they married, plaintiff bought Joey from a pet store. At the time of his purchase, Joey was a ten week-old puppy.

On June 11, 2013, defendant moved out of the marital apartment while plaintiff was away from New York on a business trip. Defendant took some furniture and personal possessions with her. She also took Joey. According to plaintiff, defendant first refused to tell her where Joey was but then later claimed that she had lost him while walking in Central Park.

Plaintiff filed for divorce on July 11, 2013. Two months after the commencement of the divorce, plaintiff brought this motion. In her application, plaintiff requested that defendant be directed to immediately account for Joey's whereabouts since the date he was removed from the marital apartment, that he be returned to plaintiff's “care and custody,” and that she be granted an “order of sole residential custody of her dog.” Once the motion was made, defendant revealed that Joey was never lost in Central Park, but instead was living with her mother in Freeport, Maine. Thus, this leaves the last two prongs of the motion to be resolved.

Plaintiff argues that Joey is her property because she bought him with her own funds prior to the marriage. She alleges that defendant, in effect, stole the dog when she removed him from the marital apartment and subsequently relocated him to Maine. Moreover, asserting that she “was the one who cared for and financially supported Joey on a primary basis,” plaintiff contends that it is in Joey's “best interests” that he be returned to her “sole care and custody.”

Defendant opposes the motion in all respects. In so doing, she states that Joey was a gift to her from plaintiff as a consolation for her having to give away her cat at plaintiff's insistence. Defendant further contends that she shared financial responsibility for the dog, that she “attended to all of Joey's emotional, practical, and logistical needs,” and that “Joey's bed was next to [her] side of the marital bed.” Finally, defendant submits that it is in Joey's “best interests” not to be with plaintiff, but instead to be with her mother in Maine, where defendant can see him regularly and where he is “healthy, safe and happy.”

Thus, both sides invoke two different approaches in determining which one should be awarded Joey. The first approach is the traditional property analysis, with plaintiff maintaining that Joey is her property by virtue of having bought him and defendant maintaining that the dog is hers as a result of plaintiff having gifted him to her. The second approach is the custody analysis, with each side calling into play such concepts as nurturing, emotional needs, happiness and, above all, best interests—concepts that are firmly rooted in child custody analyses.

Discussion

Whatever one may think of treating our dogs like people—whether it is called “humanification,” “personhood,” or some other means of endowing dogs with humanlike qualities—it is impossible to deny the place they have in our hearts, minds and imaginations. From Odysseus's ever-faithful dog Argo in Homer's The Odyssey, to the All–American collie Lassie, to the Jetsons' futuristic canine Astro, to Dorothy's little dog Toto too, they are beloved figures in literature, movies and television. And in real life, where would we be without St. Bernards and their casks of brandy in the Alps, Pavlov's conditioned-response subjects, Balto the hero sled-dog racing to the rescue in the Arctic, or, of course, the Nixon daughters' little cocker spaniel Checkers? ¹

It is also obvious that dogs, and household pets in general, receive an ever increasing amount of our time, attention and money.² Where once a dog was considered a nice accompaniment to a family unit, it is now seen as an actual member of that family, vying for importance alongside children. The depth of this familial attachment is evidenced by statistics cited in “Bones of Contention: Custody of Family Pets,” which appeared in the 2006 Journal of the American Academy of Matrimonial Lawyers (Ann Hartwell Britton, Bones of Contention: Custody of Family Pets, 20 J. Am. Acad. Matrim. Law 1 [2006] ). These statistics show...